A Duty to Prevent

Lee Feinstein and Anne-Marie Slaughter

From Foreign Affairs, January/February 2004

Summary:  The unprecedented threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime. The international community has a duty to prevent security disasters as well as humanitarian ones -- even at the price of violating sovereignty.

Lee Feinstein is Acting Director of the Washington Program of the Council on Foreign Relations. Anne-Marie Slaughter is Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University and President of the American Society of International Law.

The main international nonproliferation agreements stigmatize weapons or certain categories of weapons rather than regimes or leaders. Aiming at the weapons themselves rather than the states or regimes that develop or acquire them has been judged to be a more objective basis for international action. The problem with this approach is that its opening proposition is to treat North Korea as if it were Norway. This flaw has exposed the nonproliferation regime to abuse by determined and defiant regimes, especially those headed by dictatorial rulers. It is also the weakness that makes the NPT and, more broadly, the nonproliferation system vulnerable to charges that the only ones restrained by nonproliferation agreements are those nations that do not need restraining.

In truth, the NPT -- the cornerstone of international efforts to prevent the spread of WMD -- has helped stanch nuclear proliferation in the overwhelming majority of cases. It has also provided a pathway for states seeking to terminate their nuclear programs. But the NPT has not prevented a small group of determined states, including Iran, Iraq, and North Korea, from traveling down the nuclear path. These states, sometimes operating within the scope of the treaty, managed to develop advanced nuclear programs and, in the case of North Korea, the material for actually producing nuclear weapons.

How did this happen? In the name of fairness and due process, the NPT does not make it possible to meaningfully distinguish parties to the treaty that are in good standing from parties with clear nuclear designs. Parties may take action against a state that breaches the treaty only when clear evidence of the breach emerges -- but by then their options may be limited and it may already be too late. Mohammed ElBaradei, director-general of the International Atomic Energy Agency, summarized the treaty's approach when he said recently of planned inspections into a clandestine uranium enrichment program in Tehran, "Let me point out here that what we do in Iran is what we do everywhere else. We treat Iran exactly as we treat all other member states." Of course, the agreement Iran struck with France, Germany, and the United Kingdom last October to halt its uranium-enrichment activities is a welcome development. But it comes too late. At this stage, international pressure might succeed in freezing Iran's existing program, but it is unlikely to reverse it.

Just as effective gun control in the United States requires both outlawing the most dangerous weapons and ammunition and applying more stringent controls on citizens with criminal records and other risk factors, an effective international nonproliferation campaign must target both WMD and international actors with suspect intentions. It must be based, in other words, on the recognition that leaders without internal checks on their power, or who are sponsors of terror, and who seek to acquire WMD are a unique threat. An international duty to prevent such regimes from acquiring WMD capabilities would allow preventive actions against them, such as bars on their participation in civilian nuclear programs, which have provided cover for illegal weapons programs in Iraq and Iran.

The recent agreement with Iran, though overdue, indicates a growing recognition that the one-size-fits-all approach articulated by ElBaradei is limited and that the legal rules on nonproliferation are evolving in the direction of a duty to prevent. The provisional agreement treats Iran very differently from "all other ... states." It recognizes that regimes such as Iran's, because they sponsor terrorism, repress democracy, and have clear nuclear designs, are not entitled to the same rights as other NPT members. It also demonstrates the range of preventive options available to deal with proliferation dangers.

EARLY ACTION

Like intervention for humanitarian purposes, international action to counter WMD proliferation can take the form of diplomatic pressure or incentives, economic measures, or coercive action, often in combination. It can also incorporate new strategies, such as indicting individual leaders before the International Criminal Court or a special court for crimes against humanity, grave war crimes, or genocide when such charges apply, as they certainly would have with Saddam Hussein and possibly with Kim Jong Il. Still another alternative could be support for nonviolent resistance movements that are dedicated to democratizing their governments.

To be effective, incentives must be tailored to a state's particular needs. Where a state seeks WMD for their perceived deterrent value, security assurances by a nation or group of nations, formally organized or not, may make adequate alternatives. Where a state trades in sensitive technologies in exchange for hard currency, economic incentives -- including assistance from international financial institutions, direct bilateral aid, and trade incentives -- may be more appropriate.

Coercive action may take the form of economic penalties, including measures targeted at the state's rulers, their close associates, and their families. Curbs on financial flows or on sensitive trade that provides financial support for a state's weapons programs, including a crackdown on black-market trade, can be a very effective brake. (Counterfeiting and the illegal drug trade are believed to support North Korea's WMD programs.) Coercive action can also include embargoes, informal or otherwise, to block the transfer of weapons or relevant technologies and material. The Bush administration's Proliferation Security Initiative, an 11-nation effort to stop the shipment of WMD, their delivery systems, and related materials at sea, by air, or on land, is a step in the right direction. The initiative is intended to prevent the transfer of nuclear weapons, weapons materials, and missiles, as well as trade in contraband that supports these weapons programs. France and Germany are participating, despite their opposition to the Iraq war, but not China and Russia, whose cooperation is critical to making it an effective system.