Survival: Global Politics and Strategy, vol. 51, no. 1, February–March 2009, pp. 119–142
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The basic technologies that underlie nuclear power were first developed during the Second World War by the United States for purely military purposes. Since then, extensive civilian research and the use of nuclear technologies for peaceful ends has not erased this military heritage. Almost all nuclear technology in use around the world today is ‘dual use’, able to contribute to the production of fuel for nuclear reactors or the explosive components of nuclear weapons. For this reason, there is serious concern that supposedly peaceful nuclear programmes are being used for, or could become, cover for the development of nuclear weapons.
The inherent ambiguity surrounding almost all nuclear technology complicates the control of nuclear energy. Under the terms of the Nuclear Non-Proliferation Treaty (NPT), non-nuclear-weapons states must declare all their nuclear facilities and activities and permit them to be safeguarded by the International Atomic Energy Agency (IAEA). To date all cases of non-compliance have involved states failing to declare nuclear facilities or activities, rather than diverting safeguarded nuclear material. In the last few years, for instance, clandestine nuclear activities have been uncovered in Egypt, Iran and South Korea (Republic of Korea), and strong evidence of a clandestine reactor in Syria has emerged. These discoveries have prompted debates, of varying intensity, about what, if any, action should be taken in response.
Given the dual-use nature of the technology involved, these debates have focused on intentions:were the clandestine activities for peaceful purposes or were they part of a nuclear-weapons programme? British, French and American diplomats regularly argue for tougher sanctions on Iran, for instance, on the basis that the country has not done enough to demonstrate that its intentions are benign. Other states oppose tougher sanctions, arguing that Iran’s intent to proliferate has not been proven. Similarly, the movement to refer South Korea to the United Nations Security Council in 2004 was blunted because most in the international community were content to give the Koreans the benefit of the doubt regarding their intentions.
The focus on intent in these debates is unsurprising. The notion that intent is relevant to enforcement decisions is familiar from domestic law: the reasons for a killing determine whether it constitutes murder or manslaughter, for instance. Extrapolating to international law, it certainly seems logical that a non-compliant state’s intentions should be central to the debate over the international community’s response.
Moreover, the importance of intent is supported by the standard interpretation of Article II of the NPT. This article contains the injunction on non-nuclear-weapons states ‘not to manufacture or otherwise acquire nuclear weapons’. During negotiations, the definition of the term ‘manufacture’ was contentious, but agreement was obtained on a set of criteria which state that ‘facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show non-compliance’. These so-called Foster Criteria suggest that if a state develops enrichment technology (clandestinely or otherwise) with the intention of using it to produce nuclear weapons, it has violated Article II...
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James M. Acton is an associate in the Nonproliferation Program at the Carnegie Endowment for International Peace in Washington DC. Previously, he was a lecturer in the Centre for Science and Security Studies, part of the Department of War Studies at King’s College London, where this work was partially undertaken. He is co-author of the recent Adelphi Paper Abolishing Nuclear Weapons.
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