The Eighty Percent and Twenty Percent Solutions to Nuclear Proliferation

I. INTRODUCTION: NON- PROLIFERATI ON AT THE CROSSROADS Nuclear non-proliferation issues abound in the news. Of note, the U.S. Air Force has been reprimanded for lax nuclear security measures,1 Iran is accused of trying to build a bomb,2 and experts predict that the forty-year-old Treaty on the Non-Proliferation of Nuclear Weapons (NPT)3 is failing.4 These nuclear proliferation fears correspond to the issues of loose nukes, nations developing nuclear arms, and inability of the international community to control nuclear non-proliferation. Whether or not these fears become reality depends on the effectiveness of the international nuclear non-proliferation system. Prognostications tend towards failure. In a worst-case scenario, we could find ourselves living in a world with nuclear terrorists, nuclear wars, and no international organizations able to control the chaos.5 To avert the nuclear parade of horrors, most academics and politicians agree diat something must be done, but solving these problems is difficult due to political differences inherent in the issues of security, energy, and national interest. Some think that the current mechanisms of non-proliferation are broken. They often advocate either for abandoning the system in favor of national action or for strengthening the system. This discussion, however, focuses on the NPT and neglects existent ad hoc approaches to non-proliferation. These ad hoc mechanisms developed to fill the formal mechanisms' gaps in capability, and tiiey are part of the nuclear non-proliferation solution. This Comment argues that the formal mechanisms of nonproliferation are not broken, but that even when they are most effective they do not prevent all forms of proliferation. While the formal mechanisms may be strengthened, they will essentially remain the eighty percent solution6 to nuclear non-proliferation, because the irreconcilable political interests of major world nations and the existence of rogue state and non-state actors necessitates an ad hoc approach. Informal methods currently in use, multilateral and bilateral negotiations and preemptive strikes, supply the remaining twenty percent solution to nuclear non-proliferation. The undesirable legal and political effects of ad hoc action do not justify attempts to eliminate them. This Comment proceeds in Part II by examining the nonproliferation problem, viewing the problem through historical and political contexts. Part III examines the current mechanisms for controlling proliferation and their legal doctrines. The oft pointed-to mechanism of non-proliferation is the NPT, but it is only one instrument in an array of instruments available to enforce the goal of non-proliferation. The formal mechanisms are here characterized as 1) the enforcement provisions of the Nuclear Non-Proliferation Treaty as embodied by the International Atomic Energy Agency; 2) action taken by the U.N. Security Council; and 3) multilateral organizations.7 In contrast, informal mechanisms include bilateral and multilateral negotiations engaged in on an ad hoc basis by interested parties and preemptive strikes (often unilateral). These methods, collectively, address the non-proliferation problem, and should be considered in a holistic discussion of nuclear nonproliferation. Part IV examines the relationship between the formal and informal mechanisms, evaluating the political constraints that would limit a mandatory regime and examining die legality of ad hoc efforts under international law. This part also justifies unilateral action to prevent nuclear proliferation with the doctrine of humanitarian intervention and posits diat preemptive action is legal under international law. Although the formal mechanisms are unable to control some aspects of the proliferation problem, ad hoc mechanisms adequately fill these system gaps. The international community should recognize their value and not act to prevent them when they are appropriate. …