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nuclear weapons counterproliferation
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Nuclear Weapons Counterproliferation:

A New Grand Bargain

Jack I. Garvey

1
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s
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You must not circulate this work in any other form
and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data

Garvey, Jack I.
Nuclear weapons counterproliferation : a new grand bargain / Jack I. Garvey.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-984127-1 ((hardback) : alk. paper)
1. Nuclear nonproliferation. I. Title.
KZ5675.G38 2013
327.1'747—dc23
2012033752

9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the
subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to
be current as of the time it was written. It is sold with the understanding that the publisher is not
engaged in rendering legal, accounting, or other professional services. If legal advice or other expert
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that the information has not been affected or changed by recent developments, traditional legal research
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(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com
 For Monica

This book was inspired by the vision of a better world and instruction in the skills needed to
achieve that world provided by my mentors, the late Professor Abram Chayes and Judge Hubert
L. Will. In writing this book, my aspiration has been to contribute to that more secure world.
That contribution was made possible also by the encouragement, support, and critical fortitude
of Dean Jeffrey Brand and Professor Jesse Markham, Erin Garvey, and Rafael Aguirre-Sacasa.
My thanks to the reference librarians of the University of San Francisco School of Law, espe-
cially Lee Ryan whose extraordinary talent and intellectual generosity were a consistent source
of support. Thanks to my research assistants, Amol Mehra, Emily Corrigan, Alison Britton-
Armes, Arash Yasrebi, and Brandon Clouse. Special thanks to my research assistant, Eric Sofge
who, after serving as platoon leader and company executive officer in Iraq, served the cause of a
safer world reflected in this book with similar dedication.
This page intentionally left blank
Contents

1. Introduction 1
A. The Need for a New Grand Bargain 1
B. The Old Grand Bargain Breakdown 10
i. The Goal of Nuclear Disarmament 10
ii. The Flawed Connection of Nuclear Disarmament and Counterproliferation 22
C. Legitimacy; The Challenge of Asymmetric Possession of Nuclear Weapons 29

2. Futility of Nuclear Weapons Risk Management in a Consensual Regime 34

A. Nuclear Terrorism 34
B. State-to-State Nuclear Weapons Risk 40
C. Risk Reduction by Consent 42

3. Security Council Mandate of Universal Standards 48

A. Global Legislation by the United Nations Security Council 48
i. The Security Council as Legislator 48
ii. The Legal Debate 53
iii. The Legal Debate Enlightened by Political Realism 57
a. Inconsistency with Treaty Rights and Obligations and Customary
International Law 59
b. “Threat to the Peace” 61
c. Proportionality 63
d. Invasion of Domestic Jurisdiction 65
iv. Counterproliferation as the Best Prospect for Security Council Legislation 68
B. Counterproliferation Beyond Current Legislation 71
C. Universal Standards 77
i. Nuclear Security as an Independent International Interest 77
ii. No Classification of States 87
a. Proliferation to ‘Democratic’ States 87
b. Proliferation to ‘Non-Democratic’ States 94
iii. International Administration of Uniform Standards 100
vii
viii Contents
4. Elements of an Effective Counterproliferation Architecture 111
A. Expanding Deterrence; An International Nuclear Forensics Data Bank 111
i. Contemporary Nuclear Forensics Capability 111
ii. Expanded Deterrence 120
iii. The Legal and Institutional Empowerment of Nuclear Forensics 126
B. Internationalization of National Counterproliferation Intelligence 140
i. The Incongruity of National Intelligence Resources and Transnational Nuclear
Risk 140
ii. The Imperative for International Institutionalization of Intelligence 145
iii. Feasibility 152
C. Export-Import Controls 162
i. The Club that Cannot Counterproliferate 162
ii. Institutionalization of Export-Import Controls under Security Council
Mandate 170
D. Internationalization of the Nuclear Fuel Cycle 175
E. Interdiction of Nuclear Weapons Related Transport; The Proliferation Security
Initiative 185
i. Counterproliferation Designed to be Least Legal; An Activity, Not an
Organization 185
ii. Interface of the Proliferation Security Initiative and International Law 190
a. Coastal State Jurisdiction 190
b. High Seas Jurisdiction 191
c. Self-Defense 193
iii. Institutionalization of the PSI under Security Council Mandate; Legitimacy
and Effectiveness 195

5. Compliance 205

6. Political Will 218

7. Conclusion 226

index 231
 Between the potency
And the existence
Falls the shadow. . . .
This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.
t.s. eliot, The Hollow Men

1
INTRODUCTION

A. The Need for a New Grand Bargain

The foundation for counterproliferation of nuclear weapons is failing. Fortunately,

however, the whimper has come before the bang. We are well warned. T.S. Eliot had
it not quite right in reference to nuclear weapons.1 It is today widely understood and
acknowledged that nuclear weapons risk is the greatest security risk facing the United
States and the world.2 President Obama called the nuclear threat the “threat that rises
above all others in urgency” and warns that if we fail to fix the nonproliferation regime,

1 Though Eliot’s poem, The Hollow Men, first appeared in 1925, Eliot himself later concluded that the
H-bomb had come to be the allusion in common understanding. See “T.S. Eliot at Seventy,” an inter-
view with Eliot in Saturday Review, Henry Hewes, Sept. 13, 1958, in Michael Grant, T.S. Eliot: The
Critical Heritage (Routledge & Kegan Paul 1982).
2 Today, the pre-eminent concern appears to be terrorist access. The Official Assessment of United States
Security, the National Security Strategy of the United States of America, (National Security Strategy),
declares that preventing the detonation of a nuclear weapon in the United States is the highest
national security priority. George W. Bush, National Security Strategy of the United States of America,
Sept. 2002, http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/. At a Bush-Putin news con-
ference two months after the 9/11 terrorist attacks, Bush declared: “Our highest priority is to keep
terrorists from acquiring weapons of mass destruction.” See The Acronym Institute, US Wrestles with
Huge WMD-Terrorism Agenda, Issue No. 65 Disarmament Diplomacy (July-Aug. 2002), http://www.
acronym.org.uk/dd/dd65/65nr09.htm. See Michael V. Hynes, John E. Peters, & Joel Kvitky, Denying
Armageddon: Preventing Terrorist Use of Nuclear Weapons, The ANNALS of the American Academy of
Political and Social Science (2006), http://ann.sagepub.com/content/607/1/150.full.pdf. See also
Pierre Goldschmidt, The Increasing Risk of Nuclear Proliferation: Addressing the Challenge, IAEA, Nov. 26,
2003, http://www.iaea.org/newscenter/statements/ddgs/2003/goldschmidt26112003.html. President
Obama has agreed with this assessment, stating, “The single biggest threat to U.S. security, short-term,
medium-term, and long-term, is the possibility of a terrorist organization obtaining a nuclear weapon.,”
see CNN Wire Staff, Obama Hosts Leaders at Nuclear Summit, CNN, Apr. 13, 2010, www.cnn.com/2010/
POLITICS/04/12/nuclear.security.summit/index.html, as has former Secretary of Defense Robert
Gates, “ . . . if you ask every senior leader what keeps them aware at night, it’s terrorists getting weap-
ons of mass destruction, especially nuclear.” See Jim Garamone, Trip Was Gesture of Respect to Airmen,

1
2 Nuclear Weapons Counter proliferation: A New Grand Bargain
“we will invite nuclear arms races in every region and the prospect of wars and acts of
terror on a scale that we can hardly imagine.”3
There is consensus that current counterproliferation architecture is not up to the tre-
mendous challenge presented by increasingly accessible nuclear weapons related mate-
rial and technology. The same lament is heard in every arena of expert analysis, whether
military, foreign policy, or nuclear science. The same anxiety pervades all academic discus-
sion of proliferation, as well as nuclear strategic policy. The bang, they all say, may shortly
be upon us, because the infrastructure upon which we have relied for non-proliferation is
proving critically inadequate to constrain contemporary nuclear weapons risk.4
Nuclear weapons risk, today, is much more complex than ever before. Long gone is
the simplicity and stability of cold war nuclear reality, compelled by the simple logic
of mutually assured destruction (MAD). No longer is nuclear risk contained by the
dark humor of MAD and Dr. Strangelove, which despite placing us all on the precipice,
seems to have prevented what, we may no longer well enough recall, could have been
our world ending by bang, then nuclear winter. Today, the spread and availability of
fissile material and nuclear technology compounds nuclear risk on multiple fronts,
generating a proliferation challenge of multiple dimensions. Nuclear terrorism, tran-
scending any state-to-state confrontation, is the most significant new dimension,
given the almost uncontrolled spread of nuclear material and technology. But ease of
access has also resulted in new risk by way of the nuclear capability of some of the most
dangerous governments on earth. Nuclear capability of the regimes in North Korea
and Iran lays the basis for nuclear arms races in their own regions, and proliferation
with regimes such as have ruled in Burma and Syria with their own apparent nuclear
weapons ambitions. Even MAD is not gone. MAD can be found in the most volatile
political confrontations on the planet, including the posturing of India and Pakistan;
Israel hanging on to the “Sampson option” that equates survival with the threat of

Gates Says, American Forces Press Service, June 10, 2008, http://www.af.mil/news/story_print.
asp?id=123102318 (Garamone, Gesture of Respect); See also former Senator Sam Nunn, “ . . . preventing
the spread and use of nuclear weapons should be the central organizing security principle of the 21st
century.” Sam Nunn, Nuclear terrorism: Unite against the gravest threat, CDI Russia Weekly, May 28,
2003, http://www.cdi.org/Russia/259–15.cfm.
3 President Barack Obama, Address at the United Nations (UN) General Assembly (Sept. 23, 2009) (tran-
script available at http://www.whitehouse.gov/the-press-office/remarks-president-united-nations-gene
ral-assembly).
4 In December 2004, a UN High Level panel mandated by the UN Secretary-General to assess major
threats to the earth’s peoples concluded that nuclear danger by way of the “erosion of the nonprolifera-
tion regime” was the prime threat. As to the spread of nuclear material technology, their conclusion was
that “We are approaching a point at which the erosion of the nonproliferation regime could become irre-
versible and result in a cascade of proliferation.” See UN Secretary-General, Report of the High-level Panel
on Threats, Challenges and Change: A More Secure World: Our Shared Responsibility, (Dec. 2, 2004), http://
www.un.org/secureworld/report2.pdf. “As we’ve said many times, the spread of nuclear weapons is the
greatest threat facing our country.” Vice-President Biden, Remarks at the National Defense University
(Feb. 18, 2010) (transcript available at http://m.whitehouse.gov/the-press-office/remarks-vice-president
-biden-national-defense-university).
 Introduction 3
apocalypse in the ever-volatile Middle East; and Syria, Egypt, and governments of
other states in the Middle East claiming the right to nuclear capability to counter the
nuclear options of Israel and Iran.
Non-proliferation of nuclear weapons is not the apparent future. The gamesman-
ship of North Korea and Iran, unrelenting in their work on nuclear weapons capacity,
provides only the most evident failure of non-proliferation. The ostensible legal frame-
work intended to ensure nonproliferation, the Treaty on the Non-Proliferation of
Nuclear Weapons (NPT), adopted in 1970, is failing to contain the evolution and expo-
nential growth of nuclear risk. The NPT remains the only comprehensive foundation
for control. But despite the treaty and the multifaceted nonproliferation architecture
it has engendered, the fissile material and the technology to make nuclear weapons are
increasingly available for governments with aggressive ambitions and for malevolent
non-state actors. These protagonists of nuclear risk, acting both overtly and in secret,
motivated by regional power ambitions, money, or most dangerous of all, apocalyptic
vision of reward in an afterlife, are moving outside effective control.
The result is a profound sense of inadequacy—truly much more than a whimper. That
assassination of Iranian nuclear scientists5 is the most innovative counterproliferation
strategy of recent times, epitomizes the pervasive desperation of nuclear nonprolifera-
tion policy. The frustration is global, and pervades even the highest levels of counter-
proliferation infrastructure. The Secretary-General of the International Atomic Energy
Agency (IAEA), Mohammad ElBaradei, upon his resignation, declared the architecture
of nonproliferation to be “in tatters.”6 This depressive swan song simply reflects the
general consensus that the legal and political infrastructure that has long appeared
to contain nuclear weapons proliferation is failing as never before. President Obama,
though endorsing the United States commitment to universal compliance with the
NPT, nevertheless has identified out-of-control nuclear weapons risk as the princi-
pal security risk of our time. The President has characterized the non-proliferation
regime by observing, “our efforts to contain these dangers are centered on a global
non-proliferation regime, but as more people and nations break the rules, we could
reach the point where the center cannot hold.”7 According to most experts, and as
ElBaradei’s capitulation indicates, we are already at that point.

5 Farnaz Fassihi & Jay Solomon, Scientist Killing Stokes U.S.—Iran Tensions Wall St. J. 1 (Jan. 12, 2012),
available at http://online.wsj.com/article/SB10001424052970204257504577153980963513686.html. l St.
J., Jan. 12, 2012, at 1, http://online.wsj.com/article/SB10001424052970204257504577153980963513686.
html. Vincent Trivett, Mossad Suspected In Murder Of Iranian Nuclear Scientists, Business Insider, Aug.
05, 2011, http://articles.businessinsider.com/2011–08–05/news/29995816_1_nuclear-warheads-mossa
d-israeli-intelligenceixzz1d3d4Fa5L. Farnaz Fassihi, Bombs Target Iranian Nuclear Scientists, Wall St.
J., Nov. 30, 2010, at A15. Farnaz Fassihi & Jay Solomon, Scientist Killing Stokes U.S.—Iran Tensions, Wall
St. J., Jan. 12, 2012, at 1, http://online.wsj.com/article/SB100014240529702042575045771539809635136
86.html.
6 Joe Lauria, ElBaradei Ends Term With Goals “In Tatters,” Wall St. J. (Nov. 5, 2009), available at http://
online.wsj.com/article/SB125738716199429981.html.
7 President Barack Obama, Remarks in Prague, (Apr. 5, 2009) (transcript available at http://www.white-
house.gov/the_press_office/Remarks-by-President-Barack-Obama-In-Prague-As-Delivered/).
4 Nuclear Weapons Counter proliferation: A New Grand Bargain
The reasons are systemic and fundamental. Therefore, a systemic and fundamental
response is required. Clearly now, this crisis cannot be allowed to continue—because
it is a crisis of unequaled magnitude, magnitude that has always been inherent in
nuclear risk, distinguishing it profoundly from any other danger the human species
has invented for its own destruction. It is often recalled, that Robert Oppenheimer,
seeing what he had orchestrated as the first atomic detonation, referenced the words of
the Bhagavad-Gita; “ . . . now I have become death, Shiva, the destroyer of worlds . . . . ”8
Shiva remains the relevant reference. The bottom line of nuclear risk today, according
to all theoretical calculations of risk,9 is a nuclear detonation in a major population
center in five to ten years, and not more than twenty years going forward, absent radi-
cal improvement in our capacity to diminish that risk.
This book is about what we can make from the tatters of non-proliferation. It
envisions not a phoenix rising to finally conquer nuclear weapons risk, but a new
approach with significant promise for a much safer nuclear future. What is proposed
here is a new regime for counterproliferation. It is a response to the need, not just for
non-proliferation, but a regime of proactive counterproliferation.10 It is about trans-
mutation of what is still vital in the current infrastructure of counterproliferation to
a comprehensive mandate of universal application that assures equity in nuclear secu-
rity for all nations.
The task of creating a new legal and institutional framework requires, first, under-
standing why the current legal and institutional infrastructure is failing, and how
contemporary nuclear risk defies containment. This in turn requires examination of
nuclear risk in greater detail, to understand its components and its dynamics, at every
principal stage, from source to detonation, to identify where in the process we can
work a new regime to construct security. It requires, perhaps above all, understand-
ing and engaging the political considerations that must be accommodated to achieve

8 Physicist Robert Oppenheimer, Supervising Scientist of the Manhattan Project on July 16, 1945, at
0529 HRS, in the Jomada del Muereto desert near the Trinity site in the White Sands Missile Range
quoting from the Bhagavad-Gita upon witnessing the first atomic detonation by mankind. See James
A. Hijiya, The Gita of J. Robert Oppenheimer, 144 Proceedings of American Philosophical Society
123 (2000), http://www.amphilsoc.org/sites/default/files/Hijiya.pdf.
9 See generally Graham Allison, Nuclear Terrorism: The Ultimate Preventable Catastrophe
(Henry Holt & Company 2004); See also Commission on the Prevention of Weapons of Mass
Destruction Proliferation and Terrorism, World at Risk (Vintage Books 2008).
10 There is no technically clear distinction between non-proliferation and counterproliferation. The
terms are often conflated. See, e.g., Oxford Research Group, COUNTERPROLIFERATION IN A
NON-PROLIFERATION WORLD, 4, (Apr. 2005), http://kms1.isn.ethz.ch/serviceengine/Files/
ISN/90416/ipublicationdocument singledocument/a542a984–8c65–4986–93f5–322959c2a4b3/en/05–
04+Counter-Proliferation.pdf. (“The PSI and other counter-proliferation initiatives should not be seen
as a separate activity in a losing war against weapons proliferation, but as tools in the wider context
of non-proliferation . . . ” It can be said that ‘non-proliferation’ puts the emphasis, consistent with its
NPT origins, on the obligation not to proliferate, whereas ‘counterproliferation’ emphasizes proactive
and preventative measures as seminally stated in the 1993 Defense Counterproliferation Initiative
of the Clinton administration). Les Aspin, U.S. Dept. of Defense, The Defense Counterproliferation
Initiative (Dec. 7, 1993).
 Introduction 5
the necessary legitimacy for any framework for counterproliferation to actually prove
effective. That framework, if it is to work, must survive the test of historic experience
and demonstrate viability in foreign relations.
Accordingly, this analysis, while focused on achieving a functional legal and insti-
tutional framework, draws from a variety of disciplines to achieve an integration of
concerns. Such integration of understanding, characteristic of all truly functional
architecture, is nothing less than what is required to meet the reality, the scope, and
the depth of the critical challenge to our survival that nuclear weapons represent.
This book proposes a new foundation to transcend the limitations and failings of the
Grand Bargain embodied in the NPT. The original Grand Bargain still remains the fun-
damental framework for non-proliferation of nuclear weapons. That bargain is simple
in conception. It is composed of a trade of three commitments, sometimes called the
“three-legged stool,” or in a characterization that ignores its weakness, the “three pil-
lars” of non-proliferation. The deal is, on the one side, the promise of the non-nuclear
states not to acquire nuclear weapons; on the other, the promise of the nuclear states
to provide assistance for the peaceful development of atomic energy, and to work to
achieve nuclear disarmament and general disarmament.11 The classification of nuclear
and non-nuclear states is fixed, according to which governments “manufactured and
exploded a nuclear weapon . . . prior to 1 January 1967.”12
The Nuclear Non-proliferation Treaty is thus somewhat unusual among multilateral
treaties, in that the party governments are drawn into two distinct classes as to their
rights and obligations. The NPT, despite placing rights and obligations within the asym-
metric reality of nuclear weapons possession as of a specified date, purports to achieve
equity and legitimacy long term. It does so by tying non-proliferation obligation to
the commitment to nuclear disarmament, and working towards a nuclear weapons
free world, where the nuclear status of nations would finally become equal, i.e., zero
nuclear weapons worldwide. The nexus between non-proliferation and disarmament

11 The Treaty on the Nonproliferation of Nuclear Weapons (Mar. 5, 1970) provides at Article II, “Each
non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any
transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such
weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manu-
facture of nuclear weapons or other nuclear explosive devices.” The NPT further provides at Article
IV.2, “All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the
fullest possible exchange of equipment, materials and scientific and technological information for
the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in
contributing alone or together with other States or international organizations to the further devel-
opment of the applications of nuclear energy for peaceful purposes, especially in the territories of
non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the develop-
ing areas of the world.” Article VI provides the third pillar, the state parties committing to pursue
“negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an
early date and to nuclear disarmament,” and towards aTreaty on general and complete disarmament
under strict and effective international control.” Treaty on the Nonproliferation of Nuclear Weapons
(Mar. 5, 1970), 21 U.S.T. 483, 729 U.N.T.S. 161.
12 Id., art. IX.3.
6 Nuclear Weapons Counter proliferation: A New Grand Bargain
thus became, both as international law, and politically, one of mutual dependency,
promising ultimate equity in a nuclear weapons free world. The linkage of non-prolifer-
ation and disarmament, and the equity premise of that linkage, were pervasive in the
negotiation of the NPT and framed and conditioned its resolution. That key dynamic
of the NPT negotiations has been described as follows by scholars who have studied
the negotiation history and travaux of the NPT:

Because the non-nuclear states believed that permitting a few states to have
nuclear weapons while barring most from doing so constituted a discriminatory
feature of the Treaty, they were anxious to ensure during negotiations that the
nuclear states would relinquish their nuclear weapons as soon as possible.13
From the outset of the negotiations over the NPT, many non-nuclear states . . .
were concerned with reducing and limiting what they regarded as the inherently
discriminatory nature of the proposed treaty. At the 1965 session of the General
Assembly, the eight non-aligned members of the ENDC—Brazil, Burma, Ethiopia,
India, Mexico, Nigeria, Sweden and the United Arab Republic (Egypt)—proposed
a resolution calling for a treaty on the non-proliferation of nuclear weapons. The
proposed resolution, subsequently adopted by an overwhelming majority of the
General Assembly as Resolution 2028 (XX), advanced five “main principles,” the
first three regarded as being the most important:

(a) The treaty should be void of any loop-holes which might permit nuclear or
non-nuclear Powers to proliferate, directly or indirectly, nuclear weapons
in any form;
(b) The treaty should embody an acceptable balance of mutual responsibilities
and obligations of the nuclear and non-nuclear Powers;
(c) The treaty should be a step towards the achievement of general and
complete disarmament and, more particularly, nuclear disarmament.14

It is clear from the negotiating history that these principles, in manifesting the
mutual dependency of the pillars of the NPT, and the ultimate claim to equity by way of
the commitment to nuclear disarmament, “became the key demand of all non-nuclear
countries,”15 and the basis on which the essential bargain of the NPT was resolved.16

13 William Epstein & Paul C. Szasz, Extension of the Nuclear Non-Proliferation Treaty: A Means of
Strengthening the Treaty, 33 Va. J. Int’l L. 735, 736 (1992–1993).
14 Id., at 738–39.
15 Id., at 740.
16 Id., at 738–40. Ambassador Ecobesco from Romania, for example, proposed changes to the draft
treaty in 1967 that demanded real disarmament measures on the part of the nuclear-weapon states
that would show that nuclear and non-nuclear countries were being equally treated. United States
Arms Control and Disarmament Agency, International Negotiations on the Treaty on the
Nonproliferation of Nuclear Weapons 87–88 (U.S. Government Printing Office 1969). Then, at
Meeting 320 of the Conference of the Eighteen-Nation Committee on Disarmament, he specifically
 Introduction 7
The inherent imbalance in power between the nuclear-weapon states and the
non-nuclear-weapon states remained a prevalent theme throughout the 10-year period
during which the NPT was drafted, with the non-nuclear-weapon states repeatedly
insisting that the final version require negotiation towards nuclear disarmament as
the commitment of the nuclear-weapon-states to achieve ultimate equity, and the key
trade-off for their own non-proliferation commitments as signatories to the NPT. This
same dynamic has since dominated all discussion of respective rights and obligations.
As the scholars who have studied this subsequent history have characterized the life of
the NPT, “Throughout the history of the NPT, the non-nuclear states have striven for
a universal and non-discriminatory regime . . . . ”17

referred back to the principle articulated in paragraph 2(b) of Resolution 2028 (XX) stressing that
it “implies, and in a very precise way, the character of equivalence of the responsibilities and obli-
gations assumed by the parties to the treaty, the symmetry of the legal relations which this treaty
would create . . . In order to conform to these requirements, which are of fundamental importance,
the non-proliferation of nuclear weapons should be part of a whole series of measures whose final
objective—which is both logical and necessary—would be nuclear disarmament . . . In our opinion,
non-dissemination, if not accompanied by such measures, would only legalize the division of the world
into nuclear and non-nuclear States. . . . ” Full verbatim record of the Conference of the Eighteen-Nation
Committee on Disarmament [Meeting 320], Eighteen-Nation Committee on Disarmament (ENDC),
http://quod.lib.umich.edu/e/endc/4918260.0320.001/10?rgn=full+text;view=image. Ambassador De
Palma from the United States, during the Thirteenth Session of the ENDC, (the negotiations which
produced the draft treaty of March 14, 1968), acknowledged the continuing pressure of the nuclear
disarmament demand of the non-nuclear-weapon states, and its legal import which the NPT as finally
agreed embodied, when he said that the U.S. did, of course, want to end the arms race but that the
tendency of some non-nuclear-weapon countries to view nuclear disarmament as a quid pro quo over-
looked the fact that the nonproliferation treaty would enhance the security of all parties, especially
those which did not have nuclear weapons. United States Arms Control and Disarmament Agency,
International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons
106 (U.S. Government Printing Office 1969). Attempting to resist the demand, he stated, “(t)hose
who look for a quid pro quo seem to consider this treaty as if it were a commercial contract in which
each party seeks to trade off concessions in order to gain equal financial or trade benefits.” The Swiss
stated the more general view that nevertheless there was mutual dependency of the promises of the
NPT, declaring that “(t)he non-nuclear-weapon States certainly cannot take the responsibility of tying
their hands indefinitely if the nuclear-weapon States fail to arrive at positive results in that direction.
(nuclear disarmament) (parenthesis added). Full verbatim record of the Conference of the Eighteen-Nation
Committee on Disarmament [Meeting 362], Eighteen-Nation Committee on Disarmament, http://
quod.lib.umich.edu/e/endc/4918260.0362.001/9?rgn=full+text;view=image. http://quod.lib.umich.
edu/e/endc/4918260.0362.001/9?rgn=full+text;view=image. The Japanese representative, in state-
ments echoed by the Pakistani delegation, commented in referring to the mutual commitments to
nonproliferation and disarmament that the draft version did not yet provide an “acceptable balance of
mutual responsibilities” for nuclear and non-nuclear states, as required under Resolution 2028. Id., at
118. The Canadian ambassador expressed his country’s similar concerns stating that, “if non-nuclear
States are to be expected formally to renounce the right to acquire nuclear weapons, they can legiti-
mately expect some quid pro quo in the form of progress towards halting the arms race in other sec-
tors.” Full verbatim record of the Conference of the Eighteen-Nation Committee on Disarmament [Meeting
231], Eighteen-Nation Committee on Disarmament, http://quod.lib.umich.edu/e/endc/4918260
.0231.001/33?rgn=full+text;view=image. These statements, and many others like them, are typical of
the views expressed by the representatives of the non-nuclear-weapons states who attended the hun-
dreds of meetings of the Eighteen-Nation Committee on Disarmament.
17 Id., at 761.
8 Nuclear Weapons Counter proliferation: A New Grand Bargain
Clearly it is not working as thus intended, or this book and many others would not
be discussing the dramatic contemporary increase in nuclear weapons risk. However,
most discussions concern how to improve the NPT, without considering the wisdom
and viability of the original bargain as it plays out today. This book, instead, asks
whether the NPT should be relied upon as the sole foundation for the future of coun-
terproliferation, and whether, despite any accomplishment under the treaty, there
should be a different framing of counterproliferation for a more secure future.
The proposal here is not to degrade or discard the considerable non-proliferation cap-
ital that has been built upon the NPT. However, the analysis begins with the necessity
to understand why the Grand Bargain of the NPT is not succeeding as conceived, and
why counterproliferation will continue to fall short in achieving nuclear security unless
reinforced and eventually supplanted by a different legal and institutional framework.
That framework, to be viable, must integrate different national interests of different
states, and in that sense constitute a new Grand Bargain. It would build on the dis-
tinctive character of counterproliferation norms as universally applicable and would
be implemented as a mandatory counterproliferation regime formulated by the United
Nations Security Council through its authority under Chapter VII of the United Nations
Charter (Charter), establishing uniform counterproliferation obligations for all states.
Though extending the parameters of Security Council legislation, the proposal here
elaborated is not for an exercise in world government. Action by the Security Council
cannot seriously advance counterproliferation without widespread support of govern-
ments. The viability of counterproliferation as an ongoing and improving endeavor
will depend, as all matters of international law and organization depend, on securing
legitimacy and compliance within the extant world of sovereign states. What is here
proposed is to build on current capacities to develop a regime notwithstanding that it
would be mandatory, is compatible with national sovereignty as we know it, that can
capitalize on national interest to attain the legitimacy required for a much higher level
of compliance.
This book is a plea to strike out on a new path to nuclear security. The entrance to
this path, it will be explained, is already marked, though haltingly, deficiently, and, on
the surface at least, without a plan for moving forward, by mandatory resolutions of
the United Nations Security Council on the subjects of terrorism and weapons of mass
destruction. The legal and institutional infrastructure here developed would similarly
embody mutual perception of risk by the members of the Security Council; but it would
represent a new conceptual framework, moving beyond the NPT with a new design
and prospect for implementation, projecting a mandatory uniform set of standards
to be consistently applied for all governments. The objective is to utilize the means
available in this century, at this time, to achieve the security of fissile materials, better
intelligence, control and monitoring of the nuclear fuel cycle, import-export control,
interception of illicit transfer of nuclear materials, and attribution of responsibility
through the remarkable new capacities of nuclear forensics, to achieve a containment
and deterrence that meets the challenge of contemporary nuclear weapons risk. It is to
organize anew the presently available components for effective counterproliferation.
 Introduction 9
How can this now be possible at a time when even the principal managers of
nuclear risk, such as the former Secretary-General of the International Atomic
Energy Agency, appear to have conceded defeat? Such progress is possible, because
of the very fear they voice. We are all facing the same concern, whether voiced by
nuclear weapons experts, academics, strategic policy planners, political leadership,
or in communities far away from the actual work of nuclear weapons containment.
There is the widespread realization that contemporary nuclear risk is out of con-
trol, if only brought to more general public consciousness by disasters in peaceful
use of atomic energy such as Chernobyl or Fukushima. Thus the United Nations
Secretary-General’s High-level Panel on Threats, Challenges and Change reported
as early as December 2004 that “we are approaching a point at which the erosion
of the non-proliferation regime could become irreversible and result in a cascade of
proliferation.”18 Subsequent developments, as in Iran and North Korea, have only
confirmed this crescendo of risk.
Nuclear weapons risk has become identified as greatest in relation to international
terrorism. 9/11 brought with it a change of consciousness concerning weapons of mass
destruction and terrorism, and willingness to cope. 9/11 demonstrated that much will
be done and money will flow for security, at least after the fact of a catastrophic event.
As catastrophe, the scale of a contemporary nuclear detonation, in an urban setting, is
barely imaginable. In the event of a nuclear detonation, it is likely the same sequence
of disaster and response would occur as has occurred in much lesser crises, and that
consequent to a detonation, the necessary political will to accomplish a mandatory
regime along the lines of what is here proposed would appear. We already have dem-
onstration enough in recent times, such as the Fukushima disaster, that corrective
regulation mostly follows rather than precedes a nuclear event. But what comfort is
that to the victims in Fukushima, or the human community that will suffer any future
failure?
There is an alternative path. An aphorism attributed to Charles Darwin summarizes
one of the great lessons of evolution to be that “it is not the strongest of the spe-
cies that survives, nor the most intelligent, but the one most responsive to change.”
The attribution to Darwin is controversial, because it fails to acknowledge Darwin’s
discovery that just luck, by way of mutation, is key to survival of the fittest.19 But
because humankind is the most self-conscious of species, the luck of mutation does
not describe the legal and institutional development of which human beings are capa-
ble. Our adaptive capability includes the capacity to prevent and pre-empt species
catastrophe. Nuclear proliferation will not allow reliance on luck. This book is about
our alternative, the capacity of our species, to create the legal and institutional frame-
work for its own survival.

18 UN Secretary-General, supra note 4, at 39–40.

19 Famous Darwin quotes wrong, says scholar, Cosmos (Feb. 12, 2009), http://www.cosmosmagazine.com/
news/2540/famous-darwin-quotes-are-wrong-says-scholar; John van Wyhe, It Ain’t Necessarily So . . . ,
The Guardian, Feb. 8, 2008, http://www.guardian.co.uk/science/2008/feb/09/darwin.myths.
10 Nuclear Weapons Counter proliferation: A New Grand Bargain

B. The Old Grand Bargain Breakdown

i. the goal of nuclear disarmament

Of the three promises that constitute the core of the NPT, the disarmament promise
has, in recent times, been given the most prominence. On January 4, 2007, by way
of a joint declaration published in The Wall Street Journal, that commitment was
newly made to resonate internationally. Former Secretaries of State George Shultz
and Henry Kissinger, former Secretary of Defense William Perry, and former Senator
Sam Nunn, called for the global abolition of nuclear weapons. In support of their
call for “a nuclear free world,” they referenced the Grand Bargain of the NPT and the
commitment to nuclear disarmament embodied in Article VI of the treaty, thus reaf-
firming nuclear disarmament by the nuclear weapons states as the quid pro quo for
non-proliferation. In another joint statement published in The Wall Street Journal one
year later, the same senior statesmen made this connection even more emphatic and
explicit, declaring that “without the vision of moving toward zero, we will not find the
essential cooperation required to stop our downward spiral.”20 This follow-up declara-
tion also noted the “general support” of many distinguished United States and inter-
national former officials for pursuit of abolition of nuclear weapons as reaffirmation
of the Grand Bargain.21
The impact claimed was not overstatement. The four authors were soon internation-
ally anointed “the four wise men.”22 And in his Prague speech, in April, 2009, placing
nuclear risk at the top of the United States national security agenda, President Barack

20 George P. Shultz, William J. Perry, Henry A. Kissinger, & Sam Nunn, Toward a Nuclear Free World,
Wall St. J. A13 (Jan. 4, 2007) (Shultz et al., Nuclear Free World). Nunn also stated in Congressional
testimony “we cannot get the cooperation of other nations without embracing the vision of a world
free of nuclear weapons.” See Senator Sam Nunn, Statement on Nuclear Weapons Policy to the House
Committee on Foreign Affairs (May 10, 2007) (transcript available at http://foreignaffairs.house.
gov/110/nun051007.htm).
21 Named supporters of U.S. government prominence included Madeleine Albright, Richard V. Allen,
James A. Baker III, Samuel R. Berger, Zbigniew Brzezinski, Frank Carlucci, Warren Christopher,
William Cohen, Lawrence Eagleburger, Melvin Laird, Anthony Lake, Robert McFarlane, Robert
McNamara, and Colin Powell. Named international supporters included Mikhail Gorbachev and
United Kingdom foreign secretary, Margaret Beckett. Shultz et al., Nuclear Free World, supra note 20.
22 See, e.g, David E. Hoffman, Global Heroes: How the Cold War’s wise men went anti-nuclear, Foreign
Policy, Dec. 1, 2010, http://www.foreignpolicy.com/articles/2010/11/29/global_heroes; Ellen
Tauscher, Under Secretary for Arms Control and International Security, Remarks at the Global Zero
Summit in Paris, France (Feb. 3, 2010) (transcript available at http://www.state.gov/t/us/136425.
htm). See also Conference Call with Charles D. Ferguson and Lieutenant General Brent Scowcroft,
announcing the release of the Independent Task Force on U.S. Nuclear Weapons Policy report, Council
on Foreign Relations, (May 1, 2009) (transcript available at http://www.cfr.org/proliferation/fergus
on-scowcroft-conference-call/p19273); Franco Frattini, Introductory remarks at the Conference on
Overcoming Nuclear Dangers in Rome, Italy, (Apr. 16, 2009) (transcript available at http://www.
theworldpoliticalforum.net/wp-content/uploads/wpf2009/04_overcoming_nuclear_dangers_rome/
doc/opening_speech_frattini.pdf).
 Introduction 11
Obama pledged “to seek the peace and security of a world without nuclear weapons.”
President Obama also reaffirmed the Grand Bargain of the NPT as the basis for this
goal and its ultimate achievement.23 In awarding President Obama the 2009 Noble
Peace Prize, the Norwegian Nobel Committee stated that it “attached special impor-
tance to Obama’s vision of and work for a world without nuclear weapons.”24
President Obama was certainly not the first United States President to declare the
goal of total elimination of nuclear weapons. A succession of presidents and foreign
leaders endorsed that goal, most dramatically Ronald Reagan, along with Soviet Prime
Minister Gorbachev, though fleetingly, at their summit meeting in Reykjavik, Iceland.
No doubt each leader sincerely declaring the goal of abolition has been compelled by
the terrible burden of responsibility nuclear weapons impose, and no doubt each could
take no other moral position. But just as Reagan’s vision quickly disappeared behind
the United States’ insistence on the development of an anti-ballistic missile program,
each and every high-level declaration of the goal of abolition has been immediately
contradicted in some form or other, by national security considerations. The four wise
men, while calling for a world without nuclear weapons, also soon found themselves
qualifying that vision. Before long, they stated in another Wall Street Journal op-ed
pronouncement that “ . . . as long as nuclear weapons exist, America must retain a safe,
secure and reliable nuclear stockpile primarily to deter a nuclear attack and to reas-
sure our allies through extended deterrence.”25 Henry Kissinger and George Shultz
were soon criticized for hypocrisy for supporting upgrade of the U.S. nuclear weapons
arsenal.26
That national security policies contradict the declared goal of abolition cannot sim-
ply be dismissed as hypocrisy. There is a trenchant critique of abolition as policy that
warrants attention. It is a critique, that soon after the Shultz, Perry, Kissinger, Nunn
declaration appeared, was voiced from prominent quarters of the national security
community. In a response entitled “Nuclear Fantasy,” former U.S. Secretary of Defense,
Harold Brown, and John Deutch, director of the Central Intelligence Agency for the
first Clinton administration, questioned the wisdom of the declaration of abolition

23 Obama, Remarks in Prague, supra note 7. “Today, the threat of global nuclear war has passed, but
the danger of nuclear proliferation endures, making the basic bargain of the NPT more important
than ever; nations with nuclear weapons will move toward disarmament, nations without nuclear
weapons will forsake them, and all the nations have an “inalienable right” to peaceful nuclear energy.”
President Barack Obama, Remarks on the 40th Anniversary of the Nuclear Nonproliferation Treaty,
(Mar. 5, 2010) (transcript available at http://www.whitehouse.gov/the-press-office/statement-preside
nt-obama-40th-anniversary-nuclear-nonproliferation-treaty).
24 Press Release, Norwegian Nobel Committee, The Nobel Peace Prize 2009 Barack H. Obama, Oct. 9, 2009,
http://www.nobelprize.org/nobel_prizes/peace/laureates/2009/press.html.
25 George Shultz, William J. Perry, Henry Kissinger, & Sam Nunn, Deterrence in the Age of Nuclear
Proliferation, Wall St. J., Mar. 7, 2011, at A15.
26 See Philip Taubman, The Partnership: Five Cold Warriors and Their Quest to Ban the Bomb
1st ed., (Harper 2012). See also, Greg Webb, Leading US Scientist Criticizes Warhead Effort, Global
Security Newswire, Feb. 27, 2008, http://www.nti.org/gsn/article/leading-us-scientist-criticizes-w
arhead-effort/.
12 Nuclear Weapons Counter proliferation: A New Grand Bargain
as policy. The sum and substance of their response was epitomized in the memorable
phrase, “hope is not a policy.”27
The Brown/Deutch distinction between hope and policy merits consideration. It high-
lights the fact that the abolition of nuclear weapons, though stated as legal obligation
under the NPT, is essentially aspirational. Abolition has not been a factor in national secu-
rity planning of governments as manifest throughout the history of the NPT. The distinc-
tion between hope and policy, indeed, gets us to the problem at the heart of the current
framework for the non-proliferation of nuclear weapons. Abolition of nuclear weapons is,
and will remain, for any foreseeable future of international security, aspirational. One of
the “four wise men,” Senator Sam Nunn, said as much in drawing a since often-repeated
metaphor for achieving nuclear disarmament—that it is “like climbing a fog-shrouded
mountain.”28 Getting to global nuclear disarmament is made a matter of faith, something
like getting to heaven, akin to Lord Acton’s reference to “the remote and ideal objective”
that “captivates the imagination by its splendor and the reason by its simplicity.”29
In going beyond simplicity, the discussion of getting to global nuclear disarmament,
like getting to heaven, requires discussing the risk of the thermal alternative. But
though the wise men and most other proponents of abolition always end up talking
about counterproliferation, they insist on the firm connection between nuclear disar-
mament and counterproliferation embodied in the NPT. In their second declaration on
a world without nuclear weapons, published in The Wall Street Journal, the four wise
men declared “that continued reliance on nuclear weapons as the principal element
for deterrence is encouraging, or at least excusing, the spread of these weapons, and
will inevitably erode the essential cooperation necessary to avoid proliferation, protect
nuclear materials and deal effectively with new threats.”30
In the real world of strategic policy-making, we see no evidence of this alleged con-
nection. What we do see is disjunction between the goal of global nuclear disarma-
ment, and policies of counterproliferation. The disjunction can partly be explained in
that counterproliferation strategy cannot wait for the political equivalent of heaven
that is required for the abolition of nuclear weapons. Counterproliferation is about
engaging present capacities to reduce nuclear risk, today, to confront and defeat its
metastasis. Accordingly, real and present policy makers do not consider the abolition
of nuclear weapons part of contemporary national security strategy.
But the respective timing for counterproliferation and abolition is only one aspect
of the explanation for why total nuclear disarmament and counterproliferation are

27 Harold Brown & John Deutch, The Nuclear Disarmament Fantasy, Wall St. J., Nov. 19, 2007, at A19.
28 Senator Sam Nunn’s fog-shrouded mountain metaphor has become part of nuclear lingua franca,
repeated both by his co-authors of the declaration published in The Wall Street Journal and in
nuclear disarmament discourse more generally. Sam Nunn, Co-Chairman and CEO, Nuclear Threat
Initiative, Remarks to the InterAction Council 28th Annual Plenary Meeting in Hiroshima, Japan,
(Apr. 18, 2010) (transcript available at http://www.nti.org/c_press/speech_Nunn_Hiroshima_
InterAction_Council_041810.pdf).
29 Lord Acton, Nationality, Home and Foreign Review (1862).
30 Shultz et al., supra note 20.
 Introduction 13
not connected in actual policy planning. That fuller explanation is not difficult to dis-
cover. There has been much study of why nations seek to develop nuclear weapons and
why some nations have terminated their nuclear weapons programs. We know quite a
bit about why the commitment to global nuclear disarmament does not command, or
even influence, national policy, both at the theoretical and practical levels.
At the level of theory, those charged with national security policies simply do not
see a viable stasis of nuclear weapons abolition. Advocates of abolition argue that
other weapons have been banned—poison gas, for example, consequent to the horror
of its widespread use in the First World War. But of course, legal ban does not prevent
use. Poison gas has been used as a weapon, even in recent times; in the Iran–Iraq war;
also by the Saddam Hussein regime against the Kurdish population of Iraq. Poison gas
has also been used as a weapon of international terrorism, with the attack by Aum
Shinrikyo in Japan. The global ban on such weapons has brought us to a stasis where
use is the exception, not the norm. But the possible use of a nuclear weapon is of a
dramatically different order. National security policies take account of the fact that
nuclear weapons delineate, for any government, an existential dimension well beyond
any weapon in human history. For strategic planning, the scale of the destructive
power of nuclear weapons introduces unique considerations and dynamics. No other
weapon comes even close to matching the strategic policy import of nuclear weap-
ons—for intimidation, blackmail, deterrence, or destruction. One detonation, a single
detonation in any major urban center anywhere in the world, would be truly a global
catastrophe, not only in the extraordinary scale of immediate death and injury, but
also in damage to the interdependent matrix of the global economy, damage to the
environment, and damage to the human psyche of global security. The damage may
be incalculable, but we can be sure it would be the supreme trauma of contemporary
weapons use. So unlike the legal ban of any other weapon, the legal ban of nuclear
weapons cannot possibly bring us to a condition of tolerable risk.
Much of the theoretical analysis of nuclear weapons risk also argues that a world
without nuclear weapons would not be a world free of nuclear risk, and could be even
more dangerous. Principal theorists of nuclear weapons policy, particularly strategic
game theorists, maintain that reaching or even approaching zero nuclear weapons
could actually result in greater danger of sudden and dramatic nuclear instability,
and hence a greater likelihood of nuclear risk spiraling out of control.31 They argue
that nuclear disarmament would put a premium on speed and initiative for any mis-
creant government, and that it would afford greater advantage to smaller powers
of relatively small conventional weapons strength. For adversaries, it would, conse-
quently, also increase incentives toward the preemptive use of nuclear weapons, or

31 “If for a moment we imagine that Sagan’s hoped-for world without nuclear weapons could be real-
ized, what would anyone do if a major state revealed that it had secretly rebuilt a considerable nuclear
arsenal? Would someone then attack the reborn nuclear state using the only weapons it would have,
that is, conventional ones? I think not.” Kenneth Waltz, Waltz Responds: The Great Debate, National
Interest, Sept.-Oct. 2010, http://nationalinterest.org/greatdebate/waltz-responds-3953.
14 Nuclear Weapons Counter proliferation: A New Grand Bargain
their conventional military power.32 The game theorists generally conclude that zero
would dramatically raise the risk of nuclear coercion that the cheating or “breakout”
of a rogue or renegade government could achieve well beyond its capacity to do so in a
nuclear armed world.
This is what security scholars sometimes call the “instability of offense dominance”—
that even in a world of zero nuclear weapons, and perhaps most of all in a world of zero,
there may be decisive advantage for the government initiating the reconstitution of a
nuclear arsenal. Zero would contain a new dynamic. The breakout government, having
developed even a nuclear weapons capacity small by today’s standards, would be the
proverbial one-eyed man in the kingdom of the blind. Zero would create new windows
of opportunity for aggression, and new windows of vulnerability for former nuclear
weapons states, leaving the latter more inclined to launch conventional pre-emptive
strikes. Even those advocating abolition of nuclear weapons admit, there is no “techni-
cal fix” to the breakout problem.33
In light of such considerations, abolition is seen as unrealistic. Even in a world of
zero nuclear weapons, the technology and material for manufacture would remain
available. This allows the possibility, even likelihood, of breakout by any government
or terrorist organization seeking to gain advantage in a variety of possible scenarios,
such as positioning for nuclear blackmail, or simply acting out the irrationality of an
apocalyptic ideology. Breakout could occur by way of concealment on the way to zero,
or by the initiation of a clandestine nuclear weapons program on the way to zero.
Breakout could occur after zero, given that the technology and the material for nuclear
weapons manufacture would remain available. Actual abolishment of nuclear weap-
ons would not abolish institutional memory, nuclear weapon expertise, experimental
data, or designs, which could be quickly reconstituted. Even under the most optimis-
tic nuclear disarmament scenarios, “surge capabilities” or “virtual arsenals”34 would
remain. Such risk would in turn make pre-emptive action by other states more likely.
The argument is not merely theoretical. The George W. Bush Administration’s justifica-
tion of the invasion of Iraq, on the basis of Iraq’s alleged programs to develop weapons
of mass destruction (WMD), employed a related theory of pre-emptive self-defense.35
It is also, of course, the reasoning behind threats to destroy Iran’s nuclear facilities.
Thus policy makers perceive zero as creating its own world of nuclear weapons
risk. Discovery, or even just fear that an adversary has hidden a militarily significant
number of nuclear weapons, or has taken steps to reconstitute its nuclear weapons
capacity in the midst of political crisis, could precipitate breakout in the most viru-
lent form. The perennial confrontation between India and Pakistan, for example, could

32 See elaboration of this consideration in Thomas C. Schelling, The Role of Deterrence in Total Disarmament,
Vol. 40, N.1.3 Foreign Affairs at 396, (Apr. 1962).
33 See, e.g, Carl Kaysen, Robert McNamara, & George Rathgens, Nuclear Weapons After the Cold
War, A Nuclear Weapons Free World at 33–51 (Westview Press 1993).
34 See infra pp. 41–42.
35 See Agora: Future Implications of the Iraq Conflict, 97 Am. J. Int’l L . 557 (2003).
 Introduction 15
easily devolve to such a post-zero scenario. Given the unendurable consequence of
a nuclear strike, even a minor advantage in lead time would be seen as critical. It is
therefore not surprising that Russia, China, France, Pakistan, and Israel all critique the
security implications of zero.36
Without absolute assurance that all would comply with global nuclear disarma-
ment, policy makers naturally conclude that universal compliance cannot be expected.
And there is no such assurance for any government, so long as the political conditions
that engendered its nuclear weapons capacity in the first place continue. We can have
policy-driven reductions between states if fundamental political conditions do change,
such as the importantly successful nuclear risk reductions between the former Union
of Soviet Socialist Republics (Soviet Union) and the United States. But the risk of any
weapon in the control of a state threatening another state, or a weapon that might
be sold, stolen, or otherwise transferred from government to terrorist, is enough to
convince the current nuclear weapons powers that nuclear risk might actually increase
with progress towards global nuclear disarmament.
Current material and technological realities make it feasible for any national regime
with a renegade or a revolutionary world vision, to play a nuclear weapons game
wholly at odds with getting to zero. Policy makers do not have to see far ahead to be
convinced of this strategic reality. It is evident in the stated ambition of Al Qaeda to
achieve a nuclear armed caliphate commanding its own international order.37 Terrorist
risk will continue to strain nuclear deterrence theory with the problem of finding a
return address. And between states nuclear weapons risk would still be inherent at
zero, in the ambitions of the regimes in North Korea, Iran, and potentially other
places, serving as sources for nuclear weapons related material and technology. That
North Korea and Iran and Iraq and Libya were all able to turn their right to peaceful
use of atomic energy to weapons related use, while remaining parties to the Nuclear
Non-proliferation Treaty, has forever red-flagged the risk of moving towards zero.
Much of the risk that policy makers see as inherent in nuclear disarmament might
be manageable if verification could provide at least a high probability of detecting a vio-
lation, sufficient to assure timely warning and response. All evidence is to the contrary.
The failures of detection, extending over years, in the most threatening cases—Iraq,
Iran, and North Korea—have left a legacy of extreme skepticism about monitoring
and verification capability. Moreover, all the experts agree that inspection capacity
and verification technology can be deceived and defeated. They also agree there is no
technical prospect of assurance against clandestine nuclear weapons activity, such as
smaller facilities or the below-ground enrichment plants that Iran is reported to have
constructed. We can improve detection and monitoring, and make cheating more dif-
ficult. That is essential to effective counterproliferation. But in a zero nuclear weapons

36 George Perkovich & James M. Acton, Abolishing Nuclear Weapons: A Debate, Carnegie Endowment
for International Peace (2009), http://carnegieendowment.org/files/abolishing_nuclear_weapons_
debate.pdf.
37 See, e.g., Allison, supra note 9.
16 Nuclear Weapons Counter proliferation: A New Grand Bargain
world, there would remain substantial risk of breakout that any known or contem-
plated means of verification could not negate.
Policymakers mapping nuclear risk must take account of these concerns. They circle
the fact that nuclear weapons cannot be disinvented. They cannot ignore the avail-
ability, even after hypothetical zero, of expertise and material for the manufacture of
nuclear weapons. They must account for the prospect that even in a “nuclear weapons
free future” of abolishment, the burgeoning nuclear power industry worldwide will
bring with it more and more significant “dual-use” technologies, that with the “turn of
a screw” can transform peaceful use to weapons use.
It thus becomes understandable why nuclear disarmament does not even enter
into current calculations of policymakers. Specific arguments cautioning against glo-
bal nuclear disarmament may be debatable, even rebuttable, and there is much to be
said for step-by-step long-term progress to the substantial reduction, or elimination
of nuclear weapons.38 The ineluctable point, however, is that global nuclear disarma-
ment does not enter into the strategic prescriptions of policymakers for persuasive
reasons. Strategic theory, particularly the arguments drawn from game theory, are
naturally speculative. But speculative scenarios inevitably are the substance of present
policy planning. So long as these speculations are persuasive, given the understand-
able bias against making fatal mistakes on a grandiose scale, abolition will not be on
the policy-planning table.
If we look at the actual national security strategies in place, this is clearly the situa-
tion. For the United States, despite all the rhetoric, and the presidential declaration of
a goal of getting to zero, the vision of nuclear zero is not even included in the official
declaration of US nuclear weapons policy.39 The same is true of Russian military doc-
trine.40 Despite nuclear arms reductions achieved under START, all major nuclear weap-
ons states have declared themselves, in some form or other, as definitively committed

38 For a comprehensive and thoughtful analysis, see Gareth Evans & Yoriko Kawaguchi, Co-Chairs,
International Commission on Nuclear Non-proliferation and Disarmament, Eliminating Nuclear
Threats: a Practical agenda for Global Policymakers, 59–100 (2009), http://icnnd.org./org/Reference/
reports/ent/pdf/ICNND_Report-EliminatingNuclearThreats.pdf
39 See U.S. Department of Defense, US Nuclear Posture Review Report, at 19, (Apr. 2010), http://www.
defense.gov/npr/docs/201020nuclear20posture20review20report.pdf.
40 Russian Federation Military Doctrine, Decree No. 706, Apr. 21, 2000, provided by Nezavisimaya
Gazeta, Russian Federation Military Doctrine, Approved by Russian Federation Presidential Edict of April
21, 2000, Apr. 22, 2000, at 5–6 [FBIS document CEP20000424000171]. The Russia Military Doctrine
states “Under present-day conditions the Russian Federation proceeds on the basis of the need to have
a nuclear potential capable of guaranteeing a set level of damage to any aggressor (state or coalition of
states) under any circumstances.” Also see “HK Paper Report PRC CMC Meeting on Nuclear Weapons
Strategy,” Hong Kong, Tai Yan Pao, Doc. ID: CPP20000717000021 (July 17, 2000). During the Central
Military Commission conference, China outlined the “Five Musts” on nuclear weapons: “China must
own strategic nuclear weapons of a definite quality and quantity in order to ensure national security.
China must guarantee the safety of strategic nuclear bases and prevent against the loss of combat
effectiveness from attacks and destruction by hostile countries. China must ensure that its strategic
nuclear weapons are at a high degree of war preparedness. When an aggressor launches a nuclear
attack against China, China must be able to launch nuclear counterattack and nuclear re-attack against
the aggressor. China must pay attention to the global situation of strategic balance and stability and,
 Introduction 17
against their own nuclear disarmament. Leaders of governments speak praises of their
nuclear arsenals that echo cold war rhetoric. As recently as 2006, French President
Chirac declared, for example, that “nuclear deterrence remains the fundamental guaran-
tee of our security.”41 More recently, President Nicolas Sarkozy of France called France’s
nuclear weapons “the nation’s life insurance policy,” and committed to modernization
of France’s nuclear arsenal as increasing France’s insurance.42 Given removal of the
conventional weapons advantages of the Soviet Union, Russia is more reliant than ever
before, in its strategic policies, on nuclear weapons, despite the reductions of START
II.43 China has shown no inclination to reduce its nuclear arsenal, and instead seems
bent on its modernization and expansion. None of the five nuclear weapons states so
classified under the NPT have promised not to develop new types of nuclear weapons,
and neither have India, Pakistan, or Israel. Even in the context of obtaining U.S. Senate
ratification for the new Start Treaty, indeed to secure that approval, President Obama
promised $80 billion to modernize the U.S. nuclear arsenal.44 More to the point, no
present nuclear weapons state, certainly not one of the original five, has established
any bureaucracy, or even any program, with the goal of total nuclear disarmament.45
Sergio Duarte, UN High Representative for Disarmament Affairs, has seen the emperor
without clothes, complaining that there is “still no sign of the infrastructure required

when there are changes in the situation, adjust its strategic nuclear weapon development strategy
in a timely manner.” See also, Peter Schwartz, French President Chirac Threatens Nuclear Retaliation in
the Event of Terrorist Attack, World Socialist Web Site, Jan. 21, 2006, http://www.wsws.org/arti-
cles/2006/jan2006/chir-j21.shtml. “Leaders of states who use terrorist methods against us, as well as
those who consider using in one way or another weapons of mass destruction, must understand that
they would expose themselves to a firm and appropriate response on our part. This response could be
a conventional one. It might be of a different kind.” Gwynne Dyer, France Knows the Nuclear Club is the
Place To Be Demands by the haves on the have-nots are hypocritical and self-defeating, SYDNEY Morning
Herald, Feb. 12, 2006, http://www.commondreams.org/views06/0212–26.htm.
41 “Since 1964, France has had an autonomous nuclear deterrence. The lessons of history led General de
Gaulle to make this crucial choice. During all these years, the French nuclear forces have ensured our
country’s defense and greatly helped to preserve peace. Today, they continue to keep watch, quietly, for
us to be able to live in a land of freedom which is the master of its future and its destiny. They continue,
and will continue tomorrow, to be the ultimate guarantor of our security. . . . ” See Présidence de la
République Française Jacques Chirac, Remarks to the Strategic Air and Maritime Forces at Landivisiau,
(Jan. 19, 2006) (transcript available at http://www.acronym.org.uk/dd/dd82/82chirac.htmen01)
42 President Nicola Sarkozy, Presentation of Le Terrible in Cherbourg, (Mar. 21, 2008) (transcript avail-
able at http://www.acronym.org.uk/docs/0803/doc09.htm).
43 For the proposition that Russia is reliant on nuclear weapons due to inadequacy of conventional weap-
ons. See Lee Banville, Tracking Nuclear Proliferation: Russia Nuclear Strategy, PBS NewsHour, May 2,
2005, http://www.pbs.org/newshour/indepth_coverage/military/proliferation/countries/russia.html.
44 See Rebecca Johnson, NPT conference: half time glass half full, Open Democracy, May 17, 2010, at 2,
http://www.opendemocracy.net/5050/npt-conference-half-time-glass-half-full.
45 This state of affairs was summarized in a Carnegie Foundation report as follows: “Few, if any, top-tier
issues attract as much simplistic analysis, as much rhetoric, and as little serious work by governments
as does the feasibility of nuclear disarmament. As was pointed out in Abolishing Nuclear Weapons,
none of the nuclear—weapons states ‘has an employee, let alone an inter-agency group, tasked full
time with figuring out what would be required to verifiably decommission all its nuclear weapons.’”
Perkovich & Acton, supra note 36 (quoting Jessica T. Mathews President of the Carnegie Endowment
for International Peace).
18 Nuclear Weapons Counter proliferation: A New Grand Bargain
to achieve nuclear disarmament—no operational plans, deadlines, government disar-
mament agencies, budgets, and detailed domestic legislation.”46
Is it that the governments have not caught up with the conditions of nuclear secu-
rity? First to be noted is that we have not eliminated state-to-state risk and the logic of
MAD, supposedly a relic of the Cold War. MAD remains very much present in regional
confrontations of states, such as India/Pakistan, and potentially present between
Israel and surrounding Arab states, and North Korea and the governments of East Asia
that North Korea may seek to intimidate. Disarmament proponents point out that
nuclear weapons, particularly as held within the arsenals of great powers, no longer
have the strategic value they embodied in the cold war years of MAD. This is certainly
true for the United States in light of its overwhelming conventional weapons capac-
ity. In further support, disarmament proponents list the post-World War II conflicts
such as the Korean and Vietnam wars and other conflicts in which nuclear weapons
were available but not employed or even deployed.47 But this does not take account of
the utility and attractiveness of nuclear weapons for threat of use. And we have had
plenty of that. The Bush administration, for example, sought to make clear to Saddam
Hussein that any use of WMD would be met with total devastation, making the point
that the nuclear option was on the table.48 In the context of current nuclear confronta-
tion, US Secretary of State Hillary Clinton has voiced a similar threat to Iran.49 Such
threats are not exclusive to great powers. Certainly, on the other side, the threats of
North Korea to use its nuclear weapons have been treated with the utmost serious-
ness.50 The utility of the threat, even during actual conflict, has been documented. It
was reported that the threat of nuclear response was critical to Israel’s survival in the
1973 Yom Kippur war, imposing constraint on Egypt’s forward movement of its troops
when Israeli lines were overwhelmed in the early hours of that war. Though Egyptian
forces penetrated deep into the Sinai, to the very threshold of Israel’s heartland, they

46 Sergio Duarte, Disarmament: A Look Back, A Look Ahead, Disarmament Times, at 5, (Mar. 2008),
http://disarm.igc.org/index.php?view=article3B&catid=613Adt2008spring&id=633Adt2008spri
ngDuarte&format=pdf&option=com_content&Itemid=2.
47 See, e.g, Joseph Rotblat, Jack Steinberger, & Bhalchandra Udkaongar, A Nuclear-Weapon-Free
World: Desirable? Feasible? at 33–62 (Westview Press 1993).
48 “The United States is prepared to launch nuclear missiles against Iraq if President Saddam Hussein
deploys chemical or biological weapons against American troops or allies, the White House said.”
Roland Watson, Bush warns Saddam to expect a nuclear retaliation, Irish Independent, Dec. 12,
2002, http://www.independent.ie/world-news/americas/bush-warns-saddam-to-expect-a-nuclea
r-retaliation-282234.html.
49 “In the next ten years, during which they [Iranians] might foolishly consider launching an attack on
Israel, we would be able to totally obliterate them.” Television interview by Chris Cuomo with Hilary
Clinton, U.S. Secretary of State, (Apr. 23, 2008), see Jake Tapper, Pennsylvania’s Six Week Primary Ends
Tonight, ABC News, Apr. 22, 2008, http://abcnews.go.com/WN/Vote2008/story?id=4698059&page=1.
Trt4wlYu6DI.
50 Pyongyang was ready to launch a “retaliatory sacred war” at any time, the state-run Korean Central
News Agency (KCNA) said . . . North Korea says it will use its “nuclear deterrent” in response to joint
US-South Korean military exercises this weekend. John Sudworth, North Korea warns of nuclear
“sacred war,” BBC News, Jul. 24, 2010, http://www.bbc.co.uk/news/world-asia-pacific-10748148.
 Introduction 19
stopped, apparently in deference to the prospect of an Israeli nuclear response, the
so-called Samson Option.51 It was and remains the essence of Israel’s policy to retain
a nuclear strike force, as the existential threat Israel makes to ensure its own survival.
Conversely, even a small number of nuclear weapons pose an existential threat to a
small state such as Israel. This certainly was Israel’s justification for destroying nuclear
facilities in Iraq and Syria, and is the justification for the threat to do the same to Iran.
Other governments, without solo ability to muster overwhelming conventional arma-
ment in their own defense, such as the United Kingdom (UK) and France, have adhered
to a similar logic in retaining their nuclear weapons. Their nuclear weapons strategy
may be thought to be flawed, even archaic, but it nevertheless persists, grounded in
security concerns. Any enlightenment as to the disutility of nuclear weapons, if that is
what is required, has only resulted in the reduction of nuclear armaments for reasons
of cost and efficiency, not commitment to zero.
States of proliferation concern, such as Iran and North Korea, have seized upon
perhaps the most persuasive rationale today for possession of nuclear weapons. Their
strategic situation well illustrates the often stark contrast between hope and policy.
Thus on the same editorial page of The Wall Street Journal, in which the disarmament
manifesto of the four wise men was published, it has since been observed, “Respectable
wise men, in and out of government, talk of the importance of arms control and a
nuclear-free world, when the reality is that Iran, North Korea and other countries have
made the acquisition of nuclear weapons their highest priority.”52
It is a mistake to see such policy of the “states of proliferation concern” as simply
reflecting rogue intention. The governments of North Korea and Iran have a variety of
reasons for pursuing nuclear weapons-related programs. There are no doubt domes-
tic political considerations involved. But these governments, most significantly, see
nuclear weapons capacity as their best counter to the conventional weapons superi-
ority of the United States and its allies, constraining the ability of the United States
to project its power globally. The accessibility of nuclear weapons development has
become the great equalizer. If there was any doubt about this before the invasion of
Iraq, the Bush Administration’s listing of an “axis of evil” made the invasion of Iraq
on the rationale of preventing culmination of its alleged program to develop nuclear
weapons, and the leverage it would thereby acquire, an indelible lesson for the regimes
in Tehran, Pyongyang, and elsewhere. Even non-rogue governments drew the same
lesson. Generals in charge of strategic planning for India and Pakistan declared the
principal lesson of the invasion of Iraq to be that possession of nuclear weapons is
the best means to counter US conventional force dominance.53 And they are probably

51 Mark Helprin, Why Israel Needs the Bomb, Wall St. J., Oct. 18, 2010, at A19.
52 Stephen Peter Rosen, The Emperor’s Nuclear Clothes, Wall St. J., Nov. 29, 2010, available at http://
online.wsj.com/article/SB10001424052748704693104575638671591044484.html.
53 Interview by Hugh Gusterson with Gen. Atta M Iqhman, see Hugh Gusterson, U.S. nuclear double
standards, Bull. of the Atomic Scientists, Feb. 20, 2008, concurring in this view as “famously
stated” by India’s General Sundarji, “the lesson of the 1991 war between the United States and Iraq
was not to get into a conflict with the United States unless you already had nuclear weapons.”
20 Nuclear Weapons Counter proliferation: A New Grand Bargain
correct, as the common quotation of their observation confirms. Some commentators
even see this equalizer effect as indicating a greater likelihood of conventional wars,
absent the nuclear weapon threat.54
This rationale, sometimes called denial of access, operates despite a government’s
understanding that its use of nuclear weapons would be met with its own annihila-
tion. The risk of nuclear annihilation is unlikely to dissuade a regime from developing
nuclear weapons, given its choice to be between conventional or nuclear annihilation,
if the threat posed by its demonstration of the actual possession of its own nuclear
weapon may spare it from either alternative. One can suppose, that during the first
US/NATO cruise missile strike against Libya in 2011, someone in Muammar Qaddafi’s
inner circle must have wondered along these lines about the wisdom of having dis-
mantled the Libyan nuclear weapons program. If the Libyan regime was in position
to respond with a nuclear weapon, would NATO have agreed to a military campaign
against Libya?
For the “states of proliferation concern,” nuclear weapons are additionally attrac-
tive as means to extract economic and political concessions that would not other-
wise be obtainable. Thus we have the gamesmanship of North Korea, promising
non-proliferation compliance, then refusing, then obtaining concessions for rejoining
talks, then withdrawing again; a sequence which has impressed the Iranian regime as
similarly advantageous.55 For North Korea especially, the nuclear threat has become
its most significant means for achieving international advantage, given its otherwise
desperate domestic situation, and general alienation from the benefits of global inte-
gration. The threat of what amounts to nuclear suicide is employed as the means to
secure the mundane but substantial benefits of money, goods and services otherwise
unobtainable.
Beyond strategic theory and strategic policy, states seek other benefits from their
nuclear weapons programs. These include intangible benefits described colloquially
as prestige or political status, including nuclear weapons as a symbol of modernity,
regional power, and defiance. That weapons systems create this kind of political value
is surely not a new observation about the reasons that nations seek weapons, and

54 This has led some strategic analysts to even argue in the extreme that more nukes is better. See Steve
Chapman, Learning to Love the Bomb: Is nuclear proliferation inherently dangerous?, Reason, Feb. 2003,
http://reason.com/archives/2003/02/01/learning-to-love-the-bomb. Columbia University political
scientist Kenneth Waltz argued that “the gradual spread of nuclear weapons is more to be welcomed
than feared.” Scott D. Sagan & Kenneth N. Waltz, The Spread of Nuclear Weapons: A debate
Renewed at 45 (W. W. Norton & Company 2003).
55 See Kim Murphy, North Korea Nuclear Deal May Be Inspiration for Iran; Analysts See Tehran is in Mood to
Negotiate, But Hard Liners Sense the U.S. Is Weakened, L.A. Times A4 (Feb. 15, 2007) (quoting Professor
Sadegh Zibakalam, a professor of politics at Tehran University), “The hard-liners, perhaps impressed
by North Korea’s achievement, are now inclined to be more resilient and uncompromising. They say if
North Korea could do it, why shouldn’t we? Why should we let the United States dictate to us, rather
than negotiate with us? . . . . This scenario has been at the back of the minds of some Iranian leaders;
that if we reach a stage that we would be respected as an equal partner, then we could do real negotia-
tions and reach a deal over our nuclear program.”
 Introduction 21
submerge other interests to obtain them. Thucydides long ago identified honor as one
of the reasons for war, and human history bears all too much testimony to the truth
of his observation. France is certainly not alone in claiming a standard of honneur as
emblematic of its history. Today a similar standard is raised highest by the states of
proliferation concern, such as Pakistan, India, Iran, and North Korea; although in the
case of North Korea, one might more accurately conclude its greatest motivation is not
honneur, but not to be ignored.
Moreover, there is significant domestic political appeal to be obtained in pursuing
nuclear weapons programs. This is dramatically evident in the pro-nuclear street dem-
onstrations in Tehran and Pyongyang, and the fact that A.Q. Khan, the man identified
as running the most significant nuclear black market ever discovered, is to this day
treated as a national hero in Pakistan for his role in Pakistan’s nuclear weapons devel-
opment. As Pakistan’s Foreign Minister has described the broader implication of the
popular sentiment, “nuclear weapons are the currency of power and many countries
would like to use it.”56 The proposition, often heard from proponents of nuclear disar-
mament, that nuclear disarmament can demonstrate to non-nuclear weapons states
that they do not need nuclear weapons,57 therefore misses the point. Non-nuclear
weapons states may know they do not need nuclear weapons, but still want them.
Perhaps all the reasons preventing global nuclear disarmament, theoretical and real,
can eventually be overcome by developing trust between nations, such as has been
achieved, for example within the European Community (EC), where we see what looks
like permanent peace among historic enemies. But under any reasonable analysis, a
comparable global state of international affairs is a long way off, certainly as distant as
the fog-shrouded mountain top of global nuclear disarmament envisioned by the four
wise men, and far beyond the current realities of nuclear risk with which counterpro-
liferation must contend. Perhaps the prospect of sufficient psychological and political
transformation is not beyond possibility in the long term of an increasingly interde-
pendent world. But the risk presented by nuclear proliferation is here and now. There
is one conclusion about getting to zero on which everyone who has seriously looked
at the matter can agree—we won’t get there any time soon.58 The most ambitious and
optimistic estimates typically postulate at least a 50-year time frame. For most of us,
that leaves nuclear risk as a clear and present danger for the remainder of our adult
lives, and for our children.

56 Jo Johnson & Farhan Bokhari, Pakistan Warns on India-US Deal, Financial Times, Mar. 16, 2006,
http://www.ft.com/intl/cms/s/0/674bb44c-b51f-11da-aa90–0000779e2340.htmlaxzz1dHv38ppH.
57 See, e.g, Christopher C. Joyner & Alexander Ian Parkhouse, Nuclear Terrorism in a Globalized World:
Assessing the Threat and the Emerging Management Regime, 45 Stanford J. Int’l L . 203 (2009) (repeat-
ing the comment of Graham Allison, supra note 9, at 240).
58 Consistent with this, President Obama reiterates whenever speaking of getting to zero, that he does
not think it will occur in his lifetime. Obama, Remarks in Prague, supra note 7. See also Evans &
Kawaguchi, supra note 38, at 67. “For the time that will be needed to overcome the political, strategic,
psychological and other obstacles to abolition, the retention of nuclear weapons in sufficient numbers
and configuration to deter others from threatening or using them is something that policymakers on
all sides of the argument are going to have to accept.”
22 Nuclear Weapons Counter proliferation: A New Grand Bargain
ii. the flawed connection of nuclear disarmament and
counterproliferation

Even if nuclear disarmament is a viable goal, not just a hope, it is therefore coun-
terproductive for its achievement to be made the condition for substantial progress
on counterproliferation. Nuclear disarmament may be the long-term objective, but
counterproliferation is the immediate requirement for reduction of nuclear risk. The
unrealized goal of disarmament should not be allowed to undermine progress on coun-
terproliferation by serving as the excuse for resistance. But that is what will continue
to occur so long as counterproliferation remains wholly referable for its sole founda-
tion to the NPT, in which disarmament and counterproliferation are bound together.
Nuclear risk, to the contrary, is not somewhere high on that same fog-shrouded moun-
tain of a world without nuclear weapons. It is down here on the plains of real risk,
where counterproliferation must be made effective within the limits of current politi-
cal and strategic reality.
Down in the real world of nuclear risk, the nexus of non-proliferation and global
disarmament embodied in the NPT is the cross that counterproliferation bears in
every venue of nuclear weapons discourse. There is consistently the insistence from
many governments, most emphatically from the non-nuclear weapons states (NNWS),
that progress in non-proliferation as promised in Article I of the NPT depends upon
progress in achieving nuclear disarmament seen as a quid pro quo as stated in Article VI
of the Treaty. At the NPT review conference that occurs every five years, this central
tenet is always repeated, however much frustration and dispute it engenders. The most
recent review conference that took place in 2010 once again called for the “full, effec-
tive and urgent implementation” of nuclear disarmament, and proclaimed, as a cardi-
nal principal, the “unequivocal undertaking” by nuclear weapons states to eliminate
their nuclear arsenals as the basis for moving forward.59
This insistence on a conditional dependency between nuclear disarmament and
counterproliferation for any counterproliferation progress dominates all discussion. It
is the view put forward by the four wise men when they speak on either topic, though
their version is primarily about atmospherics and securing cooperation. They declare,
for example, “We believe that without the bold vision of a nuclear weapons-free
world as called for in the Non-proliferation Treaty, the actions (counterproliferation
and other threat reduction such as weapons and other fissile material security and
reduction) will not be perceived as fair or urgent.”60 They also say, “We cannot take
these steps without the cooperation of other nations. We cannot get the cooperation

59 United Nations, Final Document, 2010 Review Conference of the Parties to the Treaty on the Nonproliferation
of Nuclear Weapons, NPT/CONF.2010/50 Vol. 1 2010, http://cns.miis.edu/treaty_npt/pdfs/2010_FD_
Part_I.pdf
60 Former Senator Sam Nunn, Nuclear Threat Initiative, Speech at American Nuclear Society
Annual Meeting (June 15, 2009), http://www.nti.org/c_press/speech_Nunn_American_Nuclear_
Society061509.pdf.
 Introduction 23
of other nations without the vision and hope of a world that will someday end these
weapons as a threat to mankind.”61
The assertion of a necessary nexus between counterproliferation and nuclear dis-
armament appears pre-eminent in many forms and fora. Throughout the literature of
disarmament and non-proliferation the same proposition is restated, and is claimed to
represent the consensus view among principal non-nuclear states. The Carnegie Report
on “Abolishing Nuclear Weapons” declares, “Key non-nuclear weapons states say that
motivation is undermined by the failure of the nuclear-armed few to work in good faith
towards fulfilling the disarmament bargain. Seriously pursuing disarmament is there-
fore necessary to prevent proliferation and make the probably inevitable expansion
of nuclear energy safe.”62 The Carnegie Report also makes clear that lack of progress
on nuclear disarmament becomes the basis for real resistance to counterproliferation
measures, observing that “ . . . non-nuclear weapons states oppose any tightening that
would affect non-nuclear weapons states without corresponding concessions by the
nuclear weapons states in the area of disarmament . . . . ”63 Some commentators declare
a direct dependency between non-proliferation and nuclear disarmament in even more
categorical terms, concluding “it will be impossible to curtail nuclear weapons prolif-
eration without serious progress toward nuclear disarmament.”64
That reliance on nuclear weapons by the nuclear weapons states is used to justify
resistance to counterproliferation is undeniably true. That it is the real reason, all evi-
dence indicates, is not true. There is no evidence, other than rhetorical, of a functional
nexus between disarmament and counterproliferation. Reducing nuclear risk just does
not work this way. Counterproliferation is a much more differentiated, diverse, and
nuanced matter.
This is evident, for example, in the irony that one state’s nuclear arsenal may actu-
ally secure non-proliferation of other states. Thus it has long been a primary element
of United States strategic policy to extend a nuclear umbrella over allies, both in
Europe and East Asia, not only for deterrence, but for its value in preventing those
allies from developing their own nuclear arsenals. The nuclear umbrella extended to
allies is also intended to serve counterproliferation by preventing the increase in risks
of security of weapons and fissile material, accident, miscalculation, or dangerous turn
of leadership; risks that acquisition of nuclear weapons always brings with it. Many
governments have been able to foreswear nuclear weapons just because they are under

61 Former Senator Sam Nunn, Nuclear Threat Initiative, “The Race Between Cooperation and Catastrophe”
(June 12, 2008), http://www.nti.org/c_press/speech_Nunn_Germany61208.pdf; See also, Sidney Drell
& James Goodby, The Reality: A Goal of a World Without Nuclear Weapons Is Essential, The Washington
Quarterly, Summer 2008 at 30, http://www.twq.com/08summer/docs/08summer_drell-goodby.pdf;
George Perkovich et al., Universal Compliance: A Strategy for Nuclear Security, Carnegie Endowment
for International Peace June 2007 at 150, http://carnegieendowment.org/files/univ_comp_
rpt07_final1.pdf
62 Perkovich & Acton, Abolishing Nuclear Weapons, supra note 36, at 130-31.
63 Perkovich, et al. supra note id, at 214.
64 Perkovich & Acton, supra note 36, at 13.
24 Nuclear Weapons Counter proliferation: A New Grand Bargain
the nuclear umbrella of the United States. South Korea, Japan, Taiwan, and various
European states with capability to produce nuclear weapons have not acquired nuclear
weapons at least in part because of the U.S. nuclear umbrella. This has become increas-
ingly so for East Asia in relation to North Korea’s development of nuclear weapons, and
the North Korean regime’s expressed willingness to proliferate. For Europe, though
now well beyond the dynamics of the Cold War and MAD, this rationale also remains
relevant, particularly in the current face-off with Iran’s nuclear threat.65 Relatedly, the
United States nuclear arsenal as nuclear guarantee may also leverage states such as
Iran and North Korea to avoid a regional nuclear arms race.
Some states enjoying a nuclear umbrella today are capable of rapid development
of nuclear weapons. It is likely some would develop their own nuclear weapons if the
nuclear umbrella were removed. This appears true even of Japan, despite the trau-
matic legacy of the Hiroshima and Nagasaki detonations, and the recent trauma of
Fukushima. Japan is probably the state most easily identified as a “virtual nuclear
weapons state,” known to be fully nuclear capable, having the material and technology
to develop its own nuclear weapons within a matter of months. Prominent Japanese
politicians have indeed floated the proposition that Japan would proceed with devel-
opment of its own nuclear weapons if it should determine it to be necessary to counter
the nuclear risk presented by North Korea.66
In the Nuclear Posture Review Report released in April 2010, then U.S. Secretary
of Defense Robert Gates made clear the nuclear umbrella strategy remains critical
in United States strategic planning. He reiterated in diplomatic, but nevertheless
certain terms, that the United States requires a reliable nuclear inventory because
“more than two dozen allies and partners rely on our nuclear umbrella.”67 In other
words, one state’s nuclear arsenal, in the official view, does serve non-proliferation
by others. What this also illustrates is that the core quid pro quo of the NPT does
not accurately describe the relationship between nuclear weapons programs and
non-proliferation as it actually occurs in the practice of states; that, indeed, in some
respects, the relationship is the opposite of what the NPT Grand Bargain anticipates,
and is counterintuitive, with one state’s arsenal actually deterring the creation of
nuclear weapons arsenals by others.

65 Judy Dempsey, US says antimissile shield in Europe will be ready by 2011, N.Y. Times, Mar. 15, 2007,
http://www.nytimes.com/2007/03/15/world/europe/15iht-shield.4919630.html. See also Mail Foreign
Service, U.S. vows to “100 per cent” cover Europe with an anti-ballistic missile shield by 2018, The Daily
Mail Online, Apr. 16, 2010, http://www.dailymail.co.uk/news/article-1266492/U-S-vows-100-cent-
cover-Europe-anti-ballistic-missile-shield-2018.html.
66 Kyodo News, Nakagawa floats sobering option: going nuclear, Japan Times, Apr. 20, 2009, http://www.
japantimes.co.jp/text/nn20090420a3.html; See also David McNiell, Japan: The Land of the Rising
Nationalism, The Independent, Nov. 5, 2010; See also David McNiell, Japan Must Develop Nuclear
Weapons, Warns Tokyo Governor, The Independent, Mar. 8, 2011, http://www.independent.co.uk/
news/world/asia/japan-must-develop-nuclear-weapons-warns-tokyo-governor-2235186.html.
67 Secretary Robert Gates, Department of Defense, Briefing on the Announcement of the New START
Treaty (Mar. 26, 2010), http://www.state.gov/secretary/rm/2010/03/139147.htm.
 Introduction 25
More generally, even putting aside the contradictory premise at the heart of the
NPT, there appears to be no significant relationship in the actual practice of states
between counterproliferation and nuclear disarmament. The historical record, without
exception, bears this out. The reductions and eliminations of nuclear weapons pro-
grams that have occurred, have not reduced resistance to counterproliferation meas-
ures, nor prevented proliferation. In fact, the greatest proliferation occurred when the
states holding 90 percent of the world’s nuclear weapons, the Soviet Union and the
United States, were cutting their nuclear armaments from the 1970s through the 1990s.
Proliferation and expansion of the nuclear arsenals of former non-nuclear weapons
states during the same period included Israel, India, Pakistan, Iran, Iraq, Libya, and
North Korea. More recently, United States and Russian reductions achieved through
the SALT and START negotiations have not resonated with non-nuclear state govern-
ments, who understand that the nuclear weapons reductions by the U.S. and Russia
are designed for their own immediate security objectives, which do not include getting
to zero. Reduction to 1550 warheads in Start II is also seen as permission for 1550, leav-
ing Russia and the United States still with the capability for mutual destruction, or the
destruction of any state, many times over.
Nevertheless, the NPT continues to be relied upon as the foundation for claims of
legitimacy in relation to nuclear weapons. In announcing the signing of the START II
Treaty for nuclear weapons reductions on April 8, 2010, President Obama declared,
“We are keeping our commitments under the NPT.”68 But given the lack of any response
to other nuclear arms reductions, there is no reason to suppose that this claim of NPT
compliance will have any traction whatsoever with the non-nuclear weapons states for
furthering counterproliferation. If past experience is at all indicative, any arms reduc-
tions that are accomplished by the major powers short of total nuclear disarmament,
will not end the disarmament complaint of the NNWS.
There is also no discernible relationship between counterproliferation and the
national motivations of lesser powers that have abandoned nuclear armament.
The motivations for nuclear disarmament have been various, but wholly devoid of
any motivation to secure other states non-proliferation. All the situations of major
reductions or elimination of nuclear weapons, if examined, confirm this. The demise
of the Soviet Union naturally brought with it a fundamentally altered strategic rela-
tionship between the United States and the states of the former Soviet Union. That
made possible new historic agreements to reduce weapons, and terminate the nuclear
weapons status of the Ukraine, Belarus, and Kazakhstan. It also made possible coop-
eration for the highly successful Nunn-Lugar Cooperative Threat Reduction Program
securing nuclear weapons and fissile material scattered throughout the former Soviet
Union. The former Soviet republics reasonably concluded they were better off without
nuclear weapons and the associated risks, such as accident and associated health and

68 President Barack Obama, Comments made upon the signing of the START II Treaty (Apr. 8, 2010),
http://www.whitehouse.gov/blog/2010/04/08/new-start-treaty-and-protocol.
26 Nuclear Weapons Counter proliferation: A New Grand Bargain
environmental risk, in light of the Chernobyl disaster. This was particularly true for
Belarus, the Chernobyl disaster having contaminated 20 percent of Belaran territory.
The incentives for the former Soviet republics also importantly included economic
benefit. For example, the Ukraine was able to negotiate compensation from both
Russia and US. This included Russian multi-billion dollar debt forgiveness for oil and
gas and the US commitment of $900 million in American assistance and investment, at
a time when the new Ukrainian government needed aid. The mix of incentives culmi-
nated in the 1994 Trilateral Agreement of the United States, Russia, and the Ukraine,
which provided financial and technical incentives to compensate Ukraine for its highly
enriched uranium. Other reasons for the abandonment of nuclear weapons programs,
for Argentina, Brazil, Kazakhstan, Libya, and South Africa have included avoidance
of the costs involved, economic incentives, security assurances, and political change.
South Africa’s termination of its nuclear weapons program was surely the result of the
revolution in its politics ending apartheid. Libya is a more controversial case, with the
George W. Bush Administration claiming Libya gave up its nuclear weapons program
as a consequence of the threat implicit in the invasion of Iraq, and the interdiction of
Libyan nuclear supplies. Other analyses dispute this, crediting the abandonment of
Libya’s program to such factors as the negotiations over the Lockerbie bombing and
the Libyan regime’s recognition that its economic interests would be best served by
integration with the global economy. Whatever the truth of Libyan motivation, no
historical analysis maintains that Libya’s abandonment of its nuclear program, or any
other termination or reduction by any other nation, was brought about as payment for
counterproliferation. In view of the now fully revealed nature of the Gaddafi regime,
such suggestion would be ludicrous.
Conversely, counterproliferation measures that have been accomplished have not
depended for their success on corresponding reductions in nuclear weapons arse-
nals. There is not the least evidence establishing that nuclear arsenal reductions
or eliminations have improved the atmospherics for securing counterproliferation
cooperation. There is simply no basis for concluding that numerous states agreeing to
such important counterproliferation measures as the Additional Protocol enlarging
inspection rights of the IAEA, implementation of export-import controls, provision
of data for nuclear forensics capability, or arrangements for sharing counterprolif-
eration intelligence, have depended on steps towards nuclear disarmament. There
is not the slightest indication that any such progress on counterproliferation has
been retarded, enhanced, or affected in any way by developments in nuclear arms
reductions.
It is, however, surely the historical experience that when states resist counterpro-
liferation measures, they justify their resistance as based on the NPT nexus between
counterproliferation and disarmament. Thus a recent survey addressing the ques-
tion, “Why Do States that Oppose Nuclear Proliferation Resist New Non-proliferation
Obligations?” summarized its findings as demonstrating, “(t)here is something
approaching consensus among scholars and policy-makers that many states resist
proposals to strengthen the non-proliferation end of the NPT bargain largely because
 Introduction 27
America and other nuclear-weapon states haven’t made satisfactory progress towards
nuclear disarmament.”69 The finding is certainly superficial as stated. In light of the
actual evidence of state practice, the more accurate interpretation of the consensus
would have to be that nuclear disarmament is “the favorite excuse” governments employ
to resist counterproliferation.70 For not only is there no evidence whatsoever that
disarmament induces acceptance of measures for counterproliferation, but without
exception, the evidence is that proliferation motivation has nothing to do with nuclear
disarmament progress by the nuclear weapons states. The so-called rogue states, the
ones that most matter for counterproliferation, are not influenced by US-Russian
reductions that are an echo of the bipolar world gone by. Such reductions have lit-
tle if any relevance to the interests at stake in nuclear relations with governments
such as that of North Korea and Iran. The Iranian, Iraqi, Libyan, and North Korean
proliferations are all traceable to factors such as regional strategic policies, leverage to
intimidate other regional powers, insurance against foreign conventional superiority,
and internal and external political prestige. For much of proliferation, there is also
the importance of the considerable profits involved in the nuclear weapons-related
trade. Sale of missiles capable of carrying nuclear warheads, for example, has been an
important source of income for a financially desperate North Korea. But in none of the
specific cases of proliferation, does general or specific failure of the nuclear weapons
states to make progress on nuclear disarmament even appear as relevant.
Any reduction of nuclear armament capability no doubt reduces nuclear risk, if only
through reduction of the risks of accident, theft, or sabotage. But the proposition that
nuclear weapons reduction among the nuclear weapons states is necessary for coun-
terproliferation steps to be implemented by governments, has no grounding beyond
overoptimistic speculations about the atmospherics of negotiation. There is a priority
global interest in reducing or eliminating nuclear armaments, and a priority global
interest in counterproliferation. Both objectives serve nuclear security. But neither
history nor logic establishes that success in achievement of one goal depends upon
the other. The actual successes of counterproliferation and elimination or reduction of
nuclear arsenals, as historical fact, consistently demonstrate the contrary.
Though the historical experience exposes the nexus at the heart of the NPT to be
entirely unrealized and unsupportable, that nexus has been important in negatively
impacting counterproliferation. Probably the most significant example is the oppo-
sition to universalization of the Additional Protocol of the IAEA. The Additional

69 Andrew Grotto, Why Do States that Oppose Nuclear Proliferation Resist New Nonproliferation Obligation?:
Three Logics of Nonproliferation Decision-Making, Vol. 18, No. 1 Cardozo J. Int’l & Comp. L. 1, 1–2
(2010) (discussing how the failure of nuclear states to disarm has prompted many non-nuclear states
to strengthen the nonproliferation end of the NPT).
70 The point is thus apparent in Graham Allison’s observation that “ . . . demonstration of the haves liv-
ing up to NPT obligations would erase the have-nots’ favorite excuse for resisting essential actions.”
See Graham Allison, Nuclear Disarmament and Nonproliferaton 14–15, (Trilateral Commission
2011). “But without the NPT obligation to disarm being realized, we accordingly expect the favorite
excuse for resisting essential actions to remain.”
28 Nuclear Weapons Counter proliferation: A New Grand Bargain
Protocol was developed in response to the inability of the IAEA to detect Iraq’s nuclear
weapons programs before it operated for almost seven years. The Additional Protocol
is specifically designed to achieve much greater effectiveness in detection, by extend-
ing inspection authority beyond declared nuclear facilities to include undeclared facili-
ties. Yet at the NPT review conference in 2010, non-nuclear weapons states within the
non-aligned movement opposed universalization of the Additional Protocol as an inter-
national norm of counterproliferation. The only justification offered for this position
was the claimed linkage to nuclear disarmament. This was despite a draft report that
declared the Additional Protocol to “represent the verification standard that best fulfills
the objectives of Article III of the Treaty.”71 That so important an advance in counter-
proliferation capability, though legitimated through its acceptance by numerous states,
could be denied universalization on the basis of failure of global nuclear disarmament,
demonstrates just how damaging the nexus that is the core of the NPT can be.
Examination of the major arenas of counterproliferation, as we will explore them
in this book, makes clear that real resistance to counterproliferation results not from
failure of disarmament, but from concerns of sovereign interest distinct to each
arena of counterproliferation. For export-import control, there is the concern that
the controls are being used to preserve nuclear supplier monopolies, and that they
may operate as a barrier to economic development. Constraining counterproliferation
intelligence-sharing are concerns of disclosure of sources and methods, and free-riding
by states with relatively limited intelligence capabilities. Preventing the adoption of
proposals for multi-nationalization of the nuclear fuel cycle are concerns of energy
independence and other concerns of national sovereignty. The great potential for
enhanced deterrence through the revolutionary new technologies of nuclear foren-
sics is stifled by concerns about disclosure of proprietary and national security related
data. But nowhere, in the real world of securing counterproliferation measures, is the
impediment related in any respect to failures of nuclear disarmament.72
Though the claimed nexus between counterproliferation and nuclear weapons dis-
armament demonstrates no cause and effect relationship in either direction, it does
have a retrograde impact on the status of the NPT as its source and inspiration. Former
Secretary of State George Shultz, for example, asserts that the NPT is “unraveling
because there hasn’t been significant commitment on the part of countries that have
nuclear weapons to get rid of them.”73 What is not acknowledged is that any such
unraveling is in fact in significant measure a result of the fictitious nexus and dysfunction
at the core of the NPT. The critical lesson we can usefully draw from the unraveling
of the NPT, is not the “full, effective and urgent implementation” of global nuclear

71 William Potter, Patricia Lewis, Gaukhar Mukhatzhanova, & Miles Pomper, The 2010 NPT review
Conference: Deconstructing Consensus, CNS Special Report June 17, 2010, http://cns.miis.edu/sto-
ries/pdfs/100617_npt_2010_summary.pdf.
72 Grotto, supra note 69, at 1–2.
73 Remarks by Secretary Shultz quoted in the Christian Science Monitor. See Robert Marquand, Nuclear
weapons: Is full Disarmament Possible?, Christian Science Monitor, Apr. 6, 2010, http://www.csmon-
itor.com/World/Global-Issues/2010/0406/Nuclear-weapons-Is-full-disarmament possible, at 5.
 Introduction 29
disarmament called for at the 2010 NPT Review Conference.74 The critical lesson is that
we cannot continue to rely exclusively on a legal formulation that is not working. It is
not working, not because of lack of weapons reductions, but because it depends upon
and projects a fictitious relationship between nuclear disarmament and counterprolif-
eration as the sole basis for any counterproliferation progress.
We have failed to achieve total nuclear disarmament for about 40 years since that
objective was declared and frozen as concurrently conditional with counterpro-
liferation, and there is no such prospect for the foreseeable future. It is therefore
counterproductive to continue to rely exclusively on the NPT as the foundation for
counterproliferation infrastructure. The immediate need for effective counterprolifer-
ation is not well served by a framework that includes, as a principal element, an excuse
for proliferation. This is why it is essential to explore a new formulation, and build a
new foundation, to move forward to actually reduce nuclear risk.
This does not, and should not, in any respect, diminish the nuclear security
advantage to be gained from measures of nuclear disarmament, such as strategic
arms reduction treaties and other arms agreements, improvements in security of
weapons and fissile materials, and reduction of alert levels and trigger times of
nuclear forces among the nuclear weapons states. Moreover none of these nuclear
arms control measures require the radical transformation on which disarmament
to zero is premised. These are the step-by-step advances that thoughtful nuclear
disarmament proponents, including the four wise men, endorse and have worked to
promote with some degree of success.75 These are risk reductions which have proved
doable, as exemplified by the nuclear arms agreements and nuclear security arrange-
ments achieved between the United States and the states of the former Soviet Union.
These are achievements that demonstrate, unequivocally, that important progress in
weapons reduction is possible. Collectively they indicate, however, that with a more
propitious foundation for nuclear risk reduction, much more significant progress
could be achieved.

C. Legitimacy; The Challenge of Asymmetric Possession of

Nuclear Weapons

The rhetorical nexus between nuclear disarmament and non-proliferation has framed
the views of scholars and policymakers to a remarkable degree, considering the exten-
sive literature indicating proliferation has no connection, logical or empirical, with
disarmament.76 Those interested in nuclear trade, or the development of clandestine

74 United Nations, supra note 59, at 19.

75 Shultz et al., Nuclear Free World, supra note 20. See also Nuclear Threat Initiative, About NTI: Fact Sheet,
(Nov. 9, 2011), http://www.nti.org/b_aboutnti/b4_programs.html.
76 John Warden, Are Disarmament and Nonproliferation Two Sides of the Same Coin?, Center for
Strategic and International Studies (Nov. 11, 2011), http://csis.org/blog/are-disarmament-and-
nonproliferation-two-sides-same-coin. See also Jacques E. G. Hymans, The Psychology of Nuclear
30 Nuclear Weapons Counter proliferation: A New Grand Bargain
nuclear weapons related capacity, may find advantage in perpetuating the presumed
connection, as the excuse for their resistance to counterproliferation.77 But why is
the presumed connection taken so seriously, and made central by so many schol-
ars and statesmen of global security policy? Characterizing this phenomenon as
“The Emperor’s Nuclear Clothes,” an editorial in The Wall Street Journal recently
observed, “Enough is enough. Every day, the events of the real world reveal that the
American foreign policy establishment is wearing nothing but the emperor’s new
clothes—policies that make proper people murmur ‘how Nobel worthy’ while looking
around to see if anyone else notices something odd.”78 What is the explanation for why
nuclear weapons abolition, as a precondition for counterproliferation, however odd, so
dominates the discussion?79
The rhetorical perpetuation of the connection of disarmament and counterprolif-
eration is revealing. It tells us something important about what is required to move
forward with counterproliferation in a world of nuclear weapons haves and have nots.
The explanation is the need to legitimate counterproliferation despite asymmetry in
the possession of nuclear weapons. That reason is in the origin of the NPT bargain. In
freezing the distinction of nuclear and non-nuclear states as of 1967, the NPT became
the embodiment of the political and strategic nuclear weapons asymmetry of its time.
But that asymmetry in itself would have denied the NPT legitimacy. The solution was
to establish the nexus between a goal of nuclear disarmament and non-proliferation.
The promise of negotiation towards nuclear weapons disarmament in Article VI
(along with sharing in peaceful use of atomic energy in Articles IV and V) could jus-
tify non-proliferation, despite the actual asymmetry of possession of nuclear weap-
ons, because its idealized dialectic promised that all states eventually would become
non-nuclear weapons states. The Grand Bargain of the NPT offered at least an ulti-
mately equitable resolution of the matter of legitimacy.80 Though the reasons states

Proliferation (Cambridge University Press 2006). See also Robert Rauchhaus, Matthew Kroenig, &
Erik Gartzke, Causes and Consequences of Nuclear Proliferation, 1st ed., (Routledge Global
Security Studies 2011).
77 For a discussion of how this is played on by Iran see Nazila Fathi & David E. Sanger, Iran Won’t Give
Up Right to Use Atomic Technology, Leader Says, N.Y. Times, June 28, 2006, http://www.nytimes.
com/2006/06/28/world/middleeast/28iran.html.
78 Rosen, supra note 52.
79 Thus Egypt, which held the NAM chair during the 2010 NPT Review Conference declared in the 2005
Conference, presumably speaking for the non-nuclear weapons states, that progress on disarmament
should be “the determining factor with regard to acceptance by the states-parties of any further obli-
gations under the NPT.” Ahmed Gathalla, Egyptian Foreign Ministry, Statement Before the General
Debate of the 2005 Review Conference of the NPT 1 (May 3, 2005). See also position of South Africa,
similarly prominent in the two most recent NPT review conferences, highlighting nuclear disarma-
ment as the controlling dynamic for nonproliferation progress under the NPT. See Christopher F.
Chyba, Time for a Systematic Analysis: U.S. Nuclear Weapons and Nuclear Proliferation, Vol. 38 Arms
Control Today (Dec. 2008) (discussing how South Africa should be considered a nuclear power
because of the 300 kilograms of weapons-grade uranium it possesses), http://www.armscontrol.org/
act/2008_12/Chyba.
80 See pages 5–7 and notes 13–17, supra.
 Introduction 31
have since reduced or eliminated their nuclear arsenals, or adopted measures of coun-
terproliferation, bear no real relationship to that scheme, adherence to the presumed
nexus and the outcome it promised remains an article of faith. That nexus continues
because it provides the only claim to fairness and legitimacy for non-proliferation,
despite the continuing asymmetry of the nuclear/non-nuclear classification of
states. Moreover, there is understandably a sustaining disinclination to any critique
that could undermine the NPT, because the NPT is all we have as the foundation for
counterproliferation.
So what is done, in attempting to move forward, is to repeat the catechism of a
connection between non-proliferation and disarmament, without acknowledging its
irrelevance. For counterproliferation, the result is a paradoxical and negative nuclear
security dynamic. The commitment to negotiate towards global nuclear disarmament,
awaiting a different world and time, becomes increasingly with time, the excuse for
undermining the infrastructure of counterproliferation. But how can nuclear risk be
diminished, when we have a foundational deal which, over time, increasingly casts
doubt on its own legitimacy? There was no intention for it to work that way of course.
The authors of the NPT had a different view of the future than the future has become;
but it does work that way.
The NPT does not, however, erect an insurmountable legal barrier to moving for-
ward on counterproliferation without disarmament, and moving forward does not
require abandonment of the NPT. There is enough play in the disarmament language
of Article VI of the NPT to accommodate the new architecture here proposed. Article
VI is not quite what it is represented to be by proponents of disarmament and prolif-
erating governments. It does not commit the nuclear weapons states to a substantive
requirement of immediate steps to global disarmament. The stated commitment is
that “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early date and
to nuclear disarmament . . . . ” The commitment is to negotiate in good faith. This is not
just a matter of literal reading. A legal duty to negotiate in good faith is importantly
distinct from a substantive commitment, and has been so employed in both United
States domestic law, and in public international law.81
What the negotiators of the NPT must have intended by stipulating a duty to
negotiate in good faith in Article VI, was to walk a fine, but important line. To obtain

81 A prominent example of its use in domestic law is the duty of employers and employees to negoti-
ate in good faith as the central obligation of both under the National Labor Relations Act. See 29
U.S.C.A. § 158(d). See also Jack Garvey, Trade Law and Quality of Life—Dispute Resolution Under the
NAFTA Side Accords on Labor and the Environment, Vol. 89, No. 2 Am. J. Int’l. L. 439 (Apr. 1995)
(describing the NAFTA dispute resolution process). The duty to negotiate in good faith has been
employed in international law, for example, by way of the “good faith accord” that United Nations
Secretary General Dag Hammarskjöld negotiated between Israel as the legal framework for termina-
tion of hostilities after the invasion of Egypt by Israel, France and Britain in 1956. See Jack Garvey,
United Nations Peacekeeping and Host State Consent, Vol 64, No. 2 Amer. Journal of Int’l Law 241
(Apr. 1970).
32 Nuclear Weapons Counter proliferation: A New Grand Bargain
endorsement for the treaty, most importantly the commitment of the non-nuclear
weapons states to non-proliferation, they had to address the asymmetry that would
remain. The nuclear weapons reality they faced at the time was MAD—possession of
nuclear weapons as the irreducible deterrent dynamic of the cold war. The legal inven-
tion, to bridge the gap between the nuclear states and non-nuclear states, and provide
a promise of eventual equity, was to articulate a commitment to negotiate in good
faith towards the stated goal of zero.82
Proponents of nuclear disarmament have understandably sought to ignore the dis-
tinction between a substantive commitment to nuclear disarmament and the promise
to negotiate in good faith. They have been quite successful at it, to the point where
the review conferences for the NPT repeatedly proclaim, without any qualification,
that the NPT embodies a legal commitment to global nuclear disarmament. The point
here, though, is simply that we need to move beyond the NPT and its flawed founda-
tion, and that the legal analysis for doing so, whatever the political rhetoric, includes
the proposition that there is no legal barrier to developing a new foundation for
counterproliferation.
That there is no near-term prospect of global nuclear disarmament is widely
acknowledged even by its most dedicated proponents. Former Senator Sam Nunn’s
metaphor of the fog-shrouded mountain top was well chosen. The nuclear landscape
today indubitably demonstrates that nuclear disarmament, which the NPT under
Article VI establishes as the quid pro quo for non-proliferation, is nowhere in sight. The
Thirteen Steps to nuclear security articulated in the Final Document of the 2000 NPT
Review Conference accordingly remain idealized and unrealized. The effort to draft a
consensus document at the 2005 review conference ended in utter failure, and the Final
Document issued by the 2010 Review Conference acknowledged there was still “the
urgent need for the nuclear-weapons states to implement the steps leading to nuclear
disarmament agreed to in the Final Document of the 2000 Review Conference.”83
Even if one or another of the likely flash points of contemporary nuclear risk should
disappear; indeed, even if the goal of global nuclear disarmament were achieved,
nuclear risk is here to stay. Nuclear weapons risk will always be with us because its
material and technology will be with us. Even the most optimistic view of political
evolution does not alter this reality. There is no such thing as political stasis. Fissile
material and fissile humanity will remain a volatile mix. New bad actors replace the
old, although occasionally we may not see any. Colin Powell, when he was Chairman of
the Joint Chiefs of Staff, on one occasion discussing global security said, “I’m running
out of demons, I’m running out of villains. I’m down to Castro, Kim Song II.”84 But it
did not take long to discover new demons, with potentially suicidal and catastrophic
policies, to bedevil non-proliferation—President Mahmoud Ahmadinejad of Iran,
leaders of Burma, that son of a demon, Kim Jong-il, himself fathered by the demon

82 See pages 5–8 and 13–17, supra.

83 United Nations, supra note 59.
84 Jim Wolffe, Powell: “I’m Running Out of Demons,” Army Times 4 Apr. 15, 1991.
 Introduction 33
Kim II-Sung, now followed by Kim Jong-Un—probably to be followed by some other
yet-to-be born dangerous child. We can be sure we will not run out of nuclear villains.
We need a new way forward, because though a world without nuclear weapons may be
the ideal and the goal, nuclear risk will remain.
Indeed, nuclear risk is spreading well beyond what can be attributed to malign
governments. The Chernobyl, Three-Mile Island, and the Fukushima disasters gen-
erated hesitation, and even apparent termination of peaceful use programs, such as
that of the government of Germany. However, initiatives for nuclear development
continue to appear. Concerning official reports that the Obama Administration and
Saudis were planning for nuclear cooperation to box in Iran, the chairwoman of the
US House of Representatives Foreign Affairs Committee declared, “I am astonished
that the Administration is even considering a nuclear agreement with Saudi Arabia.
Saudi Arabia is an unstable country in an unstable region, with senior officials openly
proclaiming that the country may pursue a nuclear-weapons capability.”85 She should
not be astonished. Saudi Arabia has been reported to be pursuing nuclear–cooperation
agreements also with South Korea, Japan, France, and Russia.86 And Saudi Arabia is
only one current example of how open for business—big business—is the dual-use
nuclear market. A US deal with Saudi Arabia would be intended to replicate the deal
signed with the United Arab Emirates in 2010, not only to pressure Iran, but as means
to address proliferation by gaining some control on the flow of nuclear material and
technology, particularly by way of a commitment by Saudi Arabia not to produce its
own nuclear fuel.87 And there is no sufficient international control presently in place to
prevent any of the contemplated deals, certainly not the NPT, with its Article IV guar-
antee of nuclear development for peaceful use. Moreover, with suppliers from numer-
ous states competing for great profits, there is less and less leverage for US-imposed
restrictions.
Meeting all these challenges of the apparent future of proliferation requires a new
architecture for counterproliferation. The failures of counterproliferation are not all
attributable to the flaws of the NPT. But clearly the NPT has proved inadequate to
the challenge, with even its most vociferous supporters calling for improvement and
amendment.88 And as the work of counterproliferation struggles to go on without reali-
zation of the promise of nuclear weapons abolition, it engenders, over time, increasing
cynicism, and the sense of unraveling of the NPT. The NPT is simply not a prescription
for progress, and its delegitimization is likely to continue. What is needed, therefore,
is a means for progress on counterproliferation that is viable, notwithstanding the
continuing asymmetry of the possession of nuclear weapons by states and the failures
of progress towards global nuclear disarmament.

85 Jay Solomon, U.S. Saudis To Discuss Nuclear Agreement, Wall St. J. A7 (July 30, 2011).
86 Id.
87 Id.
88 See Jozef Goldblat, Amending the nonproliferation regime, United Nations Institute for
Disarmament Research (2009), http://www.unidir.org/pdf/articles/pdf-art2862.pdf.
 2
F U TI L I T Y O F NU CLE A R WE A PONS RISK M A N AGEM EN T I N A

CO N S ENS UA L R E G IME

the united nations (UN) Security Council has imposed sanctions in the few limited
cases of most egregious and dangerous proliferation, namely North Korea and Iran and
Saddam’s Iraq. However, the mandatory proscriptions that have resulted from Security
Council action under Chapter VII of the United Nations Charter (Charter) do not address
counterproliferation directly or exclusively. Moreover, sovereign consent is the dominant
principle of counterproliferation, as it now exists. The present capabilities and limitations
of counterproliferation are best described by the voluntary adherence of governments
to the different agreements and structures that are its components. These include, most
prominently, the safeguards and inspection regime of the International Atomic Energy
Agency (IAEA) and a collection of international agreements, both formal and informal.
Building a better counterproliferation regime requires understanding, first, why this
consent-based architecture is not working well enough for the management and con-
tainment of contemporary nuclear weapons risk. If the system is unraveling and “in
tatters,” as those most knowledgeable claim, why? We need to understand the nature
of the vulnerability of what we now have, before reaching for a better design. This in
turn requires identifying the distinctive nature of contemporary nuclear weapons risk,
and the challenges it presents.

A. Nuclear Terrorism

In the view of recent presidents of the United States, statesmen throughout the
world, and principal commentators, nuclear terrorism is at the top of the list of what
we should worry about.89 Nuclear terrorism is so distinctively new a threat, and so
threatening, as to confound former approaches to nuclear risk containment, which

89 Obama, Remarks in Prague, supra note 7.

34
 Futility of Nuclear Weapons Risk Management in a Consensual Regime 35
depend wholly on influencing states, not controlling non-state actors. The collapse of
the Nuclear Non-proliferation Treaty (NPT) regime is most apparent in that it was
not designed to address what is today probably this most serious counterprolifera-
tion concern. In the old world of nuclear weapons risk the NPT was designed to fit,
only states possessed nuclear weapons, and it was not within the realm of likelihood
that non-state actors could become nuclear weapons capable. Indeed terrorism did
not exist as the international phenomenon it is today. International terrorism and its
likely linkage to nuclear weapons capability was simply not present at the conception
of the NPT in 1967. Nor was much consideration given to the related nuclear weapons
risk that dual-use now implicates. Even today, the threat generated by non-state actors
is at best addressed only indirectly, to the extent transparency is achieved by account-
ing, monitoring and inspection of state facilities by the IAEA.
The diverse collection of ad hoc efforts to address the nuclear terrorism threat, such as
securing the weapons of the former Union of Soviet Socialist Republics (Soviet Union),
export controls, the Proliferation Security Initiative (PSI), and national anti-terrorism
legislation, bespeak the necessary invention of a contemporary response to this dis-
tinctively contemporary threat. The reality, however, has been little if any strategic
coherence. This is so though the scenarios of nuclear terrorism are well identified.90
This is so though a nuclear detonation in an urban setting as predicted, in any one of
these scenarios, given the incomparable magnitude of consequence, may well be the
holy grail of terrorist weapons of mass destruction (WMD) ambition.
That the international terrorist threat is connected to nuclear weapons risk is well
established. The ambition of al-Qaeda to commit nuclear terrorism, for example, is
documented. It has been reported that shortly before the 9/11 attacks, two Pakistani
nuclear experts met with Osama bin Laden in Afghanistan to discuss al Qaeda building
a nuclear device.91 There is also evidence that as early as 1993, agents of al Qaeda acted
to acquire nuclear materials or warheads from former Soviet republics.92 In a December

90 The IAEA has described four principal categories wherein the means and the methods for nuclear
terrorism are apparent and available: (1) detonation of a stolen or purchased nuclear weapon; (2) deto-
nation of an improvised nuclear explosive device made from stolen or purchased nuclear material;
(3) sabotage of, or attacks on, installations, locations, or transport containing nuclear material which
could result in severe and widespread dispersal of radiation; and (4) detonation of a radiological disper-
sal device; in popular jargon, the “dirty bomb” scenario. IAEA Doc GOV/2002/50 (48)/6 Nuclear
Security—Measures to Protect Against Nuclear Terrorism 4 (Aug. 11, 2004), http://www.
iaea.org/About/Policy/GC48/GC48Documents/English/gc48–6_en.pdf
91 It was discovered that Bin Laden met with scientists from the Pakistani nuclear program, from
which the CIA’s Weapons Intelligence, Nonproliferation and Arms Control Unit determined that
Al-Qaeda “probably had access to nuclear expertise and facilities and that there was a real possibility
of the group developing a crude nuclear device.” Rudimentary diagrams of the essential components
of nuclear weapons were found inside a suspected Al Qaeda safe-house in Kabul. David Albright,
Al-Qaeda’s quixotic quest to go nuclear, Asia Times, Nov. 22, 2002, http://www.atimes.com/atimes/
Middle_East/DK22Ak01.html; National Commission on Terrorist Attacks upon the United States,
The 9/11 Commission Report (2004), http://www.911commission.gov/report/911Report.pdf. See also
Joyner & Parkhouse, supra note 57, at 207, 210–11.
92 Bill Gertz, Russian Renegades Pose Nuke Danger, Wash. Times, A1 (Oct. 22, 1996).
36 Nuclear Weapons Counter proliferation: A New Grand Bargain
1998 interview, Bin Laden called the acquisition of weapons of mass destruction a “reli-
gious duty,” and declared al Qaeda’s objective “to kill four million Americans.”93
9/11 demonstrated al Qaeda’s capacity to plan and carry out a terrorist attack that
was probably more complicated than seizing, transporting, and detonating an unse-
cured nuclear weapon. Any other terrorist organization might also achieve that capa-
bility. There are in fact reports of other terrorists groups seeking fissile material and
nuclear weapons. These include repeated efforts by Chechen separatists.94 And the
terrorist fixation on nuclear is not limited to extremist Islamic groups. Seized docu-
ments of the terrorist organization responsible for the sarin nerve gas attack in the
Tokyo subway, Aum Shinrikyo, indicates it sought development of nuclear weapons.95
In 2008, the Colombian government reported that Fuerzas Armadas Revolucionarias
de Colombia (FARC) rebels had been attempting to obtain highly enriched uranium.96
These are only some of the known situations of terrorist groups attempting to
obtain nuclear weapons, but reveal such motivation to be widespread, and we can pre-
sume similar activity is yet unknown. 9/11 was evidence enough of the attraction to
terrorist groups, to the point of suicide, of the opportunity to reduce the towers of
21st century civilization to rubble. The likely operational calculus for a terrorist organi-
zation is that the greater the terror and destruction, the greater the risks they will
undertake; and accordingly, the less the deterrent effect of possible failure, exposure,
and punishment. Nuclear, by this calculus, is their most appealing option. Experts dif-
fer markedly as to the likelihood of a terrorist nuclear attack, and such projections are
naturally highly speculative. However, the most informed projections are more than
enough cause for apprehension. A 2005 U.S. Senate survey of experts is illustrative,
resulting in a projection of the average likelihood of a terrorist nuclear event at about
30 percent by 2015.97
Nuclear terrorism threat reduction is beyond the capacity of any state or even col-
lective regional action. To address this threat, it is necessary to secure fissile material
worldwide, combat nuclear trafficking worldwide, and constrain the spread and avail-
ability of nuclear material and technology worldwide. Each of these arenas of concern
present distinct requirements for implementation. Nuclear security requires securing

93 Rahimullah Yusufzai, World’s Most Wanted Terrorist: An Interview with Osama Bin Laden, ABC News
Online, Jan. 2, 1999, http://cryptome.org/jya/bin-laden-abc.htm. See also Joyner & Parkhouse, supra
note 57, at 207, 210–11 (describing Al Qaeda’s efforts to obtain a nuclear device). See also George Tenet,
Central Intelligence Agency, Written Statement for the Record of the Director of Central Intelligence
before the Joint Inquiry Committee (Oct. 17, 2002), https://www.cia.gov/news-information/
speeches-testimony/2002/dci_testimony_10172002.html.
94 See, e.g., Allison, supra note 9, at 31–34.
95 Id., at 40–42.
96 Tom Gjelten, Colombia Reflects Rising Threat of Nuclear Terrorism, NPR , Apr. 21, 2008, http://www.npr.
org/templates/story/story.php?storyId=89803657.
97 In a U.S. Senate 2005 survey of experts on terrorist threats, opinions differed markedly as to the risk
of a terrorist nuclear attack, but on average the experts surveyed indicated the risk at about 30 per-
cent by 2015. Richard J. Lugar, The Lugar Survey on Proliferation Threats and Responses, Senate Foreign
Relations Committee, June 2005 at 13–14, http://lugar.senate.gov/nunnlugar/pdf/NPSurvey.pdf.
 Futility of Nuclear Weapons Risk Management in a Consensual Regime 37
all nuclear weapons, including the thousands of nuclear weapons in existing stocks
that may be present in politically unstable circumstances such as the breakup of the
Soviet Union,98 or prospectively in Pakistan.99 It requires securing the material that
could be used to make a nuclear weapon in the form of a dirty bomb; any device that
employs a conventional explosion to spread nuclear contamination. The scenarios
of terrorist plans to obtain any such material that must be anticipated include sei-
zure from nuclear weapons or fissile material inventory (the IAEA has documented
many such thefts100), attack on a nuclear facility or the transport of nuclear material,
or purchase on the blackmarket from already stolen or illicitly marketed materials.
The history of proliferation indicates such black marketing of nuclear material is of
perhaps greatest concern, given the fact that the “nuclear Wal-Mart” of Dr. A.Q. Khan
of Pakistan went on for many years without detection, involving numerous govern-
ments and considerable cross-border trafficking. Operating in some 20 countries for
decades, its discovery dramatically exposed the inadequacy of contemporary nonpro-
liferation infrastructure, and there is considerable evidence of other black marketing
in nuclear materials and technologies.101 Moreover, the increase in dual-use technology
and capabilities being transferred through regular commercial channels considerably
compounds the challenge.
Although the infrastructure and associated costs for building nuclear weapons may
be beyond the capacity of most terrorist organizations, some analyses conclude a ter-
rorist organization, despite the difficulty, could build a crude nuclear weapon; if it can
obtain the fissile material. And a dirty bomb, using conventional explosive such as
dynamite or C-4 to disperse radioactive material, presents virtually no barrier other
than obtaining the nuclear material. It could be made using about a dozen radioisotopes
that are widely available as radioactive sources for medicine, industry, and agriculture.

98 This particular risk of “loose nukes” was addressed to a significant extent by the Lugar-Nunn pro-
gram, though with many of these weapons and with weapons grade material having gone unac-
counted. David E. Hoffman, Victories Come Slowly in Cleanup of Soviet Bloc Nuclear Materials, The
Washington Post, Aug. 30, 2007.
99 As to Pakistan, there is already planning within the U.S. government for the scenario of terror-
ists stealing the material that could be used to construct a nuclear weapon, or obtaining it through
conspiracy with individuals with authority in the government. See Greg Miller, Emergency Rule
in Pakistan; Pakistan’s Nuclear Arsenal a U.S. Worry, The L.A. Times, Nov. 8, 2007, at A10. See also
Allison, supra note 9, at 20–24.
100 As of December 31, 2011, the IAEA had confirmed 2,164 incidents of illicit trafficking of nuclear mate-
rial, 500 of which showed evidence of theft or loss. IAEA Illicit Trafficking Database 2 (2011),
http://www-ns.iaea.org/downloads/security/itdb-fact-sheet.pdf. Between July 2009 and June 2010
another 222 incidents were reported, 61 of which were classified as thefts or losses. Illicit Trafficking
Database, IAEA (Apr. 5, 2011), http://www-ns.iaea.org/security/itdb.asp.
101 According to the IAEA’s Illicit Trafficking Database (ITDB), a majority of the reported incidents
between 1993 and 2004 involved some form of criminal activity “such as theft, illegal possession,
illegal transfer or transaction.” The IAEA concluded that the data indicated a demand for nuclear
and radioactive materials on a black market and that the primary motive for the incidents was profit
seeking. IAEA, Illicit Trafficking Database (Nov. 12, 2011), http://www.iaea.org/newscenter/features/
radsources/pdf/itdb_31122004.pdf.
38 Nuclear Weapons Counter proliferation: A New Grand Bargain
Though the detonation of such a device would not be of the incomparable magnitude
of a nuclear detonation, it could cause massive casualties and civil disruption.
Nuclear terrorism is especially problematical for managing nuclear weapons risk
because of the deterrence and prevention conundrums it presents. Because the pro-
tagonists of nuclear terrorism would be non-state actors motivated primarily by ideol-
ogy, the avenues for addressing nuclear risk that exist in other contexts are largely, if
not entirely, foreclosed. Negotiation is not an option. The extreme nature of a terrorist
agenda characteristically leaves nothing to discuss. Fear of punishment is overcome
by promises of carnal bliss and martyrdom. The terrorist also enjoys the advantage
perhaps most disabling of traditional deterrence—the ability to attack and fade back
into the general population of any state, even one entirely unrelated to the attack.
Deterrence is most frustrated, by what has become a cliché of national security jargon,
the “lack of a return address.” All previous deterrence theory has been premised on
ability to identify the state perpetrator of attack, and deter attack with the threat of
retaliation. 9/11 brought home a befuddlement of deterrence and retaliation in rela-
tion to non-state actors. The confusion became manifest as two wars in two countries,
Iraq and Afghanistan, attacks in others for now more than ten years, costs of hundreds
of billions of dollars, gross failures of cultural understanding, alienation of occupied
populations, altogether generating more terrorism and more terrorists.
A terrorist organization may have connections to an established government, but
we learned how speculative, problematic, and lacking in credibility claims for such con-
nections may be. The invasion of Iraq, on the basis of never substantiated claims of
connections to international terrorism and WMD is, of course, the principal case in
point. Such failures to find any real connections defy the resources of even the best
endowed national intelligence agencies, particularly when suffering from political
manipulation, as for that misbegotten conflict. The requirement of governmental con-
sent as the precondition for effective monitoring, which is a premise of counterprolif-
eration as it currently operates, dramatically increases the challenges. It is especially
difficult to monitor small clandestine nuclear weapons programs, which can be hidden
in dual-purpose facilities using dual-purpose equipment. Nuclear weapons develop-
ment today does not require extremely large infrastructure, and therefore is easier to
conceal from visual detection, particularly imagery satellites. Indeed, verifiability is
so dependent on physical and documentary access, that without commensurate con-
sent, there cannot be adequate verifiability. Moreover, no government that collabo-
rates with a terrorist organization is going to enter any agreement for monitoring or
inspection of its nuclear facilities, or any other arrangement, that could compromise
or disclose such connection.
Current counterproliferation capacity, as consensual, is almost wholly depend-
ent on what governments will volunteer, and depends on cooperation of national
intelligence agencies on an ad hoc case-by-case basis. There has been some degree of
informal and formalized cooperation between national intelligence agencies. Some
international agencies involved in counterproliferation have a limited intelligence
capacity defined by their function, such as the Nuclear Suppliers Group effectuating
 Futility of Nuclear Weapons Risk Management in a Consensual Regime 39
export-import controls, or the IAEA in its operations.102 Countering nuclear terror-
ism, however, is naturally a more broadly international enterprise. Terrorist activity
as it relates to securing weapons of mass destruction, operates through cross-border
networks at all levels; in obtaining and unleashing its operatives, for its financing
and money laundering, and for obtaining and transporting material. It is constantly
moving across borders to secure its objectives, and for its own security. Accordingly,
the intelligence needed is broadly international. Connecting the dots means connect-
ing dots that appear across many borders, and move across borders. But the inter-
national character of intelligence capability is dominated by discretion of national
intelligence agencies. Intelligence tends to be fragmentary, coming from different
governments in different forms and format. Each national resource is inhibited
by its own national and bureaucratic sensibilities and claims of national security.
National intelligence agencies, operating independently, give priority to jealously
guarding their sources and methods. The result is that the dots are mostly seen only
separately, within separate borders.
There is thus great need for monitoring, collating, and corroborating capability that
works across borders. In other words, the maximization of intelligence, so critical to
addressing nuclear terrorism, requires transcending traditional claims of sovereignty
and national security. A consent-based regime is naturally antithetical to this need. By
positioning claims of sovereignty and national security as controlling, both for the tar-
geted state, and the targeting community, no matter how unreasonable or excessive such
claims may be, the current intelligence regime precludes the maximization of existing
intelligence resources to detect and prevent nuclear terrorism. Counterproliferation
intelligence is simply out of sync with the subject matter it is supposed to reveal. With
intelligence coordination limited to government-to-government agreement in specific
cases, there has developed little global coordination, certainly nothing approaching a
comprehensive global capability equal to the threat.
In light of the frustration of deterrence and limits on intelligence inherent in the
existing architecture of counterproliferation, attempts to manage the risks of nuclear
terrorism have turned mainly to securing the materials that would be the source of
nuclear empowerment for a terrorist organization. Given the lack of means to deter
potential nuclear terrorists directly, and the ease of transport of a nuclear weapon or
fissile material without detection, the primary strategy is to prevent terrorists from
obtaining the materials in the first place—at source. There is a consensus, therefore,
that securing fissile material wherever and to whatever extent feasible, is probably the
best means we have to prevent nuclear terrorism, not only by making the material
hard to obtain, but by increasing the risks and costs of trying to obtain it. However,
because nuclear materials are today so multifarious and omnipresent, the challenge is
overwhelming all present counterproliferation capacity. It is estimated that there are
approximately two million kilograms of highly enriched uranium (HEU) in stockpiles

102 See infra, pages 141–142.

40 Nuclear Weapons Counter proliferation: A New Grand Bargain
all over the world.103 It requires just 15–24 kilograms of HEU to produce a nuclear
weapon.104 Securing all this fissile material requires more than merely lockdown.
Fissile material exists in a wide variety of forms and facilities, not only in standing
nuclear weapons, but in fuel fabrication facilities, and in reprocessing, research and
storage facilities. Plutonium and highly enriched uranium (HEU) are used not only in
weapons, but in research reactors around the world in about 40 countries, as well as
in power reactors and industrial applications that can be converted to weapons usable
material by standard known chemical processes. Given the variety of nuclear materials
and their placement, there is similar variety of vulnerability. The need, accordingly, is
for nothing less than a globally comprehensive strategy for containment.

B. State-to-State Nuclear Weapons Risk

The landscape of nuclear risk with which the enterprise of counterproliferation must
contend also includes state-to-state risk. Nuclear terrorism has warranted special
attention because of the extraordinary challenge it represents for the established
architecture of counterproliferation, and traditional deterrence theory. Nuclear weap-
ons security is, however, an enterprise necessarily of much broader dimension.
Inadequate lockdown and accounting for nuclear weapons and fissile materials
affects international nuclear security in a variety of ways. When any state goes nuclear,
a variety of risks are raised in that development. These risks include accident, miscal-
culation, false alarms that might precipitate a nuclear launch, failures of command
and control of nuclear forces involving rogue officers, or a mentally unhinged officer
in the launch chain of command. Regime collapse of a nuclear armed state, such as
the Soviet Union, or as now feared for Pakistan, is new. But even the Dr. Strangelove
scenario of nuclear weapons confrontation is still with us. Indeed, MAD is alive and
well in state-to-state relations. All the same risks that were there in the Cold War are
still present, if only reduced to regional scale, such as between India and Pakistan. But
state-to-state risk is not absent on a more global scale. It runs in chains of threat and
response, beyond Pakistan and India, to India threatened by China’s nuclear weap-
ons, threatened by Russia’s nuclear weapons threatened by the nuclear weapons of the
United States. These more global threats may be at profoundly lower levels than they
once were, but the risks of nuclear security and control they include are not. Many of
the remaining nuclear weapons of the United States and Russia are apparently still
pointed at one another. This may be a strategic anachronism. But the retention of
thousands of nuclear weapons generates similar risks as during the cold war, such as
false alarms that could trigger catastrophic response.

103 Nuclear Age Peace Foundation, Ten Facts about Nuclear Weapons (Sept. 2009), http://www.waging-
peace.org/articles/2009/09/facts_myths.pdf.
104 As of 2009, it is estimated there were 28 countries with a least one bomb’s worth of HEU and 12
countries with at least 20 bombs’ worth. Id.
 Futility of Nuclear Weapons Risk Management in a Consensual Regime 41
Nuclear security, especially as it now may involve regime collapse of a state with
nuclear weapons, demands the highest feasible standard for securing nuclear weapons
arsenals and preventing and controlling access to their launch or other misappropria-
tion. The stunning reality remains that, at the low end, nuclear security may be only
a locked warehouse or a watchman, as has been repeatedly documented in reference
to nuclear inventories in the former Soviet Union. We need to achieve, as has been
proposed, a gold standard for the security of nuclear materials.105 But how to do this,
despite unwilling governments, is a conundrum that has stymied counterproliferation
progress. Moreover, many of the risks of security and control that come with a state’s
possession and strategic deployment of nuclear weapons have actually increased in the
world of computerized command and control, in which decisions, associated miscal-
culations, mistakes, and malevolence, are communicated at cyber-speed. Proliferation
entails similar nuclear weapons risk as it did yesterday, but in some respects, signifi-
cant new risks and even greater danger.
With proliferation on the rise, particularly by way of dual-use technologies, risk
appears also on the rise in the form of so-called “virtual nuclear states.” So far as gen-
erally known, there are currently nine countries in possession of nuclear weapons:
the United States, Russia, the United Kingdom, France, China, Israel, India, Pakistan,
and North Korea. Iran and Syria are at least two more states that recently have pre-
sented immediate nuclear proliferation concerns. The only real barrier, the experts tell
us, just as for nuclear terrorism, is access to the fissile material, since the technology
and engineering to build a bomb are widely available. Any state that has the ability to
produce highly enriched uranium or plutonium is a virtual nuclear weapons state, and
can become a real nuclear weapons state simply by choice. The prospects for conver-
sion from virtual nuclear weapons state to actual nuclear weapons state are greatest
in the regional hot spots, the Middle East and East Asia, mainly in relation to the
nuclear weapons threat posed by Iran and North Korea. Japan, as noted, has indicated
it may develop nuclear weapons to respond to North Korea.106 Saudi Arabia has indi-
cated it will not accept a strategic situation in which Iran, its Shiite rival, has nuclear
weapons.107 Other governments in the Middle East have expressed a similar reaction
to Iran’s nuclear program.108 However, if any state with a fully developed fuel-cycle

105 Allison, supra note 9, at 143.

106 Chester Dawson, In Japan, Provocative Case for Staying Nuclear, Wall St. J., Oct. 28, 2011, at A14.
107 Graham Allison, Nuclear Disorder: Surveying Atomic Threats, 89 Foreign Affairs 74, 77 (Jan./Feb.
2010). See also former U.S. National Security Adviser Brent Scowcroft in testimony before the
Senate Foreign Relations Committee, (Mar. 2009) “We’re on the cusp of an explosion of prolifera-
tion, and Iran is now the poster-child. If Iran is allowed to go forward, in self-defense or for a vari-
ety of reasons, we could have half a dozen countries in the region and 20 or 30 more around the
world doing the same thing just in case.” Reuters, “Iran Could Trigger Nuclear Arms Race in Middle
East,” Haaretz, Mar. 6, 2009, http://www.haaretz.com/news/iran-could-trigger-nuclear-arms-rac
e-in-middle-east-1.271591.
108 See Hassan Fattah, Arab Nations Plan to Start Joint Nuclear Energy Program, N.Y. Times, Dec. 11, 2006,
at A10; William J. Broad & David E. Sanger, With Eye on Iran, Rivals Also Want Nuclear Power, N.Y.
Times 1 (Apr. 15, 2007).
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"I've been off my haid last night and all to-day. This pain has
stampeded me, and I'm goin' crazy. To-night the pain is worse. I'll be
making fool talk, giving myself away, and you'll find me out. It's
better to own up than to be found out."
"To own up what?"
"Oh, don't be hard on me, Jim! I tried so hard! I was born for a boy,
I had to be a boy. Don't you see, girls was plumb impossible in a
gang of robbers!"
"Have you gone mad?"
"Oh, you cayn't understand, and it's so hard to say." Curly lay face
downwards, hiding a shamed face. "My mother must have made a
mistake—I wasn't bawn for a boy."
"Good gracious!"
"I had to be raised for a boy—it had to be done. What else was
possible at the Robbers' Roost?"
"And you're not a boy!"
"God help me, I'm only a girl."
"You, a girl?"
"Oh, don't be hard on me—it ain't my fault! I tried so hard to be a
man—but I'm crazy with pain—and I wisht I was daid!"
"But I can't believe—it can't be true. Why, I've seen you ride—the
first horseman in Arizona, scout, cowboy, desperado, wanted for
robbery and murder—you a girl!"
"Have pity! Don't! Don't talk like that—I'm not so bad as you think—I
never robbed—I never——"
"You killed men to save my life. Oh, Curly, I'm so sorry I talked like
that—I take it all back. I must have been loco to call you a coward—
I wish I'd half your courage! I never knew a woman could be brave;
my mother wasn't, and all the girls I've known—they weren't like
you. Oh, the things you've seen me do, the things I've said—treating
you no better than a boy. Can you ever forgive the way I treated
you?"
One little hand stole out and touched him: "Stop—talk no more."
A vaquero was singing for all he was worth in the guardroom, to the
strum of a guitar, while hands clapped out the time—

"I could not be so well content,

So sure of thee,
Señorita,
Lolita;
But well I know thou must relent
And come to me,
Lolita!"

Jim set to work to finish his hole in the wall, prying out the 'dobe
bricks with his crowbar, and he sure wrought furious, timing his
strokes to the clapping hands, the guitar, and the swinging chorus—

"The caballeros throng to see

Thy laughing face,
Señorita,
Lolita;
But well I know thy heart's for me,
Thy charm, thy grace,
Lolita!

"I ride the range for thy dear sake,

To earn thee gold,
Señorita,
Lolita;
 And steal the gringo's cows to make
A ranche to hold
Lolita!"
The cactus liquor was getting in its work, the guardroom crowded up
all it would hold of soldiers, vaqueros, customs men, travellers; then
there was dancing, singing, gambling, squabbling, all the row which
belongs to a general drunk. Curly was fretted up to high fever, riding
herd on a bunch of dream cows, and Jim was pouring in his strength
on the 'dobe bricks. At two in the morning the Frontier Guards
began to make war talk, wanting to turn the prisoners loose, with a
prize for the soldier who got first kill with a gun. On that the Holy
Cross vaqueros proposed to rescue their young patrone, and wipe
out the Frontier Guards. There was considerable rough house with
knife and gun, until the guards subdued the vaqueros, jumped on
their heads, and herded them into No. 2 cell as prisoners of war. The
vaqueros were just moaning for blood, the Guards turned loose to
celebrate their victory with more drinks, and while the row was
enough to drown artillery, Jim's crowbar drove a brick which fell
outside the wall. Now he had only to pry 'dobes loose one by one
until the hole was big enough to let out prisoners. Sometimes he
had to quit and hold his breath while the sentry came reeling past
along his beat. Once he had to play dead, because a drunken
sergeant rolled into the cell to give him a drink of meseal. The
sergeant called him brother, hugged him, kissed him, cried, and
went away. At three o'clock Jim crawled out through the hole with
his crowbar, lay for the sentry, jumped up behind, clubbed him, and
got the rifle. Then he dragged Mr. Sentry into the cell, wrapped him
in Curly's blanket, and made up a dummy to look like himself in case
the sergeant of the guard should remember to call again.
"Curly," he shook his partner out of sleep. "Curly, the spring time is
coming—it's time for little bears to come out of hole."
"Yo' gawn all foolish," says Curly, "callin' me a bear. I done forget
who I am, but I'm too sure sick to be a bear."
"Let's play bear," says Jim, mighty shy; "I'll bet you I'm first through
this hole!"
The guardroom had gone quiet, the men there being just sober
enough not to fall off the floor, but the sergeant was droning with
the guitar, sobbing out the tail end of the old Lolita song—

"I ride the range for thy dear sake,

To win thee gold,
S'rita,
Lolita,
To steal the gringo's cow-ow-ow——"

Curly was first out through the hole, chasing dream bears. "The
wind's in the west," she said, looking at the big stars above.
"Crawl up the wind," Jim whispered. "We want our horses; where
are they?"
Curly sat up snuffing at the wind, then pointed. "The hawss smell's
thar," she said, "but there's a scent of pony-soldiers too—many
soldiers."
Jim trailed over cat-foot to the stable and looked in through the
door. A lantern hung in the place, and some of the Frontier Guards
sat round a box on the hay gambling earnest. If he went off to a
distance, and handed out a few shots to draw the guard away
searching, he reckoned there might be time to sneak round and
steal a horse before they began to stray back. But then there was
Curly all delirious with fever, and whimpering small wolf calls, so that
every dog in the place had started to bark. The wolf calls had to be
stopped, and a new dream started which would keep the little
partner good and silent. That is why Jim took a handful of dust
which he said was salt.
"Come along, Curly," he whispered, "we're going to stalk the buffalo;
to still hunt the buffalo; we must be fearfully quiet, or we'll never put
the salt on their tails. Don't you see?"
"But the buffalo's all gawn extinct!"
"Oh, that's all right; it's not their fault, poor things. Come on, and
we'll salt their tails."
"I'm sort of tired," says Curly right out loud, and Jim went cold with
fright. He could hear the soldiers squabbling over their game not
fifty feet away, then the sound of somebody's footsteps rambling
over from the guard-house. A soldier staggered drunk within two
yards of him, and rolled in at the stable door.
"Come on, old chap," Jim whispered; "I'm your horse, so climb on
my back, and we'll travel."
So he put the little partner on his back, and staggered away into the
desert. He had one cartridge in the gun, no water, only the stars to
guide him, and at sunrise the Frontier Guards would see his tracks.
There was no hope.
 CHAPTER XVIII
THE WHITE STAR
As soon as Captain McCalmont was clear of the city I meandered in
a casual way around the saloons, taking a drink here, a cigar there,
passing the word for a meeting of cowboys only. They were to ride
out by twos and threes for home in the usual way, but the time for
the meeting was sunset, and the place a slope of hillside beyond
Balshannon's grave. There we gathered to the number of thirty
head, and Mutiny rode into the bunch to cut out any strangers who
might have strayed with the herd. There being no strays, I spoke—
"Boys, you-all knows who was buried here on the hilltop. He was my
friend, and a sure friend of all range men." Some of the boys
uncovered, one called—
"Spit it out, ole Chalkeye! When you starts up yo' church, rent me a
stall!"
"I'll hire yo' ruddy scalp," says I, "instead of lamps. Wall, boys, these
town toughs has shot out El Señor Don, and they're proposing to
play their pure fountain of law on two more of our tribe, the same
being young Jim his son, and little Curly McCalmont."
"Say, Chalkeye, when do you get yo' dividends from Messrs.
Robbers, Roost, and Co.?"
"Why, Buck, it's on them days when I trusts you with loans of
money."
The crowd knew Buck's habit of not paying his debts, and proposed
to divide up his shirt and pants if he got too obvious with remarks.
"Boys," I went on, "we been letting these town citizens get too much
happy and animated, throwing dirt in our face. Why, here's down
east newspapers sobbing obituary notices over the poor cowboy
species departed. Seems that we-all, and the mammoth, and the
dodo, and the bison is numbered with the past, and our bones is
used to manure the crops of the industrious farmer. Does that splash
you?
"Dear departed, I appeals to you most sorrowful—ain't it time to
show signs of being alive? Not being a worker of miracles, I don't
aim to corrupt yo' morals, I ain't proposing to obliterate the town
which provides us with our liquor and groceries, I ain't a party to
acts of violence; but I do propose that we just whirl in to-night and
rescue them po' kids at La Morita. Of course, in busting the
calaboose we may have to shoot up a few Mexicans—but it does
them good to be taken serious at times, and they'd sure hate to be
ignored while we stole their captives."
Mutiny called out, "Say, now you've got yo' tail up, you ain't
forgetting to talk."
And on that the boys got riotous—"Rair up some more, ole
Chalkeye; let's see you paw the moon!"
"You tell the lies, we'll stick to 'em!"
"Who stole Ryan's cows, eh, Chalkeye?"
"Let the old horse-thief turn his wolf loose! Ki-yi-yeou-ou-ou!"
"Loo-loo-loo-Yip! Yow!"
"Girls," says I, "you're gettin' plenty obstreperous. Come on—let's
roll our tails for old Mexico!"
The boys came yelping, and we trotted the night through, throwing
the miles behind us.
At three o'clock, to judge by the stars of Orion, we rested our ponies
near the boundary, at the streak of dawn loped on, and just as the
day broke hurricaned in a gun-blaze down on La Morita.
I regret to state for your information that the Mexican Frontier
Guards were too sleepy to play up their side of the game, but
surrendered abject before they had time to get hurt. Moreover, our
youngsters had vamoosed through a hole in the wall. So there were
no captives to liberate, except four measly vaqueros, which gave us
a red-hot cussing at being waked too early for coffee time. We had a
sickening miserable picnic, a waste of sweat and oratory.
Slow and solemn we gaoled up those soldiers in the calaboose, and
mounted the sulky vaqueros for a guard to hold them, feeling all the
time like a batch of widows.
In the stable I found Curly's buckskin mare and my fool horse Jones,
the pair of which I took when we started for home. As to Jim and
Curly, we held a council smoke, debating on their fate. The crowd
agreed that these kids had been my pupils, and would be sure
horse-thieves naturally. I felt they had gone afoot, but scouting
around, I failed to find their sign. There was a track of a man with
cowboy heels, going east, but it seemed to wiggle drunk. I never
thought of Jim rolling along as he did with Curly on his back, but
searched for the tracks of the pair running side by side. If I had only
been a better scout I might have understood the lone track, and
followed with horses to mount my youngsters for flight. We could
have made an easy escape from the country, ending all our troubles
—but I was a fool.
So soon as my tribe pulled out for home I knew that the Frontier
Guards would be loose at once like burned-out hornets. To linger in
their way would be unhealthy, and I had no tracks to follow anyway.
So I pulled out with the rest, taking all guns and horses, leaving the
Guards disarmed and afoot lest they should try to act warlike.
Further north the guns were thrown away, except some retained as
mementos, and we used the Mexican herd of ponies to cover our
tracks where we scattered.
This episode is alluded to by the foolish cowboys as "Chalkeye's
victory—all talk and run."
A couple of miles to the eastward of La Morita Jim found that his
little partner weighed a ton. After working all night, and struggling to
the limit of his strength, he could go no further. The day was
breaking; to move by daylight meant an extra risk of being seen,
and there was nothing to be gained by travelling. So he staggered to
the nearest hilltop, found a good look-out point, then smashed up
some local rattlesnakes, and laid Curly to rest under a sheltering
rock. From there he watched what the Weekly Obituary described as
"an infamous outrage, perpetrated at La Morita by a gang of
cowardly ruffians." Not that Jim was shocked—indeed, I reckon the
lad put up signs of depraved joy. He said to the little partner—
"We're sure saved, Curly, from being tracked down by the Guards
and murdered."
I calculate that one ordinary Arizona day without food and water
would have finished Curly, but as it happened this was a desert
Sabbath, when the clouds had a round-up for prayer. I ain't
religious; it's no use for a poor devil like me to make a bluff at being
holy, and if I went to church the Big Spirit would say: "Look at this
Chalkeye person playing up at Me in a boiled shirt—ain't this plumb
ridiculous?"
It's no use, because I'm bad, but yet it humbles me down low to
watch the clouds when they herd together for prayers, flirting their
angel wings against the sun, lifting their gruff voices in supplication,
tearing up the sky with their lightnings, sending down the rain of
mercy to us poor desert creatures. The respectable people hire
preachers to tell the Big Spirit of their wants, but it's the white
clouds of the sky that says prayers for us ignorant range folks, for
the coyotes, the deer and panthers, the bears and cows, the ponies
and the cowboys. Then the rain comes to save us from dying of
thirst, and we cusses around ungrateful because it makes us wet.
When the storm broke that morning, the rain roared, the ground
splashed, the hills ran cataracts, and Jim and Curly got washed out
of their camp, the same becoming a pool all of a sudden, and were
much too wet to go to sleep again. Moreover, the fever had left off
prancing around in Curly's brain, and the cold had eased her wound
like some big medicine.
Jim had found a corner under the rock ledge which was perfectly
dry. His leather Mexican clothes were shrunk tight with rain, the
staining ran in streaks on his face, his teeth played tunes with the
cold.
"El Señor Don Santiago," says Curly, "yo' face has all gawn pinto,
and it don't look Mexican that a-way in stripes. Maybe yo're
changing into a sort of half-breed."
"I'm beastly cold," says Jim, grave as a funeral.
"Same here," she laughed. "Don't you think yo' disguise would pass
for something in the way of striped squir'ls? With a rat in yo' paws
you'd do for a chipmunk."
"Let me be," says Jim. "How's your wound?"
"Not aching to hurt, just to remind me it's there. How did we get to
this rock?"
Jim told her about the escape, and how the Frontier Guards had
been left afoot, and how the storm had come convenient to wash
out the raiders' tracks as well as his own.
The rain had quit, and the plain was shining like a sea of gold which
ran in channels between the island groups of purple mountains. So
one could sure see range after range melting off into more than a
hundred miles of clear distance, to where the sunshine was hot
beyond the clouds. That clearness after rain is a great wonder to
see, and makes one feel very good.
"Talk some more," says Curly, "then I won't be encouraging this
wound by taking notice of it."
"Shall I lift you here to this dry corner?"
"No; it's sure fighting, moving. Leave me be."
"Curly, how did you get that scar above your eye?"
"Buck handed me that. He's shorely fretful at times. Who's Buck?
Why, he's second in command of our gang. No, he's a sure man. I'm
plenty fond of Buck."
"The brute! I'll wring his beastly neck! You love him?"
"Wouldn't you love all yo' brothers, Jim?"
"Oh, brothers—that's all right. But why did the rotten coward make
that scar?"
"You see, Buck's plenty fond of me, and his emotions is r'aring high,
specially when—wall, I refused to be Mrs. Buck. It sounded so funny
that I had to laugh. Then he got bucking squealing crazy, and when
he's feeling that a-way he throws knives, which it's careless of him."
"He wounded you with a knife? The cur!"
"Oh, but Buck was remorseful a whole lot afterwards, and father
shot him too. Father always shoots when the boys get intimate. Poor
Buck! I nursed him until he was able to get around again, and he
loves me worse than ever. It cayn't be helped."
"So these robbers know that you—that you're a girl?"
"They found me out last year. Yes, it's at the back of their haids that
I'm their lil sister, and they're allowed to be brothers to me, Jim.
Now don't you snort like a hawss, 'cause they're all the brothers I've
got."
"You're not afraid of them?"
"You cayn't think what nice boys they are. Of course, being robbers,
they claims to have been hatched savage, and brung up dangerous,
pore things. Father tells 'em that they has no occasion for vain-
glorious pride, 'cause their vocation is mean."
"He's dead right, and I'm glad he shoots them!"
"Generally in the laigs. He says he reckons that a tender inducement
to being good is better than a bullet through the eye. Of co'se thar
has to be some discipline to chasten they'r hearts, or they'd get
acting bumptious."
"Humph!"
"But you don't savvy. Father has to press his views on the boys, but
they'd be much worse if it wasn't for him. He says he's a heaps
indulgent parent to 'em, and I reckon he shorely is. Father's the best
man in the whole world. Do you know he only kills when he has to,
and not for his own honour and glory? Why, he won't rob a man
unless he's got lots of wealth. Once he was a bad man, but that's a
long while ago, before I remember."
"Were you always raised as a boy?"
"Allus. He made me learn to ride, and rope, and shoot, from—ever
since I was weaned. When I got old enough he learned me scouting,
cooking, packing a hawss, tending wounds, hunting—all sorts of
things. I been well educated shore enough, more than most boys."
"It's all beastly rot calling him good—McCalmont good!"
"A hawss or a dawg, or a lil' child will run from a bad man, but they
love my father. Oh, but you don't know how good he is!"
"Well, let it go at that. You wanted to be a robber?"
"Shorely, yes, but he never would let me. It ain't true what that sign-
paper says up in the city yonder, that I robbed a train. I wasn't there
at all. You see, father picked up on the home trail with a starving
man, and helped him. That mean, or'nary cuss went and told Joe
Beef, the sheriff, that I was in the gang which held up the train.
That's why I'm due to be hunted and roped, or shot at by any citizen
who wants two thousand dollars. Of co'se, it's nacheral there should
be a bounty offered on wolf haids, but I'd like to have a nice wolf-
time before I'm killed. I never had a chance to get my teeth in, 'cept
only once. Yes, we stole six hundred head of cattle from the
Navajos, and you should just have seen the eager way they put out
after us. They was plenty enthoosiastic, and they came mighty near
collecting our wigs."
"It makes me sick to think of you with a gang of thieves."
"Father says that the worst crimes is cowardice, meanness, and
cheating. The next worse things is banks, railroad companies,
lawyers; and that young Ryan—'specially Ryan—he says that us
robbers is angels compared with trash like that."
"That's no excuse."
"Father says that robbery is a sign that the law is rotten, and a proof
that the Government's too pore and weak to cast a proper shadow.
He allows we're a curse to the country, and it serves the people
right."
"It's bad—you know it's bad!"
"Shore thing it's bad. Do you know what made us bad? All of our
tribe was cowboys and stockmen once; not saints, but trying to act
honest, and only stealing cows quite moderate, like ole Chalkeye.
Then rich men came stealing our water-holes, fencing in our grass,
driving our cattle away."
"Why didn't you get a lawyer—wasn't there any law?"
"There shorely was. My father's farm was way back in Kansas. His
neighbour was a big cattle company, which hadn't any use for farms
or settlers. They turned their cattle into his crops, they shot my
brother Bill, they wounded father. Then father went to law, and the
lawyers skinned him alive, and the judge was a shareholder in the
Thomas Cattle Company—he done gave judgment that we-all was in
the wrong. Then father appealed to the big Court at Washington,
which says he had the right to his land and home. So the cattle
company set the grass on fire and burned our home. Mother was
burned to death, and father he went bad. I was the only thing he
saved from the fire."
"Poor beggar! No wonder he turned robber. I'd have done the same,
by Jove!"
"He shot Judge Thomson first, then he killed Mose Thomson, and
the sheriff put out to get him. He got the sheriff. Then he went all
through Kansas and Colorado, gathering pore stockmen what had
been robbed and ruined by the rich men's law. They held up pay-
escorts, stage coaches, banks, the trains on the railroad. That was
the beginning of the Robbers' Roost."
Jim sat heaps thoughtful looking away across the desert. "Our
breeding cattle," says he, tallying on his fingers, "then Holy Cross,
then mother, then father, and now I'm being hunted for a murder I
didn't commit."
"Now you know," says Curly, "why we robbers played a hand in yo'
game."
"I understand. Say, Curly, I take back all I said about it being bad—
this robbery-under-arms. It's the only thing to do."
"Don't you get dreaming," says Curly, "we-all ain't blind; our eyes is
open a whole lot wide to truth, and we make no bluff that robbery
and murder is forms of holiness."
"It's all right for me. I'm a man, and I'm not a coward, either. But,
Curly, you're not fit for a game like this. I'm going to take you away
—where you'll be safe."
"And whar to?"
Jim looked at the desert steaming after the rain, hot as flame,
reaching away all round for ever and ever. He looked at Curly's
wound all swollen up, her face which had gone gaunt with pain and
weakness. They were afoot, they were hunted, they had no place to
hide.
"Whar do you propose to take me?" says Curly.
"I don't know," says Jim; "perhaps your people aren't so bad after all
—anyway, they tried to keep you clean."
"And what's the use of that? D'ye think I want to be alone in the hull
world—clean with no folks, no home? Why should I want to be
different from my father, and all my tribe? Would I want to be safe
while they're in danger? Would I want to play coward while they
fight? Shucks! Father turned me out to grass onced at the Catholic
Mission, and them priests was shorely booked right through to
heaven. What's the use of my being thar, while the rest of my tribe
is in hell? I dreamt last night I was in hell, carrying water to feed it
to my wolves; I couldn't get a drop for myself—never a drop."
"Curly, I've got to save you—I must—I shall!"
She laughed at him. "You! Do you remember me at Holy Crawss
when I punched cows for Chalkeye? I might ha' been thar still but
for you."
"What on earth do you mean?"
"Jim, I met up with yo' mother, and I didn't want to be bad any more
when I seen her."
"She thought the world of you."
The poor child broke out laughing, "Oh, shucks!" Then her face went
bitter. "She said she loved me, eh?"
"She said I was a beastly little cad compared with you. When I got
home from college she held you up for a holy example, and rubbed
my nose in it. She was right—but how I cursed you!"
Curly laughed faint and lay back moaning, for the sun had come hot
from the clouds, and she was burning with pain. "So yo' mother
claimed she loved me. Well, I know better!"
"Why didn't you stay with her, Curly?"
"I seen her face when she waited for you to come home—you, Jim,
and she looked sure hungry. What was I to her, when she seen her
own son a-coming? I waited to see you, Jim; I jest had to see you
'cause you was pizen to me. Then I went away 'cause I'd have killed
you if I'd seen you any mo'."
"Where did you go?"
"Whar I belong, back to the wolf pack. What had I to do with a
home, and a mother, with shelter, and livin' safe, and bein' loved?
I'm only a wolf with a bounty on my hide, to be hunted down and
shot."
"And you—a girl!"
"No, a mistake!"
Jim pawed out, and grabbed her small brown hand. "You came
back," he whispered.
"I came back to see if that Ryan was goin' to wipe you out, you and
yo' people. I came to see you die."
"And saved my life!"
"I reckon," says Curly, "I ain't quite responsible anyways for my life
—'cause I'm only a mistake—jest a mistake. I feels one way, and
acts the contrary; I whirl in to kill, and has to rescue; I aims to hate
—and instead of that I——"
"What?"
"I dunno," she laughed. "Up home at Robbers' Roost we got a lil'
book on etiquette what tells you how ladies and gentlemen had
ought to act in heaps big difficulties. It shorely worries me to know
whether I'm a lady or a gentleman, but it's mighty comfortin' the
way that book is wrote. I done broke all my wolves outer that book
to set up on their tails and act pretty. Now, if I had the book I'd
know how I'd ought to act in regard to you-all."
Jim looked mighty solemn, being naturally about as humorous as a
funeral. "Am I nothing to you?" he asked, feeling hurt; but she just
opened one eye at him, smiling, and said nothing.
Presently the pain got so bad that she began to roll from side to
side, scratching with her free hand at the face of the rock overhead.
"Can't I do something?" says Jim. "It's awful to sit and watch that
pain. I must do something."
"If you climb to the top of this rock," she said between her teeth,
"you'd see La Soledad. My father's thar."
"I'll run."
"Why run?" She snatched a small round looking-glass out of the
breast of her shirt. "You've only to get the sun on this glass and
flash the light three times upon La Soledad. The man on look-out will
see the flash."
"Give me the glass, then."
"No."
"Why not?"
"Do you know what it means, Jim, if you flash that signal?"
"Rescue for you."
"And for you, Jim? It means that you quit bein' an honest man, it
means shame, it means death. Us outlaws don't die in our beds,
Jim."
"Give me the glass."
"No, Jim. Some time soon, when you and me is riding with the
outfit, or camped at our stronghold, the army is goin' to come up
agin' us—pony soldiers, and walk-a-heaps, and twice guns, to take
our water-holes, to drive away our remuda, to block our escape
trails, to close in on us. Our fires are goin' to be put out, our corpses
left to the coyotes and the eagles."
"Give me that glass!"
"And my father says that beyond that is the Everlastin' Death."
"Do you think you can frighten me? Give me that glass!" He
snatched the glass from her hand, scrambled to the top of the rocks,
and flashed the light three times upon La Soledad.
A white star answered.
 CHAPTER XIX
A MARRIAGE SETTLEMENT
McCalmont was hid up at the ranchita La Soledad, with a sentry out
to the south-west watching La Morita, a sentry out to the west to
keep tab on the Bisley trail, a sentry out to the north on the Grave
City road, and Buck Hennesy, his segundo, riding from point to point
with feed and water. When anything happened the sentries flashed a
signal to Buck, who warned the chief. At sunrise McCalmont had
news of our raid on La Morita, and that made him think for sure that
the kids were rescued. He'd been riding all night, so he got his eye
down quick for a big sleep. The storm rolled up, burst, and trailed off
to the eastward; the sun shone out, lifting white steam from the
desert; then came the heat. At two o'clock, away southward through
the quivering haze, Buck sighted the three-flash signal, which means
"Help!" He threw back the two-flash, "Coming."
So he and the chief loped out, taking a canteen of cold tea, which is
the proper medicine for thirst, and a led horse each, to bring the
youngsters in to the little ranche. By four o'clock they had Curly
bedded down in the shack, supposing herself to be a prairie-dog,
and wanting to know who'd come and stole her tail. McCalmont
nursed her, Buck went off to spoil the trail from the hill, and Jim
squatted down on the doorstep for a feed of pork and beans, with
lashings of coffee.
The main outfit of the robbers was camped at Las Aguas, some
miles to the north-east, and three of them came in at dusk to get
their supper and relieve the sentries around La Soledad. They were
heaps shy when they saw what looked like a greaser vaquero sitting
in the doorway of the cabin. One of them rode right at him.
"Here, you," he shouted. "Git out 'er here pronto! Vamoose!"
"Poco tiempo," says Jim.
"Who are you, anyways?"
"Quien sabe?"
"Wall, ye cayn't stay here, so ye'd best get absent." He pulled his
gun on Jim's feet. "Now jest you prance!"
Jim laughed at him.
"Mañana," he said. Then in English, "You bark a lot, my friend.
Whose dog are you?"
Then he heard McCalmont's slow, soft drawl. "I sure enjoy to see the
sire's grit show out in the young colt. Spoke like a man, Jim! And as
to you, Crazy Hoss, I want you to understand that if you don't learn
deportment I'll politely lam yo' haid, you, you double-dealing
foogitive, low-flung, sheep-herdin' son of a lop-eared thug! Hain't
you got no more sense than a toorist, you parboiled, cock-eyed,
spavined, broken-down, knock-kneed wreck o' bones? You——!"
With such genteel introductions McCalmont sure spouted burning
wrath into that robber, scorching holes until he lost his breath.
"The evil communications of this young polecat," says he to Jim, "is
shorely spoiling my manners. And now, you—you turtle-doves, you'll
jest get away out of here and cook your supper thar by the barn.
You want to be mighty quiet too, 'cause my Curly is lying in here
wounded. Git over now!"
The robbers trailed off grinning, while the chief sat down on the
doorstep next to Jim.
"The children make me peevish," he said, and began to roll a
cigarette in his fingers. "Wall, do you remember, Jim? I allowed we'd
be better friends when we met again."
Jim looked round sharp and sat there studying McCalmont. He didn't
look bad or dangerous, but just a middle-aged cattle-man of the old
long-horn desert breed. Our folks are rough and homely; we've got a
hard name, too, but we stay alive in a country which kills off all but
the fighters. McCalmont had a cool blue eye, humorous and kind,
and grey hair straggling down over a face that was tanned to
leather. The stiff-brimmed cowboy hat was jammed on the back of
his head, the white silk handkerchief hung loose about his shoulders.
He wore a grey army shirt, blue overalls, stuffed anyhow into his
boots, and a loose belt of cartridges, slinging the Colt revolver on his
hip. Somehow the youngster felt drawn to him, knowing he'd found
a friend of the kind that lasts.
"And you were that sky-scout?" says he.
"A most unworthy shepherd! Jest you look at my sheep," says
McCalmont.
Jim asked how long it was since they met that day on the range.
"It seems a year to you, eh, lad? That was six days ago, the way I
reckon time."
"So much has happened—sir—can it be less than a week? I was only
a boy then—and Curly——"
"My son has struck you serious."
"She has told me everything, sir."
"Yo' goin' to remember to speak of Curly as a boy. He is allooded to
as a boy, or I get hawstile. You understand that?"
"I understand."
"And now," says McCalmont, "we'll have that buckboard ready in
case we need to pull out."
There was a buckboard standing in the yard, the same being a four-
wheel dogtrap, with a springy floor of boards, easy for travel. Jim
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