Brief Survey of the Smuggling of Fissile Material: An Embryonic Phenomena with a Terrifying Future in the European Community, A


A Brief Survey of the Smuggling of Fissile Material: An Embryonic
Phenomena with a Terrifying Future

in the European Community

I. INTRODUCTION

Following the bombings of Hiroshima and Nagasaki many feared that
nuclear weapons technology would spread rapidly throughout the world.'
However, this fear has not come to fruition. Since 1945, about one nation has
"crossed the nuclear threshold every five years."2 During the Cold War, the
widescale development and use of nuclear weaponry was largely retarded by the
United States and the former Soviet Union. These two Cold War adversaries
utilized atomic weaponry3 in order to arrest each other's aggressiod and
influence their feeble client States rather than to effectuate offensive objectives.'

Countries of strategic importance to either the Soviet Union or the United
States were placed under the auspices of their mentor's nuclear umbrella.
Relying on this umbrella of Armageddon, non-nuclear states typically did not feel
the need, nor were they permitted, to develop their own nuclear weapons
programs.7 This highly structured superpower stand off, coupled with the
inescapable terror of nuclear war, stunted the use of nuclear weaponry.

With the collapse of the Soviet Union and the concomitant termination of
the Cold War, the bipolar structure of the arms race has been translated into a
much more complex equation.8 As the former Soviet Union and the United States

1. President John F. Kennedy's prediction, in the early 1960's, that over 20 nations would
have nuclear weapons capacity by the 1970's. David Albright & Kevin O'Neill, Jury-Rigged, But
Working, BULLETIN ATOMIC SCIENTISTS, Jan.-Feb. 1995, at 20.

2. Id
3. See Barry Kellnan, Bridling the International Trade of Catastrophic Weaponry, 43

AM. U. L. REv. 755,759 (1994). An atomic bomb is composed of a core of fissile material-a
minimum of either eight kilograms of plutonium or 25 kilograms of uranium-surrounded by
explosives. When the explosives are detonated, the core is imploded, and the fissionable material
instantly achieves critical mass, causing a sustained chain reaction that releases vast quantities of
energy. Id

4. See Samuel F. Wells Jr., Nuclear Weapons and European Security During the Cold
War, 16 DIPLOMATIC HISTORY 278, 280 (Spring 1992).

5. See George H. Quester & Victor A. Utgoff, Deterrence and Proliferation, THE
WASHINGTON QUARTERLY (1993) available in LEXIS, Nexis Library, WASHQR File. People
are generally "more impressed by what nuclear weapons can do to cities than by what such
weapons might accomplish to reverse the military outcome on potential battlefields." Id

6. William R. Youngblood, Book Note, 9 EMoRY INT'L L. REv. 329, 329 (1995)
(reviewing PETER VAN HAM, MANAGING NON-PROLIFERATION REGIMES IN THE 1990'S:
POWER, POLITICS, AND POLICIES (1994)).

7. ld; see also William C. Potter, U.S.-Soviet Cooperative Measures for
Nonproliferation, in THE NUCLEAR SUPPLIERS AND NONPROLIFERATION 1 (Rodney W.
Jones et al. eds., 1985).

8. Youngblood, supra note 6, at 329-30.



IND. INT'L & COMP. L. REV.

reduce their weapons arsenals,9 and become less involved in maintaining stability
along the former Cold War front, other countries are increasing their efforts to
develop nuclear weapons as a means of self defense." As countries scrambled
to fill the vacuum of military power, heretofore comatose antagonisms have
resurfaced," thus, placing a premium on the development of a modem military.
Hence, the threat that nuclear weapons will be procured by nations previously
bereft of such weapons has matured.12

Countries often acquire nuclear weapons in order to accrue prestige and to
solve real or perceived security threats. 3 A nation languishing in a long-term
affray could radically transform the scope of their confrontation by acquiring
nuclear weapons. The procurernnt of nuclear weapons may also be attractive to
a nation facing superior conventional forces or suffering from a perceived identity
crisis." A likely corollary to a nation acquiring nuclear weapons is for its
adversary to do likewise.'5

9. Wolfgang K.H. Panofsky, Safeguarding the Ingredients for Making Nuclear Weapons,
10 ISSUES SCIENCE & TECHNOLOGY 67 (Spring 1994).

10. Youngblood, supra note 6, at 337. The desire for a non-nuclear state to obtain such
weapons is directly proportional to the regional threat. One example of this regional tension is
the case of India and Pakistan. India, seeking to increase its security and international prestige,
began developing nuclear weapons and, in 1974, conducted its first nuclear test. Pakistan, feeling
threatened by India's nuclear program, began its quest for nuclear weapons. Politicians publicly
said that if India had nuclear weapons, the people of Pakistan "would eat grass" until they had
nuclear weapons of their own. Id. at 337. This pattern of distrust and one-upsmanship is
repeated in the Korean peninsula and the tensions between Israel and its Arab neighbors. Nature
teaches us that for small creatures having a very deadly bite is an effective means of survival,
consider Israel for example. Id. at 340.

11. In response to the Republic of Slovenia and the Republic of Croatia declaring
independence from the Federation of the Republics of Yugoslavia in 1991, the Serbian led
Yugoslavia People's Army invaded Slovenia. The ensuing battles, systematic rape of women,
and "ethnic cleansing" demonstrates such hatreds. See A Whirlwind of Hatreds: How the
Balkans Broke Up, N. Y. TIMES, Feb. 14, 1993 at E5, available in LEXIS, Nexis Library, NYT
File.

12. See Brad Roberts, 1995 and the End of the Post-Cold War Era, THE WASHINGTON

QUARTERLY (1995) available in LEXIS, Nexis Library, WASHQR File. By the Year 2000, it
is believed that forty countries will have the ability to produce nuclear weapons. Id.

13. FRANK BARNABY, THE ROLE AND CONTROL OF WEAPONS IN THE 1990's 116
(1992); SEEALSO GEORGE H. QUFSTER & VIcrO A. UTGOF, TowR AN INTERNATIONAL NUCLEAR
SECURTrY Pouicy, THE WASHINGTON QUARTERLY (1994) available in LEXIS, Nexis Library,
WASHQR File.

14. For example, Israel, India, and Pakistan developed nuclear capabilities because each
perceived a regional threat to its security as well as a need to enhance its overall military stature.
See LAWRENCE SCHEINMAN, THE INTERNATIONAL ATOMIC ENERGY AGENCY AND WORLD
NUCLEAR ORDER 4-6 (1987).

15. Scienceand Technology: Plutonium, Uranium and Pandemonium, ECONOMIST, June
5, 1993, at 98 [hereinafter Plutonium]; Quester & Utgoff, supra note 13. "Iraq's nuclear program
was motivated by its desire to end Israel's nuclear monopoly in the Middle East. Had Iraq's
nuclear program not been severely damaged as a result of allied bombing, Iran and Syria and

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Since developing nuclear weapons is difficult, a country must either be
extremely wealthy or fanatical in order to cultivate their own nuclear weapons. 6

Those nations inept at indigenously developing nuclear technology may resort to
the smuggling of nuclear material and the importation of nuclear expertise in
order to circumvent existing prohibitions in the marketing of nuclear weapons.
With the existing uncertainty in Russia and the Commonwealth of Independent
States (CIS), the concern over the smuggling of fissile weaponry is particularly
acute. 7 In fact, R. James Woolsey, former Director of the United States Central
Intelligence Agency (CIA), has stated that the potential for trafficking nuclear
weapons is "fueled by a combination of declining morale among Russian security
services and workers at nuclear research and production facilities, and customers
such as Iran who are eager to shorten their timetable for development of nuclear
weapons."'"

perhaps even Egypt would have had strong motivations to move ahead themselves. "BARNABY,
supra note 13, at 117.

16. Plutonium, supra note 15, at 98.
17. As, a consequence of the collapse of the Soviet totalitarian command and control

society, a vast potential supermarket of nuclear weapons and fissile material is becoming
increasingly accessible. The collapse of the Soviet Union and the subsequent decay of the
custodial system guarding the Soviet nuclear legacy has eliminated this proliferation chokepoint,
since states and possibly even sub-state groups can now buy or steal what they previously had to
produce on their own. This central fact has transformed the nature of the proliferation problem
for ... the rest of the world.

Avoiding Nuclear Anarchy: Containing the Threat of Loose Russian Nuclear Weapons and
Weapons-Usable Nuclear Materials,, Testimony before the Senate Foreign Relations Committee:
Subcommittee on Foreign Relations, Federal Document Clearing House Political Transcripts,
Aug. 23, 1995, available in LEXIS, Nexis library, HILLPR File [hereinafter Nuclear Anarchy]
(Graham T. Allison et a], Center for Science and International Affairs, Kennedy School of
Government, Harvard University). David Osias, a strategic programs analyst for the Central
Intelligence Agency stated: "Our concern about possible loss of weapons-usable nuclear material
is increased by our recognition that the Russians may not know either who has all their material
or where it is located. The fact that some material has made it out increases the likelihood that
other material will also." A Six-Pack of Nuclear Bombs, To Go, C-il. TRIB., Aug. 28, 1995, at 14,
available in WESTLAW 1995 WL 6240410; Arthur Allen, Operation Hades: German Police
Stings Create Market for Nuclear Smuggling, OTrAWA CrnIZEN, Sept. 2, 1995, at B3, available
in WESTLAW 1995 WL 4324041; Nuclear Smuggling Continues Los Alamos Scientist Cites
Blackmail Threat, DENy. POST, Aug. 25, 1995, at B03, available in WESTLAW 1995 WL
6582149; Bill Schackner, More and More, Nuclear Fuels are Being Stolen, PrrrSBURGH POST-
GAZETTE, July 16, 1995, available in WESTLAW, 1995 WL 3393553.

18. Prepared Statement of R. James Woolsey, Director of Central Intelligence before the
Senate Select Committee on Intelligence World Threat Assessment Brief, Federal News Service,
Jan. 10, 1995, available in WESTLAW, 1995 WL 6620595.

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IND. INT'L & CoMP. L REV.

In addition to the five declared nuclear powers,' 9 at least a half-dozen
nations from the Middle East, the Indian subcontinent, and the Korean Peninsula,
as well as some terrorist groups are actively pursuing nuclear weapons capacity,
some of whom presumably already possess this technology.2' Terrorist groups,
previously proscribed from acquiring nuclear technology, could conceivably
penetrate this arena.2 If this occurs, they could threaten nuclear holocaust to
extort extravagant demands. 22 Terrorists do not need the precision and polish of
a high-yield weapon. Instead, a crude, low-yield bomb could serve their purpose,
demolishing a large portion of a city. 3

19. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1,
1968, art. IX, 3, 21 U.S.T. 483, 492-93, 729 U.N.T.S. 161, 174 [hereinafter NP7]. For the
purposes of the Treaty, a nuclear-weapon State was one which had manufactured and exploded
a nuclear weapon or other nuclear explosive device prior to January 1, 1967. Five such states
existed: China, France, Great Britain, the Soviet Union, and the United States. Presently,
however, numerous other states either have nuclear weapons or the technology; they include:
Israel, India, Pakistan, South Africa, North Korea, and Japan. See Global View: Secret Nuclear
Weapons Development Programs (CNN television broadcast, Sept. 10, 1994) (transcript available

in LEXIS, Nexis Library, CNN File) [hereinafter Global View] (interview with David Kay, chief
inspector in Iraq for the International Atomic Energy Agency).

20. Global View, supra note 19.
21. Allison, supra note 17.

Obviously, the random lone terrorist will not be able to fabricate a nuclear weapon.
Clearly, many groups of terrorists (or criminals) will lack the technical wherewithal
to make nuclear weapons. The point here is not that the entire universe of criminal
weapons. The point is that some terrorist groups will likely be able to do so. After
all, some groups that employ terror encompass large numbers of people, many of
them educated; they are well organized and highly motivated; they can have access
to substantial financial resources; and they may have the support of states or
groups within states. Given time and fissile material, such a group could be
capable of producing a nuclear weapon-especially if it had a little help.

ld.

There have been no cases of a rogue state or terrorists using nuclear weapons. The
sarin gas attack in Tokyo comes the closest to a terrorist attack using a weapon of
mass destruction. This case may have relevance to nuclear terrorism to the extent
that the cult had acquired a sophisticated laboratory and developed the capability
to manufacture and stockpile a sizable quantity of and engineers.

Hearings on Nuclear Smuggling in Russia and Threat of Nuclear Terrorism, Senate Foreign
Relations Committee, European Affairs Subcommittee, Federal Document Clearing House
Political Transcripts, Aug. 23, 1995, available in LEXIS, Nexis Library, HILLPR File
[hereinafter Hearings] (testimony of Dr. Thomas Cochran).

22. Plutonium, supra note 15, at 98; Jennifer Lin, New Kind of N-peril emerging Rogue

Nations, Tenor Groups could Acquire Deadly Materials, SAN DIEGO UNION TRIBUNE, April 17,
1995, at Al, available in WESTLAW, 1995 WL 5714041.

23. Plutonium, supra note 15, at 99.
If terrorists who attacked the 110-story World Trade Center in 1993, or... the
Federal Office Building in Oklahoma City [in April 1994] ... had used the same
mini-van that they drove. .. but carried not the chemical-based explosives that
they used but rather a weapon that [was 30 pounds of HEU] ... [t]hey could have

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As nuclear capabilities spread, technological constraints on proliferation
weaken. Preventing the proliferation of nuclear arms has become far more
important than preventing or preparing for direct nuclear conflict. Controlling
proliferation will necessitate dealing with technical, institutional, and political
difficulties.2 Moreover, increasing sources of supply undermine international
control efforts and exasperate proliferators vulnerability to possible
consequences. This note will examine what can be done to curtail the potentially
devastating result of fissile material smuggling, holocaust. Part'I will examine
the perils of smuggling and how this is aggravated where nuclear weapons are
concerned. Part II will investigate the applicable aspects of the Nuclear Non-
Proliferation Treaty. Part III will examine the International Atomic Agency and
demonstrate how it is currently incapable of dealing with smuggling. Part IV will
examine the policing mechanisms in place in Europe, i.e., Interpol and Europol,
and determine how they may be strengthened to deal with this embryonic disaster.
Part V will offer recommendations to curtail the smuggling of fissile material.

II. THE PROBLEMS WITH SMUGGLING IN THE EUROPEAN

COMMUNITY AND RUSSIA

A. Fissile Material

The smuggling of fissile material from the former Soviet Union is
suspicioned by the West as possibly the most intolerable "wave" of organized
crime sweeping not only Russia but all of the former Eastern Bloc countries.2"
The authoritarian mechanisms that formerly safeguarded Soviet nuclear material
can no longer be assured; "6 hence, the potential for the smuggling of nuclear
commodities exists. For example, attempts to smuggle fissile material into
Germany has expanded in recent years. According to the
Bundesnachrichtendienst (BND), a German police agency, attempts have grown
from forty-one in 1991, 158 in 1992, 241 in 1993, to 267 in 1994." Many of

created an explosion of 10,000 to 20,000 tons of TNT, which would have
demolished an area of about three square miles.

Hearings, supra note 21 (testimony of Dr. Graham Allison).
24. Panofsky, supra note 9.
25. Giovanni Facchini, Smuggling of Nuclear Material from Eastern Europe Alarms

Experts, DELrrSCHE PRESSE-AGENMrR, July 5, 1994, available in LEXIS, Nexis Library,
International File.

26. Burrus M. Camahan, Nuclear Smuggling as an International Crime, 28 AKRON L. REV.
417, 418 (1995). The Soviet safeguarding system relied in large part upon psychology. The
Soviets were confident in its control over its people hence any safeguards that were put into place
focused on threats from outside of the Soviet Union. Plutonium, supra note 15, at 99.

27. Tyler Mazmhall, European Nations Combine to Combat Crime, Los ANGELES TIMES,
Sept. 9, 1994. See also Ninety Radioactive Smugglings Found in Germany in First Half Year,
XINHAU NEws AGENCY, Sept. 14, 1994, available in LEXIS, Nexis Library, International File.

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IND. INT'L & COMP. L REV.

these reported instances have been frauds or have involved material that in no
way could be used to develop nuclear weapons. In fact, "since the fall of 1992,
there have [only] been five serious cases of diversion of weapons-usable fissile
material" the rest have either been hoaxes or have involved material that is not
weapons-grade."' Nevertheless, "[t]he fact that a large fraction of the reports of
nuclear smuggling have been scams involving material with no relevance to
nuclear weapons, should not blind us to the seriousness of the smaller but still
significant number of cases that have involved nuclear weapons materials. '" 9

"The fall of the Iron Curtain and the loosening of internal borders within
the (European) Union has resulted in a freer and more deregulated environment,
which has created the perfect breeding ground for organized crime syndicates and
their illicit activities.""0 Evidence exists that organized crime syndicates, or an
"Atomic Mafia," have attempted to access Russia's 33,000 nuclear warheads 31

in order to peddle them for exorbitant sums abroad.32 The fear of a "Russian

28. Hearings, supra note 21 (testimony of Dr. Thomas Cochran). An example of a serious
case of smuggling occured in November 1994. There, Czech authorities found six pounds of
HEU in the back seat of an automobile parked on a side street. In addition, Russian documents
were found with the fissile material. A Czech nuclear scientist, a Russian and a Belarussian were
arrested in connection with the seizure. Allison, supra note 17.

29. Id. (testimony of Dr. John Holdren). Even though many of the alleged incidents of
smuggling of fissile material turn out to be untrue or unproven or involve anything "remotely
'nuclear'-such as radioactive material used for medicinal purposes--. . . the available facts are
grounds for grave concern, for at least five reasons." Allison, supra note 17.

First, the large number of real or fraudulent efforts to sell things nuclear suggests
a widespread appreciation within Russia that such material have market value.
Second, these facts indicate hat there is considerable effort within Ru&sia to fill the
supply side of an emerging, if not formed, nuclear black market. Third, the fact
that there is a large number of failed or false attempts to move nuclear materials
across international borders is less important than the reality that even a tiny
number of successes in transferring nuclear weapons or weapons quantities of
fissile material would have very damaging, if not disastrous, consequences.
Fourth, it is unlikely that every attempt at nuclear smuggling is detected and
reported; by definition, successful transactions on the black markets are covert and
unnoticed. Finally, and perhaps most tellingly, buried in the large number of
claimed cases are a small number of very serious, unchallenged, and unam-
biguously dangerous incidents.

Id.
30. Joel S. Solomon, Forming a More Secure Union: The Growing Problem of Organized

Crime in Europe as a Challenge to National Sovereignty, 13 DIcK. J. INT'L L. 623, 623 (1995).
31. Russia has so many weapons due to the fact that fresh plutonium slowly undergoes

radioactive decay, making it unpredictable in warheads. The United States solves this problem
by recycling old material, and chemically extracting impurities. As a rule, the Soviet Union did
not refresh its plutonium. Aging weapons simply were placed in reserve, replaced by warheads
full of fresh plutonium. Plutonium, supra note 15, at 99.

32. See David Morelli, Russian Isotopes Recovered: Stolen Non-radioactive Elements
Seized by Authorities, WINDSOR STAR, Feb. 9, 1995, at A4, available in WESTLAW, 1995 WL

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SMUGGLING OF FISSILE MATERIAL

Mafia" extends to most countries. 33 The United States Federal Bureau Of
Investigation (FBI) is "gravely concerned [that] Russian organized crime
nembers may have already obtained, or will obtain, the capacity to steal nuclear
weapons."34 According to various estimates, organized crime controls about
seventy to eighty percent of private business in Russia." James Woolsey has
claimed that about 5,700 organized crime syndicates operate in Russia, 200 of
which have international affiliations.36

Conservative estimates place Russian stockpiles of weapons-grade
plutonium at approximately 150 tons and weapons-grade uranium close to 900
tons.37 Since neither plutonium nor the applicable uranium (U235 which is often
referred to as Highly Enriched Uranium or HEU) exists naturally, the primary
difficulty in producing nuclear weapons lies in obtaining sufficient quantities of
the refined material.38 The sheer volume of weapons grade material engenders
the possibility that some material will escape the current control mechanisms."

3612061; Eric Geiger, Austria Feels Chill of Booming Russian Mafia, S.F. CHRONICLE, Jan. 22,
1995, at G23, available in WESTLAW, 1995 WL 5266665.

33. Russian organized crime members include not only petty criminals, but also former
security and intelligence agents from the now defunct KGB, former Communist Party officials
and military officers. Russian Crime a Global Threat, SAN ANTONIO EXPRESS-NEWS, June 25,
1995, available in WESTLAW, 1995 WL 5566012; Ricardo Chavira, U.S. Tackles Global
Spread of Russian Mob: Underworld's Threat to National Security Foster Cooperation among
Agencies, Series: International Crime, DALLAS MORNING NEws, June 4, 1995, at IA, available
in WESTLAW, 1995 WL 9040347.

34. Global View, supra note 19, statement by Louis Freeh, FBI Director.
35. "Approximately 40,000 Russian business and industrial enterprises are controlled by

organized crime. Their combined turnover, over ten billion dollars, is higher than the gross
domestic product of many members of the United Nations." Ariel Cohen, The Mob and Russia,
SAN DIEGO UNION TRm., Sept. 10, 1995, at G4. See also, Celestine Bohlen, Graft and
Gangsterism in Russia Blight the Entrepreneurial Spirit, N.Y. TIMEs, Jan. 28, 1994 at Al,
available in LEXIS, Nexis Library, NYT File.

36. Woolsey, supra note 18.
37. Europe: The Plutonium Racket, ECONOMIST, Aug. 20, 1994, at 39 [hereinafter Racket].
38. Panofsky, supra note 9.

Controlling proliferation will necessitate dealing with technical, institutional, and
political difficulties. The dominant technical difficulty is limiting access to
fissionable material--the plutonium or highly enriched uranium (HEU) that can
be used to make a nuclear weapon. Well over 20 percent of HEU is in the form
of the fissionable isotope uranium 235. Natural uranium contains only 0.7 percent
uranium 235; the balance is uranium 238. Plutonium does not occur in nature; it
is produced inside a nuclear reactor, through neutron capture by uranium 238,
followed by beta decay.

Id.
39. Id.; David Perlman, Piles of Plutonium Leftovers Grow as Bombs are Taken Apart, S.F.

CHRONICLE, Apr. 12, 1995, available in WESTLAW, 1995 WL 5277324.

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IND. INT'L & COMP. L REV.

Only a fraction of these huge stocks in the wrong hands would create havoc.4"
After efforts to cover up accidents and due to the lax security at its nuclear
arsenals,"' some Russian experts have reluctantly admitted that some superfluous
nuclear warheads may not be adequately secured.42

Due to the disarmament treaties between the United States and the former
Soviet Union, roughly six tons of plutonium and thirty tons of HEU are due to be
released annually over the next thirteen years. 43 As weapons are gradually
dismantled, the separated plutonium and uranium are either stockpiled or
processed44 by Minatom, the Russian Ministry of Atomic Energy and principle
nuclear custodian.' The U.S. and Russia are engaged in a cooperative effort to
control and account for fissile material in order to help ameliorate the logistical
quandary of fissile material dismantlement."6 Minatom and a private U.S.
corporation, the U.S. Enrichment Corporation, have an agreement whereby
Enrichment Corporation purchases nuclear material from Minatom which has
been reprocessed into a commercially viable product. Enrichment Corporation

40. A crude atom bomb requires a mere 15 kg of this uranium or five kg of the plutonium,
about the size of a grapefruit. Panofsky, supra note 9. Thomas Cochran, the director of the
Natural Resources Defense Council, sought to impress this point during a Capital Hill briefing.
He had a six pack of Coca Cola cans filled with 15 pounds of uranium. The uranium was not
weapons usable. If the fifteen pounds (or 6.8 kilograms) were plutonium it would have
represented more plutonium than was used on Nagasaki during World War II.

A country like the United States or Russia with very sophisticated capabilities
could make small nuclear weapons with [close to] three to five kilograms of
[HEU] or [approximately] one kilogram of plutonium. And if you start doubling
that amount, you can do the same thing with greater ease, with less sophistication
in the design.

Hearings, supra note 21 (testimony of Dr. Thomas Cochran). According to Dr. Cochran's
estimates, a Middle Eastern country could take the material that has been smuggled to date and
produce a low-yield nuclear weapon using technology used in the United States and Russia in the
1950's. 1d; see also Global View, supra note 11.

41. Larry Thomson, Yeltsin's Nuclear Report Reveals Problems, BUFFALO NEWS, Aug. 7,
199.5, at A3, available in WESTLAW, 1995 WL 5493568.

42. Plutonium, supra note 15, at 98. Alexei Lebedev of the Russian Atomic Energy
Ministry openly states that there is no firm assurance that nuclear weapons have been stored in
secured locations. Bettina Vestring, German Police Smuggled Radioactive Material, REUTERs,
September 12, 1994, available in LEXIS, Nexis Library, International File.

In Russia, growing concern about the security at nuclear installations has prompted the
formation of a special battalion of troops to combat possible nuclear terrorism and the smuggling
of nuclear materials. Andrei Ivanov, Russia: "Hooligan" Hunting Nuclear Weapons Face
Special Army Unit, INTER PREss SERVIcE, May 1, 1995, available in WESTLAW, 1995 WL
2260776.

43. Plutonium, supra note 15, at 98.

44. Id. at 99.
45. Id.
46. State Department Briefing, Mike McCurry, Aug. 17, 1994, available in LEXIS, Nexis

Library, DSTATE File.

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SMUGGLING OF FISSILE MATERIAL

then peddles the material to civilian entities.4 The U.S. has offered Russia up
to $30 million to help account for the fissile material not yet dismantled and
improve the security of the weapons.48 The U.S. hopes to install temporary
safeguards with the goal of establishing a more permanent and protective system
patterned after the U.S. Nuclear Regulatory Commission.4 9 Under that system
fissile material is counted to within four-tenths of a gram, a stringent technical
control regime costing the U.S. about $700 million a year to operate.'

The CIS and Russia have been consistent in their denial that any nuclear
material has escaped their territories.5 Russian officials charge that the reports
of smuggling of fissile material is a Western ploy aimed at gaining control over
Russian nuclear weapons.5 2 They claim that such campaigns have been launched
to prevent the presence of CIS enriched uranium, isotopes, and heat-releasing
elements in the world market.53 Alexander Mikhailov, an official of the Russian
Federal Counter-Espionage Service (FSK), asserts that, "[a]ttempts to blame
Russia for being unable to control the non-proliferation of its nuclear weapons,
technologies and materials are politically-motivated" ' and that the "accusations
of Russian laxity [are] part of a campaign to prepare public opinion 'for the idea
of implementing political control over Russian nuclear weapons.""' Germany,
for instance, is believed to have attempted to dramatize the situation with hopes
of obtaining full disclosure of all nuclear inventories.5 6 In fact, some believe that
many of these incidents have been prompted by German officials57 by their

47. Id.
48. Id.
49. Id.
50. Global View, supra note 19.
51. Christine Spolar, Slovadan Holds 9 in Uraniwn Plot; Car From Ukraine Said to Bring

in 100 pounds of Nuclear Material, WASHINGTON POST, April 22, 1995, at A25, available in
WESTLAW, 1995 WL 2089976.

52. Russian Cites Western Plot in Nuke Smuggling Reports, AGENCE FRANCE PRESSE,

August 16, 1994, available in LEXIS, Nexis Library, AFP File.
53. Id
54. Id.
55. Id.
56. Sef'he Press on Nuclear Smuggling and the Intelligence Service, WEEK IN GERMANY,

April 21, 1995, available in WESTLAW, 1995 WL 2272717. Germany does not have any
nuclear weapons.

57. Trial Puts Spotlight on Smuggled Russian Plutonium, CALGARY HERALD, May 16,
1995, at AS, available in WESTLAW, 1995 WL 7301384; German Intelligence Accused of
Cooking up Plutonium Plot, AIzONA REPBaIC, May 12,1995, at A8, available in WESTLAW,
1995 WL 2792532; Plutonium Bust Faked, MONTREAL GAZETTE, April 20, 1995, at BI,
available in WESTLAW, 1995 WL 6957333.

On August 10, 1994, three men were arrested in Munich, Germany, when German police
seized a suitcase with about 400 grams of highly enriched plutonium. These arrests came about
after an undercover operation involving German intelligence agents. Georgi Saurov, a spokesman
for Russia's Nuclear Energy Ministry supported a report that a German intelligence agency

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IND. INT'L & COMP. L Rev.

offering of huge payments in sting operations."8

Regardless of Germany's motives or Russia's claims, concern that fissile
material may eventually find its way into the wrong hands is legitimate. In fact,
the Ukraine has previously suspended the transfer of nuclear weapons to Russia
due to the "political instability and confusion" that has existed within the Russian
Federation. 9 The Ukraine's concern was that the missiles being returned to
Russia were not being destroyed, but actually falling into unfriendly hands. 6

This concern may be credible considering additional reports from Kazakhstan
stating the possibility that the republic has had three or four weapons disappear.6'

The absence of centralized control in Russia hinders the fight against
smuggling. A paradigm of this acute problem exists in Central Asia. There,
smuggling has been developed over the centuries into a highly skilled craft to the
extent that even when the Soviet army and KGB controlled the border areas, local
communities conducted trade with non-Soviet states.62 In fact, smuggling via
Armenia or Afghanistan has become a highly successful enterprise with little
chance of detection. 63  This skill in smuggling coupled with the Muslim
brotherhood of southern border republics and the nearby states that crave nuclear
technology, i.e., Iran and Iraq, could conceivably lead to the border republics
aligning themselves with their fellow Muslims rather than the rest of the CIS and
Russia 6 If such alliances do coalesce, the proliferation of former Soviet fissile
materials stationed in the republics to punitive states is plausible.

B. Nuclear Expertise

In the former Soviet Union, as many as 100,000 scientists, engineers and
technicians developed and cultivated the largest nuclear weapons arsenal in the
world.65 Two to three thousand scientists were involved in plutonium production
and uranium enrichment activities-two of the most sensitive areas in nuclear

shipped 12.8 ounces of weapons-grade plutonium to Moscow and back so it could be seized on
its arrival. Spolar, supra note 51.

58. Arthur Allen, Spy Scandal in Germany, DAYTON DAILY NEws, June 24, 1995, at 5A,
available in WESTLAW, 1995 WL 8951370.

59. Ukraine Halls Transferto Russia of Nuclear Arms, REUTERs, Mar. 12, 1992, available

in LEXIS, Nexis Library, International File [hereinafter Ukraine]; see generally Victor Batiouk,
Ukraine's Non-Nuclear Option, UNIDR, United Nations Institute for Disarmament Research
(1992).

60. Ukraine, supra note 59.
61. Plutonium, supra note 15, at 98.
62. Igor Levin, Where Have all the Weapons Gone? The Commonwealth of Independent

States' Struggle to Stop the Proliferation of Nuclear Weapons and the New Role of the
International Atomic Energy Agency, 24 N. Y. U. J. INT'L L. & PoL. 957, 966 (1992).

63. Racket, supra note 37, at 40.
64. Levin, supra note 62, at 966.
65. SCHEINMAN, supra note 14, at 148.

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weapons production." With the fall of the Soviet Union, programs for the
development of nuclear weapons have been dramatically abated. Testing grounds
have been shut down while production at several major nuclear facilities has
terminated. 7

Due to the acrimonious fiscal realities existing in the former Soviet Union,
despondent scientists emigrating to punitive states as nuclear mercenaries is a
grave concern.6  This "brain drain' extends beyond nuclear mercenarie,
inclusive in the problem are those scientists seeking legitimate employment
outside the former Soviet Union." Unsophisticated in the world arena, a scientist
believing she is being employed on a civilian nuclear power project may
inadvertently supply general information and expertise useful for weapons
development. In fact, Iraq set up front companies in Western Europe in order to
recruit unsuspecting Commonwealth scientists who would not otherwise consider
laboring for rogue states like Iran, Iraq, or Libya7

The concern over the smuggling of fissile material and expertise has merit
regardless of whether Russian scientists are insulted by these accusations.73

66. Potter, supra note 7, at 4; See Youngblood, supra note 6, at 339.
67. Worries Express Over Export of Nuclear Expertise, The British Broadcasting

Corporation Summary of World Broadcasts, Jan. 15, 1992, available in LEXIS, Nexis Library,

International File [hereinafter Nuclear Expertise].
68. Robert Lee Hotz, Cold War Foes Forge Warm Ties What Once Was Called Treason

is Now Encouraged by the U.S. and Russia, L.A. TIMES, June 23, 1995, at 1, available in
WESTLAW, 1995 WL 2059058; Lin, supra note 22,

69. The term "Brain Drain" was first used to describe the emigration of former Nazi
weapons scientist to the United States after World War II. Another significant episode of "Brain
Drain" occurred during the early 1950's when hundreds of high level British radar and
communications scientists emigrated to the United States and Canada in response to the
worsening economic conditions in the United Kingdom. See Generally Adam Treiger, Note,
Plugging the Russian Brain Drain: Criminalizing Nuclear Expertise, 82 GEO. L.J. 237 (1993).

70. The scope of the brain drain is demonstrated on the Internet. There, scientists are able
to interact with little chance of detection. The Internet does not recognize national borders and
it is not subject to inspection by the International Atomic Energy Agency. In addition, with the
encryption programs widely available, the United States National Security Agency or the former
KGB are hard pressed to crack private E-mail. See Alan Cooperman & Kyrall Belianinov,

Moonlighting by Modem in Russia, Hard-Up Scientists Sell Their Skills Abroad, U.S. NEWs &
WORLD REPORT, April 17, 1995, at 45, available in WESTLAW, 1995 WL 3113667.

71. There is historical precedence for the exodus of skilled scientists, as evidenced by the
large number of German rocket scientists who came to the United States after World War II.
Youngblood, supra note 6, at 339.

72. Treiger, supra note 69, at 239 (Arms Trade and Proliferation in the Middle East:
Hearing Before the Subcommittee on Technology and National Security of the Joint Economic
Comm., 102d Cong., 2nd Sess., pt. 2, at 25 (1992)(statement of William C. Potter, Director of
the Center for Russian and Soviet Studies)).

73. Sergei Kapitza, a physics professor at the Academy of Sciences in Moscow explains:
This fear is based on some strange and irrational assumption and stereotypes..

To single out nuclear scientists from Russia-however difficult their current

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IND. INT'L & COMP. L REV.

Russian nuclear scientists are no more amoral than their Western counterparts
and are similarly horrified of nuclear proliferation. Nevertheless, many Russian
scientists, formerly unfamiliar with fiscal anxieties, now must survive on meager
gratuities.74 Incentives offered by a few nations are sufficient to convince even
the most idealistic scientist to stray from the path of nonproliferation when
confronted with fiscal ruin."

In an attempt to ameliorate the harsh economic situation for the once high
level physicists and engineers, Russia has implemented a conversion program,"6

while the European Community, the United States, and Japan have pledged to
fund two nuclear research centers in the CIS." The Russian program is an
attempt to convert many of the weapons producing industries into other
enterprises such as automobiles or electronics. Unfortunately, the program has
not been overly successful, as many of the former elite scientists are now
relegated to designing "new kinds of iceboxes and ... baby buggies .... .""
With these menial vocations, most salaries have deteriorated. 9 That some of
these scientists may become discouraged at the lack of use of their extensive
expertise and training is self-evident.

The joint plan by the European Union, United States, Japan and the
Russian Federation has also been developed in an effort to help Russian military
experts channel their talents towards peaceful scientific and industrial activities."0

The International Science and Technology Centre's (ISTC) objective is to "give
Russian and other CIS weapons scientists and engineers opportunities to redirect

position-is an expression of distrust, if not a direct insult, to that community. Are
we really to consider a nuclear bomb maker in the same category as a paid
assassin?

Sergei Kapitza, Debunking the Latest Red Scare, HARPERS MAG., July 1992, at 15-16, (quoting
Soviet Scientists: Low Pay, No Pay, Now Insults, BULLETIN ATOMIC SCIENTISTS, May 1992).

74. See Iraq Said to Hire 50 Soviet Nuke Scientists, THE REUTER LIBRARY REPORT, Mar.
3, 1992, available in LEXIS, Nexis Library, International File [hereinafter Iraq]. Some salaries
have been reduced to the equivalent of fifty dollars per month and some to as low as twelve
dollars per month. In order to better understand the situation fully, the compensation system in
the former Soviet Union must be examined. There, nuclear scientists were among the highest paid
personnel in the country. Access to goods and services was more important than money, and
most were provided with top of the line cars, apartments, health care, etc. These perks coupled
with relatively high salaries show the true compensation allotted to the scientists. The dwindling
perks in addition to the meager salaries allotted to the scientists evidences their plight. Id.

75. Stephanie G. Neuman, Controlling the Arms Trade: Idealistic Dream or Realpolitik?,
THE WASHINGTON QUARTERLY (1993), available in LEXIS, Nexis Library, WASHQR File.

76. Nuclear Expertise, supra note 67.
77. Youngblood, supra note 6, at 339.
78. Nuclear Expertise, supra note 67.
79. Iraq, supra note 74.
80. Moscow Science and Technology Centre goes into Operation, Commission of the

European Communities, RAPID, Mar. 17,1994, available in LEXIS, Nexis Library, CURNEWS
File [hereinafter Moscow]; see also Youngblood, supra note 6, at 339.

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their talents to peaceful activities, responsive to civil needs, and to promote their
integration into the international scientific and industrial communities."'" "To
promote the objectives of the ISTC, the signatory Parties will finance, through the
Centre, research and development projects by Russian scientists and institutions
formerly engaged in military activities." '82 "The cummulat[ive] contributions of
the parties will amount to approximately 65 million [dollars] for [the first] two
years. 8 3

The predicament does not necessarily concentrate within the Russian
military establishment, where there is yet to be one confirmed incident from
missing material, but with civilian controls.84 Laboratory results taken of
samples from previous recdveries confirm this, indicating that the fissile material
originates from spent nuclear fuel from nuclear submarines and material for
medical purposes produced by research reactors.8 5 Consequently, the initial
preventive measures should concentrate on the civilian sector. As the counting
of bombs gives rise to the accounting for the material, i.e., dismantlement, the
chances that material will disappear during this process are particularly acute.

III. THE NON-PROLIFERATION OF NUCLEAR WEAPONS TREATY

The Nuclear Non-Proliferation Treaty (NPT)16 is one of the most far-
reaching legal instruments currently in place to combat the spread of nuclear
weapons materials and expertise. 7 For a quarter of a century, the NPT has been
the "touchstone of all international efforts to limit the spread of nuclear
weapons."" With over 170 parties, it is the most widely adhered to arms controlagreement in history.8 9

81. Moscow, supra note 80.
82. Id

83. Id

84. Neuman, supra note 75.
85. id
86. NPT, supra note 19, at Art. 1. The initial NPT was in force in 1970 and was to last 25

years. The NPT was, however, indefinitely prolonged at a conference in New York City in May
1995. Igor Maximov, Nuclear Nonproliferation Treaty Prolonged for indefinite Time, RUSSIAN

PRESS DIGEST, May 12, 1995, available in WESTLAW, International Library, RPD File.

87. Other treaties or organizations dealing with proliferation of nuclear weapons include:
Nuclear Suppliers Group (a cartel comprised of seven main nuclear supplier countries);
Coordinating Committee for Multilateral Export Controls (an organization formed in conjunction
with the U.S. Mutual Defense Assistance Control Act of 1951) see Cecil Hunt, Cocom and other

International Cooperation in Export Control, 675 PRACTICING LAW INSTITUTE/COMM. 295

(1993); the Missile Technology Control Regime (mechanism organized by the G-7 to restrict the
export of missile technology); the Chemical Weapons Convention (designed to ban the
development, production, and stockpiling of chemical weapons); and the Biological Weapons

Convention (set up to ban the development, production, and stockpiling of biological weapons).
88. Lin, supra note 22.
89. See Quester, supra note 5.

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IND. INT'L & COMP. L REV.

The NPT is concerned with stemming the demand for nuclear weapons.
"[It] addresses horizontal proliferation by requiring non-nuclear states to comply
with the International Atomic Energy Agency [IAEA] safeguards in order to re-
ceive the benefits of nuclear technology for peaceful purposes."9 "It also ad-
dresses vertical proliferation, requiring the nuclear states to pursue in good faith
complete nuclear disarmament."'" Pursuit of these goals is premised on the fact
that the vast majority of nations do not possess nuclear weapons technology and
that indigenous development of such technology would be extremely difficult.92

Asymmetrical in nature, the NPT's participants have considerably
divergent rights and obligations.93 The five nuclear weapons states 4 agree not
to export those items necessary for the development of nuclear weapons." In re-
turn, those non-nuclear weapon countries are allowed to import items necessary
for the production of peaceful nuclear power, subject to enforcement by the
IAEA.9s

Articles I and II of the NPT set forth the basic duties of the signatory states.
Article I dictates:

Each nuclear-weapon State Party to the Treaty undertakes not to
transfer to any recipient whatsoever nuclear weapons or other
nuclear explosive devices or control over such weapons or explosive
devices directly, or indirectly; and not in any way to assist,
encourage, or induce any non-nuclear-weapon State to manufacture
or otherwise acquire nuclear weapons or other explosive devices, or
control over such weapons or explosive devices.97

Article II requires that:

Each non-nuclear weapons 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 to receive any assistance in the

90. Youngblood, supra note 6, at 331.
91. Id.
92. See generally NPT, supra note 19, at Arts. 1, 11.
93. 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 (1993).
94. The treaty divides its signators into two groups: the five declared nuclear weapons

states, each of which tested a nuclear device prior to 1967 and all others. NPT, supra note 19, at
Art. IX.

95. Youngblood, supra note 6, at 331.
96. Id.
97. NPT, supra note 19, at Art. I.

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manufacture of nuclear weapons or other nuclear explosive devices.9"

"The benefits of the nuclear power technology coupled with the international
respect of membership, make the NPT hard to resist for a country desiring
nuclear power."9 9

The difficulty inherent in producing nuclear weapons is germane to
proliferation control. Each signator to the NPT must "agree to be bound by [the
treaty's] terms in order to receive the technology needed to support a successful
nuclear power program."' ° Since an essential purpose of the NPT is to assist,
or even encourage, the development of nuclear energy capabilities while severely
restricting access to nuclear weapons technology,'' the NPT encourages the
dissemination of technology which could indirectly increase a state's capacity to
produce nuclear bombs."0 2

In ratifying the NPT, the non-nuclear weapon states pledged not to secure,
manufacture, or otherwise acquire a nuclear arsenal. They also committed
themselves to accept safeguards as set forth in an agreement with the
International Atomic Energy Agency (IAEA) 0 3 regarding all fissionable material
used in peaceful nuclear activities within their territory or jurisdiction.0 4 The
non-proliferation commitment of the NPT and the acceptance of comprehensive
safeguards on all peaceful nuclear activities attempted to address the political and
security concerns of nuclear proliferation.' °

In order to prevent diversion of fissile material to non-nuclear weapons
states, fissile material must be accounted for.0 6 Article III of the NPT requires
each signatory nation to negotiate safeguard covenants' 07 with the IAEA
overseeing all of their peaceful nuclear activities.0 8 The safeguards that the non-
nuclear states must accept are not specifically addressed by the NPT itself, rather
each country must individually work out the safeguard details with the IAEA.' 09

Even though the NPT does not require that safeguards be applied to nuclear

98. Id at Art. II.
99. Youngblood, supra note 6, at 336.

100. Youngblood, supra note 6, at 335-336; see NPT, supra note 19, at Art. I
101. See generally Brian J. Leslie, Note, Dual Use Goods and the European Community:

Problems and Prospects in Eliminating Internal Border Controls on Sensitive Products, 17 B.C.
INT'L & COMP. L. REv. 193 (1994).

102. NPT, supra note 19, at Art. IV. "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." Id.

103. See infra text accompanying notes 123 to 160.
104. NPT, supra note 19, at Art. III, §1.
105. SCHEINMAN, supra note 14, at 148.
106. John H. Nuckolls, Post-Cold War Nuclear Dangers: Proliferation and Terrorism,

Science, Feb. 24, 1995, available in LEXIS, Nexis Library, ASAPII File.
107. NPT, supra note 19, at Art. III.
108. Id.
109. Id.

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IND. INT'L & COMP. L REV.

activities in the nuclear weapon states," I0 all five have volunteered to place their
nuclear activities under IAEA safeguards."'

The safeguards are supposed to timely detect "diversion of significant
quantities of nuclear material from peaceful activities to the manufacture of
nuclear weapons."' 2 Safeguards also engender confidence in the nature of each
state's nuclear activity and expedite international cooperation in the development
of nuclear energy." 3 For material existing within a country, the safeguarding
procedure comprises three basic factors: (1) cataloging every transfer into or out
of fissile material storage facilities such that the IAEA and the state are informed
at all times of the quantity, locality, and movement of nuclear commodities;" (2)
installation of containment and surveillance devices at the fissile storage
facilities;" and (3) human observation of the facilities." 6 Unfortunately, these
safeguards apply to declared nuclear material and not to the transfer or receipt of
undeclared nuclear weapons or devices. Nor are the safeguards intended to verify
that a state is not making preparations for developing a nuclear explosive
device.'17

The enforcement mechanisms available to stop the supply of nuclear
expertise, ranging from the efforts of Russia to stop the unlawful emigration of
its scientists to the role of the international community in deterring and
prosecuting these scientists, differ from the mechanisms used to stop the demand
for nuclear weapons. Article I of the NPT fails to address the problem of nuclear-
expertise proliferation. The fact that Russian nationals are lending aid to another
state's nuclear weapons program is probably not a technical violation of the NPT
because there is no state action involved (i.e., Russia"' is not assisting,

110. Id.
111. See Michael J. Wilmshurst, The Adequacy of JAEA Safeguards for the 1990's. in

NUCLEAR NON-PROLIFRTION AND THE NON-PROLIFERATION TREATY, at 13.
112. JozefGoldblat, The Non-Proliferation Treaty: How to Remove the Residual Threats,

UNIDR, United Nations Institute for Disarmament Research 6 (1992).
113. SCHEINMAN, supra note 14, at 168.
114. 1 NUCLEAR ENERGY AGENCY, ORGANIZATION FOR ECONOMIC COOPERATION AND

DEVELOPMENT, THE REGULATION OF NUCLEAR TRADE 53 (1988).
115. Id at54.
116. Id

117. SCHEINMAN, supra note 14, at 168.
118. See generally Edwin D. Williamson & John E. Osborn, A U.S. Perspective on Treaty

Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 VA.
J. INT'L L. 261 (1993).

The former Soviet Union was the signor to the NPT in 1970. Since this time the Soviet
Union has split up into various republics and states. This break up left a vacuum in
regards to the treaties that the Soviet Union had entered into. Accordingly, with the
Alma Ata Declaration, the republics of the former Soviet Union guaranteed the
'fulfillment of international obligations stemming from the treaties and agreements of
the former U.S.S.R."

Id, quoting Text of Alma Alta Declaration: Mutual Recognition and An Ernest Basis, N.Y TIMES,

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encouraging, or inducing any action because it is not sending its scientist abroad).
Rather, these scientists are voluntarily leaving Russia against the interests and
desires of the Russian government. Under the NPT, the Russian government is
not compelled to prohibit its people from emigrating.

"Prior to the discovery of the Iraqi and Northern Korean nuclear programs
no material breaches of the NPT had been recorded."' 9 Subsequently, however,
the insufficiencies of the treaty have become prominent. Parties to the treaty
observe the provisions as they see fit, they could conceivably claim acquiescence
to the NPT yet covertly seek to distribute fissile material. Iraq proclaimed
obeisance to the NPT prior to the Gulf War, North Korea overtly refuses to
comply with mandatory inspections. Meanwhile, states outside the NPT like
Israel, a nuclear weapons nation,' and in the past South Africa,'2 ' refuse to enter
the treaty while other non-nuclear states remain legally unobstructed in their
pursuit of nuclear activities.'22  Even though Article H explicitly outlaws
solicitation efforts by non-nuclear countries, "z' the treaty's safeguards are too
weak to enforce its mandates, especially in the face of intense demand for nuclear
expertise.

IV. THE INTERNATIONAL ATOMIC ENERGY AGENCY

After World War II, the initial United States response to the apocalyptic

hazards of atomic weaponry was to enact the Atomic Energy Act. 2 This act

Dec. 22, 1991, at A12. The problem is that under the NPT there were only five countries
authorized to maintain nuclear weapons and the Soviet Union was one of these. Accordingly the
U.S. argued that Russia should continue to not only occupy both the former Soviet Union's
General Assembly and Security Council Seats but also the other republics must apply for
membership into the United Nations as new states. One of the arguments for this was that Russia
is clearly the dominant part of the former Soviet Union and this falls in line with eleven of the
former Soviet republics that Russia be given the USSR Security Council seat. Id. at 264-265.

119. Keliman, supra note 3, at 801.
120. Israel is believed to have as many as 100 nuclear weapons. Global View, supra note

19.
121. Goldblat, supra note 112, at 2. South Africa formerly maintained nuclear weapons,

however, it dismantled its arsenal in compliance with the NPT. Id
122. Id
123. NPT, supra note 19, at Art. II.
124. Atomic Energy Act of 1946, Pub. L. No. 79-585, 60 Stat. 755 (1946). "The frst

attempts to control nuclear weapons were made immediately after the first bombs were used. The
most important of the early steps was the so-called Baruch Plan, named after Bernard Baruch, who
presented it on behalf of the United States to the United Nations in 1946." "[Tlhe plan was...
'too radical . . . .' In particular it called for intrusions on sovereignty that were totally
unacceptable to the Soviets, then under the rule of Stalin, and (probably unacceptable to) the US
Senate ... if such an agreement had been put before it for ratification in those times." Herbert F.
York, The CTBT and Beyond, UNIDIR, UNrrED NATIONS INsTrTUTE FOR DISARMAMENT
RESEARCH, 1 (1994).

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IND. INT'L & COMp. L REV.

attempted to contain the spread of nuclear technologies via secrecy and denial.
The act prohibited "any person .. . to (A) possess or transfer any fissionable
material .... or (B) export from or import into the United States any fissionable
material, or (C) directly or indirectly engage in the production of any fissionable
material outside of the United States."'" The effectiveness of this act quickly
dissipated as countries successfully tested their atomic weapons.'"

On December 8, 1953, to ameliorate the ineffective Act President Dwight
D. Eisenhower proffered, what was latter termed, the "Atoms for Peace" plan to
the United Nations (U.N.) General Assembly. 27 He proposed setting up an
Atomic Energy Agency under the aegis of the U.N. which would be responsible
for the impounding, storage, and protection of contributed fissionable
materials.' In addition, the "responsibility of this Atomic Energy Agency
would be to devise methods whereby this fissionable material would be allocated
to serve the peaceful pursuits of mankind."' 9 Eisenhower believed that "[i]t is
not enough to take this weapon out of the hands of the soldiers. It must be put
into the hands of those who will know how to strip its military casing and adapt
it to the arts of peace."' 30 Finally, in order for this proposal to be effective,
Eisenhower requested that involved governments contribute portions of their
fissionable material stockpiles to the Agency.'

This Atoms for Peace proposal effectively rejected earlier and more
encyclopedic strategies, acknowledging that comprehensive international control
over nuclear weaponry would be formidable. By proposing such a plan,
Eisenhower wished to strengthen and amplify American military and economic
ties around the world, assure American primacy in international nuclear councils,
advance American power reactor sales, yet concomitantly promote disarma-
ment.

32

As a result, on July 29, 1957, the U.N. established the International Atomic
Energy Agency (IAEA) 133 to "accelerate and enlarge the contribution of atomic
energy to peace, health and prosperity throughout the world."'34 The IAEA was

125. Atomic Energy Act, supra note 124, § 5(a)(3).
126. Two of the earliest successful tests were conducted by the Soviet Union in 1949 and

Great Britain in 1952. See SCHEINMAN, supra note 14, at 17.
127. Dwight D. Eisenhower, Peaceful Uses of Atomic Energy, Address Before the General

Assembly of the United Nations, (Dec. 8, 1953) in PUBLIC PAPE .S OF THE PRESIDENTS, at 813-
822.

128. Id. at 821.
129. Id. "A special purpose would be to provide abundant electrical energy in the power-

starved areas of the world." Id.
130. Id. at 820.
131. Id
132. SCHEINMAN, supra note 14, at 62.
133. IM at 74.
134. Statute of the International Atomic Energy Agency, Oct. 26, 1956, art. B1, 8 U.S.T.

1093, 276 U.N.T.S. 3.

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authorized to "establish and administer safeguards designed to ensure that special
fissionable and other materials, services, equipment, facilities and information
made available by the Agency or at its request or under its supervision or control
[were] not used in such a way as to further any military purpose."' 35 In addition,
the IAEA was empowered:

To send into the territory of the recipient State or States inspectors
... hav[ing] access at all times to all places and data and to any
person who by reason of his occupation deals with materials,
equipment, or facilities which are required by this Statute to be
safeguarded... and to determine whether there is compliance with
the undertaking against use in furtherance of any military purpose.

136

Since 1970, IAEA responsibilities result primarily from non-nuclear weapon
states joining the NPT and obligating themselves to accept IAEA safeguards on
all their nuclear activities.' 37 Unfortunately, the safeguards are neither intended
to seek out clandestine operations nor undeclared activities, nor govern or
regulate national action. Their function is to monitor, audit and report in order
to verify that states are in compliance with their voluntary undertakings. 3 '
IAEA members do not have to submit to safeguards unless the member has
sought and received assistance in some peaceful nuclear activity from the agency.
In fact, nuclear safety is ultimately a national responsibility, and only the state has
the authority to legislate and enforce.139 Consequently, some fissile material
activity will go undetected.

The IAEA abandoned the idea of monopolizing fissile material in favor of
a system of international verification of nationally owned and controlled nuclear
activities by member states.' In recognizing that the logistics of a fissile
material monopoly were problematic, the U.N. has adopted a system of voluntary
compliance. By volunteering to conform with the NPT, each state subjects itself
to verification that its international nuclear commitments are not breached.
Preventing the unauthorized accumulation of fissionable material is believed to
be more successful if the material is discovered during the early stages of
weapons fabrication rather than in the later stages (such as an actual bomb).'41

The IAEA's effectiveness has been restrained due to its limited data-
gathering operations. Often the Agency must solicit intelligence about a

135. Id. at Art. m1, A.5.
136. Id at Art. XII, A.6.
137. SCHEINMAN, supra note 14, at 125.
138. Id.
139. Id. at 103.
140. Id.
141. Id. at 122-23

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IND. INT'L & COMP. L REV.

particular country's nuclear activities from outside intelligence agencies. 142 Fol
example, Hans Friedrich Meyer, a spokesperson for the IAEA, claims that unti
the agency has independent confirmation from some reputable institution, it musi
remain aloof of reports that Saudi Arabia, Iran, Iraq, Turkey and Pakistan have
visited Dushanbe, the capital of Kazakhstan, and shopped for nuclear
technology.1

4

The IAEA acknowledges the inhering risks associated with its present
restrictions; consequently, the agency has requested greater autonomy in
monitoring potential trafficking in nuclear materials.'" IAEA experts state that
the risk of smuggling and leakage depends on the reliability of the CIS's system
of accounting for its nuclear weapons. This system is weakest when weapons are
being transported.'45 To effectively ameliorate the deficiencies in the current CIS
monitoring systems, the IAEA should be given control over the entire nuclear
cycle, from the mining of uranium and the production of deuterium and tritium
to the handling of waste; however, the feasibility of this type of monitoring
system may be fiscally unreasonable. 14 6

In addition to expanding the powers of the IAEA, the fiscal quandary must
be overcome. The present finite financial budget of the agency effectively
renders meaningful inspection impossible. 147 As a result, the agency rarely exer-
cises its full power of inspection; hence, much has slipped through the Agency's
fingers. The Iraqi's clandestine buildup of nuclear technology amplifies this
dilemma. Prior to the Gulf War, the agency's inspections dis-covered no
illegitimate nuclear activities; the Iraqi nuclear technology was allegedly for
peaceful use only.' In fact, Iraq had been a member of the NPT and the IAEA
for the previous ten years during which they took an active role in fostering non-
proliferation and peaceful nuclear cooperation.' 4 Prior to its invasion of Kuwait,
many experts believed that, Iraq was five to ten years away from developing a
viable nuclear arsenal. 50 As subsequent events demonstrated, the time frame,
and scale of Iraqi nuclear activity was grossly underestimated. This Iraqi nuclear
deception emphasizes the inadequacies of both the NPT and the IAEA.

142. Peter Beaumont, Austria: West Gets Tough on Plutonium Trade, OBSERVER, Sept. 18,
1994, available in WESTLAW, INT-NEWS File [hereinafter Trade].

143. LAEA Seeks Tougher Nuclear Checks in Response to Collapse of Soviet Union, AGENCE
FRANCE PRESSE, Jan. 3, 1992, available in LEXIS, Nexis Library, AFT File.

144. Id.
145. Levin, supra note 62, at 975.
146. North Korea and Iraq criticized at IAEA meeting, DEUTSCHE PRESSE-AGENTUR, Sept.

22, 1995; Secretary's Statement on International Day of Peace, FEDERAL NEWS SERVICE, Sept.
20, 1995.

147. Id.
148. Global View, supra note 19. Their secret program was housed at the same facility as

was safeguarded and inspected twice a year by the IAEA. Id.
149. Id.
150. Id

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In an attempt to mitigate fears of nuclear proliferation, the IAEA claims
that would-be nuclear powers would have great difficulty servicing a plutonium-
based weapon. 5' Plutonium-based warheads are relatively insatiable, thus
requiring careful maintenance and having a short shelf-life compared to other
conventional weapons. Maurizio Zifferero of the IAEA said that plutonium 241
isotope, which accompanies plutonium 239, decays and causes contamination
that would require the warhead to be regularly cleaned by a large and steady flow
of plutonium. 152 A single warhead with the minimum amount of plutonium,
about five kilograms, has a shelf-life of between one and two years during which
it must be carefully serviced. If the plutonium was not pure but only 80 percent
enriched, then perhaps twice as much plutonium would be necessary for
servicing. If the state wished to ensure a nuclear threat, a steady flow of the
material would be necessary to help with the sophisticated reprocessing
requirements.'53 Consequently, nuclear powers like the United States and Britain
regularly rotate the warheads in order to ensure their serviceability." 4 Due to the
inherent difficulties in developing a plutonium based weapon, "it does not make
a great deal of sense to be buying plutonium unless you have had a previous
program, and even then it would be easier to use a uranium-based weapon, which
you can machine and weaponise in the open."'55 Countries like Iraq that have
spent considerable money and expertise on a simpler uranium-based weapons
system have had enormous trouble servicing this syster.' 56

Presently, international supervision over the world's estimated supply of
1,000 tons of plutonium and 1,500 tons of Highly Enriched Uranium (HEU) is
woefully limited.'" Approximately 95% of the HEU inventories are controlled
by the United States and Russian armed forces. Only 1% of the world's HEU is
under the safeguards administered by the IAEA. Plutonium, meanwhile, is
mostly under the auspices of civilian control, falling under international
safeguards.'

Due to the recent concern over the smuggling of fissile material, there has
been an outcry for the strengthening of the IAEA. Great Britain, the United
States, France, and Germany have asked that the Agency's duties be expanded
to become an intelligence clearing house in the fight against smugglers. '-9 In an
effort to facilitate this purpose, the above four countries have pledged to provide

151. Peter Beaumont, Germany: Only Big Boys Need Apply-Plutonium, OBSERVER, Aug.
21, 1994, available in WESTLAW, INT-NEWS FILE.

152. Id.
153. Id
154. Id.
155. Id.
156. Id.
157. Plutonium, supra note 15, at 99.
158. Id.
159. Trade, supra note 142.

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IND. INT'L & COMp. L REV.

up to 6.4 million dollars."6° Additionally, IAEA directors have proposed setting
up an international database to track plutonium smugglers, and the U. S. National
Security Council has promised to pay for this database.' 6' The IAEA also is
considering how to "set up a series of international missions-similar to its
established nuclear safety inspectorates--to inspect plutonium-handling facilities
and to provide expertise and hardware." 162

Nevertheless, the IAEA is the appropriate agency to monitor the disposition
of CIS nuclear technology and its possible transferal to third world powers. As
most of these countries are signatories of the NPT, it is within the jurisdiction of
the IAEA to inspect all nuclear technology in the possession of these countries to
determine whether it is being used for peaceful purposes. In theory, the IAEA has
the right to review all documents and records, send inspectors into safeguarded
states, have access at all times and places, as necessary, to account for the
materials, and determine whether their country is in compliance with the NPT. 6 3

In practice, however, this is not always the case.

V. POLICING MECHANISMS IN PLACE

Policemen depend upon the powers conferred by the state to perform many
of their criminal investigative functions, yet the internationalization of their
investigations thrusts them beyond the jurisdiction of their sovereign, where they
are effectively stripped of their police powers. The result is that most
international law enforcement activities must depend upon the cooperation of
foreign authorities.'

A. Interpol

The International Criminal Police Organization (Interpol) 165 was formed in
1923. Although World War II briefly interrupted its existence, Interpol has
continued to prosper and now has over 140 member countries. 66 Headquartered
in St. Cloud, France, Interpol promotes mutual assistance among criminal police

160. Id.
161. Id.
162. Id.
163. SCHEINMAN, supra note 14, at 125.
164. Detlev F. Vagts & Ethan A. Nadelmann, Policing the World: Interpol and the Politics

ofInternational Police, 85 AM J. INT'L L. 426,426 (1991) (reviewing MALCOM ANDERSON, Co-
OPERATION (1989)).

165. See generally PETER G. LEE, INTERPOL (1976). In 1938, Congress empowered the
Attorney General to accept Interpol membership for the United States. See 22 U.S.C. § 263(a)
(1995).

166. See Lee, supra note 165.

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SMUGGLING OF FISSILE MATERIAL

authorities in an attempt to better coordinate crime prevention. 6 Primarily a
criminal information exchange service, Interpol serves as a central repository for
the collection, transmission, and analysis of information on transnational
ciminals.

16

A nation's reliance on Interpol tends to be in proportion to the extent the
nation must cope with international crime and the quality of its law enforcement
division's relationship with its foreign counterparts. In contrast, in many less
developed states, police agencies rely on Interpol out of necessity. 69  In
developed areas, such as Western Europe, bilateral relations among the national
police agencies are well-developed.' Many of these law enforcement agencies
are frustrated with Interpol due to its failure to adapt to changing circumstances
and to quickly integrate new technological advances in crime control and
communications.'

7'

Despite the steady rise in international police cooperation, there is not a
single international convention which governs or regulates interstate cooperation
among police agencies.17

1 Interpol has limited jurisdiction and authority in the
areas of international law enforcement since it usually operates on a voluntary
basis in agreements between domestic police agencies. The rise in drug
trafficking, organized crime, and terrorism has resulted in a higher interaction
between Interpol and national police agencies. 113 Unfortunately such cooperation
has been relegated to bilateral and informal arrangements which do not have the
status of treaties.

B. Europol

In Maastricht, Netherlands in December of 1991 the Treaty on the
European Union 174 was signed by the twelve members of the European
Community (EC).17s The treaty's underlying purpose is to enable the EC "to play
a more coherent political and economic role in the world, commensurate with its

167. See Id.
168. See Ethan A. Nadelmann, The Role of the U.S. in International Enforcement of

Criminal Law, 31 HARV. INT'L L. J. 37,46 (1990).
169. Id
170. Id.
171. Fijnaut, The Internationalization of Criminal Investigation In Western Europe, in

POLICE COOPERATION IN EUROPE 32, 37-42 (C. Fijnault & R.H. Hermans Eds., 1987).
172. SeeM. Cherif Bassiouni, Policy Considerations on Inter-State Cooperation in Crimiinal

Matters, 4 PACE Y.B. INT'L L. 123, (1992).
173. Mary J. Grotenroth, Interpol's Role in International Law Enforcement, in LEGAL

RESPONSES TO INTERNATIONAL TERRORISM: U.S. PROCEDURAL AsPEcTs 375-76 (M. Cherif
Bassiouni ed., 1988).

174. Maastricht Treaty on the European Union, Feb. 7. 1992, 31 I.L.M. 247.
175. Id. The twelve states include: Belgium, Denmark, France, Germany, Greece, Ireland,

Italy, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom. Id.

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IND. INT'L & COMP. L REV.

international responsibilities."'76 This treaty, wider in scope than any previous
EC treaty, consists of three pillars. The Third or Judicial and Internal Affairs
Pillar covers a substantial range of issues including the creation of a unionwide
police information exchange system, Europol.177 The European Council 7 agreed
to create Europol in order to organize the exchange of information between the
EC police and customs agencies 79 in the fight against drugs within the EC's
twelve member states.80 Headquartered in the Hague, Europol's responsibilities
have been expanded to include combating illegal immigration, car theft, and the
smuggling of fissile material.' 8'

With the termination of the Cold War and the fall of the Iron Curtain,
criminal organizations have become increasingly sophisticated.' This, coupled
with the European Unions' lack of cohesion,8 3 has enabled criminals to traverse
the continent without trepidation."s

Mired in technological, legal and political hang-ups, 5 Europol has yet to
be accepted as a viable alternative to national police forces and Interpol.' 86 EC
members disagree on how much autonomy Europol should receive over
traditional national matters. Indeed, most member states are against Europol
becoming the primary crime fighting mechanism within the EC due to national

176. New European Treaty is Signed in Maastricht, PRNEWSWIRE, Feb. 7, 1992,

available in WESTLAW, PRNEWS File (press release by the European Commission) [hereinafter
Treaty].

177. Id.
178. Four institutions comprise the European Community: the Council of Ministers, the

Commission, the Parliament, and the Court of Justice. The Commission and the Council work
together to create legislation. The Commission initiates legislative proposals and the Council
effectuates enactments subject to review and recommendations of Parliament. The Court of
Justice interprets and enforces application of EC law. See generally David O'Keefe, Current
Issues in European Integration, 7 PACE INT'L L. REV. 1, 3 (1995).

179. Stephen Nisbet, EU Seeks Tougher Action on Drugs. Nuclear Trade, REUTERS, Sept.
5, 1994, available in LEXIS, Nexis Library, International File.

180. Treaty, supra note 176.
181. Alister Bull, Europol Strains at Leash as Politicians Wrangle, REUTERS EUROPEAN

COMMUNITY REPORT, Jan. 9, 1995, available in LEXIS, Nexis Library, International File.
182. Tyler Marshall, European Nations Combine to Combat Crime, Los ANGELES TIMES,

Sept. 9,1994, available in LEXIS, Nexis Library, PAPERSMJ File.
183. Major difficulties in the EC include legal, bureaucratic, and language differences.
184. Marcus Kabel, German Business Fears Organized Crime Stranglehold, REUTERS, Sept.

22, 1994, available in LEXIS, Nexis Library, International File.
185. See French Officials Outline Four-Point Presidency Plan, REUTERS, Jan. 9, 1995,

available in LEXIS, Nexis, International File. In 1994, no central data base had been set up and
the reluctance of France and Great Britain to pass on information to Europol on the grounds of
national sovereignty have slowed the progress of Europol. Id.

186. Bul,supra note 181. The problem with Interpol is that it has world wide jurisdiction.
It is not able to focus sufficient means in order to combat many of the criminal activities in
Europe. Id.

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sovereignty issues." Germany, however, wants Europol strengthened to address
the new wave of organized crime, especially since it is vulnerable to criminal
activities along a weakened Polish border."8' Europol is indispensable in filling
the enforcement vacuum Interactive information and communication systems
could expeditiously coordinate the fight against international gangs which easily
circumvent present national police agencies handcuffed by jurisdictional
limitations.'8 9 Each member state must set up interactive communication systems
in order to ensure rapid response to the criminal's activities.

VI. RECOMMENDATIONS

The proliferation of fissile material must be promptly addressed. With the
increasingly frequent reports of nuclear smuggling, eventually enough nuclear
material will wind up in the possession of terrorists or religious fanatics.
"Although the cases of smuggling plutonium discovered to date in Germany and
Eastern Europe have involved relatively small quantities of fissile materials, the
capture of this material should provide only a modicum of reassurance-the
smugglers who have been apprehended may be the clumsiest or most careless, or
those most likely to fall for sting operations run by police and journalists."' 90

Russia lacks sufficient funds and political stability to properly deal with its
nuclear weapons, hence the EC along with the U.S. must lend financial assistance
in order to set up proper control mechanisms. The present conversion program,
an attempt to convert many of the weapons producing industries into other
enterprises, must continue to receive EC and U.S. support.

A. Comprehensive Test Ban Treaty

A comprehensive ban 9' on testing nuclear weapons will not preclude the

187. Europe is Failing to Curb Drug Trade, THE DAILY TELEGRAPH, Sept. 9, 1994,
available in LEXIS, Nexis Library, International File.

188. Nisbet, supra note 179.
189. Bull, supra note 181.
190. Albright, supra note 1.
191. "In 1958 both President Eisenhower and Chairman Khrushcev undertook the first

serious negotiations designed to achieve a comprehensive ban on nuclear weapons testing."
President Eisenhower had two major goals in pursuing such a treaty. First, he wished to take a
"decisive, though modest, first step down the long road leading to the eventual elimination of the
nuclear threat." There had previously been many unsuccessful proposals seeking to control the
nuclear threat.

The second purpose for the CTBT was to open the Soviet Union to outsiders. Eisenhower
recognized that a CTBT would necessitate "some sort of international observation and inspection
system." Since at that time the Soviet Union was relatively closed to all foreigners, any type of
opening in the Iron Curtain would be useful for United States security interests.

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IND. INT'L & COMP. L REV.

smuggling of fissile material. That all the nuclear powers would agree, with the
present state of the world, to such a ban is not reasonable.' 9 A Comprehensive
Test Ban Treaty (CTBT) cannot by itself prevent the acquisition of nuclear
weapons by non-nuclear states. Even if such a ban were implemented, terrorists
and rogue states could still procure nuclear weapons.'93 A CTBT may have been
effective if implemented in the 1950s and 1960s when the technology was
relatively new and each nation had a few highly skilled scientists developing (and
testing) nuclear weapons. But, as nuclear weapons technology has became more
mainstream, less testing of nuclear weapons is necessary. Powerful, concise
nuclear weapons, weighing much less than the Hiroshima bomb, can easily be
designed and built without testing.'94

In addition, France and Great Britain are in a significantly different position
than the United States and Russia in regards to nuclear weapons. 9 Both
European countries have a more modest arsenal and much smaller quantities of
fissile material than the United States and Russia.' 96 ' They must therefore see
to the preservation of other basic interests."' 97 Countries free from potential
regional conflicts are less likely to be concerned with maintaining a nuclear
arsenal.' However, countries with real or perceived threats to their security will
insist on testing their nuclear arsenal. For example, French President Jacques

"In the meantime, in the mid 1960's, after the first five states had already tested and deployed
nuclear weapons, negotiations on" the NPT were well underway. With article six of the NPT,
each of the parties is called upon '"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 ... under
effective international control."' "The preamble of the treaty and the negotiating record make it
abundantly clear that a comprehensive test ban was widely considered to be an essential part of
the" process of nuclear disarmament. A CTBT had in effect become a "part of the promise the
states that had nuclear weapons made to the states that did not have them in order to persuade
them to forever forego the acquisition of such weapons for themselves." Consequently, many feel
that fulfillment of the promise by the five nuclear weapon powers to enter into a CTBT is
overdue. Herbert F. York, The CTBT and Beyond, UNIDIR, UNrET NATIONS INsTitrrE FOR
DISARMAMENT REsEARc, 2 (1994).

192. For example, France has tested nuclear weapons after the NPT was renewed in April
1995. See Robert K Musil & Daryl G. Kimbal, France Is Testing Patience of World, NEWSDAY,
Oct. 24, 1995, at A35, available in LEXIS, Nexis Library, NEWSDY File.

193. York, supra note 191, at 4.
194. Id. THE reality of building nuclear weapons without extensive testing is demonstrated

by Pakistan, Isreal, and South Africa. All of them have designed and built nuclear weapons
without prior testing. Id at 5.

195. Therese Delpech, A Convention on the Prohibition of the Production of Fissile
MateriaL Uncertain BenefitsforNon.Proliferation, in Halting the Production of Fissile Materials
for Nuclear Weapons, UNDIR, United Nations for Disarmament Research (1994).

196. Id
197. Id
198. Sed)avid Fischer, Drawing the Threshold States into a Regime of Restraint by Joining

the NPT or Otherwise, in Nut.EAR NON-PROLIFERATION AND THE NON-PROLIFERATION
TREATY 36, 39 (Michael P. Fry et al. eds., 1989).

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Chirac claims that maintenance of his country's nuclear arsenal is necessary for
security interests.'"

B. Domestic Legislation

Assisting another state or group to develop nuclear weapons must be
criminalized through domestic legislation,2"° strong disincentives must be
developed in order to prevent scientists from becoming nuclear mercenaries. The
CIA believes the potential emigration of former Soviet scientists to aid rogue
states in their development of nuclear weapons to be the most obdurate nuclear
proliferation problem. °1 To curtail this problem, the U.S. Congress found it
within the "national security interest of the United States ... to facilitate, on a
priority basis . . . the prevention or diversion of weapons-related scientific
expertise of the former Soviet Union to terrorist groups or third countries."2 '

Russia and the CIS must enact and enforce similar legislation. Restraints
must be sufficient so as to effectively offer adequate incentives to the scientist to
remain at home; the econornic hardship in Russia must be eased. The U.S. State
Department recognizes the financial quagmire of nuclear physicists and has
offered to provide funds to help those scientists work in peaceful applications of
their knowledge and expertise.0 ' This would deter many scientists from
becoming involved in the development of other nations' nuclear capacities.

C. NPT

The NPT should be amended to discourage nuclear-expertise proliferation.
The idea that Russian nationals technically may lend aid to another state's nuclear
weapons program is a reprehensible oversight. The insertion of laws prohibiting
"citizens of one country from participating in another state's nuclear weapon
program' '2°4 or citizen participation laws into the NPT could help curtail the

199. Musil, supra note 192. Frances nuclear weapons arsenal has not been effective in
preventing terrorists attacks within its borders. See Id.

200. For example, the U.S. has enacted several statutes prohibiting the assistance to another
country in the development of their nuclear arsenal. See 42 U.S.C. § 2277 (1995); 50 U.S.C. §
783 (b), (d) (Supp. 1995).

201. An example of the potential problem that could occur if nuclear experts are induced to
join forces with terrorists organizations is demonstrated by the Japanese Cult that used nerve gas
in Japanese subways in March 1995. It was reported after the cult was broken up that efforts were
being made to recruit Russians who had expertise in nuclear activities. Japanese Cult Recruited
Nuclear Experts, Senator Says, MiAMi HERALD, Oct. 16, 1995, at A4.

202. Former Soviet Union Demilitarization Act of 1992,22 U.S.C.S. 5901 (1992).
203. McCurry, supra note 46.
204. Treiger, supra note 69, at 248.

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IND. INT'L & COMP. L REV.

emigration of nuclear mercenaries. s Amxnding such clauses into the NPT would
not only be precedentially sound but unabashedly moral. Poignant to prosperity
of this proposal is the inclusion of a proviso granting jurisdiction to all state-
parties over any illegal expertise proliferation, regardless of where the actions
occur. "For example, if a proliferating scientist is arrested while vacationing in
Barbados, [it] could litigate and penalize the proliferator pursuant to the NPT' s
grant of jurisdictional authority."2°

In addition, "[t]he pledge of the nuclear weapon states in Article VI of the
[NPT] to pursue comprehensive disarmament negotiations in good faith can
hardly be said to have been fulfilled." 2 7 France and China have tested nuclear
weapons irrespective of their good faith requirements under Article VI of the
NPT.2D8 In April 1995, at the NPT extension conference, "France and the other
nuclear states won the uneasy support of the non-nuclear states not to pursue their
own nuclear arsenals. ''2° In return, France promised to "eventually eliminate
their own stockpiles." ' ° France's decision to test nuclear weapons after their
pledge demonstrates the weaknesses of the NPT and its enforcement mechanisms.
The only realistic methods to influence France to abide by its pledge would be
non-legal, political measures such as embargoes on French products. 21'

205. Id. For a more indepth discussion of the effectiveness of "citizen participation laws"
see Adam Treiger, Note, Plugging the Russian Brain Drain: Criminalizing Nuclear Expertise
Proliferation, 82 GEO L. J. 237. There, the author discusses the effectiveness of "citizen
participation laws" in respect to nuclear experts vending their skills abroad.

Such laws have been enacted in previous treaties effectively limiting the proliferation of
weapons of mass destruction. For example, the Biological Weapons Convention Treaty contains
such a clause in article IV which reads:

Each State Party to this Convention shall, in accordance with its constitutional
processes, take any necessary measures to prohibit and prevent the development,
production, stockpiling, acquisition or retention of the agents, toxins, weapons,
equipment and means of delivery... within the territory of such State, under its
jurisdiction or under its control ....

I (quoting Convention on the Prohibition of Bacteriological (Biological) and Toxin Weapons,
Apr. 10, 1972, art IV, 26 U.S.T. 583,588, 1015 U.N.T.S. 163, 167).

206. Id. at 248.
207. Ove Bring, The Non-Proliferation Regime-Stronger than the NPT, in NUCLEAR NON-

PROLIFERATION TREATY 31 (Michael P. Fry et al eds., 1989).
208. Musil, supra note 192.
209. id.
210. Id.
211. See Id.

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D. IAEA

For the IAEA to become more effective its budget must be increased.21

Russia, the CIS, and EC member states should be encouraged to increase their
voluntary contributions. Next, the Agency must take a proactive role in
monitoring nuclear weapons at the source as well as in possible destination

countries. Whether these weapons are being prepared for dismantlement, shipped
from one former republic to another, stored or left in place, every weapon must
be accounted for. In light of the fact that tactical weapons are extremely small in
size, great in number, and spread throughout military bases in the former Soviet
Union, accounting for them becomes extremely important."2 3

E. Consolidation

To help ameliorate the tremendous logistical difficulties presented to the
IAEA by the sheer volume of fissile material located in the former Soviet Union,
Russia should be strongly encouraged to consolidate its holdings into a few well
secured facilities. Currently, more than a hundred such facilities exist in Russia.
With the lack of sufficient control mechanisms in place in Russian and other CIS
states, it has been estimated that a few hundred million dollars would be needed
to bring the existing facilities housing fissile material to a "tolerable level of
protection."2"" If there were not over a hundred such facilities but rather twenty-
five facilities with protections greater than "tolerable" the IAEA would be better
able to maintain inspections of the facilities and Russia would have to expend
less.

E. Europol

The EC should proceed with its implementation of Europol. Interpol is
limited in its effectiveness due to its world-wide jurisdiction, and is not equipped
to handle the magnitude of criminal activity that permeates the EC. Europol,
however, as an embryonic entity is capable of focusing on arresting the spread of
fissile material smuggling before it develops into a profitable enterprise for
criminal and terrorist organizations. The EC should have Europol work in
conjunction with the IAEA in monitoring clandestine nuclear activities of its
member states. Europol's assistance would indirectly benefit the EC and allow
the IAEA to focus its efforts in the volatile former Soviet Union.

212. The CIS has been derelict in its payments to the IAEA; in 1991 it reneged in its
payment of $20 million.

213. See generally Allison, supra note 17; Carnahan, supra note 26; Hearings, supra note
21 (testimony of Dr. Cochran).

214. Hearings, supra note 21 (testimony of Dr. Holdren).

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IND. INT'L & COMP. L REV.

Timely detection and enforcement would effectively restrict the
proliferation of fissile material and expertise. The IAEA, EC, and the former
Soviet Union must coordinate efforts to arrest the development of this horrific
potentiality. Nuclear weapons are presently sparse among rogue states. The
involved parties should attempt to maintain this status since no nation is immune
to the effects of a nuclear holocaust. The destructive powers of the original atom
bomb should not be disparaged, they should be revered. Indeed, the smuggling
of fissile material is an embryonic phenomena with a terrifying future.

Jeffrey B. Fugal*

* J.D. Candidate, 1996, Indiana University School of Law - Indianapolis.

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