Volume 1996    Issue 3

Barricading the Nuclear Window — A legal Regime to Curtail Nuclear Smuggling

Barry Kellman^* & David S. Gualtieri^**

Nuclear smuggling is perceived widely to be a serious security threat. Seizures of bomb-quality material are becoming frequent, leading to concerns that even more material is passing unseen. This article undertakes to formulate and organize legal responses to that threat. First, modalities of international arms control should be employed to reduce the availability of nuclear materials to smugglers, substantially increasing the cost of pursuing a clandestine weapons program and raising the chance of revealing their criminal plot. Second modalities of international criminal law enforcement should be employed to investigate, apprehend, and prosecute those who engage in illicit weapons activities. The colossal quantity of nuclear material, the widespread awareness of weapons design, and the propagation of global criminal networks, together, manifest a need for a comprehensive international response. This article offers nineteen recommendations for an integrated legal regime in which arms control and criminal law enforcement--two previously unrelated branches of international law--can be implemented explicitly for maximum efficacy.

* Professor, DePaul University College of Law. B.A. 1973, University of Chicago; J.D. 1976, Yale.

** Consultant, Argonne National Laboratory. B.A. 1989, University of Michigan; J.D. 1992, DePaul University; LL.M. 1996, Harvard.

The authors are grateful for the support received from the United States Institute of Peace during the research and preparation of this article. The authors also are deeply appreciative of the reviews and comments from Professor M. Cherif Bassiouni of DePaul University College of Law; Dr. Alex DeVolpi, Argonne National Laboratory; Dr. Dieter Fleck, Director, International Agreements and Policy, German Ministry of Defense; Professor Sheldon Gelman of Cleveland State University College of Law; Professor David Koplow of Georgetown University Law Center; John Philips, Project Leader for Countering Nuclear Smuggling, Los Alamos National Laboratory; and Edward A. Tanzman, Manager, Economic and Law Section, Argonne National Laboratory. While all comments were taken extremely seriously, judgments concerning the development of various points and choices among policy options are wholly the responsibility of the authors.