Would the U.S. Sanction Allies Seeking the Bomb?

In recent decades, the U.S. government accumulated considerable experience implementing a range of sanctions on Iran, Iraq, and North Korea for illicit nuclear activities. Not since the 1998 nuclear tests by India and Pakistan has the United States had to sanction the government of an international partner for its pursuit of nuclear weapons. However, the shifting geopolitical landscape and growing regional threats have spurred active discussions about nuclear acquisition in South Korea and periodic hints of nuclear interest by Saudi Arabia, among others. It is therefore an opportune moment to review U.S. nuclear sanctions laws and policies. Such a review is a necessary first step in considering how to strengthen both cooperative and dissuasive elements of the nonproliferation tool kit to address likely future challenges.

The illicit activities of Iran, Iraq, and North Korea led the U.S. Congress, the executive branch, and the UN Security Council to impose stringent sanctions specific to those countries. But the United States has long had a range of “generic” statutory sanctions—that is, sanctions potentially applicable to all countries based on activities of proliferation concern. These laws have different triggers and different effects, which means that some would apply in some proliferation scenarios but not others. This article examines: (1) the international nuclear nonproliferation obligations undertaken by most non-nuclear-weapon states; (2) the relevant U.S. nonproliferation sanctions laws; (3) scenarios triggering international and U.S. sanctions; and (4) U.S. options if an ally triggered these sanctions.

Nonproliferation Obligations

Almost all of the non-nuclear-weapon states that are friends of the United States participate fully in the international nuclear nonproliferation regime, which entails rigorous multilateral legal obligations:

Nuclear Nonproliferation Act (NPT): Non-nuclear-weapon state parties to the NPT undertake the following legally binding obligations:

1. “not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices” (Article II);
2. “not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices” (Article II);
3. “not to seek or receive any assistance” in their manufacture (Article II); and
4. to accept International Atomic Energy Agency (IAEA) safeguards on “all source or special fissionable material in all peaceful nuclear activities within [its] territory . . . under its jurisdiction, or carried out anywhere under its control” (Article III).

IAEA Safeguards Agreement: Non-nuclear-weapon state parties to the NPT are obligated to enter into a legally binding agreement with the IAEA to implement safeguards on all source and special fissionable material—the potential fuel for nuclear bombs—“for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.” (Paragraph 1 of IAEA Model Safeguards Agreement, IAEA INFCIRC/153.) The standard “full-scope safeguards” agreement covers any facility in that state where source or special fissionable material is located. Further, almost all non-nuclear-weapon states have undertaken additional reporting requirements and accorded the IAEA more extensive inspection rights pursuant to the Additional Protocol to the full-scope safeguards agreement (IAEA INFCIRC/540).

Non-nuclear-weapon states that engage in peaceful nuclear cooperation with the United States have also undertaken extensive bilateral legal obligations under agreements for nuclear cooperation (known as “123 agreements” because they incorporate requirements from section 123 of the Atomic Energy Act, 42 USC 2153). These obligations include the following:

• No Explosive or Military Application: “Nuclear material, moderator material, equipment and components transferred pursuant to this Agreement and any nuclear material, moderator material, or byproduct material used in or produced through the use of any nuclear material, moderator material, equipment or components so transferred shall not be used for a nuclear weapon or any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose” (Article 13).
• Full-Scope Safeguards: “Cooperation under this Agreement shall require the application of [full-scope IAEA safeguards]” (Article 14).
• Safeguards on Transferred Items: “Nuclear material transferred to [a country] pursuant to this Agreement or used in or produced through the use of any nuclear material, moderator material, equipment or components so transferred shall be subject to safeguards in accordance with [that country’s full-scope safeguards agreement with the IAEA] and the Additional Protocol thereto” (Article 14).
• Fallback Safeguards: In the event the full-scope safeguards agreement is not being applied, “the Parties shall immediately establish safeguards arrangements for the application of safeguards which provide for effectiveness and coverage equivalent to that provided by [that agreement]” (Article 14).
• Right of Return: The United States would have the right to cease cooperation, terminate the Agreement, and “require the return of any nuclear material, moderator material, equipment or component [collectively “items”] transferred pursuant to this Agreement and any special fissionable material produced through the use of such items” (Article 17) if the country:
  1. detonated a nuclear explosive device;
  2. terminated, abrogated, or violated a safeguards agreement with the IAEA;
  3. violated Article 10 concerning consent rights for storage and retransfer;
  4. violated Article 11 concerning consent rights for enrichment, reprocessing, and other alteration in form or content;
  5. violated Article 12 concerning consent right for physical protection;
  6. violated Article 13 concerning no explosive or military application; or
  7. violated Article 14 concerning safeguards on transferred items and the application of full-scope IAEA safeguards.

U.S. Nonproliferation Sanctions Laws

The United States has a variety of nonproliferation sanctions laws designed to dissuade foreign countries and companies from engaging in activities that contribute to the proliferation of nuclear weapons in violation of the range of commitments enumerated above. If reliable information indicates that activities that would trigger these sanctions have occurred, the president is required to make a determination; the president does not have discretion to simply decline to implement these sanctions laws. If a non-nuclear-weapon state were to acquire a nuclear weapon, the most relevant laws would include:

Glenn Amendment (22 USC 2799aa-1(b)): The Glenn Amendment cuts off a wide range of assistance and trade to any non-nuclear-weapon state that the president determines: received a nuclear explosive device; detonated a nuclear explosive device (even with a very low nuclear yield); or sought and received design information or components for the development of such a device. The sanctions are as follows:

1. termination of assistance under the Foreign Assistance Act, except for humanitarian assistance or food or other agricultural commodities;
2. termination of defense sales and licensing of Munitions List exports;
3. termination of foreign military financing;
4. denial of U.S. government credit, credit guarantees, or other financial assistance (except for medical and humanitarian assistance and agricultural exports from the United States);
5. U.S. government opposition to any loan or financial or technical assistance from international financial institutions (IFIs);
6. prohibition of any loan or credit from U.S. banks to the foreign government (except for the purchase of food or other agricultural commodities); and
7. prohibition under the Export Administration Act of exports to that state of specific goods and technology licensed by the Commerce Department (except for food and other agricultural commodities). 

The Glenn Amendment has no waiver provision for detonation or receipt of a nuclear explosive device. Congress would have to enact new legislation authorizing the president to waive some or all of these sanctions. (For transfers of design information or components, the president may waive if “the application of such sanctions against such country would have a serious adverse effect on vital U.S. interests.”)

Arms transfer sanction: The Arms Export Control Act (22 USC 2753(f)) bans sales or leases of defense articles to any country that the president determines has materially breached binding commitments to the United States under international agreements concerning nonproliferation of nuclear explosive devices and unsafeguarded special nuclear material. There is no waiver provision. (This sanction does not ban munititions list licenses for nongovernmental sales.)

Foreign assistance sanction: No U.S. assistance under the Foreign Assistance Act may be provided to any non-nuclear-weapon state that the president determines has terminated, abrogated, or materially violated its full-scope safeguards agreement with the IAEA or materially violated its bilateral nuclear cooperation agreement with the United States (22 USC 2429a-2). The president may waive if terminating assistance “would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security.”

Nuclear Cooperation sanction (Section 129 of Atomic Energy Act, 42 USC 2158): No nuclear materials and equipment or sensitive nuclear technology may be exported to a non-nuclear-weapon state that the president determines has:

1. “detonated a nuclear explosive device”;
2. terminated, abrogated, or materially violated IAEA safeguards;
3. “engaged in activities involving source or special nuclear material and having direct significance for the manufacture or acquisition of nuclear explosive devices” (unless the president finds that the state has made sufficient progress toward terminating such activities); or
4. materially violated its bilateral nuclear cooperation agreement with the United States. 

The sanction may be waived if the president determines that “cessation of such exports would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security.”

Export-Import Bank sanction (12 USC 635(b)(4)): The Export-Import Bank “shall not give approval to guarantee, insure, or extend credit, or participate in the extension of credit in support of United States exports to any country” if the secretary of state determines that:

1. the country materially violated, abrogated, or terminated IAEA safeguards;
2. the country materially violated, abrogated, or terminated any guarantee or undertaking in a bilateral nuclear cooperation agreement with the U.S.: or
3. the country is a non-nuclear-weapon state and detonated a nuclear explosive device. 

The president may waive on national interest grounds. It is notable that Export-Import Bank financing has underwritten sales of commercial airlines to some U.S. allies and nuclear reactor exports by U.S. allies to third countries, just to cite a few examples.

ENR Transfer sanctions: No economic or military assistance under the Foreign Assistance Act to any country the president determines has transferred or received nuclear enrichment or reprocessing equipment, materials, or technology. The president may waive for reprocessing transfers if cessation of assistance “would be seriously prejudicial to the achievement of United States nonproliferation objectives or otherwise jeopardize the common defense and security” (22 USC 2799aa-1(a). The president may waive for enrichment transfers if cessation of assistance “would have a serious adverse effect on vital U.S. interests” and the president has “received assurances that the country in question will not acquire or develop nuclear weapons or assist other nations in doing so” (22 USC 2799aa).

Discretionary sanctions (Executive Order 12938, as amended): The secretaries of state and treasury have discretionary authority to impose significant sanctions on any person or entity that contributes to the proliferation of weapons of mass destruction or their means of delivery. These sanctions are not mandatory and do not apply to a country or government as a whole.

Scenarios Triggering U.S. and International Sanctions

If a non-nuclear-weapon state decided to pursue development of a nuclear weapon, the legal consequences would vary depending on the activities it undertook. Several possible scenarios are discussed below: withdrawal from the NPT and full-scope safeguards; manufacture of nuclear weapons, with or without imported nuclear weapons technologies; and detonation of a nuclear weapon or receipt of a nuclear weapon from another country.

Withdrawal from the NPT and Full-Scope Safeguards

A state might attempt to “legally” pursue nuclear weapons by exercising the withdrawal provision in the NPT. The NPT provides for withdrawal upon three months advance notice to all other parties and the UN Security Council. The international community would have three months to respond to an announcement of withdrawal. During that time, the non-nuclear-weapon state would continue to be bound by its NPT and safeguards obligations. After three months, the state would no longer be bound by its NPT commitments, which would also terminate its IAEA safeguards agreements.

UN Security Council: In the past, the UN Security Council has actively sought to dissuade states from violating or withdrawing from their NPT obligations, including by the imposition of international sanctions. If members of the UN Security Council were to pursue such sanctions, the withdrawing state would run the risk that the permanent members (China, France, Russia, the United Kingdom, and the United States) would refuse to veto such sanctions.

Nuclear Suppliers Group: The NSG Guidelines provide that “Suppliers should transfer trigger list items or related technology to a non-nuclear weapon State only when the receiving State has brought into force an agreement with the IAEA requiring the application of safeguards on all source and special fissionable material in its current and future peaceful activities” (see INFCIRC 254/Rev.14/Part 1). Only India is excepted from this policy, and this exception was adopted only after a heavy, sustained lobbying effort by the United States Accordingly, NSG members that followed the guidelines would cease the export of trigger list materials, equipment, and technology to the non-nuclear-weapon state after withdrawal from full-scope safeguards, which could have implications for nuclear fuel supply contracts on which the state relies for its nuclear energy program.

U.S. sanctions: Withdrawal from the NPT and full-scope safeguards would have direct sanctions consequences under U.S. law. In addition, if the withdrawing state had a 123 agreement with the United States, it would violate commitments to maintain full-scope safeguards (if they are non-nuclear-weapon states).^[1] Note that the following sanctions would apply even if the non-nuclear-weapon state never followed up with actual nuclear weapons activities.

 Arms transfer sanction: No sales or leases of defense articles, with no waiver provision. 

 Export-Import Bank credit: No bank support for exports to that country. The president could waive this ban in whole or in part.

 Nuclear cooperation: Termination of nuclear cooperation. The president could waive in whole or in part.

 Right of return: The United States could exercise the right of return of any supplied items or materials.

 Foreign assistance: No foreign assistance. The president could waive in whole or in part.

Manufacture of a Nuclear Weapon

If the non-nuclear-weapon state seeking nuclear weapons did not withdraw from the NPT and IAEA safeguards, it would violate those obligations when it began taking steps toward manufacturing a nuclear weapon. Specifically, the non-nuclear-weapon state would trigger sanctions once it removed nuclear material from IAEA safeguards. It might also trigger sanctions if it embarked on construction of uranium enrichment or plutonium reprocessing facilities without providing design information to the IAEA under the Additional Protocol. The state might seek to avoid the safeguards violation by providing the required design information, and it might even seek to conduct enrichment or reprocessing under safeguards until it had produced enough fissile material for a weapon. Enriching uranium to weapons grade and/or separating plutonium would not violate safeguards per se, but such activities would almost certainly be viewed by the international community as a prelude to nuclear weapons development.

UN Security Council: The UN Security Council would almost certainly condemn and might well impose sanctions on a non-nuclear-weapon state for such activities.

Nuclear Suppliers Group: Some (and perhaps all) NSG members would cease exporting trigger list items and technology to that country.

U.S. sanctions: These activities would violate the country’s obligations to the United States under the NPT (if it failed to withdraw first) and under any 123 agreement.

 Arms transfer sanction: No sales or leases of defense articles, with no waiver provision. 

    Export-Import Bank credit: No bank support for exports to that country. The president could waive this ban in whole or in part.

 Nuclear cooperation: Termination of nuclear cooperation. The president could waive in whole or in part.

 Right of return: The United States could exercise its right of return of any supplied items or materials.

 Foreign assistance: No foreign assistance. The president could waive in whole or in part.

The sanctions above would flow from the safeguards violations and might be triggered even before the non-nuclear-weapon state conducted any weapons manufacturing activities.

In addition, sanctions might be triggered by the non-nuclear-weapon state’s use of imported items. Few non-nuclear-weapon states today could easily develop nuclear weapons without using any material, equipment, or technology acquired from another country. If a non-nuclear-weapon state received material, equipment, or technology related to enrichment or reprocessing, it would trigger U.S. sanctions for such transfers regardless of which state the items were acquired from. The sanction would be a cut-off of economic and military assistance.

Countries that engage in nuclear cooperation with the United States owe obligations not only on items transferred from the United States, but also on “nuclear material, moderator material, or byproduct material used in or produced through the use of” items transferred from the United States. Other countries that supply nuclear items may have similarly broad provisions. Use of supplied items in violation of the 123 agreement would trigger U.S. sanctions in much the same way as safeguards violations.

Moreover, the use of imported material, equipment, or technology could result in bilateral legal claims:

 National claims: The United States and other countries could pursue legal recourse pursuant to their nuclear cooperation agreements.

 Commercial claims: To the extent that peaceful use and safeguards assurances were built into the commercial contracts for export of nuclear-related items, misuse of those items could result in legal proceedings against the government of the non-nuclear-weapon state or the companies from that state involved in those contracts.

 Support for punishing the non-nuclear-weapon state: The misuse of nuclear material, equipment, or technology exported by the United States and other states might increase the likelihood that those states would take or support bilateral or international actions to punish the state for engaging in such activities.

Detonation or Receipt of a Nuclear Weapon

Most (and perhaps all) of the states that possess nuclear weapons have conducted explosive tests of those weapons. Despite advances in weapons design and computer modeling of nuclear explosions, states have tended to want final verification that their weapons will work as designed and to send a deterrent message to adversaries. A nuclear weapon test would trigger the Glenn Amendment sanctions described below, in addition to those discussed in the previous sections. (In the unlikely event that a state transferred a nuclear weapon to the non-nuclear-weapon state, the same sanctions would apply.)

Foreign assistance: No foreign assistance, except for humanitarian assistance or food or other agricultural commodities.

Arms transfers: No sales of defense article, defense services, and design/construction services by the U.S. government, and in addition no U.S. licensing of commercial exports of Munitions List items by U.S. companies.

 Foreign Military Financing: All such financing would be terminated.

 U.S. government credit, credit guarantees, and other financial assistance: This ban covers all U.S. government agencies and instrumentalities and thus has far-reaching consequences, even with the exception for medical and humanitarian assistance and agricultural exports from the United States.

 Opposition to IFI assistance: The U.S. government would oppose any loan or financial or technical assistance from international financial institutions. In the past, such U.S. opposition has effectively blocked IFI assistance.

 Loans/credit to the government: No U.S. bank could provide any loan or credit to the government of that country (except for the purchase of food or other agricultural commodities).

 Commerce export ban: The Commerce Department would cease approving exports to that country of specific goods and technology (except for food and other agricultural commodities). This ban covers a wide range of dual-use  technologies.

Glenn Amendment sanctions for detonation or receipt of a nuclear explosive device have been viewed as a “death sentence” because of the breadth of sanctions and because there is no presidential waiver. (As previously noted, for transfers of nuclear weapons design information or components, which were considered somewhat less egregious, the Glenn Amendment does have a built-in presidential waiver provision.)

U.S. Options if an Ally Triggers Nuclear Nonproliferation Sanctions

If a U.S. ally or partner triggered sanctions related to acquisition of nuclear weapons, the U.S. president might conclude that national or regional security interests outweighed proliferation concerns and, therefore, some form of relief from sanctions would be appropriate. This section describes the steps that would have to be taken to provide such relief.

The UN Security Council has imposed sanctions incrementally in past cases, such as North Korea and Iran. The president could direct the U.S. ambassador to the UN to veto such sanctions or to limit their severity. The president might be reluctant, however, to veto UN resolutions that condemn (but do not sanction) proliferation activities in order to show some level of consistency in U.S. treatment of nuclear proliferation. Even North Korea and Iran chafed at such instances of condemnation from the international community.

The Nuclear Supplier Group Guidelines would call for cessation of nuclear cooperation with the proliferating state. The NSG imposes political commitments, which member states take seriously, but it does not impose legal obligations. Even if the United States broke from its NSG commitments and continued nuclear cooperation, many other NSG members would likely refuse to do so. Alternatively, the United States could seek an NSG waiver for its ally, as it did for India in 2008 through an extensive and bruising lobbying campaign. Such a waiver would require unanimous agreement of the NSG members.

Some U.S. sanctions might pose a significant threat to a U.S. ally’s national security or economic security, while others might not, depending in part on the degree to which that ally relies on U.S. programs and exports. For example, most U.S. allies do not receive economic or military assistance, so a cutoff of such assistance might have little real impact. In such circumstances, the president will often “deem” the sanctions to apply without making a sanctions determination. The Export-Import Bank sanctions have a built-in waiver provision. And the United States might never exercise its right of return under a 123 agreement because, as a practical matter, returning irradiated material or equipment would probably be prohibitively complicated. Even with respect to unirradiated material and equipment, the president might simply decline to exercise the right of return.

On the other hand, the arms transfer sanction on military trade and the sweeping Glenn Amendment sanctions could threaten an ally’s military readiness, jeopardize defense cooperation, and damage its economy. These sanctions do not have built-in waiver provisions, meaning that in order to provide an ally relief from these sanctions, the president would have to persuade Congress to enact new legislation authorizing waivers. India and Pakistan triggered the Glenn Amendment sanctions by detonating nuclear weapons in 1998. Over the ensuing six months, Congress enacted a series of statutes authorizing presidential waivers. These waivers were limited at first, but became broader over time, particularly following the September 11, 2001, terrorist attacks. Nevertheless, the economies of both countries suffered significant consequences, including losses of foreign direct investment, that lasted well beyond the period in which U.S. sanctions were actually in effect.

Thus, a U.S. ally might receive relief from sanctions after acquiring nuclear weapons, but there would always be a risk that Congress would refuse to enact waiver legislation, delay authorizing waivers for a lengthy period of time, or authorize only partial waivers, keeping other damaging sanctions in place. For example, Congress might authorize waivers for transfers necessary to maintain military readiness or economic stability while still blocking other highly sought-after programs or exports (for example, modern aircraft, select high-tech items, and loan-supported projects especially favored by the state). Even if members of Congress from both parties wanted to provide relief to an ally in such circumstances, congressional action on high-priority issues today is far from guaranteed.

Newell Highsmith served in the Office of the Legal Adviser at the U.S. Department of State for thirty years prior to his retirement in 2017. He was responsible for legal issues related to nuclear nonproliferation for twenty-eight years as a staff attorney, assistant legal adviser, and deputy legal adviser. He worked directly on numerous sanctions cases, including the sanctions imposed on India and Pakistan after their nuclear tests in 1998. This article expresses his views and not those of the United States government.

Notes

¹ The cooperating partner could terminate the 123 agreement on one year’s notice pursuant to Article 21 of the Agreement. However, Article 21 provides that certain provisions of the agreement, including the article requiring full-scope safeguards, continue in effect after termination as long as items subject to the agreement remain in the that country. Thus, termination of the 123 agreement would not eliminate the requirement under the agreement to implement full-scope safeguards.