Senior Of Counsel, Covington & Burling LLP

“50 Years of the Non-Proliferation Treaty: Strengthening the
NPT in the Face of Iranian and North Korean Nonproliferation Challenges” 

Subcommittee on the Middle East, North Africa, and International Terrorism
Subcommittee on Asia, the Pacific, and Nonproliferation

Committee on Foreign Affairs
U.S. House of Representatives

March 3, 2020

Chairman Deutch, Chairman Bera, Ranking Member Wilson, Ranking Member Yoho, and Members of the Subcommittees, I appreciate the invitation to appear before you today to discuss the Nuclear Non-Proliferation Treaty and the two greatest threats facing it today: Iran and North Korea.

I will begin by making some observations about the treaty itself, and then move on to a discussion of the challenges presented by the Iranian and North Korean nuclear weapons programs.

  1. Reflections on the NPT

You will hear very contradictory views expressed about the NPT.  On the one hand, there are those who celebrate its strength, pointing out that, with 191 states parties, it is the one of the most universally-adhered to treaties in history, and that it has limited the spread of nuclear weapons to just nine countries, which is a much smaller number than anyone would have predicted when the treaty entered into force 50 years ago tomorrow.

On the other hand, there are critics who will point out that nine countries is four more than the five countries that are permitted to possess nuclear weapons under the treaty, that permitting even five nuclear weapon states was five too many, and that the treaty is bound to collapse because of its inherent unfairness to the non-nuclear weapon states.  For many of these critics, the kind of problem we face today with Iran and North Korea was inevitable, and could only have been avoided if the five nuclear weapon states had moved much faster over the past 50 years to abolish nuclear weapons from the face of the Earth.

Personally I see the NPT as much more a story of success than of failure.  It’s remarkable to consider how far the treaty has come from its somewhat inauspicious beginnings, and the many challenges it has overcome in the intervening years.

For starters, there’s the astonishing fact that despite all the complaints about how unfair the treaty is in advantaging five nuclear weapon states over everyone else, initially two of the five nuclear weapon states refused to join the treaty.  Neither France nor China acceded to the NPT until 1992, 22 years after the treaty entered into force.

As for the rest of the world, the list of treaty successes is considerably longer than the list of treaty failures.  We often forget how many countries were actively exploring the development of nuclear weapons before the treaty came along.  Back then it wasn’t countries like Iran and North Korea we were worried about, but rather much more technologically-advanced countries like Sweden, Italy, Switzerland, and Australia–countries that could produce nuclear weapons much more readily than Iran and North Korea if they decided to do so.

South Africa possessed nuclear weapons under the Apartheid government, but gave them up and joined the NPT in 1991.  Ukraine found itself in possession of the world’s third-largest nuclear weapons arsenal upon the dissolution of the Soviet Union, but gave that up and joined the treaty in 1994.  Argentina and Brazil long appeared to be locked into a nuclear arms race, but in the 1990s they decided that they would prefer a relationship like the one between France and Germany to the one between Pakistan and India, and both countries abandoned their nuclear programs in favor of the treaty.

Beyond these well-known examples of countries with nuclear weapons options that decided to join the treaty instead, there were a number of other countries with active nuclear weapons program that were persuaded to reconsider, including South Korea, Taiwan, Romania, and Yugoslavia.

In addition, there is a list of countries that joined the NPT but then toyed with the idea of potentially developing nuclear weapons in violation of the treaty.  Several of these cases are well-known to all of us:  Iraq, Libya, and Syria, for example.  Admittedly some of them had outside help in shutting down their nuclear weapons programs–Iraq from Israel in 1981, and again from the U.S.-led coalition in 1991, and Syria from Israel in 2007.  There are some ambiguous cases as well, including Algeria and Myanmar.  But the good news is that none of these countries is believed to pose a nuclear proliferation threat today.

Arrayed against these successes are the three major countries that have never joined the treaty:  India, Pakistan, and Israel.  In addition, there’s North Korea, which joined the treaty in 1985, but then withdrew and conducted its first nuclear weapons test in 2006.  And, of course, there’s Iran, which for more than 25 years has covertly and overtly developed a nuclear infrastructure that can only be understood as a nuclear weapons program.  Iran hasn’t withdrawn from the treaty, but periodically threatens to do so–most recently on January 20th of this year, when Iranian Foreign Minister Javad Zarif stated “If the Europeans continue their improper behavior or send Iran’s file to the Security Council, we will withdraw from the NPT.”

While our level of concern over the irregular relationship between these five countries and the NPT varies, I have no trouble concluding that, on balance, the NPT has been a highly successful treaty, and we have a compelling national interest in consolidating and perpetuating that success.

  1. The Iranian and North Korean Threat to the NPT

Iran and North Korea pose a far greater threat to the NPT than the three major countries that have never adhered to the treaty because, whatever else can be said of those three countries, they cannot be accused of reneging on a legally-binding commitment not to pursue nuclear weapons.  By contrast, Iran and North Korea, as countries that adhered to the treaty, threaten to serve as models for abandoning the treaty.  If they can succeed in walking away from the treaty, after having used it as cover for developing nuclear weapons, there will be little to stop other countries from following suit.  The upshot could be the unraveling of the NPT and loss of the many security benefits it has provided.

On a more practical level, the deployment of nuclear weapons by Iran and North Korea threatens to trigger a cascade of proliferation, as their neighbors consider whether they need to deploy nuclear weapons of their own.

In the case of North Korea, this risk is mitigated by the fact that the two countries in Northeast Asia that feel most threatened by North Korea’s nuclear weapons–South Korea and Japan–are treaty allies of the United States and protected by the U.S. nuclear umbrella.  Notwithstanding that, public opinion surveys in South Korea have generally shown that nearly 2/3 of South Koreans think their country should deploy its own nuclear weapons in response to North Korea’s.

There is less public support in Japan for deploying nuclear weapons, but the Japanese government has taken much more significant steps to prepare for the possible need to deploy nuclear weapons.  Among other things, Japan maintains a 10-ton domestic stockpile of plutonium and has invested tens of billions of dollars in a new facility to produce even more plutonium.

Should either South Korea or Japan ever come to doubt the U.S. commitment to defend them against the North Korean nuclear threat, there is every reason to worry that one or both of them might withdraw from the NPT and deploy their own nuclear weapons.

The risk of a cascade of proliferation is even more immediate in the Middle East, where at least two of Iran’s neighbors–Saudi Arabia and Turkey–have recently raised doubts about their long-term commitment to the NPT.

In the case of Saudi Arabia, Crown Prince Mohammed bin Salman stated in 2018 that “without a doubt if Iran developed a nuclear bomb, we will follow suit as soon as possible.”  Some have seized upon this remark as evidence that Saudi Arabia poses a nuclear proliferation threat that must be restrained.  I think this is a backwards take on the problem.  The remark is evidence of the critical importance of restraining the threat of nuclear proliferation by Iran.

It is entirely logical and predictable that Iran’s neighbors will feel threatened should Iran succeed in acquiring nuclear weapons.  The critical difference between Saudi Arabia on the one hand and South Korea, Japan, and Turkey on the other is that Saudi Arabia is not a treaty ally of the United States and therefore cannot rely on the U.S. nuclear umbrella in the event Iran attacks it with nuclear weapons.

Historically the U.S. nuclear umbrella has been our most effective tool for persuading other countries not to develop nuclear weapons of their own.  Unless we are prepared to extend the U.S. nuclear umbrella to Saudi Arabia–in effect, accepting the risk of nuclear attack on our country in order to protect Saudi Arabia against nuclear attack–we need to make sure Iran does not succeed in developing nuclear weapons.  Otherwise I can think of no other tool we will have to persuade Saudi Arabia not to follow in Iran’s footsteps.

Needless to say, should Saudi Arabia feel compelled to acquire nuclear weapons, others in the region are likely to as well.  At a minimum, Turkey is unlikely to stand by as two of its immediate neighbors deploy such weapons, notwithstanding the U.S. defense guarantee it enjoys.

III.  What to Do About Iran and North Korea

If it were easy to resolve the nuclear proliferation threat from Iran and North Korea, we would have done so a long time ago.  I will confine myself to a few top-line observations today.

With regard to Iran, we are all familiar with the debate over the Joint Comprehensive Plan of Action (JCPOA)–whether it had solved the problem, and whether President Trump acted wisely or unwisely in withdrawing the United States from it.  I am among those who believe that the deal was fatally flawed.  Far from the claim that it “cut[] off all of Iran’s pathways to a bomb,” I believe it actually opened up virtually all pathways to a bomb beginning in January 2026, ten years after the JCPOA entered into force.

Notwithstanding my feelings about the deal, I was not enthusiastic about withdrawing from it because I worried that Iran might benefit more than the United States.  As President Trump’s policy has played out, however, most of my reservations have proven ill-founded.  Certainly renewed U.S. sanctions on Iran have been far more effective than anyone expected.

Prior to the re-imposition of U.S. sanctions in November 2018, Iran’s oil exports were averaging about 2.3 million bpd.  Today Iran is exporting less than 500,000 bpd.  This compares to a low of about 1.2 million bpd that was achieved at the height of President Obama’s sanctions campaign against Iran.  These numbers speak volumes about the economic pressure that Iran is under today.

At this point, Iran is clearly trying to muddle through to January 2021, when it hopes President Trump will be replaced by a new president who will restore the JCPOA.  Increasingly, however, even supporters of the JCPOA are recognizing that it would be diplomatically foolish and squander vital U.S. leverage that President Trump’s policy has generated to simply reinstate the JCPOA.[1]  I therefore believe that, no matter who wins the upcoming presidential election, we are headed toward a new negotiation with Iran over its nuclear program.  It is my fervent hope that next time our negotiators will effectively and permanently cut off all of Iran’s pathways to a bomb.

With regard to North Korea, I do not fault President Trump for wanting to negotiate with the North Korean regime, any more than I fault his predecessors for wanting to do so.  I also support the U.S. policy of seeking to pressure North Korea through sanctions.  I am skeptical, however, that U.S. economic incentives and disincentives alone are going to change North Korean behavior.  Fundamentally I believe this problem is not going to be resolved until China becomes as concerned about it as we are.  For too long China has been content to let this be America’s problem.

I described earlier in my remarks how there was a time during the 1970s when South Korea was seeking to develop nuclear weapons.  When that program became known to the United States, we stepped in and used the leverage afforded by our defense relationship to persuade South Korea to abandon its nuclear weapons program.  China benefitted more directly than anyone else (except perhaps North Korea) from that action by our country.  Yet China has repeatedly failed to use its leverage with North Korea to compel it to do the same thing.

  1. The Continuing Importance of Nuclear Deterrence

Iran and North Korea are examples of what might be called the “rogue state” proliferation threat:  marginal states that are unreconciled to today’s international system, seeking weapons of mass destruction to help them continue defying, and perhaps even change, the system.  There used to be more countries in this category–most notably Iraq, Syria and Libya–but today the list of rogue state proliferation threats has been reduced to just Iran and North Korea.

We should not let today’s salience of the rogue state proliferation threat divert our attention from the potentially even more serious proliferation threat posed by more technologically-advanced countries that are by no stretch of the imagination rogue states.  I’m referring here to the kinds of countries that the authors of the NPT were most concerned about when they drafted the treaty 50 years ago.

Today we may scoff at the idea of Sweden or Italy posing a nuclear proliferation threat, but with just modest changes in the security environment it would not be hard to imagine South Korea or Japan or Turkey deciding that the time has come for them to deploy nuclear weapons.  And unlike Iran and North Korea, which have had to work for decades to advance their nuclear weapons programs, countries like Japan or South Korea could produce such weapons in very short order.

What is it that has stopped them from doing so until now?  As I’ve already explained, it is primarily the U.S. nuclear umbrella that has persuaded them that they don’t need nuclear weapons despite the nuclear threats they face from countries like North Korea and China.  Therefore anything that might reduce the confidence of these countries in the reliability and effectiveness of the U.S. nuclear umbrella must be seen as its own potential trigger of nuclear weapons proliferation.

There are those who argue the opposite: that it is the continued existence of America’s nuclear deterrent that induces others to want to have nuclear weapons as well.  This is a convenient rationale for apologists for Iran and North Korea, and an argument with little basis in reality.

Iran is not pursuing nuclear weapons because America has them, but rather because it wants to be able to dominate the Middle East and no longer have to worry about Israel’s potential escalation-dominance in the existential contest it has chosen to have with that country.  Likewise North Korea.  Indeed, from what we know of Kim Jong-un, it’s likely he would be even more interested in having nuclear weapons if America didn’t have them; the prospect of being the only leader on the planet to have nuclear weapons is one he might find irresistible.

It follows from this that we need to continue to modernize our nuclear forces to ensure there can be no question about their reliability.  We must also resist calls to eliminate our nuclear forces in the current security environment.

Contrary to what the proponents of nuclear disarmament want us to believe, Article VI of NPT does not require us to give up our nuclear weapons.  Article VI is much more narrowly drawn.  It consists of just one sentence which, in relevant part, obligates all five nuclear weapon states to “pursue negotiations in good faith on effective measures relating to . . . nuclear disarmament.”  At the same time, it obligates all parties to the NPT, including the non-nuclear weapon states, to “pursue negotiations in good faith on effective measures relating to . . . a treaty on general and complete disarmament under strict and effective international control.”

While the United States has engaged in plenty of arms control negotiations–and signed plenty of treaties–involving effective measures relating to nuclear disarmament, the same cannot be said of negotiations by all NPT members on effective measures relating to general and complete disarmament.  And this is significant, because the 11th preambular clause of the NPT makes very clear that the authors of the NPT recognized that actual nuclear disarmament, if it could be achieved at all, would only be achieved “pursuant to a Treaty on general and complete disarmament under strict and effective international control.”

For these reasons, the United States need not make any apologies about its own compliance with the NPT.  Instead, we should persist in our policies that support the NPT, including the extension of our nuclear umbrella to allies who feel threatened unfriendly countries that currently possess or are threatening to obtain nuclear weapons.

I thank you for your attention and look forward to your questions.

[1] See, for example, Robert Einhorn and Richard Nephew, “Constraining Iran’s future nuclear capabilities”,