Limiting Proliferation of Weapons of Mass Destruction

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 301-350

301

CHA PTER 8

LIMITING

PROLIFERATION

OF WEAPONS OF

MASS DESTRUCTION

This chapter discusses another key national security objective: limiting

the proliferation of weapons that states (or, in the era of catastroph-

ic-scale terrorism, nonstate actors) might employ against Canada or

Canadian s. It does not, however, discuss all weapons, in stead mostly

focusing on what are commonly called “weapons of mass dest ruction”

(WMDs); that is, weapons capable of inf‌licting mass casualties or eco-

nomic damage via a single use. WMDs comprise nuclear, radiological,

chemical and biological weapons.

States have rarely used these destructive instruments, mostly be-

cause of the political and military consequences of deploying such

heinous devices but probably in part also because of the restrictive

laws that govern them. Indeed, to this point in time, conventional

weapons — and in part icular small arms and land mines — have killed

and mai med m ore p eople tha n hav e WMD s. Ev en so, thi s boo k doe s not

focus on the se arm s and their control. The decision to concentrate on

WMD proliferation and not conventional ar ms control is not complete-

ly arbitra ry. Small arms are not capable of reaching across continents

and sowing instantaneous mass casualties. WMDs, on the other hand,

are. They therefore f‌it comfortably wit hin thi s book’s vision of nationa l

security law: law countering threats posed by low-probability, high-

consequence events that risk producing signif‌icant political turmoil.

The f‌irst part of this chapter examines the international and Canad-

ian l aw governing both nonstate and st ate poss ession a nd use of nucle-

ar, chemical and biological weapons. The law of nonproliferation for all

NATIONAL SECUR ITY LAW302

WMDs grapples with similar concerns. First, it seeks to l imit — and in

the case of biological and chemical weapons outlaw — possession of t he

WMD. Second, it strug gles with t he problem of dual use; t hat is, the fact

that the tech nology in q uestion m ay be deploy ed for both legitim ate civil -

ia n pur pose s and i lleg itim ate w eapon s pur pose s. To me et bot h obje ctiv es,

it depends on “safeguards” — systems of observation and verif‌ication.

In part to meet nonproliferation objectives, inter national and Can-

adian law also impose import ant constraints on technology transfer,

often in the form of international physical movement of tools, ma-

chines and raw m aterials, but now also in Canada between authorized

and un authorized persons. A discussion of these technology transfer

rules forms the second part of this chapter.

PART I: WEAPONS PROLIFER ATION AND

NATIONAL SECURITY

Deterring the proliferation of weapons of mass destruction is a national

security preoccupation of venerable standing. The department of for-

eign affairs urges:

The i llicit poss ession and proliferation of nuclear, chemical and bio-

logical weapons …, as well as their means of delivery, presents a grave

threat to Canadian national security.… This threat can come from both

state and non-state actors. It challenges us at home. And it places our

national interests overseas in jeopardy. Given rapid advances in and the

spread of scientif‌ic and tech nical knowledge (especial ly in the li fe sci-

ences, and missile technology), the threat is likely to grow. Failing to act

decisively now risk s allowing the problems to fester and multiply.1

Similar concerns were expressed in Canada’s 2005 international policy

statement:

The intern ational community continues to face the prospect that

weapons of mass destruction (WMD) — chemical, nuclear, radiological

or biological — might be used by a state or terrorist organization. The

desire to acquire these weapons is often driven by regional tensions — in

the Middle East, India-Paki stan and the Korean peninsula — and mis -

guided attempts to gain international prestige. Terrorists, who until

now have focused on tact ics involving car bombs and suicide bomber s,

1 Canada, DFAIT, Against the Proliferation of Weapons of Ma ss Destruction (2006),

online: ww w.dfait-maeci.gc.ca /foreign_policy/ar ms_clf1/menu-en. asp.

Limiting P roliferation of Weapons of Mass De struction 303

are seeking new ways to inf‌lict the m aximum amount of damage on

their victims. An attack w ith such weapons could have a n immense

impact on Canada, no m atter where in the world it might occur. 2

As the se pas sages sug gests, and as noted in Chapter 6, the events of

9/11 h ave rene wed conc erns about th e sprea d of wea pons of mass d estr uc-

ti on, a nd th eir pos sible use by te rro ris ts. Pre- empt ing chem ica l, bi olog ica l,

rad iolog ical and nu clea r (CBRN) ter rori sm is t he su btex t in mu ch con tem-

porary anti-terrorism strateg y. For in stance, the Canadian government’s

2005 CBRN strategy is heavily inf‌luenced by fears of WMD terrori sm.3 To

prevent such attacks, the government promises, among other t hings, to:

• continuetobeaworldleaderinthesupportofnon-proliferation,

arms control and d isarma ment; …

• work wit h the provinces, terr itories and the private se ctor to

keep CBRN-related mate rials out of the ha nds of terrorists; …

• supp ort, in collaboration with our a llies, internation al efforts

to deter and prevent states with CBR N weapons and CBRN

weapons-capable material s from using t hem and/or transferri ng

them to others;

• workwiththe internationa lcommunity toimprovethese curity

for the storage and movement of CBRN weapons-capable materi-

als as well as t he safe destruction of CBRN weapons;

• supportthe principleth atallst atesadoptand enforceappropri-

ate, effective laws to prohibit t he unauthorized manufactur e, ac-

quisition, possession, development, t ransportation, transfer or

use of nuclear, chemical or biological we apons.4

PART II: REGULATION OF NONSTATE USE

AND POSSESSION OF WMD

In response to concerns about WMD ter rorism, the intern ational com-

munity has unequivocally condemned possession and use of WMDs by

nonstate actors.

2 Canada, Inte rnational Policy Stateme nt — Overview (2005), online: htt p://geo.

internat ional.gc.ca/cip -pic/ips/ ips-overv iew5-en .aspx.

3 Canada, PSE PC, The Chemical, Biological, Radiolog ical and Nuclear Strategy

of the Governme nt of Canada (2005) at 4, online: www.publicsafet y.gc.ca/pol/

em/cbrnst r-en.asp (describing the four str ategic objectives of counterter ror-

ism in relat ion to CBRN weapons as “prevention a nd mitigation; preparednes s;

response a nd recovery”).

4 Ibid. at 5.