Proliferation

• Author: Craig Forcese/Leah West
• Pages: 295-343

295

CHA PTER 7

PROLIFER ATION

This chapter discu sses another key national security objective: lim iting

the proliferation of weapons that states (or non-state terrorist groups)

might employ against Canada or Can adians. It does not, however, dis-

cuss all weapons. In stead, we mostly focus on what are commonly

known as “weapons of ma ss destruction” (WMDs); that is, weapons

capable of inf‌licting mass casualties or economic damage via a single

use. WMDs comprise nuclear, radiologica l, chemical, and biological

weapons.

States have rarely used these destructive instruments, mostly

because of the political and military consequences of deploying such

heinous devices but probably also in part b ecause of the restrictive

laws that govern them. Indeed, to date, conventional weapons — such

as small ar ms and land mines — have killed and maimed more people

than WMDs. Even so, this book does not focus on these arms a nd their

control. The decision to concentrate on WMD proliferation and not con-

ventional arms control is not completely arbitrary. Small arms are not

capable of reaching across continents a nd sowing instantaneous mass

casualties. W MDs, on the other hand, are. They f‌it comfortably within

this book’s vision of national security law: law counteri ng threats

posed by low-probability, high-consequence events that risk producing

signif‌icant politica l turmoil. Moreover, WMD proliferation is regularly

identif‌ied by the government of Canada a s a national security t hreat.1

1 See, for example, Ca nada, National Secur ity and Intelligence Committee of

Parliamentarians, Annual Report 2018 (2019) (C hair: David McGuinty) at 29.

NATIONAL SECUR ITY LAW296

The f‌irst part of this ch apter examines the inter national and Can-

adian law governing both non-state and state possession and use of

nuclear, chemical, and biological weapons. The law of non-prolif-

eration for all WMDs grapples with similar concerns. Fir st, it seeks

to limit — and in the case of biological and chemical weapons out-

law — pos session of WMDs. Second, it struggles with the problem of

“dual use” technology; that is, the fact th at states and private entities

may also employ the technology behi nd WMDs for legitimate purposes.

Meeting the goals of countering proliferation while permitting civil ian

use demands the e stablishment of “safeguards” — systems of monitor-

ing and verif‌ication.

In part to meet non-proliferation objectives, international and Can-

adian law also i mposes important constr aints on technology transfer.

Historically, Canada applied limitations on the international physical

movement of tools, machines, and raw materi als, but this has expanded

to include limits on information exchange between authorized and

unauthorized persons. A discussion of these tech nology transfer rules

forms the second part of thi s chapter.

PART I: WEAPONS PROLIFER ATION AND

NATIONAL SECURITY

Deterring the proliferation of weapons of m ass destruction is a national

security preoccupation of venerable standing. In 2006, the then-

department of foreign aairs urged:

The illicit posse ssion and proliferation of nuclear, chemical a nd bio-

logical weapons . . . , as well as their means of deliver y, presents a

grave threat to C anadian nation al security. . . . This threat can come

from both state and non-st ate actors. It challenges us at home. And it

places our nationa l interests overseas in jeopardy. Given rapid advan-

ces in and the spre ad of scientif‌ic and technic al knowledge (espe-

cially in the l ife sciences, and missile technolog y), the thr eat is likely

to grow. Failing to act decisively now ri sks allowing the problems to

fester and mu ltiply.2

Canada’s 2005 internationa l policy statement expressed similar concern s:

2 Canada, Dep artment of Foreign Aair s and International Trade, Against the

Proliferation of Weapons of Mass Destr uction (Ottawa: DFAIT, 2006).

Prolifer ation 297

The international com munity continues to face the pro spect that

weapons of mass de struction (WMD) — chem ical, nuclear, radio-

logical or biological — might be use d by a state or terrorist organ iza-

tion. The desire to acquire t hese weapons is often driven by region al

tensions — i n the Middle East, Indi a-Pakistan and the Kore an pen-

insula — and misguided attempt s to gain internat ional prestige. Ter-

rorists, who unti l now have focused on tactics i nvolving car bombs

and suicide bombers, are s eeking new ways to inf‌l ict the maximum

amount of damage on their v ictims. An attac k with such weapons

could have an immens e impact on Canada, no matte r where in the

world it might occur.3

As these pas sages suggest, the events of 9/11 renewed concerns

about the spread of weapons of mass destruction, and their pos-

sible use by terrorist s. Pre-empti ng chemical , biological, rad iological,

and nuclear (CBRN) terrorism is the subtext in much contemporary

anti-terrorism str ategy. For instance, fears of WMD terrorism heavily

inf‌luenced the Canadian government’s original 2005 CBRN strategy.4

Since 2005, weapons proliferation issues have continued to shape

the international commun ity’s response to North Korea and Iran. Some

states have, moreover, used chemicals weapons — Syria in its civil war,

and Russia, in an attempted as sassination in Sal isbury, United King-

dom, of a former military intelligence ocer.5

In this section we descr ibe eorts to limit the proliferation and

use of WMDs by non-state actors. We then examine the regulation of

WMDs in the hands of states.

PART II: REGULATION OF NON-STATE USE

AND POSSESSION OF WMD

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

munity has unequivocal ly condemned possession and us e of WMDs by

non-state actors.

3 Canada, Depa rtment of Foreign Aairs a nd International Trade, International

Policy Sta tement — O verview (Ottaw a: DFAIT, 2005).

4 Public Safety and E mergency Preparedness C anada, The Chemical, Biological,

Radiological an d Nuclear Strategy of the Government of Ca nada (Ottawa: PSEPC,

2005) at 4 (describing the four st rategic objectives of counterte rrorism in rela-

tion to CBRN weapon s as “prevention and mitigation ; preparedness; respon se

and recovery”).

5 See discus sion below.