The critics who were quick to condemn this month's Nuclear Security Summit communiqué because it is not a legally-binding agreement don't realize that time is not on our side. Nuclear terrorists will not wait while negotiators from 47 countries hammer out a legally-binding treaty to prevent them from gaining access to crucial material for nuclear weapons. While the communiqué is not binding, the actions states pledge within it could mean the difference between relative calm and a catastrophe.
Senator Jon Kyl's comment - that "the summit's purported accomplishment is a nonbinding communiqué that largely restates current policy, and makes no meaningful progress in dealing with nuclear terrorism threats" - is misguided.
His view represents an outdated notion that legally-binding is always better. While there are certainly benefits to international treaties, they are notoriously plagued by problems of time; time that, in the case of nuclear terrorism, we might not have.
Treaties have the benefit of tying countries to their obligations, and imposing costs for violation. However, as international negotiators can attest, legally-binding treaties can be painfully slow to reach. Countries must be confident that they desire and can achieve an agreement's obligations, and they must try to avoid unintended consequences. This means that lawyers frequently quibble over precise wording and agreements can languish for years as countries struggle to agree and become deadlocked. Then, once agreement is reached, there can be lengthy delays for entry-into-force as national governments deliberate ratification.
Indeed, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) - the cornerstone agreement of the nonproliferation regime - took three years to negotiate (after a seven-year effort to get countries to the negotiating table), and another two before it entered into force. That's not to say that the NPT was not worth the time it took to negotiate; the NPT was essential to establish the nonproliferation norm, and provides the foundation on which much of today's work to prevent nuclear terrorism rests. The point is, however, that treaties can take a long time to have any effect.
What's more, a legally-binding treaty does not guarantee compliance. As the cases of North Korea and Iran have shown, referral to the United Nations Security Council in the face of treaty violation is wrought with political machinations and does not always result in success.
Non-binding agreements, such as the Nuclear Summit's communiqué, on the other hand, have the benefit of being developed and implemented quickly. Countries can more easily reach agreement, in the knowledge that an inability to comply will not result in harsh sanction. Yet, these agreements are not toothless, as opponents would claim. By publicly committing to adhere to the communiqué's principles, countries signal their intentions, and can damage their reputation if they fail to deliver. Many countries made national commitments in addition to the communiqué, to which they can be held accountable. For example, Ukraine committed to removing all highly enriched uranium from its territory by the next Summit in 2012. Ukraine's progress can be monitored and pressure brought to bear if its commitment is not met.
A recent example of a nonbinding agreement is the US-led Proliferation Security Initiative (PSI) - a Bush administration initiative to intercept shipments of WMD-related materials (known as interdiction). Beginning with 11 participants in May 2003, it now boasts official participation from 95 states - no mean feat given its age and origins. Through a series of principles, states pledge to conduct interdictions and to strengthen their domestic legal frameworks to prosecute those discovered trafficking materials for weapons.
While intelligence sensitivities make the PSI's success in preventing proliferation difficult to assess, government officials laud its ability to foster tangible cooperation between international counterparts. They claim that its non-binding nature has allowed some states to join that might otherwise not have, were the agreement legally-binding, and that it gives states much needed flexibility to do what they can, when they can.
The PSI was not mentioned in the communiqué - likely because of political sensitivities with important partners such as China, which has opposed the PSI from its inception - but its model mirrors that of the communiqué.
Although the PSI's model is no panacea for the issues that demand policymakers' attention, it demonstrates that a nonbinding agreement, when it has the support of leaders, can be just as effective, if not more so, than a legally-binding agreement. In this way, the summit's communiqué shrewdly addresses the urgent problem of nuclear terrorism. The goal of securing all nuclear material in the next four years could not afford to languish for perhaps just as many years in a negotiating conference to make states' commitments legally-binding.
To succeed against nuclear terrorism, leaders must harness the summit's political momentum, and countries must be held accountable to their commitments under the communiqué.