Nuclear Non-Proliferation in International Law - Volume V

A strong narrative permeates international nuclear law to the effect that international law is a progressive force that is slowly but surely propelling the world towards a nuclear free future. This chapter questions and tests this narrative by examining the extent to which some of the major multilateral nuclear treaties, the ICJ cases that have touched on nuclear issues and Security Council resolutions on nuclear matters have devalued nuclear weapons. It argues that these nuclear laws fall broadly into two categories. The first category includes laws that may in some surface-level way appear to devalue nuclear weapons but in fact fail to ensure that nuclear weapons are devalued in any deep sense and in some respects actually work to reinforce the value of the weapons in particular ways. The second category of laws contains laws that devalue nuclear weapons more deeply. To date, these laws have been acceded to by only certain sectors of the international community. The final substantive part of the chapter provides some reflections on this way of thinking about international nuclear weapons law and introduces the idea that they reveal this field of international law is a deeply divided area of law prone to an idea I term ‘partialism’.

The 2020 Review Conference on the Treaty on the Nuclear Non-Proliferation of Weapons (NPT) will mark a benchmark 50th anniversary of the entry into force of the Treaty, which is considered the cornerstone of non-proliferation. A Preparatory Committee for the Review Conferences, which are held every five years, normally holds a two-week session in each of the three years leading up to the review conference. Three such ‘PrepComs’ convened in Vienna in 2017, in Geneva in 2018 and in New York in 2019. All indications point to a contentious review in 2020. Over the years of nine Review Conferences, States Parties have probably spent more time discussing Article VI of the Treaty than any other. It causes the most aggravation because it calls for pursuing negotiations towards disarmament, and a treaty on general and complete disarmament, which some see as tangible and others see as an elusive goal. Over the years, most States Parties have believed that the first step in that direction is the entry into force of a Comprehensive Nuclear-Test-Ban Treaty (CTBT). States Parties decided in 1995 to extend the NPT indefinitely, with the understanding that a CTBT, a Middle East Zone free of Weapons of Mass Destruction, and other conditions would be met. In keeping with these demands, and after generations of calls for a comprehensive nuclear test ban, negotiations at the Conference on Disarmament led to the signing of the CTBT at the United Nations in September 1996. Twenty-three years later there is a global norm against nuclear test explosions, the verification regime is more than 90% complete, and large-scale on-site inspection exercises in Kazakhstan and Jordan have demonstrated that those provisions in the treaty are effective. However, eight of the 44 countries specified in the CTBT that must ratify for it to enter into force have yet to do so. How to square this circle remains problematic.

In March 2011 a series of disasters took place in Tohoku, Japan. Beginning with a 9.0 magnitude earthquake off the coast, the shifting earth triggered a massive tsunami that caused a series of errors and accidents that ultimately resulted in the meltdown of a nuclear power plant. Around 16,000 people were killed, more than 120 thousand homes were destroyed, and many more were left without basic needs, from food to shelter. The entire country was affected as nuclear power plants were shut down across the country. While the centre of Tokyo was spared, parts of the Metropolitan Area of Tokyo, some 370 km from the epicentre, resorted to rolling blackouts to manage an energy shortage. Each of these disasters was made worse by a long-term problem of an aging and shrinking population, and complicated an already difficult effort to rebuild. Planning at any scale assumes that it matters where and how things are built. In the case of the Fukushima nuclear power plant, short-term financial gains and a lack of local political power took precedence when searching for a site. In the aftermath of the disaster the need for better communication and open-ended planning can be argued for. However, the question of how to plan for uncertainty remains less easy to resolve. How can a country make reasonable plans to rebuild when its population, and its needs, are expected to change drastically in the next decades? This paper proposes that modern disasters are inter-connected and complex, and require a holistic and open-ended approach, whether it is before or after the worst happens. In the case of planning for the safety of nuclear energy production the paper also proposes that the main lesson of the Tohoku disaster is that the worst-case scenario must be used, that the scope of such a scenario should extend beyond the technical needs of producing energy, and that it should be revisited continuously with reference to changing circumstances in the nation and the world.

The set of norms governing States’ conduct in outer space does not only consist of multilateral treaties laying down mandatory rules. It also includes non-binding instruments such as guidelines, principles and standards which influence the way States and international organizations carry out their space activities and may become mandatory once translated into domestic legislation. The 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space and the 2009 Safety Framework for Nuclear Power Source Applications in Outer Space, adopted by the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and in cooperation with the IAEA, have proved to be suitable means to regulate the evolving space activities also taking into account environmental concerns and contributing to the prevention of further proliferation of space debris. It is important that the COPUOS maintains and develops its role as a technical, legal and political body overviewing treaties, principles and standards related to the use of space NPS in close collaboration with other relevant intergovernmental organizations and bodies. The handling of the matter by COPUOS contributes to confidence building in the area of peaceful uses of outer space, where international cooperation must evolve alongside with the use of science and technology for sustainable development.

In 2016, the UN International Law Commission (ILC) adopted its Draft Articles on the Protection of Persons in the Event of Disasters with a view to enhancing the protection of basic human rights of persons confronted with calamitous events, human-made or natural ones. This contribution aims at assessing the pertinence and value of the Draft Articles for the protection of the rights of victims of detonations of nuclear weapons. It will take into account other applicable norms of international law, in particular IHL and the adoption, in 2017, of the Treaty on the Prohibition of Nuclear Weapons (TPNW), providing for the duty of States Parties to assist victims of past and future nuclear weapons’ use and nuclear testing, and will analyze the relationship between these two recent documents. The chapter consists of three parts: In Sect. 6.1, it will examine whether, and to what extent, the Draft Articles are applicable to situations of detonation of nuclear weapons, including when caused by terrorists. In other words, the definition of ‘disaster’ will be at stake. Section 6.2 will be dedicated to the question of who bears the main responsibilities for the protection of persons in the event of a disaster, and to the duty to cooperate between States. In Sect. 6.3, the scope and role of the applicable principles, such as human dignity, human rights and humanitarian principles, which have to be respected and promoted in the aftermath of a disaster, will be discussed and compared with similar duties deriving, among others, from the assistance clause of the TPNW.

Taking stock of the discussion on the measures to be taken against States not complying with existing obligations in the field of nuclear non-proliferation contained in the Fourth Report on Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes presented by the Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law to the ILA Sydney Conference (2018), this chapter suggests three possible avenues to deal with such States. The first avenue is the UN Charter and the possibility that the recalcitrant Member State’s membership rights be suspended or that its membership be severed permanently (expulsion). The second avenue centres on the Treaty on the Prohibition of Nuclear Weapons and how its provisions might be invoked to address prohibited nuclear proliferation by Contracting Parties. The third avenue concerns the domestic legislation of certain States, which permits the adoption of the so-called ‘autonomous sanctions’, separately and independently of enforcement action ordered by international organisations, and in furtherance of foreign policy objectives.

This chapter analyses the role of Brazil and Argentina in the development of nuclear technology and the nuclear-weapon-free zone in Latin America and the Caribbean. Specifically, the chapter evaluates the two countries’ interests in their binational nuclear cooperation, including through the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials. It assesses the development of this cooperation from 1950 to 2018. Within this time period, Brazil and Argentina have signed more than ten nuclear cooperation agreements, which this study organizes into three different stages regarding nuclear cooperation. These stages correspond to specific periods of time, which demonstrate the progressive internationalization of the Brazilian-Argentine nuclear affairs. The reasons behind it concern the very notion of sovereignty and the inalienable right of all countries to the peaceful use and development of nuclear technology.

The African continent is increasingly becoming part of the global debate on denuclearisation. Renewable energy supply in the form of nuclear energy has become a matter of debate on the continent, and new ways of providing electricity is of utmost importance for many Africans. Africa is a continent that is free of nuclear weapons as formally established by the Pelindaba Treaty. South Africa is also the only country in the world to have voluntarily disbanded its nuclear weapons program. The dismantling of the South African nuclear weapons program occurred under very specific circumstances, and the South African experience is not necessarily transferable to other international denuclearisation scenarios. While other countries facing pressure to end their nuclear weapons programs may be confronted with a completely different set of challenges, there are certainly valuable lessons to be learned from the South African experience. The intricate tensions in the Middle East, for example, demonstrate that nuclear armament is usually a symptom of greater political instability and not a cause in itself. There is thus a need for greater focus to be placed on negotiation and diplomacy efforts in order to arrive at the root causes of the imbalances that prompt States to want to establish or expand their nuclear arsenals. However, negotiation and diplomacy efforts should also take into account the differing approaches to the issue of denuclearisation to be able to reconcile such concerns and finally come to a solution which is agreeable to all States.

Nuclear energy has become an issue of debate, especially in light of the need for electricity production on the African continent. However, concerns have been raised regarding African States’ ability to effectively sustain safe nuclear programs for the purpose of energy production. These include financial, political and security concerns. It appears that there is a balance to be struck between pursuing the potential sustainable source of energy that nuclear energy could provide, and managing the risks associated with this kind of technology. Another possible pitfall of nuclear energy in Africa has been illustrated by the recent South African nuclear deal with Russia. This deal has clearly demonstrated the potential for corruption and foreign influence in future nuclear projects in African States. This chapter aims to briefly investigate the potential for nuclear energy in Africa, and elucidate how other African States can draw on the South African experience to ensure that any future nuclear projects occur in a safe and sustainable manner.

The civil nuclear power industry has been moribund since prohibitive construction costs and the Chernobyl disaster effectively halted the construction of new reactors in the 1980s. With many of Canada’s nuclear reactors now approaching the end of their operational lives, the survival of the civil nuclear industry is increasingly viewed as contingent upon the commercialization of so-called ‘Small Modular Reactors’ (SMR). SMRs are compact nuclear reactor designs, producing from 1 to 300 MW of electricity, with design features promised to overcome the challenges that have historically prevented the expansion of nuclear power. Canadian SMR proponents argue that due to their small size, SMRs are suitable for providing power for resource extractive and heavy industries, decentralized on-grid generation, and replacing diesel generation in remote communities. Proponents also portray SMRs as a needed component in a low-carbon society. Nevertheless, recent events indicate that the success of this technology is contingent upon the lessening of Canada’s environmental and safety requirements, and government shouldering the risks accompanying their development and operation. This chapter will explore the alleged barriers to SMR development in the context of past failures to commercialize new innovative reactor designs. It will also consider how industry-based policy and law reform requests undermine public oversight of nuclear safety in Canada and impedes Canada’s transition to sustainable development.

Once they were created, and scientific knowledge spread, it has proved very difficult to remove nuclear weapons from the international security landscape. However, if the broader international constitutional architecture, which includes the UN Charter as well as the Nuclear Non-Proliferation Treaty (NPT), is considered, the doctrine of nuclear deterrence can be contained and, moreover, pathways to nuclear disarmament can be laid. This chapter places the non-proliferation regime and the doctrine of nuclear deterrence within the wider constitutional order derived from the UN Charter. In this order ‘security’ and ‘law’ are separate but related, and nuclear deterrence sits uneasily between the two. ‘Security’ is defined by the five Permanent Members/recognised nuclear-weapon States. This has an influence on non-proliferation law especially as regards non-State actors, executive law making, and non-forcible measures against Iran and North Korea. Beyond these measures the five States have used their position in the constitutional order to protect the existing nuclear hierarchy and with it the doctrine of nuclear deterrence. Although the UN General Assembly and disarmament bodies have provided balance by consensual law making in the area of non-proliferation law, the fulfilment of Article VI of the NPT will require a recognition and management of nuclear deterrence.

Since the adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW), States that rely on extended nuclear deterrence as a cornerstone of their security policy are now in a less legally defensible position with respect to their obligations under Article VI of the Nuclear Non-Proliferation Treaty (NPT). Using Australia as the primary example, this chapter argues that the hostility of nuclear umbrella States towards the TPNW undermines their contention that they remain committed to nuclear disarmament under Article VI. It demonstrates that Australia’s main criticism of the TPNW—that banning nuclear weapons is not an effective measure for disarmament—is a weak legal justification designed to mask the fact that it is prioritising nuclear deterrence over nuclear elimination.

In September 2015, the United Nations adopted a new set of global benchmarks, officially known as the Sustainable Development Goals (SDGs), and earmarked with a very ambitious achievement-deadline of 2030. The SDGs aim at achieving a better and more sustainable future for all. With this, the international community has now started to speak in a new language at the centre of which lies a renewed commitment to universal peace and larger freedom. Building on the freshness of the theoretical framework of the SDGs, and its peculiar relevance for a world free from human suffering, this Chapter aims at contributing modestly in narrowing an existing knowledge gap about the link between denuclearisation and the SDGs. It does this by critically analysing aspects of the SDGs that are directly related with the on-going global effort of nuclear non-proliferation and disarmament. This will involve an examination of the suitability of the analytical vocabulary of the SDGs for nuclear disarmament, including interrogation of the extent to which the conceptual resources of the SDGs can add a momentum to contemporary discourse on denuclearization. It is true that the SDGs do not use language, which speaks directly to the danger of global nuclear holocaust, from which there is zero chance of achieving the SDGs themselves. However, the general understanding and the most important departure point is that the SDGs, regardless of any shortcomings they may have, provide a rich analytical framework that can be appositely utilised in strengthening the global call for the eradication of nuclear weapons.

Whilst the 1968 Nuclear Non-Proliferation Treaty (NPT) requires States to take effective measures for a cessation of the nuclear arms race, and the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW) calls for a near-term prohibition of nuclear armament, these goals are far from being fulfilled. Nuclear deterrence remains a reality in current State practice, NPT implementation is under stress, and all nuclear-armed States are unwilling to join the TPNW. This chapter undertakes a legal review of published nuclear doctrines in an effort to explore global and regional aspects of the role of nuclear weapons today: are current activities towards nuclear weapons modernization and further improvements of missiles and missile defence compatible with obligations under international law? Will modernization increase or decrease the effectiveness of nuclear deterrence? Are there gaps relating to negative security assurances in pertinent regions and what are the prospects for closing them? Are the existing international monitoring and control mechanisms sufficient and what may be done for their improvement? What other means could support confidence building? The author concludes that certain specific activities of nuclear weapons modernization and the development of missiles technology remain problematic under international legal principles and rules. A special focus is laid on low-yield nuclear warheads that would hardly be limited to an extreme case of self-defence in which the very survival of a State would be at stake, as well as on high-yield nuclear warheads with a devastation capacity that may exceed any standard of necessity and proportionality.