Abstract
The fundamental role of the law governing nuclear technologies and nuclear weapons is clear and unambiguous. The law seeks to regulate existing nuclear activities, or—at a preliminary stage—to (try to) prevent and govern the risks arising from the misuse of nuclear technologies, or to tackle the problem of nuclear proliferation. However, on many occasions, it appears that the law is inefficient in dealing with these issues. Thus, this paper proposes some ‘best practice’ legal ways as a guide to help build nuclear compliance and cooperation at a global level. The analysis starts from the focus on the Treaty on Nuclear Non-Proliferation (NPT), highlighting the content of Article VI as judicially interpreted by the International Court of Justice, and examining the gaps and limits within the NPT framework. Then in the context of ‘verification, compliance and enforcement’, the paper concentrates on some methods and mechanisms that have been established at the international law level, with the aim of ensuring compliance with international rules. As a useful comparison and source of inspiration for the non-proliferation field, links have been drawn with verification and compliance procedures in respect of environmental law and trade law. On the basis of such comparison, a set of guidelines for enhancing cooperative compliance in the nuclear field is proposed. Aspects of particular importance are: (a) to collect and monitor the data; (b) to reinforce the structure and action of the International Atomic Energy Agency (IAEA); (c) to involve other UN bodies, of States and civil society and (d) to follow the principles of (i) the rule of law, (ii) impartiality and non-discrimination, (iii) transparency and (iv) responsibility.
Ilaria Anna Colussi—Lawyer, PhD, Post doctoral fellow, Faculty of Law, Political Science and Criminology, Department of Political Science, European Studies Unit, University of Liège (ULg), Belgium.
Maurizio Martellini—Professor of Physics, Insubria Center on International Security (ICIS), Como, Italy.
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Notes
- 1.
See the discovery of radioactivity by Henri Becquerel and the studies conducted by Pierre and Marie Curie. For deepening the history of nuclear science and technology, see http://www.world-nuclear.org/info/Current-and-Future-Generation/Outline-History-of-NUclear-Energy/.
- 2.
See Miller and Sagan 2009, pp. 7–18.
- 3.
Cooper 2003, p. 63.
- 4.
Walzer 2006, p. xxi.
- 5.
Moxley Jr. et al. 2001, p. 596.
- 6.
R. Alcaro, Il regime di non proliferazione nucleare. Obiettivi, struttura e fattori di rischio. In Studi e Ricerche del Servizio Affari Internazionali del Senato della Repubblica Italiana, N. 66, 2007, Roma, p. 5.
- 7.
The Limited Test Ban Treaty was adopted on 5 August 1963 and entered into force on 10 October 1963.
- 8.
The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and Ocean Floor and in the Subsoil Thereof (Seabed Treaty) was adopted on 11 February 1971 and entered into force on 18 May 1972.
- 9.
The Treaty of Tlatelolco is the conventional name given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean. It was adopted on 14 February 1967 and entered into force on 22 April 1968.
- 10.
The Treaty of Rarotonga is the common name for the South Pacific Nuclear Free Zone Treaty. It was adopted on 6 August 1985.
- 11.
The Treaty of Bangkok is the common name for the Treaty on the Southeast Asia Nuclear-Weapon-Free Zone. It was adopted on 15 December 1995 and entered into force on 27 March 1997.
- 12.
The Treaty of Pelindaba is the common name for the African Nuclear-Weapon-Free Zone Treaty. It was adopted on 11 April 1996, but is not entered into force yet.
- 13.
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was opened for signature in 1968, and entered into force in 1970. On 11 May 1995, the Treaty was extended indefinitely.
- 14.
See Simpson and Ogilvie-White 2003.
- 15.
At this regard, see Joyner 2011.
- 16.
International Court of Justice (ICJ), Advisory Opinion. Legality of the Threat or Use of Nuclear Weapons, ICJ Rep. 1996, 226–267. July 8 1996, http://www.icj-cij.org/docket/files/95/7495.pdf.
- 17.
ICJ, Advisory Opinion, here 266. It can be observed that Judge Shahabuddeen of Guyana, Judge Weeramantry of Sri Lanka, and Judge Koroma of Sierra Leone wrote separate opinions, explaining that the reason they were dissenting was their view that there is no exception under any circumstances (including that of ensuring the survival of a State) to the general principle that use of nuclear weapons is illegal. Vice President Schwebel remarked in his dissenting opinion that it could never be accepted that the use of nuclear weapons could be lawful.
- 18.
ICJ, Advisory Opinion, here 262.
- 19.
See Rietker 2014, pp. 47–84.
- 20.
- 21.
2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, May 3–28, 2010, Final Document, pts. 1, 19, UN Doc. NPT/CONF.2010/50 (Vol. 1) (2010).
- 22.
R. Alcaro, Il regime di non proliferazione nucleare. Obiettivi, struttura e fattori di rischio. In Studi e Ricerche del Servizio Affari Internazionali del Senato della Repubblica Italiana, N. 66, 2007, Roma, p. 10.
- 23.
The Security Council has a central role to “ensure prompt and effective action by the United Nations” (Article 24 of the UN Charter). Furthermore, under Article 39, the Security Council is allowed to enact a determination that a situation or action constitutes a threat to international peace and security, and it is authorized to decide under Chapter VII of the UN Charter on measures, including economic and military sanctions, which are binding.
- 24.
SC Res. 1695 (2006), 1718 (2006), 1874 (2009), 2050 (2012), 2087 (2013), 2094 (2013) against North Korea.
- 25.
Deterrence theory is based on raising the cost of an adversary’s actions to unacceptably high levels through utilizing the threat of nuclear attack to deter an unwanted action Green 2000. Portions of the text are available at http://www.disarmsecure/publications/books.org. As Granoff stated, the moral position of the nuclear weapon states is essentially that the threat to commit an illegal act—massive destruction of innocent people—is legal because it is so horrible to contemplate that it ensures the peace. Thus the argument is that the threat of committing that which is patently illegal is made legal by its own intrinsic illogic. The reliance on the value of the doctrine of nuclear deterrence impedes progress in moving towards the elimination of nuclear weapons’ Granoff 2000, p. 1437.
- 26.
T. Findlay, The Verification and Compliance Regime for a Nuclear Weapon-Free World. A Role for the UK, VERTIC Briefing Paper 5:1–8.
- 27.
See Oxford Dictionaries.
- 28.
See Oxford Dictionaries.
- 29.
Lewis 2009, pp. 233–234.
- 30.
See Ago 1984, p. 385.
- 31.
Katzenstein et al. 1998, p. 658.
- 32.
J. Ouellet, Enforcement Mechanisms http://www.beyondintractability.org/essay/enforcement-mechanisms.
- 33.
See also Dorn and Scott 2000, pp. 229–247.
- 34.
See W. Lang, Compliance Control in International Environmental Law: Institutional Necessities, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, http://www.zaoerv.de.
- 35.
For deepening the issues of compliance in environmental field, see S.A. Hajost and Q.J. Sea, An Overview of Enforcement And Compliance Mechanisms in International Environmental Agreements, www.inece.org/1stvol1/hajost.htm.
- 36.
See the Biosafety Clearing House, which is an international mechanism set up by Cartagena Protocol on Biosafety 2003, Article 20 para 1, in order to ensure the safe handling, transport and use of living modified organisms (LMOs) and assist the Parties to better comply with and implement their obligations under the Cartagena Protocol on Biosafety.
- 37.
See the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) for reporting obligations. It also requires that parties notify the Secretariat of any allowed transfer of production between parties and of any addition to calculated production levels allowed by the Protocol. The treaty was opened for signature on 16 September 1987, and entered into force on 1 January 1989, followed by a first meeting in Helsinki, in May 1989.
- 38.
See the Kyoto Protocol, which assigns an important role to the monitoring and emissions inventory reporting requirements, and to expert reviews of parties’ reports. This Protocol extends the 1992 United Nations Framework Convention on Climate Change (UNFCCC). It was adopted on 11 December 1997 and entered into force on 16 February 2005.
- 39.
See, for instance, the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Article VIII) and its 1973 Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil.
- 40.
The Kyoto Protocol extends the 1992 United Nations Framework Convention on Climate Change (UNFCCC). It was adopted on 11 December 1997 and entered into force on 16 February 2005. Here see II 2.
- 41.
See Brunnée 2006.
- 42.
The General Agreement on Tariffs and Trade (GATT) was signed on 30 October 1947.
- 43.
- 44.
See Imdad Ali 2003.
- 45.
It could be noted that other organizations in the nuclear area exist, but they do not have the mandate of nuclear watchdog, as IAEA own. For instance, the European Atomic Energy Community (EURATOM), even if it was established before the IAEA (in 1957), is an international organization with the purpose of creating a specialist market for nuclear power in Europe, developing nuclear energy and distributing it to its member States while selling the surplus to non-member States. Moreover, the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) is an international organization, whose tasks are not in force yet. It will be tasked with verifying the ban on nuclear tests and will operate therefore a worldwide monitoring system and may conduct on-site inspections.
- 46.
A. Schaper and K. Frank, A Nuclear Weapon Free World—Can It Be Verified?, PRIF Reports, Frankfurt.
- 47.
The IAEA defines nuclear safeguards as ‘technical means used to verify that a State’s nuclear activities are in conformity with the undertakings that the State has given about the nature and scope of these activities’ (IAEA, The Evolution of IAEA Safeguards, International Nuclear Verification Series, No. 2, Vienna, Austria, 1998, p. 32).
- 48.
See O. Meier, Fulfilling the NPT: strengthened nuclear safeguards. VERTIC Briefing Paper, 2000, 2:1–12.
- 49.
This model was introduced by the IAEA Board of Governors in the Safeguards Implementation Report (SIR) in 2004.
- 50.
It should be noted that on 12 August 2013, the IAEA’s Director General submitted to the Board of Governors a report entitled “The Conceptualization and Development of Safeguards Implementation at the State Level” (GOV/2013/38). After a consultation process, the “Supplementary Document to the Report on The Conceptualization and Development of Safeguards Implementation at the State Level” of 13 August 2014, GOV/2014/41 has been released. The latter specifies that the safeguards agreement and, where applicable, the Additional Protocol concluded between the Agency and a State govern the safeguards implementation by the Agency for that State. It can be read: “The implementation does not entail the introduction of any additional rights or obligations on the part of either States or the Agency, nor any modification in the interpretation of existing rights and obligations under safeguards agreements and, where applicable, APs” (p. 13).
- 51.
See the Articles about ‘Functions and Powers’, namely Article 24, Article 25, and Article 26 of Chapter VII of the Charter of the UN.
- 52.
Carlson 2009.
- 53.
Ware 2003, p. 244.
- 54.
See Hibbs 2012; P. Podvig. Transparency in Nuclear Disarmament, UNIDIR Resources, Ideas for Peace and Security, http://unidir.org/files/publications/pdfs/transparency-in-nuclear-disarmament-390.pdf.
- 55.
Final Document of the 2010 Review Conference of the Parties to the Treaty of Non-Proliferation of Nuclear Weapons, document NPT/CONF.2010/50 (Vol. I), 2010.
- 56.
Jonas 2006.
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Colussi, I.A., Martellini, M. (2016). Best Practice Guidelines for Cooperative Compliance with Nuclear Non-Proliferation Obligations. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-075-6_12
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