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Nuclear Non-Proliferation in International Law - Volume V pp 129–147Cite as

Sanctions in Nuclear Non-Proliferation Law

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Abstract

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.

University of the Aegean, Attorney at Law, Athens, Greece; Member of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law.

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Notes

  1. 1.

    ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law: Fourth Report: Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes (Sydney, 2018), http://www.ila-hq.org/en/committees/index.cfm/cid/1025, Part III.

  2. 2.

    Treaty on the Prohibition of Nuclear Weapons, UN Doc A/CONF.229/2017/8 (7 July 2017); CN.475.2017.TREATIES-XXVI-9 (9 August 2017).

  3. 3.

    Very often, these are referred to as ‘sanctions’, a term which is not used in the UN Charter. However, as this term has many and different uses, the present Chapter prefers the term ‘enforcement measures/action’ or ‘measures/action’.

  4. 4.

    See Note by the President of the Security Council, UN Doc. S/23500, 31 January 1992, at 2, 4.

  5. 5.

    The relevant part reads: “[r]eiterating in response to the Indian and Pakistani nuclear tests, that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security”.

  6. 6.

    The relevant part reads: ‘[r]eaffirming in response to the North Korean nuclear test, that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’.

  7. 7.

    The relevant part reads: ‘[r]eaffirming that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’.

  8. 8.

    For a commentator, North Korea’s nuclear programme represents, at the same time, its economic development strategy, its institutional governance structure as well as ideological commitments, see Habib 2016.

  9. 9.

    For detailed analysis of Articles 5 and 6, see Magliveras 1999.

  10. 10.

    According to the Repertory of Practice of United Nations Organs (no date) Supplement No. 8 (Revised advance version, to be issued in volume I of Supplement No. 8 (forthcoming) of the Repertory of Practice of United Nations Organs), Volume I, Articles 5 and 6, http://legal.un.org/repertory/art6.shtml, the last time that Article 5 and Article 6 were explicitly referenced was in connection to the Federal Republic of Yugoslavia and, in particular, during the adoption of SC Resolution 777 (1992) (adopted unanimously) and Resolution 821(1993) as well as during the adoption of UNGA Resolution 47/1 ‘Recommendation of the Security Council of 19 September 1992’ (22 September 1992), and Resolution 47/229 ‘Recommendation of the Security Council of 28 April 1993’ (29 April 1993), which determined that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the Economic and Social Council.

  11. 11.

    See SC, 8137th Meeting, 15 December 2017, UN Doc. S/PV.8137, p. 2.

  12. 12.

    See Lee 2007.

  13. 13.

    Under SC Res 2464 (2019) of 10 April 2019, its mandate has been extended to 24 April 2020.

  14. 14.

    Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968), 729 UNTS 161.

  15. 15.

    According to the United Nations Office for Disarmament Affairs, Democratic People’s Republic of Korea: Accession to Treaty on the Non-Proliferation of Nuclear Weapons (NPT), contracting parties ‘continue to express divergent views regarding the status of the DPRK under the NPT’, http://disarmament.un.org/treaties/a/npt/democraticpeoplesrepublicofkorea/acc/moscow.

  16. 16.

    Generally, see Borlini 2016.

  17. 17.

    A former US Secretary of State has said that the Russian Federation, by ‘[c]ontinuing to allow North Korean labourers to toil in slave-like conditions inside Russia in exchange for wages used to fund nuclear weapons programs’ has called into question its ‘dedication as a partner for peace’, see Secretary R W Tillerson, Remarks at the UN Security Council Ministerial Meeting on D.P.R.K. New York City (15 December 2017), https://vienna.usmission.gov/latest-north-korean-developments-u-s-statements.

  18. 18.

    See UNGA Resolution A/RES/73/180 (17 December 2018), referring to an UN Report condemning North Korea for diverting its resources into pursuing nuclear weapons and neglecting the peoples’ welfare in the process. The reference was probably to Human Rights Council, Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea. UN Doc. A/HRC/25/63 (7 February 2014).

  19. 19.

    Cf. operating para 26 of Res 2375 (2017), where the SC reaffirmed that the enforcement measures against North Korea since 2016 ‘are not intended to have adverse humanitarian consequences for the [country’s] civilian population’.

  20. 20.

    See Letter dated 1 December 2017 from the Permanent Representative of Japan to the United Nations addressed to the Secretary-General, UN Doc. S/2017/1038. Japan held a non-permanent seat in the UNSC for the period 2016–2017 and also held the Presidency in the month of December 2017.

  21. 21.

    This meeting was separate from another meeting, which had been held six days earlier and had been the fourth in as many years, focusing on North Korea’s human rights situation, see UN Doc. S/PV.8130, 11 December 2017. During the meeting, the country’s nuclear programme did come up on several occasions and its consequences on the enjoyment of the population’s human rights was highlighted, see, e.g., the position of Miroslav Jenča, Assistant Secretary-General for Political Affairs, who effectively said that the more nuclear and ballistic missile tests North Korea attempts, the more sanctions SC imposes, which ‘may have a detrimental impact on livelihoods and medical care’ and, therefore, human rights should be given due consideration in future SC enforcement measures, ibid., p. 6.

  22. 22.

    See supra, n 10 and accompanying text.

  23. 23.

    See S/PV.8137, p. 14. For a summary of discussions, see SC Press Release, Accidental Escalation of Tensions Could Spark Conflict on Korean Peninsula, Secretary-General Warns in Briefing to Security Council, UN Doc. SC/13121 (15 December 2017).

  24. 24.

    See supra, n 2.

  25. 25.

    Under Article 15(1) of the TPNW, 50 instruments of ratification are required. Currently, 70 States have signed it and 23 have ratified it, see the Treaty status: http://disarmament.un.org/treaties/t/tpnw. Presently, there are only three European Contracting Parties (Austria, San Marino and the Holy See).

  26. 26.

    Under Article 13 of the TPNW, any State and, therefore, not only UN Member States, may sign it. Thus, the State of Palestine signed and subsequently ratified it in March 2018. See further Article 12 laying down the goal of universal adherence to the Treaty.

  27. 27.

    UNGA Res 70/33 ‘Taking forward multilateral nuclear disarmament negotiations’ (7 December 2015); Note by the Secretary-General, Taking forward multilateral nuclear disarmament negotiations, UN Doc. A/71/371, (1 September 2017), Annex II, http://undocs.org/A/71/371.

  28. 28.

    The proposal was included in Element 16, which primarily dealt with dispute settlement (now Article 11 of the Treaty), see UN General Assembly 2016.

  29. 29.

    Ibid.

  30. 30.

    See UN General Assembly, Open-ended Working Group taking forward multilateral nuclear disarmament negotiations, Geneva 2016, Item 5(a) of the agenda Taking forward multilateral nuclear disarmament negotiations: (a) concrete effective legal measures, legal provisions and norms that will need to be concluded to attain and maintain a world without nuclear weapons, Model nuclear weapons convention submitted by Costa Rica and Malaysia, UN Doc. A/AC.286/WP.11 (24 February 2016), p. 3, element (i) ‘Cooperation, compliance and dispute settlement’.

  31. 31.

    Only domestic sanctions are envisaged: pursuant to Article 5 of the TPNW (titled ‘National implementation’): ‘1. Each State Party shall adopt the necessary measures to implement its obligations under this Treaty. 2. Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Treaty undertaken by persons or on territory under its jurisdiction or control.’

  32. 32.

    See Article 112 of the Rome Statute establishing the ICC, 2187 UNTS 3.

  33. 33.

    See Resolution ICC-ASP/8/Res.1 establishing the Independent Oversight Mechanism, adopted at the 7th Plenary Meeting of the ASP on 26 November 2009.

  34. 34.

    Pursuant to Article 8(2)–(3) of the TPNW, the first Meeting of Contracting Parties shall be convened by the UN Secretary-General at the latest one year following its entry into force and, thereafter, on a biennial basis, unless otherwise agreed by the parties or if an extraordinary meeting is requested by at least one third of parties. The Rules of Procedure will be adopted at the first Meeting.

  35. 35.

    See Dallafior 2017.

  36. 36.

    See Hovell 2019, 141.

  37. 37.

    See Council of the European Union, Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04 REV 1, Brussels, 7 June 2004, and Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy, 5664/18, Brussels, 4 May 2018. Generally, see Brummer 2009; Portela 2016; Cameron 2013; Ali 2019.

  38. 38.

    See, e.g., those ordered against Belarus (Council Decision (CFSP) 2019/325 of 25 February 2019 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus, O.J., 26.2.2019, L 57/4), Burundi (Council Regulation (EU) 2015/1755 of 1 October 2015 concerning restrictive measures in view of the situation in Burundi, O.J. L 257, 2.10.2015, p. 1), and Libya (Council Decision (CFSP) 2015/1333 of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP, OJ L 206, 1.8.2015, p. 34). The EU has also adopted sanctions against former Heads of State accused of misappropriating state funds, examples include Ben Ali, the deposed President of Tunisia, and Viktor Yanukovych, the deposed President of Ukraine.

  39. 39.

    See Council Regulation (EU) 2016/1686 of 20 September 2016 imposing additional restrictive measures directed against ISIL (Da’esh) and Al-Qaeda and natural and legal persons, entities or bodies associated with them, O.J., 21.9.2016, L 255/1.

  40. 40.

    See Australian Government, Autonomous Sanctions (Designated and Declared Persons—Myanmar) List 2018, F2018L01409, 5 October 2018, Explanatory Statement, https://www.legislation.gov.au/Details/F2018L01409/Explanatory%20Statement/Text.

  41. 41.

    No. 38, 2011, as amended and in force on 5 March 2016, C2016C00247.

  42. 42.

    Select Legislative Instrument No. 247, 2011, as amended and in force on 5 August 2017, F2017C00637.

  43. 43.

    See F2018L01409, supra, n 37.

  44. 44.

    See Australian Government, Department of Foreign Affairs and Trade, Australia and sanctions https://dfat.gov.au/international-relations/security/sanctions/Pages/sanctions.aspx. See also Rothwell et al. 2018, 754.

  45. 45.

    Autonomous Sanctions Bill, Government Bill 259—1, Bills Digest No. 2514.

  46. 46.

    See Autonomous Sanctions Bill, 2017 No. 259-1, Explanatory Note, General policy statement, p. 1, http://www.legislation.govt.nz/bill/government/2017/0259/latest/d56e2.html.

  47. 47.

    Ibid.

  48. 48.

    Pursuant to clause 6 of the Bill, such autonomous sanctions would take the form of prohibitions or restrictions (a) on designated persons travelling to, entering, or remaining in New Zealand; (b) on assets; and (c) on services.

  49. 49.

    Statutes of Canada 1992, Chapter 17, as currently in force.

  50. 50.

    Presumably the ‘Association of States’ refers to the Commonwealth of Nations.

  51. 51.

    For their consolidation, see Special Economic Measures (Democratic People’s Republic of Korea) Regulations, SOR/2011-167.

  52. 52.

    See Consolidated Canadian Autonomous Sanctions List, last updated on 31 July 2019, at: https://www.international.gc.ca/world-monde/international_relations-relations_internationales/sanctions/consolidated-consolide.aspx?lang=eng.

  53. 53.

    Magnitsky, having uncovered the largest tax fraud in Russian history, was detained without trial, tortured and consequently died while in custody on 16 November 2009.

  54. 54.

    Statutes of Canada 2017, Chapter 21. For an analysis, see Rikhof 2018. See further Justice for Victims of Corrupt Foreign Officials Regulations, last amended on 29 November 2018, SOR/2017-233.

  55. 55.

    See supra n 52.

  56. 56.

    2010 Chapter 38, 16 December 2010, as currently in force.

  57. 57.

    2008 Chapter 28, 26 November 2008, as currently in force.

  58. 58.

    2001 Chapter 24, 14 December 2001, as currently in force.

  59. 59.

    2018 Chapter 13. Note that the UK’s current implementation of UN and other multilateral sanctions regimes is largely based on the European Communities Act 1972. According to the Sanctions Act’s Impact Assessment, produced in October 2017, UK’s domestic powers as regards sanctions are incomplete or out of date. See further Gordon et al. 2019, 21, 60, 260.

  60. 60.

    Section 56 of the Sanctions Act enables special provision to be made for the commencement of sanctions regulations where such provision is appropriate in consequence of, or otherwise in connection with, Brexit.

  61. 61.

    Ibid., Section 1(2)(h).

  62. 62.

    See Forrest et al. 2018.

  63. 63.

    Note that as a result of the Sanctions Act, on 6 December 2018, the States Assembly of the island of Jersey passed the Sanctions and Asset-Freezing (Jersey) Law, which expressly refers to the ability to adopt autonomous sanctions post-Brexit.

  64. 64.

    Statutory Instruments 2019 No. 461; for the Explanatory Memorandum, see http://www.legislation.gov.uk/uksi/2019/461/pdfs/uksiem_20190461_en.pdf. Note that there exists a separate sanctions regime, which aims at encouraging the Iranian government to comply with and respect international human rights law, see Iran (Sanctions) (Human Rights) (EU Exit) Regulations 2019, Statutory Instruments 2019 No. 134, made on 29 January 2019; for the Explanatory Memorandum, see http://www.legislation.gov.uk/uksi/2019/134/contents/made.

  65. 65.

    Statutory Instruments 2019 No. 411; for the Explanatory Memorandum, see http://www.legislation.gov.uk/uksi/2019/411/pdfs/uksiem_20190411_en.pdf.

  66. 66.

    See White 2018, 8.

  67. 67.

    Ibid., 32. The article was written before the UK Sanctions Act was promulgated in May 2018.

  68. 68.

    See Hovell 2019, 144.

  69. 69.

    Generally, see Barber 1979.

  70. 70.

    Generally, see Joyner 2015, 78.

  71. 71.

    Cf. United States International Trade Commission, The Economic Impact of U.S. Sanctions with Respect to Cuba. Investigation No. 332-413. Publication No. 3398 (February 2001), 6–7.

  72. 72.

    Starting in 1996 with the so-called Helms–Burton Act (Cuban Liberty and Democratic Solidarity (Libertad) Act, Public Law 104–114, 110 Statutes 785), see Magliveras 1996, it has continued until the present time, inter alia, with the International Emergency Economic Powers Act (Title II of Public Law 95–223, 91 Statutes 1626); the Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act (Public Law 113–95, 128 Statutes 1088); the Countering America’s Adversaries Through Sanctions Act (Public Law 115–44, 131 Statutes 886); the Comprehensive Iran Sanctions, Accountability, and Divestment Act (Public Law 111–195, 120 Statutes 1344); and the Iran Threat Reduction and Syria Human Rights Act (Public Law 112–158, 126 Statutes 1214).

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  1. University of the Aegean, 85100, Rhodes, Greece

    Konstantinos D. Magliveras

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    Dieter Fleck

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Magliveras, K.D. (2020). Sanctions in Nuclear Non-Proliferation Law. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume V. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-347-4_7

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