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A Framework for the Secure Development of Nuclear Energy: Obligations, Challenges and Possible Solutions

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Nuclear Non-Proliferation in International Law - Volume III

Abstract

The right to peaceful uses of nuclear energy as recognized in the Treaty on the Non—Proliferation of Nuclear Weapons shall be exercised in conformity with the obligations not to proliferate nuclear weapons. Since the adoption of the Treaty, additional risks associated with the development of nuclear energy, other than the traditional proliferation by States, have emerged. Those include criminal or intentional unauthorized acts involving or directed at nuclear material, other radioactive material, associated facilities, or associated activities, such as the illicit trafficking of nuclear material and nuclear terrorism. A number of instruments have been adopted to prevent, detect and respond to such acts. The establishment of a legal framework to ensure the secure development of nuclear energy at the national level is now framed by specific international obligations. At the same time, the consolidation and universalization of the international regime as well as the adoption of national nuclear security legislation give rise to a number of legal and practical challenges. None of them seem impossible to overcome, however, and a few tools and processes can help strengthen nuclear security globally.

Senior Legal Officer, National Implementation Measures Programme, Verification Research, Training and Information Centre (VERTIC).

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Notes

  1. 1.

    Mr. Morokhov, Union of Soviet Socialist Republics, Statement during the General Debate, Summary Record of the Second Meeting held on Tuesday, 6 May 1975, at 10.40 a.m, NPT/CONF/SR.2. In Final document of the Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF/35/III.

  2. 2.

    Final Declaration of the Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, p. 4, Annex I. In Final document of the Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF/35/I, 30 May 1975.

  3. 3.

    IAEA 2013, p. 1.

  4. 4.

    See IAEA 2011, pp. 3–8.

  5. 5.

    Those three aspects are discussed in Stoiber 2010b.

  6. 6.

    Vez Carmona 2005, p. 31. In this article, physical protection is thus considered to be only one aspect of nuclear security. ‘Physical protection’ and ‘nuclear security’ of nuclear material are sometimes used interchangeably: see for instance Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities, IAEA document INFCIRC/225/Revision 5, footnote 1.

  7. 7.

    In that sense Findlay 2012, p. 46.

  8. 8.

    Scope of the IAEA Incident and Trafficking Database http://www-ns.iaea.org/security/itdb.asp. Accessed 5 February 2016.

  9. 9.

    Stoiber 2010b, p. 225.

  10. 10.

    See Convention on the Physical Protection of Nuclear Material, Article 1(a).

  11. 11.

    See in that sense International Convention for the Suppression of Acts of Nuclear Terrorism, Article 1(1). See definitions in VERTIC 2012, pp. 8–10.

  12. 12.

    See for instance: Nuclear Security, resolution adopted on 18 September 2015 by the 59th IAEA General Conference, GC(59)/RES/10, para e; Ministerial Declaration adopted at the International Conference on Nuclear Security: Enhancing Global Efforts, July 2013, para 1.

  13. 13.

    IAEA 2013, para. 1.4.

  14. 14.

    IAEA 2013, para. 1.5.

  15. 15.

    Nuclear Security—Measures to Protect Against Nuclear Terrorism, Annual Report, Report by the Director General, in GOV/2006/46—GC(50)/13, 16 August 2006, para 20.

  16. 16.

    Ibid.

  17. 17.

    NPT/CONF.2015/WP.58, para 39, see also para 69.

  18. 18.

    See IAEA 2011; Stoiber 2010b; Herbarch 2014; Johnson 2014, pp. 532–538.

  19. 19.

    See Vez Carmona 2005, pp. 34–35.

  20. 20.

    On the process leading to the adoption of the amendment and a detailed analysis of its content, see Vez Carmona 2005, pp. 36–48; Johnson 2014, pp. 539–545.

  21. 21.

    The amendment requires ratification, acceptance or approval by two thirds of the Parties to the CPPNM. As of 1 April 2016, there were 101 contracting States/organization, https://www.iaea.org/Publications/Documents/Conventions/cppnm_amend_status.pdf. See also below, Sect. 8.2.2.

  22. 22.

    On ICSANT, see Jankowitsch-Prevor 2005.

  23. 23.

    Code of Conduct, para 5; emphasis added.

  24. 24.

    Jankowitsch-Prevor 2010, p. 22.

  25. 25.

    Measures to Strengthen International Co-operation in Nuclear, Radiation and Transport Safety and Waste Management, Resolution adopted on 19 September 2003, GC (47)/RES/7, Part B Code of Conduct on the Safety and Security of Radioactive Sources, para 4.

  26. 26.

    Jankowitsch-Prevor 2010, pp. 22; 23.

  27. 27.

    Letter reproduced in document INFCIRC/869.

  28. 28.

    Dal et al. 2015, p. 1.

  29. 29.

    See Drobysz 2014, pp. 575–580.

  30. 30.

    See in that sense, about the terrorism conventions (which include ICSANT, SUA 2005, SUA PROT 2005 and the Beijing Convention) UNODC 2008, p. 10.

  31. 31.

    About the Committee, see p. 20.

  32. 32.

    See for instance Afghanistan’s matrix, http://www.un.org/en/sc/1540/docs/matrices/Afghanistan%20revised%20matrix.pdf. The matrix refers to article Article 7 of the Afghan Constitution which provides: ‘The State shall observe the United Nations Charter, inter-State agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights. The State shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants.’.

  33. 33.

    Crawford 2012, p. 97.

  34. 34.

    Thus ‘Even if a country’s legal tradition were to allow the theoretical possibility of a criminal charge for committing an offence defined only in an international treaty by which that country was bound, and not in a domestic piece of legislation, that offence would remain a crime without punishment until legislation defined the penalty’, UNODC 2008, pp. 10–11. See also UNODC 2014, p. 18.

  35. 35.

    CPPNM, Article 7(1).

  36. 36.

    CPPNM, Article 7(2).

  37. 37.

    SC Res 1540 (2004), para 2, CPPNM Article 7; ICSANT Article 2(2)(a), (3), (4), SUA 2005 Article 3quater, SUA PROT 2005 Article 2ter, Beijing Convention Article 1(3), (4), (5).

  38. 38.

    Jankowitsch-Prevor 2005, p. 21.

  39. 39.

    ICSANT, Article 9(2)(b).

  40. 40.

    ICSANT, Article 9(2)(d), SUA 2005 Article 6(2)(c), SUA PROT Article 3(2)(c).

  41. 41.

    ICSANT Article 9(4), SUA 2005 Article (6)(4), SUA PROT Article (3)(4), Beijing Convention Article 8(3).

  42. 42.

    See also ICSANT Article 11, SUA 2005 Article 10(1); Beijing Convention, Article 10.

  43. 43.

    ICSANT, Article 10(1); SUA 2005, Article 7(2); Beijing Convention Article 9(2).

  44. 44.

    ICSANT, Article 10(2); CPPNM, Article 9; SUA 2005, Article 7(1); Beijing Convention Article 9(1).

  45. 45.

    ICSANT, Article 12; CPPNM, Article 12; SUA 2005 Article 10(2); Beijing Convention Article 11.

  46. 46.

    ICSANT, Article 14; CPPNM, Article 13; SUA 2005 Article 12(1); Beijing Convention, Article 17.

  47. 47.

    Code of Conduct para 19(a), CPPNM as amended Article 2A(3) Fundamental principle D.

  48. 48.

    CPPNM as amended Article 2A(3) Fundamental principle C.

  49. 49.

    Code of Conduct para 19(c).

  50. 50.

    CPPNM as amended Article 2A(1), (2) and (3) Fundamental principle C; Code of Conduct para 19(g); ICSANT Article 8; UNSCR 1540 para 3(b).

  51. 51.

    Guidance on the Import and Export of Radioactive Sources; UNSCR 1540 para 3(d).

  52. 52.

    CPPNM as amended Article 2A(3) Fundamental principle C; Code of Conduct para 20(h).

  53. 53.

    SC Res 1540 (2004), para 3(c).

  54. 54.

    See for instance Code of Conduct, para 22(j).

  55. 55.

    The inalienable right to develop research, production and uses of nuclear energy for peaceful purposes, Working paper submitted by the Group of Non-Aligned States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2015/WP.5, para 23.

  56. 56.

    Jankowitsch-Prevor 2005, p. 13.

  57. 57.

    NPT/CONF.2015/WP.58, para 96.

  58. 58.

    Nuclear Security, Resolution adopted on 18 September 2015, GC (59)/RES/10, para 6; see also Nuclear Security, Resolution adopted on 26 September 2014, GC(58)/RES/11, para 5, Nuclear Security, Resolution adopted on 20 September 2013, GC(57)/RES/10, para 5, etc.

  59. 59.

    On the Nuclear Supplier Group, see The Nuclear Suppliers Group: its Origins, Role and Activities, in INFCIRC/539/Rev.6, 22 January 2015.

  60. 60.

    Guidelines for nuclear transfers, INFCIRC/254/Rev.12/Part 1, 13 November 2013, para 3(a).

  61. 61.

    The case of Jamaica is a good example. Jamaica’s parliament passed a Nuclear Safety and Radiation Protection Act in July 2015 (An Act to make new provisions for the regulation of activities, practices, apparatuses and facilities involving ionizing radiation and nuclear technology for the protection of people, property and the environment from the harmful effects of ionizing radiation; and for connected matters, No 17-2015, 2015) with the objectives, among others, to ‘secure radioactive sources from misuse that may result in harm to people or the environment’, while at the same time allowing for ‘the beneficial and peaceful uses of nuclear technology’ and ‘facilitat[ing] Jamaica’s compliance with international obligations’ arising under a number of conventions including the CPPNM, ICSANT, the maritime conventions, and SC Res 1540 (2004). Shortly after the Act was passed, Jamaica cooperated with the United States to have one kilogram of U.S origin highly enriched uranium removed from the ‘Safe Low-Power Critical Experiment’ (SLOWPOKE) research reactor and returned to the US. The reactor was converted to run on low enriched uranium, with the assistance of the IAEA, allowing for enhancement of its capacity and additional research related to food safety, food security, and water and air quality. (See news reports of the event at https://www.iaea.org/newscenter/news/international-security-strengthens-caribbean-becomes-free-highly-enriched-uranium, https://www.iaea.org/newscenter/news/iaea-assist-conversion-jamaican-research-reactor-leu-fuel, and http://nnsa.energy.gov/mediaroom/pressreleases/nnsa-removes-u.s.-origin-heu-jamaica-makes-caribbean-heu-free.

  62. 62.

    Findlay 2012, p. 46. Emphasis added.

  63. 63.

    About the complexity of the international legal framework for nuclear security, see also Drobysz 2014, pp. 582–584.

  64. 64.

    Stoiber 2014, p. 514.

  65. 65.

    See p. 8.

  66. 66.

    ICSANT preamble.

  67. 67.

    ICSANT, Article 8.

  68. 68.

    It should also be noted that those definitions are not the same in other areas of nuclear law; see for instance the definition for ‘nuclear installation’ in the Convention on Nuclear Safety, and definition for ‘facility’ in the comprehensive safeguards agreements concluded pursuant to Article III.1 of the NPT.

  69. 69.

    CPPNM as amended (consolidated text), Article 1(d).

  70. 70.

    CPPNM as amended, Article 2(5).

  71. 71.

    ICSANT, Article 1(3).

  72. 72.

    Nuclear Security, resolution adopted on 18 September 2015, GC(59)/RES/10, paras 8 and 9.

  73. 73.

    Johnson 2014, p. 568.

  74. 74.

    For a discussion about obstacles to universalization of the CPPNM amendment, see Johnson 2014, pp. 552–553.

  75. 75.

    UNODC 2008, p. 10. For example, the United States signed ICSANT in 2005, SUA 2005 and SUA PROT in 2006, but ratified them, together with the CPPNM amendment, only in 2015. One of the reasons behind this long delay was that the implementing legislation had to be passed by Congress before the government could submit their instrument of ratification.

  76. 76.

    See Drobysz 2014, pp. 582–584. About the CPPNM amendment, see Johnson 2014, pp. 555–559.

  77. 77.

    Non-paper on the National Legislation Implementation Kit on Nuclear Security, presented to the Nuclear Security Summit 2012, http://nuclearsecuritymatters.belfercenter.org/files/nuclearmatters/files/model_legislation_implementation_kit_on_nuclear_security_march_2012.pdf.

  78. 78.

    Stoiber et al. 2010, p. 18.

  79. 79.

    In its Nuclear Safety and Radiation Protection Act, Jamaica adopted separated definitions for ‘nuclear facility’: a general one covering ‘any facility where activities or practices utilizing nuclear material are conducted’, and a specific one “for purposes of the application of IAEA safeguards”,—that is, measures covering ‘a facility as defined in the relevant Safeguards Agreement between Jamaica and the IAEA’, in line with the requirements of Article III.1 of the NPT. Article III.1 reads: ‘Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.’.

  80. 80.

    Stoiber 2012, p. 13.

  81. 81.

    Johnson 2014, p. 558. See also in that sense Stoiber 2012, pp. 12–13. See also about a unified approach to implementing the maritime and civil aviation conventions, UNODC 2014, p. 106.

  82. 82.

    In that respect, Johnson 2014 notes: ‘In the IAEA’s experience of providing legislative assistance to its Member States, which is available to all of them upon request, many countries choose not to just enact a single law (…) They have also amended and/or enacted relevant laws in the other areas mentioned above i.e. related to information security etc.’ p. 558.

  83. 83.

    Stoiber 2012, p. 15.

  84. 84.

    SC Res 1977 (2011), operative para 1.

  85. 85.

    Nuclear verification and security of material—Measures against illicit trafficking in nuclear materials and other radioactive sources, GOV/2000/40-GC (44)/15, 17 August 2000, para 16.

  86. 86.

    Stoiber 2010a, p. 103.

  87. 87.

    Herbach 2015, p. 10.

  88. 88.

    SC Res 1977 (2011), para 5.

  89. 89.

    See in that sense Elbahtimy and Drobysz 2015, p. 124.

  90. 90.

    Findlay 2012, p. 46.

  91. 91.

    On specific benefits of adhering to and implementing the CPPNM amendment, see Johnson 2014, pp. 565–567.

  92. 92.

    On the CPPNM amendment, see Johnson 2014, p. 559–562.

  93. 93.

    Johnson 2014, p. 567.

  94. 94.

    The Hague Communiqué, para 11.

  95. 95.

    IAEA (2014), VERTIC-Indonesia (2014), http://www.vertic.org/media/assets/nim_docs/NIM%20Tools%20(Guides%20Handbooks)/Nuclear%20Security/NLIK-Nuclear%20Security_EN_3mar2014.pdf.

  96. 96.

    Non-paper on the National Legislation Implementation Kit on Nuclear Security, presented to the Nuclear Security Summit, Seoul 2012. http://nuclearsecuritymatters.belfercenter.org/files/nuclearmatters/files/model_legislation_implementation_kit_on_nuclear_security_march_2012.pdf.

  97. 97.

    Stoiber et al. 2003, preface.

  98. 98.

    Stoiber et al. 2010, p. 2.

  99. 99.

    UNODC 2014, p. 1.

  100. 100.

    SC Res 1977 (2011), operative para 7.

  101. 101.

    See http://www.un.org/en/sc/1540/pdf/UK%20Letter%20effective%20practices%202015.pdf.

  102. 102.

    Dal et al. 2015, p. 15.

  103. 103.

    Dal et al. 2015, p. 16.

  104. 104.

    Bernhard et al. 2015, p. 1.

  105. 105.

    For instance: Thomas Countryman, Assistant Secretary of State for International Security and Nonproliferation, US, during EU Non-Proliferation and Disarmament Conference 2015 Special Session 5, Prospects for the 2016 Nuclear Security Summit and Beyond: ‘There is nothing in a convention on nuclear security that is likely to be agreed that cannot be done today if a country is determined to do it, and I submit to you that the Summit process proved more effective than negotiation of a global convention on nuclear security, no matter how much employment it would have provided for all of us for the five, six, ten years it takes to negotiate. It would not have had the same effect as this Summit process had in mobilising the states that had the most at stake and the greatest responsibility to do it. I am not opposed to a nuclear-security convention. I am concerned that the negotiation of the convention will be a distraction from doing the hard, expensive, physical work of nuclear security.’ https://www.iiss.org/en/events/eu%20conference/sections/eu-conference-2015-6aba/special-session-1-a350/special-session-5-0352.

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    Sonia Drobysz

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    Jonathan L. Black-Branch

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    Dieter Fleck

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Drobysz, S. (2016). A Framework for the Secure Development of Nuclear Energy: Obligations, Challenges and Possible Solutions. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume III. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-138-8_8

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