CAN INTERNATIONAL LAW RESOLVE THE CONFLICT BETWEEN THE NEED FOR GLOBAL NUCLEAR POWER AND THE DESIRE TO PREVENT NUCLEAR PROLIFERATION? By: Luke MacDowall.

CAN INTERNATIONAL LAW RESOLVE THE CONFLICT BETWEEN THE NEED FOR GLOBAL NUCLEAR POWER AND THE DESIRE TO PREVENT NUCLEAR PROLIFERATION?

By: Luke MacDowall

SETTING THE STAGE: REALISM VS. INTERNATIONAL LAW

Realism: (1) international system composed of independent and sovereign states; (2) anarchical system; and (3) power competition in zero-sum game

International Law: founded on the presumption that law can dictate the choices of states and impose repercussions for failing to abide.

RELEVANT INTERNATIONAL LAW LEGAL PRINCIPLES:

A treaty is a traditional source of international law that “creates specific legal obligations between the treaty parties.” Legitimacy is directly tied to the express consent of the States.

International “norms” and “customary international law” “[A] customary rule of law is binding on all nations, ‘not because it was

prescribed by any superior power, but because it has been generally accepted as a rule of conduct’. To prove that a customary norm exists, a court must establish general acceptance of the rule: first, by demonstrating that State practice is consistent with the rule; and second, by demonstrating that States act in accordance with the rule from a sense of legal obligation to do so. This sense of legal obligation is known as opinio juris.”

 Without unanimous participation in a treaty, the "traditional analysis of State practice and opinio juris" is necessary to evaluate whether a treaty is universally binding even among nonsignors

NUCLEAR POWER IS A GLOBAL ENERGY SOURCE

Global Nuclear Energy: 443 Power Plants Worldwide

17% of global electricity is provided through nuclear power

Sales

Nuclear PowerOther Sources

United States

China India France0

20

40

60

80

100

120

% Nuclear# of Plants

NUCLEAR POWER AND THE RISK OF PROLIFERATION:

Acheson-Lilienthal Report

“The development of atomic energy for peaceful purposes and the development of atomic energy for bombs are in much of their course interchangeable and interdependent."

Proposed a plan to set up international controls over nuclear technology; however, the Soviet Union scuttled plans for an international depository

Countries, including the United States and Canada, contracted sales of nuclear-power technology; buyers were required to sign paper agreements of "peaceful assurances."

HISTORY OF REPROCESSING:

•President Eisenhower “Atoms for Peace” in 1953

•Atomic Energy Act of 1954

• IAEA in 1956

United States Reprocessing

•President Carter’s XO suspends reprocessing in 1977

•1981 President Reagan Lifts the ban, but regulatory issues prevent reprocessing

United States Suspends

Reprocessing

U.S. leadership is irrelevant

France, Japan, Russia and United

Kingdom continue

reprocessing

1. Non-Proliferation Treaty (NPT)2. Global Nuclear Energy Partnership

(GNEP)3. Bilateral Agreements

Legal Responses

Non-Proliferation Treaty (NPT)

Since 1970 the NPT has been “the bedrock of the global non-proliferation regime.”

A multilateral treaty of international law + a dispute system designed to manage conflict over the use of nuclear technology between member-states.

Its efficacy has been called into question by: India and Pakistan's nuclear tests in May 1998, North Korea's recent nuclear test on October 9, 2006,

and Iran's ongoing uranium enrichment program

NPT Legal Structure

Three goals: (1) non-proliferation, (2) peaceful use of nuclear technology, and (3) disarmament. Nuclear-weapon states (NWS) vs. Non-nuclear-weapon states. (N-NWS)• Defined as one that has "manufactured and exploded a

nuclear weapon or other nuclear explosive device prior to January 1, 1967” (i.e. the United States, Russia, the United Kingdom, France, and China)

(1) Article III requires N-NWS to accept comprehensive IAEA safeguards.   • The safeguards agreement covers "all source or special

fissionable material in all peaceful nuclear activities" carried out under the state's control. 

• NWS pledge not to transfer nuclear weapons to any other state

(2) In promoting the peaceful use of nuclear energy, the NPT reaffirms the "inalienable right" of states to develop, research, and use nuclear energy "without discrimination" (3) Article VI requires that each party "undertake to pursue negotiations in good faith" to cease the nuclear arms race and comply with nuclear disarmament treaties.

International Atomic Energy Agency (IAEA)

Established in 1957; motto, "Atoms for Peace” 

Statute authorizes the Agency to "establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information ... under [IAEA] supervision or control are not used in such a way as to further any military purpose."  

Agency must enter into a comprehensive safeguards agreement, specific project agreement, or "voluntary offer" agreement.  These agreements determine the scope of the IAEA's monitoring and verification powers.  

IAEA Procedures

State non-compliance: IAEA inspectors must

send a report to the Director General,

who then transmits the report to the

IAEA Board of Governors. 

Disputes over interpretation or

application referred to the International

Court of Justice (ICJ).If direct negotiation with the state fail

Board of Governors reports the non-compliance to all

Agency members and also to the UNSC and U.N. General

Assembly.  The Board may then take measures to cease IAEA

assistance and rescind IAEA materials and support. 

NPT as a Dispute System

Reduce the incentives to proliferate by a) offering them assistance and access to

peaceful nuclear technology, and b) encouraging the nuclear-weapon states

to move towards disarmament.

NPT as a Lego-Realist Institution

On the one hand, the NPT and any relevant agreement signed with the IAEA serve as a legal endowment, a set of rules that allocate rights and obligations for all parties involved. 

On the other hand, states in their individual and collective capacities have recourse to means of coercion and violence to achieve security objectives. States can unilaterally use economic sanctions or military force to implement their own national security objectives.

In addition, the United Nations Security Council (UNSC), acting under Chapter VII, can authorize the use of armed forces or other measures not involving the use of armed forces, including economic sanctions, to "maintain or restore international peace and security."  Indeed, by stipulating recourse to the UNSC at various levels of the dispute process, the NPT/IAEA system incorporates the shadow of violence within its legal structure.

Shadow of the Law Shadow of Violence

NPT Failures

Four critical states are not parties to the treaty: Israel, India, Pakistan, and North Korea.

Discrimination: Nuclear Racism Charges There is no institution mechanism to ensure

disarmament.

North Korea and Iranian Proliferation

As a member of NPT, int’l cmmty had leverage

IAEA inspections uncovered the problem

NK used the “withdrawl clause” as leverage

NPT set standards to judge NK activity + added opportunity and forum for negotiation to minimize conflict

Iran references Article IV p. 1 for right to NP

IAEA safeguards provide standard to judge

UNSC sanctions only followed non-compliance with IAEA

Maximized window for negotiation

Saving the NPT in light of the Nuclear Power Renaissance

Reestablishing America's Credibility as a Commercial Nuclear Power Leader

The U.S. no longer dominates commercial nuclear technology

But we have the three things (R&D, expertise in operations and maintenance, and prestige) to ensure that a renaissance moves forward without jeopardizing the nonproliferation objectives.

Saving the NPT in light of the Nuclear Power Renaissance

Recommendations: First, the U.S. must take the lead in developing an

international nuclear fuel supply Global Nuclear Energy Partnership is a good

first step Fuel suppliers maintain title of the fuel

throughout the fuel cycle Second, codify new rules to govern commercial

nuclear activities  Rules and norms consistent with American

ideals such as free-markets, openness, and transparency.

U.S. to be fully engaged in the near-term by ensuring that agreements, such as 123 agreaements

Third, the U.S. should reiterate its support to Article IV of the NPT. 

The inalienable right to nuclear power should be contingent on fulfilling obligations and responsibilities under the pact.

If the system is economically rational, credible, and reliable, then peaceful nuclear countries should find participation beneficial.

Global Nuclear Energy PartnershipPresident

George W. Bush

announced his

Advanced Energy

Initiative at the State of

Union Address in

January 2006

May 2007, DOE

provided millions in

funding

2nd Meeting (Vienna

September 2007) eleven

countries joined"GNEP

Statement of Principles”

By the end of 2007, three

more countries had become members of

GNEP: Italy, Canada, and the Republic

of Korea

In February 2008, two more

countries became

members of GNEP: the Republic of

Senegal and the United Kingdom.

“Working Groups”: April 2008, the DOE

invited the national labs, universities, and industry members to compete for

$15 million to advance nuclear

technologies on closing the nuclear fuel

cycle.

GNEP as Realist International Law

GNEP is not an international legal agreement under the Vienna Convention on the Law of Treaties. 

Though GNEP lacks legal commitments and is thus not officially binding, there is an intrinsic pressure to live up to the agreed terms. States also seek to maintain an image of trustworthiness in the international arena so that future agreements, whether political or legal, will be possible. 

Bilateral “123” Agreements

Section 123.a of the U.S. Atomic Energy Act of 1954—which the United States has signed with Australia, South Korea, and 19 other states—allows U.S. companies to share nuclear technology and materials with foreign counterparts, carry out joint research and development activities, and bid jointly on civil nuclear projects.

In May, President Obama submitted the U.S.-Russian Civilian Nuclear Cooperation Agreement to Congress.

Thesis:

The legal responses to proliferation risks associated with nuclear power have had mixed results thus far, but the United States must continue to lead the world through the development of legal regimes designed to ensure peaceful exploitation of nuclear resources. The failure to do so will simply result in other nations filling our leadership void.