Jinsy Ansa Jose
Associate Editor, Legit
This article aims to provide a comprehensive and critical approach of international and regional systems of nuclear non proliferation regime. It begins with the brief backdrop of various treaties and conferences prevailing and relevant on the field. Further, this article considers the obligations of States under various treaties and their implications and sanctions following the non-commitment. Moreover, the involvement of States based on their political as well as security concerns is evaluated. This article also tries to address the gaps in the existing treaties and customary laws, sanctions and settlement related to the compliance. Finally, few suggestive measures are provided.
With the advancement of science, profound insights and experimentation, nuclear energy developed immensely. The newly invented technologies floated the surface with both sustainable growth and threats. The vast usage and easy development mechanism and nuclear weapons being capable of mass destruction created a severe threat to international society and a necessity for control. TheNon-proliferation regime achievement can be attributed to the existing international and regional systems alongside diplomacy and diligence (1). The generations of sufferings reminded the world the need for intervention and regulation of nuclear energy.
This opened nations to adopting the treaty of nuclear non-proliferation, 1968. This treaty aimed at the prevention of the emergence of states with nuclear weapons. The significant steps include the reduction of nuclear arsenals, controlling and implementation of barriers to the proliferation of weapons. The notion of ‘nuclear non-proliferation’ focuses on twofold issues: (a) States that possess nuclear weapons and are aiming at increasing their stockpiles or improving technical sophistication or developing new weapons (disarmament or vertical non-proliferation), and (b) States or non-State entities that do not have nuclear weapons but are acquiring them or developing the capability and materials for producing them (horizontal non-proliferation)” (2). Almost nine states (China, France, India, Israel, North Korea, Pakistan, Russia, the United Kingdom, and the United States) are known to possess nuclear weapons, while thirty others have the technological architecture to develop to acquire them. Amid various concerns in legal jurisprudence, the environmental concern of exhausting the available fossil fuels is terrifying. One may hope that, despite inevitable setbacks, progress in one direction of arms control and disarmament will, in a form of beneficent synergy, help to promote progress in other directions.
The pioneer step towards attaining global security and peaceful use of nuclear energy was taken at the First International Conference on the Peaceful Uses of Atomic Energy organised by the United Nations in Geneva in 1955. The conference paved ways to identify, appropriate and scrutinise the nuclear energy applications by various countries since 1939. The nations were guided by the fear that unless the international trade is strictly monitored, it will create chaos, monopoly and hustle in the international nuclear trade. This fear was explicitly portrayed in various agreements with the strict impositions of safeguards. Further, by 1960, as international nuclear commerce increased, the safeguards were customary and invariable conditions to the trade(3).
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) (4)has become a cornerstone of international efforts to prevent the spread of nuclear weapons, to eventually eliminate them and to facilitate peaceful use of nuclear energy. With more than 190 countries participating, the NPT can be equated close to world participation. The treaty was initially created with the outreach for 25 years but later extended for an indefinite period to attain the purpose of nuclear disarmament. The NPT remains unique as there is no other international agreement based on a bargain between nuclear and non-nuclear-weapon states. The objective of the treaty is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament. This multilateral treaty was opened for signature in 1968 and came to force in 1970. The significance of this treaty was that it bound the States including the five nuclear weapons owned States, to at least ratify the NPT Treaty.
The probing question of whether the NPT is a part of customary law has been knocking around in international legal discourse for a long time. Different approaches were considered by scholars.NPT has not given the elements of customary law for clear universal principles to attach to, in order to enable the creation of parallel custom, unlike in the cases of the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC). On the other hand, there is sufficient evidence of state practise and opinio juris to support the conclusion that either or both Article IV or Article VI has become principles of customary international law.
Another step towards peaceful use of atomic and nuclear energy is International Atomic Energy Agency which is an autonomous organization under UN established in 1957 that seeks to promote the peaceful use of atomic energy and inhibit its use for any military purpose. The IAEA acts as a watchdog of the member countries regarding the programmes involving nuclear energy. Under the various agreements of IAEA, inspectors verify the maintained records of inventories, regularly visit authorities of member states, scrutinise the installed instruments and various surveillance equipment. Other safeguard measures provide independent, international verification that governments are abiding by their commitments to the peaceful use of nuclear technology. 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” (5). The sources for such safeguards system are - IAEA Statute; - Comprehensive State Agreements (CSAs); - Additional Protocols. The safeguard system of IAEA as the name suggests only acts as a collective forum which preserves information provided by the respective states. It further undertakes verification mechanisms which include inspections. The inspections can give warnings about the activities which are unaccounted or are being used for military purpose. The action is taken only includes the diplomatic approach, negotiation or to the very extent calls upon for the exercise of force and interventions against the violator.
The combined exercise of IAEA along with NPT necessitates each Member State to adhere to a “comprehensive safeguards agreement” with the IAEA to facilitate verification by the Agency of the State’s compliance with its treaty obligations. CSA provides an obligation to the agency to verify the correctness of the declaration of the State. This can provide credible assurance of the non-diversion of nuclear material other than that from prescribed and agreed activities. The first set of a comprehensive set of the established safeguards (INFCIRC/66/Rev. 2) became invaluable as the agency and the international community decided to stop the spread of nuclear weapons. On the contrary, the negotiators of the NPT (6)opined that the IAEA should be the principal body to apply safeguards to nuclear material in non-nuclear-weapon States.
There are certain similar safeguards provided by various regional systems. Nuclear weapons free-zone treaties (NWFZ) is one of the prominent one. NWFZ treaties constitute a regional system for the establishment of norms of non-proliferation in certain areas. The bilateral or multilateral agreements that create Nuclear Free Weapons Zones (NWFZ treaties) are the following: Tlatelolco, Rarotonga, Semipalatinsk, Bangkok, and Pelindaba Treaty. The African Commission on Nuclear Energy (AFCONE), established within the framework of the Pelindaba Treaty started working in 2011. The primary mission of this treaty was monitoring the compliance by the State Parties with their non-proliferation obligations (7).
The Treaty on the South Pacific Nuclear-Weapon-Free Zone (SPNWFZ) prohibits the testing, manufacturing, acquiring, and stationing of nuclear explosive devices on any member's territory. The treaty mandates all member states to comply with International Atomic Energy Agency safeguards to peaceful nuclear activities. States are obliged to provide reports and to exchange information regarding its compliance to the safeguards. The Treaty on a Nuclear-Weapon-Free Zone in Central Asia (CANWFZ) provides that Central Asian states undertake not to research, develop, manufacture, stockpile, acquire, possess, or have any control over any nuclear weapon or another nuclear explosive device, not to seek or receive assistance in any of the above, or assist in or encourage such actions.
At the international and regional level, there are other treaties dealing with denuclearization of certain areas: The Limited Test Ban Treaty, the Seabed Treaty, Antarctic Treaty, Outer Space Treaty, and Moon Agreement.
Limitations to the effectiveness of systems of nuclear safeguards
The advent and development of the nuclear disarmament to be attained was obstructed by various setbacks. A major setback of the IAEA regime is that the acceptance is voluntary. The States are given complete discretionary power to either be a part of the agency or to stand-out. All safeguards agreements are entered into at the instance of a State or group of States and the IAEA has no power to compel any State to sign any treaty or agreement. Furthermore, IAEA safeguards are put into action only when the State concerned has negotiated and concluded a specific safeguards agreement with the IAEA or when a State has acceded to an existing safeguards agreement. The major function of IAEA is to provide timely and adequate warning to the member states and security council when any breach occurs. IAEA is impaired by any legal stand or authority to actually implement or statutorily compel member states to take or refrain from a particular action. It is only inculcated with the power to impose limited penalties for non-compliance rather than having the power to decide on measures of enforcement such as imposing political or economic sanctions (8).
Furthermore, with the constant advent of the member states insisting on reducing the number of routine visits and checks at nuclear plants creates contradiction and jeopardises the object behind setting up of this agency. The mandate of providing short notice reduces the actual chances of finding any deceptive process or mechanisms. And, due to the international presence of the agency, IAEA is forced to be non-discriminatory.
The Agency has to consider all the states at equal footing. The active precaution and warning can only be provided when there is an explicit and primitive violation of safeguards. The refocusing of safeguards so as to verify the activities of States rather than the operations of individual plants and the fact that the range of information collected by safeguards has been greatly broadened and includes media reports are expected to permit differentiation between States on an objective basis. IAEA safeguards bring government into their ambit but this has not widened their scope to bring individuals into the same (9). The national requirements for timely action and the amounts of material involved, therefore, differ considerably from those relevant to international safeguards. However, the IAEA does not verify compliance to Articles I or II of the NP. It only complies with the technical objective established in the CSAs.
The backdrop of the NPT is the fact that four out of nine reviews conferences were concluded without reaching any consensus. The proliferation of charges and opinionated disputes in relation to disarmament may even perceive the treaty to be obsolete or collapsing. With the introduction of the Treaty on the Prohibition of Nuclear Weapons (TNPW) which contemplates prohibiting all nuclear activities, the discord between the member states who voted in favour of the same and others began. The TPNW was opened for signature in September 2017 and has already been signed by 59 countries and ratified by ten. TNPW can be observed as a symptom of the NPT’s midlife crisis(10) and NATO allies even consider that this treaty will undermine and make the NPT less effectuate (11). Various States have already expressed their remorse against the slow process of disarmament and have acknowledged the introduction of TNPW to strengthen the process of NPT. The new treaty can completely change the outlook of the nuclear energy safeguards and NPT may turn out to be a paper tiger.
Another major challenge is that the states, even after accepting the reduction of nuclear energy, invests further in the various exotic nuclear capabilities. Russia’s increased emphasis on nuclear investments prompts the United States to increase its nuclear capabilities (12) while Chinese action in nuclear realm remains doubtful, yet trying to keep the pace with other states and as a strategic competition towards India. US and NATO allies are often not ready to reduce their nuclear arsenals (13). On January 20, 2020, Iran threatened to withdraw from the NPT if European powers referred Iran to the U.N. Security Council over its breaches of the 2015 nuclear deal. This was triggered by the “improper behaviour” of the European States that obliged Iran to follow the conditions on the treaty. The unity of members of NPT is in question owing to the failure of China and the US to resolve the North Korea Missile and Nuclear problem. This is more complicated with the collapse of JCPOA making NPT landscape in Middle-East more on eggshell(14). The advisory opinion of ICJ on nuclear weapons is a necessity. The policy analysis regarding the developments and normative practices answers the questions of nuclear treaties’ evolution to international customary law.
The Non-Proliferation of Nuclear Weapons Treaty observed a change in its pace of achievement in the past 50 years. (15) Even though the initial progress helped in reducing nuclear weapons after the cold war to a great extent, it still couldn’t achieve the final goal of complete nuclear disarmament. The political uncertainty of certain states or their diplomats about the benefits that can arise out the NPT has gravely affected the acceptance of NPT. The rapid growth of technological advance, information explosion vide internet providing access to such sensitive matters to back market suppliers provided it to be harder than expected to track and bring into control. States acquiring nuclear resources from such entities harnessed the development of the NPT processes (16). These areas cannot be brought under IAEA safeguards or control. IAEA’s ineffectiveness in holding the major violators under control or liable for their non-compliance with safeguards agreement also amounts to its limitation.
The framework of the international and regional framework in the regime of a nuclear landscape often happens to be ineffective. This is mainly due to the duplication of IAEA safeguards in regional treaties with abrupt modifications.
Breaking the stalemate: strengthening measures
It is an undisputed fact that there were certain imbalances in the NPT. The conventional forces as well as political decisions of states may dwindle the growth and effectiveness of NPT. This aspect was considered and the drafters aimed in reducing this complexity through future negotiations. The NPT’s provisions on horizontal proliferation have largely ignored disarmament. This requires the active participation of member states to work on the reduction of nuclear arms and disarmament. This unequal treatment does not reflect the provisions of the treaty and the primary responsibility for progressing disarmament lies with the nuclear-weapon states since nuclear weapons are under their authority.
The future endeavours of NPT are highly dependent on the bonafide negotiations aimed at a stoppage of a nuclear arms race and nuclear disarmament. The nuclear-weapon states remained docile towards their obligations of reducing nuclear activities over the past years. All practical steps should be taken towards the reduction of risk of nuclear war. The United States presented a working paper on Creating the Conditions for Nuclear Disarmament, at an NPT review conference preparatory committee in 2018. They welcomed the concerning issues and measures to address the security concerns. Such initiatives are paramount for revisiting the efficiency of the NPT regime. The plethora of other activities including bilateral dialogues,expert-level working groups and networks on verification should also be envisaged to draw up a nascent NPT regime (17).
Another important factor to be addressed essentially is building confidence between the states (18). Many states are reluctant to participate because of the fear that this treaty may provide a chance for a security breach. This can be improved with the strict approach towards all violators along with the confidentiality in the matters of inventories and nuclear strength. This can be achieved by promoting cooperation, transparency, and responsible action by States parties in international trade in conventional arms. The treaty also provides for the International Monitoring System which includes the confidence building measures (19).
One of the other major concerns as discussed above is the lack of commitment of nuclear-weapon states. This perception of insufficient commitment can be fixed on stressing two major factors: - (1) states need to be properly informed and convinced about the security benefits they can derive from a strong non-proliferation regime; and (2) it is essential to press the nuclear-weapon, to make a serious commitment to reducing nuclear risks and pursuing disarmament (20). According to IAEA’s “The Agency’s Safeguard system”, non-compliance with the safeguards and treaties may result in the suspension of IAEA membership benefits and reporting to the UN Security Council. The Security Council measures have rarely succeeded and sanction is lacking binding force (21).
Nuclear safeguards are quintessential for the peaceful habitation of the populace. The NPT treaty and IAEA safeguards are still essential and will always stay as a cornerstone of the non-proliferation regime. It is not wise to say that the end result of Non-proliferation regime is the transformation of every state into a non-nuclear state, rather a constant state where confidence rests between the states. To consider a nuclear weapon world, the states may still try to acquire nuclear weapons to gain an upper hand. Hence, a rigorous non-proliferation regime, including the most effective form of safeguards, will be absolutely essential.
The introduction of TNPW rejuvenated the discussions on nuclear disarmament which can be a major deciding factor of the future of nuclear energy regime. Nuclear disarmament and stigmatisation of nuclear weapons should be a collaborative effort of states and global players of nuclear energy traders. There is no forced imposition of these safeguards or provisions of NPT, hence, states should choose to relinquish the pathways to stop the destruction without endangering their security.
(1) Monis, Ernest J. The risk of a nuclear attack is back at historic levels, 75 years after Hiroshima [online]. NTI, 06 August 2020 [viewed date: 13 November 2020]. Available from:<https://www.nti.org/analysis/opinions/risk-nuclear-attack-back-historic-levels-75-years-after-hiroshima/>
(2) Sidel, Victor W.; Barry S.; Levy.The proliferation of Nuclear Weapons: Opportunities for Control and Abolition. Am J Public Health, 2007, pp. 1589–1594.
(3) Elbaradei, M. The Evolution of IAEA. International Atomic Energy Agency, Vienna, 1998.
(4) United Nations Office of Disarmament Affairs.Treaty on the Non-Proliferation of Nuclear Weapons (NPT)[online]. 11 May 1995. [viewed date: 02 November 2020]. Available from: <https://www.un.org/disarmament/wmd/nuclear/npt/>
(5) Elbaradei, M. The Evolution of IAEA. International Atomic Energy Agency, Vienna, 1998.
(6)NATO. North Atlantic Council Statement on the Treaty on the Prohibition of Nuclear Weapons [online]. 20 September 2017. [viewed date: 12 November 2020]. Available from: <https://www.nato.int/cps/ua/natohq/news_146954.htm>
(7) Colussi, Ilaria Anna. The ‘Landscape’ of Nuclear Safeguards: a Comparative Analysis of International and Regional system[online]. [viewed date: 11 November 2020].Available from:<https://conferences.iaea.org/event/71/contributions/10274/attachments/4997/6101/COLUSSI_paper_Vienna.pdf>
(8) Elbaradei, M. The Evolution of IAEA.International Atomic Energy Agency, Vienna, 1998.
(10) Durkalec, Dr,Jacek. 2018. NATO REVIEW [online]. 18 June 2018. [viewed date: 10 November 2020].Available from:<https://www.nato.int/docu/review/articles/2018/06/29/the-nuclear-non-proliferation-treaty-at-fifty-a-midlife-crisis/index.html#:~:text=The%20non%2Dproliferation%20record%20of,of%20Nuclear%20Weapons%20(TPNW>
(11) Centre for Arms Control and Non-Proliferation.Fact Sheet: Nuclear Non-Proliferation Treaty (NPT) [online]. 14 April 2017.Available from:<https://armscontrolcenter.org/fact-sheet-nuclear-non-proliferation-treaty-npt/>
(12) Reuters. Saudi crown prince says will develop a nuclear bomb if Iran does: CBS TV [online]. 15 March 2018. [viwed date: 12 November 2020]. Available from:<https://www.reuters.com/article/us-saudi-iran-nuclear/saudi-crown-prince-says-will-develop-nuclear-bomb-if-iran-does-cbs-tv-idUSKCN1GR1MN>
(13) Mattis, Jim. NATIONAL DEFENSE STRATEGY [online]. 2018. [viwed date: 15 November 2020]. Available from: <https://media.defense.gov/2018/Feb/02/2001872886/-1/-1/1/2018-NUCLEAR-POSTURE-REVIEW-FINAL-REPORT.PDF>
(15) THE HINDU. 50 years of non-proliferation of nuclear weapons treaty: will disarmament be achieved? [online]. 11 March 2020. [viewed date: 10 NOVEMBER 2020.] Available from: <https://www.thehindu.com/data/data-50-years-of-non-proliferation-of-nuclear-weapons-treaty-will-disarmament-be-achieved/article31041158.ece>
(16) Weiss, Leonard. The Nuclear Nonproliferation Treaty: Strengths and Gaps [online]. [viewed date: 9 November 2020]. Available from: <https://fas.org/irp/threat/fp/b19ch2.htm>
(17) John, Carlson. Is the NPT Still Relevant? – How to Progress the NPT’s Disarmament Provisions[online]. 9 May 2019. [viewed date: 11 November 2020]. Available from: <https://www.tandfonline.com/doi/full/10.1080/25751654.2019.1611187>
(18) Jonathan L.; Black-Branch; Fleck, Dieter. Nuclear Non-Proliferation in International Law. T.M.C. Asser Press, 2014. pp. 18-19.
(19) Venturini, Gabriella. Nuclear Non-Proliferation in International Law. s.l. : T.M.C. ASSER, 2014. pp. 146- 147.
(20) John, Carlson. Is the NPT Still Relevant? – How to Progress the NPT’s Disarmament Provisions [online]. 9 May 2019. [viewed date: 11 November 2020]. Available from: <https://www.tandfonline.com/doi/full/10.1080/25751654.2019.1611187>
(21) Jonathan L. Black-Branch; Fleck, Dieter. Nuclear Non-Proliferation in International Law. T.M.C. Asser Press, 2014. pp. 18-19.
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