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 Power
Other Sources
120
100
80
60
% Nuclear
# of Plants
40
20
0
United
States
China
India
France
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:
United States
Reprocessing
• President
Eisenhower
“Atoms for Peace”
in 1953
• Atomic Energy Act
of 1954
• IAEA in 1956
United States
Suspends
Reprocessing
• President Carter’s
XO suspends
reprocessing in
1977
• 1981 President
Reagan Lifts the
ban, but
regulatory issues
prevent
reprocessing
France, Japan,
Russia and
United Kingdom
continue
reprocessing
U.S. leadership is
irrelevant
Legal Responses
1.
2.
3.
Non-Proliferation Treaty (NPT)
Global Nuclear Energy Partnership (GNEP)
Bilateral Agreements
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 noncompliance 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
Shadow of the Law

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.
Shadow of Violence


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.
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 freemarkets, 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 Partnership
President
George W. Bush
announced his
Advanced
Energy Initiative
at the State of
Union Address
in January
2006
2nd Meeting
(Vienna
September
2007) eleven
countries joined
"GNEP
Statement of
Principles”
May 2007,
DOE provided
millions in
funding
In February 2008,
two more countries
became members of
GNEP: the Republic
of Senegal and the
United Kingdom.
By the end of 2007,
three more countries
had become
members of GNEP:
Italy, Canada, and
the Republic of
Korea
“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.