A Complementary Understanding of International Nuclear Security Instruments: Focusing On

A complementary Understanding of International Nuclear Security Instruments: Focusing on Physical Protection and Criminalising Related Offences

By Onur Güven

The collection of international instruments on nuclear security has been developed relatively recently and is faced with certain challenges. For example, neither the CPPNM (Convention on the Physical Protection of Nuclear Material) nor the CPNNMNF (Amendment of the Convention on the Physical Protection of Nuclear Material) have reached universality. In case of CPPNMNF, it hasn’t even been ratified by two thirds of the State Parties to the CPPNM.

Besides, the collection of international instruments on nuclear security is not a holistic system. They have various scopes and definitions in use whereby it becomes challenging to correctly adopt these instruments into national policies. There is a risk that non-state actors may exploit the weakest chain in the international network as their base or target for a criminal offence. In addition, many of the instruments adopted by the IAEA in the Nuclear Security Series are not always suitable to function as instruments like treaties do in the legislative sense.

Finally, UNSC 1373 (2001) and 1540 (2004) are not vital instruments and do not have the jurisdiction to adopt legislative measures which fall within the mandate of the General Assembly. They are a pleasant reinforcement to the regime on nuclear security and a means to measure and align support by UN Member States, but they could expose weaknesses of nuclear security, should the support on implementing these resolutions weaken and should States interpret the resolutions strictly, using the textual and historical limitations of the UN Charter.

Much more work needs to be done for nuclear security and there is a need to bring all these instruments together to establish a global network of regime.

Coherence, Fragmentation and Exclusions in the International Legal Regime to Counter Nuclear Terrorisms

By Matthew Hoisington

For fear of nuclear terrorism and its unique transnational nature, concerted action has been taken at the international level. Legal instruments, such as the International Convention on the Suppression of Acts of Nuclear Terrorism (ICSANT), the Convention on the Physical Protection of Nuclear Material (and its 2005 amendment), Security Council resolution 1540, and other legal instruments such as Non-Proliferation Treaty have been adopted. Specially, ICSANT was drafted expressly to address the threat of nuclear terrorism, and it provides a formally coherent system of rules to counter the particular issue of nuclear terrorism as well as the mechanism to enhance functional coordination between the different prominent actors who are seized with addressing the threat.

However, the fragmentation of this international legal regime makes the Convention difficult to be an organizing force. The implementation of these legal instruments at the national level is also questionable.

For these problems, preliminary suggestions might include amending ICSANT’s provisions to allow for increased practical cooperation between the various prominent actors, particularly on the issue of prevention and threat-monitoring, operationalizing article 20 of ICSANT as a vehicle for convening formal meetings of States Parties and undertaking a thorough review of the domestic implementation of ICSANT’s obligations. It will also be useful to obtain a clear understanding from representatives of State Parties and the relevant specialized agencies on the utility of ICSANT as the central instrument to counter nuclear terrorism.

The fragmentation in the legal order has created fragmentation operationally, which, although not without certain advantages, necessitates effective institutional methods of cooperation. Particularly, international administrative law can be put to use to effectively organize the administrative and interactive functions of the different actors. Putting in place the bare minimum of administrative structures, such as secretariats, mechanisms for continuous review and mandated lines of communication, and combining them with a generally applicable set of operating principles, could, if properly planned and executed, achieve this objective.

In addition, a better understanding of the juridical justifications offered by terrorists in their pursuit of nuclear terrorism and related activities must be achieved. This will enable the international community to address one important aspect of the conditions conducive to nuclear terrorism, namely, the use and issue of juridical reasoning by terrorists to justify clearly odious acts.

Partial Nuclear Disarmament Measures and the Step-by-Step Approach

By Michael Spies

The step-by-step approach to nuclear disarmament continues to be considered the only possible way forward, despite major changes in the international security environment since the end of the Cold War. The prevailing notion of this approach was formulated back in 1957, at a time when the nuclear powers were actively conducting nuclear tests, building up fissile materials and introducing newer and more capable nuclear weapon systems. Since then, the nuclear-weapon States have ceased the production of fissile materials, observed an indefinite moratorium on nuclear testing, and greatly reduced their stockpiles of nuclear weapons.

Yet, the step-by-step approach, which envisages the sequential conclusion of separate multilateral instruments to accomplish to above-mentioned objectives, is still considered the only way forward. Though realist concepts remain popular both in academia and especially amongst policy-makers, the influence of domestic military and scientific institutions better explains why disarmament has been perpetually forestalled. While there is nothing new in this perspective, it remains valid despite never captured the attention of mainstream policy-makers.

This perspective is relevant because it points to how the current impasse on nuclear disarmament might be overcome. It may be useful, for instance, to revive early proposals for reducing military expenditures and armed forces, particularly as the UN’s efforts in this area has recently been limited to increasing transparency. Civil society has been promoting the humanitarian approach, which could be useful if it can address domestic influences which do not have an interest in disarmament.

In conclusion, there is a need to develop a better theoretical understanding of the role of domestic institutions in politics. There may be significant scope for this within the context of current leader-based theories.

A Rights-Based Approach to Nuclear Disarmament and Non-Proliferation

By Mutony Mubiala

A competitive approach to Nuclear Disarmament and Non-Proliferation (NDNP) is prevalent but it is problematic. Over two decades, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has been promoting the application of a rights-based approach to UN international cooperation programmes and activities, including in the field of peace and security. Integrating the human rights-based approach contributes to a shift from competitive approach to NDNP.

States possessing nuclear weapons are categorized into two categories: democratic weapon States and non-democratic weapon States. For democratic weapon States, disarmament and non-proliferation policy should be implemented at the national level and the serious and massive consequences of use of a nuclear weapon should be stressed as a massive violation of human rights. These States are party to the Human Rights Treaties, which will protect their population from such violations.

In addition, unilateral measures may encourage other countries to take the same measures. When Gorbachev came into power, the USSR was facing an economic crisis, and he took unilateral measures, withdrawing nuclear arsenals from Eastern Europe. Unilateral and a confidence-building approach is important for NDNP. UN Secretary-General, Ban Ki-moon addressed the Monterey Institute for International Studies with the following: “Be a first mover. Don't look to others or to your neighbours to start disarmament and arms control measures.”

The Challenge of Non-State Actors in a State-Based Regime

Fiona Simpson

Regime theory was created in the 1970s and many of the political theories in the 80s were about the regime; for example, in 1982, the journal International Relations was entirely dedicated to regime theory. Once the regime is established, there was not much room for discussion on why a regime occurs in the first place and why it matters. After that, a neo-liberal approach was introduced to theory, which focuses less on power but more on cooperation.

At the end of the 80s, the rise of the cognitivist’s approach influenced regime theory. This approach is concerned more with dynamism and the process of how the regime is made. According to this theory, the regime constantly needs to be changed.

Since the 1990s, regime theory has fallen out of favor. A non-nuclear proliferation regime is a counterpoint to all of these previous regimes. The first example was India’s nuclear weapons test in 1974. India was not part of the NPT. International reaction to this test varied and the Nuclear Suppliers Group (NSG) was formed to check international nuclear proliferation. What was shocking to the Western world politically was the nuclear capability of developing countries.

The revelation of Iran’s nuclear programme in 1991 lead IAEA to do an entire verification, giving the agency a role in the regime, from accounting to verification. In 1997, an additional protocol was added to the NPT and the verifying approach was put in place.

The 1981 bombing by Israel revealed that Iraq was developing a nuclear programme contrary to the IAEA recommendations, but nothing really happened afterwards. Cluster events happened in the early 2000s, such as 9.11, the Iraq War and Libya’s nuclear development, yet little development in political theory has been seen since the last change.

Academic theories of the regime hold up the reality of how a non-nuclear proliferation regime works in practice, and practitioners should cooperate more with academia. Understanding how a regime changes and strengthening the regime rather than undermining it may help us prevent future conflicts.

Mark MacKew

“Deterring the ‘Undeterrable’”

Deterrence theory was developed during the Cold War but it can still be used today for extreme terrorist organizations. Deterrence can be categorized into two types; deterrence by punishment and deterrence by denial. For deterrence theory to work, we have to have certain conditions. Most importantly, we have to assume or presume that the other actor is rational and one must have leverage over something the other actor values. The more these conditions are met, the more the theory works.

Deterrence by punishment is losing value in academia and in policy-making. Its validity was questioned even during the Cold War. On the other hand, deterrence by denial seems more valid and supported by the US government. It is based on the assumption that if both actors are rational, the adversary is able to formulate a cost- benefit analysis of their actions. This deterrence can be realized by increasing the perceived costs of the value item or decreasing the perceived benefits of the value item.

As for the tools of the UN and the global system against nuclear terrorism, there is UNSCR 1540, which is universal and gives incentives to States to achieve the goal of the resolution. Others are the G8 Global Partnership against the spread of weapons and materials of mass destruction, and Zangger Committee and Non Suppliers Group, which work well with UNSCR 1540.

For the future of deterrence and the UN’s role, it is important to develop non-nuclear security, which assists non-nuclear States and develop States in forming and increasing their security, especially in terms of supply-chain security. It is also necessary to understand the complexity of different systems, such as law enforcement, border patrol, finances, as well as to anticipate new risks through macro-prudential policy and continue to form policy with deterrence as an objective.

The Humanitarian Initiative to Non-Nuclear Proliferation

Junko Hirakawa

The total elimination of chemical weapons is almost impossible and it’s not even covered by the Chemical Weapons Convention. About 2 years ago, one chemical component actually killed around 40,000 people within 24 hours, causing extensive air and marine pollution. The same chemical component damaged another community last year. Since 1990, civil society has been calling for the total ban on this chemical component, but so far no State has created a law actually banning it. This is actually an analogy and the chemical component discussed here is water – but as you know, no one can really prohibit water- but this analogy is a good example to question the State’s ability to completely control anything.

The outcome of 2010 NPT RevCon expresses its concern at the catastrophic humanitarian consequences of any use of nuclear weapons and appeals to Member States to comply with applicable international law. However, can we really eliminate nuclear weapons because of the humanitarian impact they may cause?
In fact, the Humanitarian Initiative promoted at the Oslo conference in 2013 as the consequence of 2010 NPT RevCon is not the first time when the international community tries to prohibit nuclear weapon in light of its humanitarian consequences. In 1996, the advisory opinion of the ICJ, “Legality of the Threat or Use of Nuclear Weapons”, says “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law” but it implies that the use of nuclear weapons may be legal if it’s exercised as self-defense, and it did not really touch upon the legality of nuclear threat. But the new development in the outcome of the 2010 NPT RevCon is that it omitted the word “threat” and condemns only “any use of nuclear weapons.” You can interpret it as saying that nuclear deterrence is permitted. Even Pope John Paul II mentioned that nuclear deterrence could be morally acceptable in his speech in 1982. So the question lies in whether the Humanitarian Initiative is logical enough to achieve what its promoters want, nuclear non-proliferation.

Red Line Politics: Why Do States Place Thresholds on Foreign Nuclear Programs?

Todd C. Robinson

On September 27, 2012, Israeli Prime Minister Benjamin Netanyahu identified a nuclear red line for Iran that, if crossed, may lead to the use of military force to prevent Iran’s acquisition of nuclear weapons. Israel’s red line for Iran would be the enrichment of uranium beyond the 90% threshold typically considered necessary for the production of uranium-based nuclear weapons. Shortly before this pronouncement, the Obama administration also stated that they would not allow Iran to manufacture nuclear weapons but stopped short of publicly stating a threshold beyond which Iran would not be allowed to cross.

Even if the United States or anyone else places a red line, it remains unclear how much it is able to influence Iran’s decision to develop nuclear weapons or not. Under the terms of the Nuclear Non-Proliferation Treaty (NPT), Iran is guaranteed the right to enrich uranium to any level they desire, as long as it is not used in the production of nuclear weapons. The “dual-use problem”- the fact that virtually all of the technologies required to produce nuclear weapons may be obtained as a part, byproduct, or under the guise of other nuclear technologies – makes it difficult to determine whether the State is developing a nuclear weapon or not. Placing a red line may also strengthen Iran’s resolve to actually produce nuclear weapons.