Between Theory and Reality:

The International Legal Responses to Nuclear Power Risks

“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." –Acheson Lilienthal Report

With all the concerns facing the globe, nuclear power is situated uniquely; perched in a limbo, presenting both a possible solution to some of these concerns while simultaneously creating new challenges. With the growing threat of global warming, many have called for the expansive use of nuclear power as a form of “clean” energy that will help alleviate our carbon-footprint. On the other hand, there are many who fear that expansive use of nuclear power will breed other problems such as nuclear proliferation as nuclear power plants create the fissile material capable of creating nuclear weapons. These concerns have culminated in various international efforts to have the proverbial cake and eat it too—striving to develop nuclear technology without creating risks of nuclear proliferation.

  1. International Relations Backdrop for Nuclear Development

To fully understand the complications facing these efforts one must appreciate the theoretical backdrop that underpins them. According to the dominate intentional relations theory called realism, the international system is composed of independent, sovereign states organized according to what most international relations theorists trace back to the Peace of Westphalia in 1648. This combination of treaties known collectively as the Peace of Westphalia ended both the Thirty Years War plaguing the Holy Roman Empire as well as the Eighty Years War between the Dutch Republic and the Spanish empire, but more than a simple end to these devastating wars, the agreements ushered in the modern view of international relations. The essential tenet of the agreement allowed states to choose their religious affiliation and other states were required to respect this decision. Out of this pragmatic neutrality vis-à-vis a neighboring state’s decision grew an entire theoretical edifice to analyze state interaction on the international stage, and it came to be called realism.

The most important elements of this system are its “anarchic” model whereby no higher-authority exists to impose demands upon the states in the system. Instead, states organize themselves according to what is often described as a “zero-sum” game for power; each state striving to tip the hegemonic balance in its favor at the expense of other competing states. Importantly, international law is somewhat repugnant to the realist conception because—for it to be effective—it presupposes some higher authority to both make and enforce the law upon a sovereign state.

Despite its repugnancy, international law exists, and to best predict a course of action involving international law, one must understand how states will respond to the law given their realist intentions. The only way to allow international law to have any effect is to alter the incentives of states in this power-game. Thus, the question is whetherinternational law can respond to international-realist concerns in resolving the conflict between the need for nuclear power and the desire to prevent nuclear proliferation? To put it a different way, can international law create the incentives necessary to feed the desire for nuclear power while de-incentivizing the desire of other states to gain an advantage in the power-game by developing nuclear weapons?

  1. Brief History of International Controls on Nuclear Power

At present, 443 commercial nuclear power plants operate worldwide spread among thirty-one nations, supplying roughly seventeen percent of global electrical power, but, the exploitation of nuclear power varies from country to country. For example, the United States currently has 104 power plants accounting for twenty percent of its power while France operates fifty-nine plants accounting for 77.7% of its power and China only six plants for 2.2%. 20 COLO. J. INT'L ENVTL. L. & POL'Y 391, 399. While thirty-one countries have nuclear power, only nine countries in total are recognized by the international community as possessing nuclear weapons: the United States, Russia, the United Kingdom, France, China, Israel, India, Pakistan, and North Korea.However, the fear that others may acquire the bomb has driven international nuclear policy since the moment the first nuclear weapon was created in November of 1942. In 1945 President Eisenhower set the task of researching and developing a proposed U.S. policy to the State Department, which created a commission headed by then Undersecretary of State, Dean Acheson. The product of that Commission has been known as the Acheson-Lilienthal Report, which ultimately concluded that whatever policy the United States pursued had to account for the interdependency between nuclear power and the risk of nuclear proliferation.

Additionally, the Report proposed a plan to set up international controls over nuclear technology, and Bernard Baruch, President Truman’s special representative to the U.N. Energy Commission, presented a version of the plan to the U.N. that would have established an international depository for fissionable material. This plan failed due in large part to the Soviet Union’s desire to scuttle what it perceived to be the United States’ attempt to monopolize nuclear power and nuclear weapons.

The failure of this international, multi-lateral plan prodded the United States and others such as Canada to develop bilateral agreements with foreign countries whereby these countries would obtain nuclear-power technology in exchange for signing paper agreements that contained “peaceful assurances” promising that the technology would exclusively be used for “peaceful” purposes. This became a national policy in the United States with President Eisenhower’s famous “Atoms for Peace” speech in 1953. Soon after, the enactment of the Atomic Energy Act of 1954 allowed and supported the transfer of nuclear power technology from the United States to other countries. Although the policy would receive significant international support when the United Nations created the International Atomic Energy Agency (IAEA) in 1956 to oversee and track the transfer of nuclear technology and nuclear material worldwide, another decade would pass before a formalized international response to this issue was made. 16 U. Balt. J. Envtl. L. 127, 131. Not until 1967 would the world create formal controls in the form of international safeguards to prevent the spread of nuclear technology capable of sparking nuclear weapons proliferation with the signing of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).9 Vt. J. Envtl. L. 305, 319.

Even with the enactment of the NPT, the United States became weary of the threats of nuclear power potentially enabling new countries to develop nuclear weapons, so, in 1977, President Carter issuing an executive order banning commercial reprocessing of nuclear fuel. Despite President Reagan lifting this ban just four years later in October 1981, costs and regulatory issues never allowed for reprocessing of spent fuel to restart in the United States. 16 U. Balt. J. Envtl. L. 127, 130. Unlike in the United States, global reprocessing efforts continued and currently four nuclear reprocessing plants are in operation: COGEMA in La Hague, France; Mayak in Russia; Sellafield in the United Kingdom; and Tokai, in Ibaraki, Japan. 16 U. Balt. J. Envtl. L. 127, 133. The most important lesson to draw from the reprocessing history is that the international community has not always followed the United States’ lead on issues relating to nuclear policy.

Such is the case with nuclear power itself. Until very recently, the United States has not supported the expansive use of nuclear power as a domestic energy source. Nonetheless, the world is undergoing what many call the “nuclear renaissance” as developing countries like China and India seek to satisfy their rapidly growing electricity demands with new sources including nuclear power. Therefore, any effective regime designed to thwart nuclear proliferation must include ways to handle the increasing use of nuclear power.

  1. Current International Legal Reponses to Proliferation
  1. The Non-Proliferation Treaty (NPT)

Although the United States has not supported nuclear power as a solution to global warming until recently, it has been actively engaged in preventing nuclear proliferation on multiple fronts. Since 1970, the United States has staunchly supported efforts under the NPT to prevent proliferation as it has served as “the bedrock of the global non-proliferation regime.”26 Berkeley J. Int'l L. 206, 207.Nonetheless, the efficacy of the NPT has been called into question by a series of events including: (1) India and Pakistan's nuclear tests in May 1998, (2) North Korea's recent nuclear tests and continuing uranium enrichment since October 9, 2006, and (3) Iran's ongoing uranium enrichment program. 26 Berkeley J. Int'l L. 206, 207. Aside from these recent events, the NPT has long suffered from more systematic problems including: (1) refusal by critical states such as Israel, India, and Pakistan to join the NPT, (2) charges by mostly Arab and non-Western states that the NPT discriminates against them by refusing their right to nuclear weapons, and (3) the lack of any institutional mechanism to ensure the long-term NPT goal of disarmament is carried to fruition. 26 Berkeley J. Int'l L. 206, 207-211.

As many problems as it faces, it should be noted that the nonproliferation regime is under stress; it is not broken. The solution to proliferation risks lies in providing alternatives that persuade non-nuclear-states to refrain from developing weapons, and in ensuring that the system has effective monitoring of peaceful nuclear power. To understand why this is the case, there are two important factors worth noting. First, the NPT has been and should continue to provide the best international framework for combating the spread of nuclear weapons while encouraging the development of nuclear power. Second, the solution to the problem remains heavily rested on the shoulders of the United States, a country that must reassert itself into the international efforts to not only curb nuclear proliferation but also encourage the development of safe nuclear power technologies. Both of these factors will continue to rely on the United States ability to shape international legal policy.

To understand why the NPT continues to function effectively despite its many stresses, one needs to understand its structure. The NPT is designed to deal with conflicts as they arise rather than to prevent them from occurring out right. This can be attributed to the original tension recognized in the Acheson-Lilienthal Report that nuclear power and nuclear proliferation go hand-in-hand, so it would be a pipe-dream to assume the conflict can be resolved outright. The economic benefit of nuclear power ensures its continued viability, which in turn ensures the continued risk of proliferation, but since this conflict is expected, it does not spell impending doom as many commentators have argued over the past decade.

To begin with, the NPT is a multilateral treaty that contains a unique dispute system designed to manage conflict over the use of nuclear technology between member-states. 26 Berkeley J. Int'l L. 206, 208. Central to its goal of managing these conflicts is its core value that no state should possess nuclear weapons; a goal accomplished by encouraging non-proliferation, the peaceful use of nuclear technology, and ultimate disarmament. To achieve its goals, the NPT divides member states into two categories, either nuclear-weapon states (NWS) or non-nuclear-weapon states (N-NWS), and imposes obligations on each.[1] The NWS pledges not to transfer nuclear weapons to any other state or assist in their developmentwhilethe NNWS—party to the treaty—agree not to receive, develop, or seek to develop nuclear weapons. For example, Article III requires non-nuclear-weapon states party to the treaty to accept comprehensive International Atomic Energy Agency (IAEA) verification processes to ensure a state is not diverting nuclear technology for weapons purposes. In addition, 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.

Despite these obligations, the international community has recognized that self-interested states in the realist system may buck their “obligations” if their interests demand it. Thus, as President Ronald Regan famously said: “Trust everyone but verify everything.” This principle is at work in the NPT which relies on the IAEA to ensure compliance with non-proliferation goals. The IAEA was established in 1957 as an international effort to curb proliferation by implementing verification procedures against states developing nuclear power. The IAEA 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."26 Berkeley J. Int'l L. 206, 215. The “safeguards agreement” between these NNWS and the IAEA covers "all source or special fissionable material in all peaceful nuclear activities" carried out under the state's control.26 Berkeley J. Int'l L. 206, 215. All states party to the treaty pledge not to provide fissionable material or the means to produce it unless it is subject to IAEA safeguards. On a practical level this includes: examination of facility designs, prescription of health and safety measures, requiring operational records to ensure accountability of fissionable material, calling for progress reports, sending inspectors who are to have access to all places, data, and personnel associated with nuclear materials, equipment, or facilities under a safeguard agreement, and, if necessary, suspension or termination of assistance to a state if they are found in violation of the agreements and fail to take corrective measures. 26 Berkeley J. Int'l L. 206, 215.

The legal scope of these efforts are determined by the agreement entered into by the Agency and the member state. In the case of state non-compliance, IAEA inspectors must send a report to the Director General, who then transmits the report to the IAEA Board of Governors. After direct negotiation attempts with the state fail, the Board of Governors reports the non-compliance to all Agency members and also to the United Nations Security Council and U.N. General Assembly. The Board may then take measures to cease IAEA assistance and rescind IAEA materials and support.Finally, the statute stipulates that when there are disputes over the interpretation or application of the IAEA statute that cannot be resolved through negotiations, and parties are unable to agree on any other forum or mode of settlement, the issue is referred to the International Court of Justice (ICJ).26 Berkeley J. Int'l L. 206, 216. Negotiations are undertaken in and influenced by the“shadow of the law” and the“shadow of violence.” 26 Berkeley J. Int'l L. 206, 230. 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, 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." 26 Berkeley J. Int'l L. 206, 230. 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.

In exchange for giving up the right to develop nuclear weapons, the NPT affirms an "inalienable right" of states to develop, research, and use nuclear energy "without discrimination,” as a way of promoting the peaceful use of nuclear power. In this way, the NPT is a good example of international law imposing legal obligations by incentivizing the realist-state to follow those obligations. Rather than relying on a non-existent sovereign power to enforce non-proliferation policy, the NPT entices states to harness peaceful uses of nuclear power while dissuading their desire to develop weapons.

As a case study of this phenomenon, Arsalan Suleman provides a good discussion of how the NPT has effectively dealt with the North Korean saga of nuclear proliferation. 26 Berkeley J. Int'l L. 206, 230-235. First, Suleman points out that while North Korea was a member of the NPT, it was subject to the non-proliferation goals whose violation gave the international community “leverage” to demand that it comply or risk referral to the U.N. Security Council. Second, the original discovery of uranium enrichment was a product of the IAEA inspections. And finally, North Korea itself had leverage to initiate negotiations by threatening to withdraw from the NPT through the NPT withdraw clause. In the end, even if North Korea continues to feel that possessing nuclear weapons is critical to its self-interest and refuses to comply with the international pressure to conform to non-proliferation goals, the NPT has at least served to create windows of time in which negotiations are possible without the resort to military or economic force. Therefore, the criticism of the NPT that seeks to abandon it as a hopeless and failed attempt to curb proliferation misses the critical point: in the age of nuclear power, the non-proliferation regime must be about increasing the windows of opportunity to dissuade proliferation while recognizing the impossibility of curbing it entirely.