Nuclear Non-Proliferation in International Law - Volume V : Legal Challenges for Nuclear Security and Deterrence

This fifth volume in the book series on Nuclear Non-Proliferation in International Law focuses on various legal aspects regarding nuclear security and nuclear deterrence. The series on Nuclear Non-Proliferation in International Law provides scholarly research articles with critical commentaries on relevant treaty law, best practice and legal developments, thus offering an academic analysis and information on practical legal and diplomatic developments both globally and regionally. It sets a basis for further constructive discourse at both national and international levels. Jonathan L. Black-Branch is Dean of Law and Professor of International and Comparative Law at the University of Manitoba in Canada; a Bencher of the Law Society of Manitoba; JP and Barrister (England & Wales); Barrister & Solicitor (Manitoba); and Chair of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law. Dieter Fleck is Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); and Rapporteur of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law. Preface Contents Abbreviations 1 Legal Challenges for Nuclear Security and Deterrence Abstract 1.1 Introduction 1.2 Global Issues and Concerns 1.3 Regional Approaches 1.4 Pathways to Nuclear Disarmament 1.5 Conclusions and Outlook Global Issues and Concerns 2 Questioning International Nuclear Weapons Law as a Field of Resistance Abstract 2.1 Introduction 2.2 International Nuclear Laws that Support and Enhance the Value of Nuclear Weapons 2.2.1 Nuclear Laws that Imply Nuclear Weapons Are Valuable Providing They Are in the Possession of the Right Actors 2.2.1.1 NPT 2.2.1.2 Security Council Resolutions 2.2.2 Nuclear Laws that Imply Nuclear Weapons Are Valuable Providing They Are Subject to Certain Protections and Limitations 2.2.2.1 The Partial Test Ban Treaty 2.2.2.2 The CTBT 2.2.2.3 ICJ Cases 2.3 Nuclear Laws that Devalue Nuclear Weapons 2.4 Reflections 2.5 Conclusion Acknowledgements References 3 The NPT—CTBT Connection Abstract 3.1 Introduction 3.2 The NPT 3.2.1 Review Conferences 3.2.2 Preparatory Committee Meetings 3.2.3 Middle East WMD Free Zone 3.2.4 Nuclear Disarmament Verification 3.3 The CTBT 3.3.1 Entry into Force 3.4 Conclusion References 4 Planning for Disaster—Lessons from the 2011 Tohoku Disaster Abstract 4.1 Introduction 4.2 Defining the Scope of Disaster 4.3 Consequences and Reach 4.4 Planning and Disaster 4.5 Conclusion References 5 The Legal Regime of the Use of Nuclear Power Sources in Space Missions Abstract 5.1 Introduction 5.2 Multilateral Treaties Relevant to the Use of Nuclear Energy in Outer Space 5.2.1 Outer Space Treaties 5.2.1.1 General Obligations 5.2.1.2 Liability Regimes 5.2.2 Treaties on Terrestrial Nuclear Activities and Assistance 5.2.3 Nuclear Arms Control Treaties 5.3 Soft Law Instruments on Nuclear Safety in Space Missions 5.3.1 The Role of Soft Law in the International Legal Regulation of Outer Space 5.3.2 The UN Principles Relevant to the Use of Nuclear Power Sources in Outer Space 5.3.2.1 Scope of Application 5.3.2.2 Safety Standards 5.3.2.3 Assistance and Responsibility 5.3.3 The Safety Framework for Nuclear Power Sources Applications in Outer Space 5.3.3.1 A Partnership Between COPUOS and the IAEA 5.3.3.2 Scope and Structure 5.4 Implementing Soft Law, Present and Future 5.4.1 Overviewing Implementation 5.4.2 Proposals for Revision 5.4.3 The Environmental Issue 5.5 Concluding Remarks References 6 The 2016 ILC Draft Articles on the Protection of Persons in the Event of Disasters and Their Relevance for Victims of Nuclear Accidents and Use of Nuclear Weapons Abstract 6.1 Introduction 6.2 Applicability of the ILC Draft Articles to a Situation Caused by the Detonation of a Nuclear Weapon 6.2.1 Scope of the Draft Articles 6.2.1.1 Definition of ‘Disaster’ in the Draft Articles 6.2.1.2 Does the Detonation of a Nuclear Weapon Qualify as ‘Disaster’? The Impact of a Detonation of a Nuclear Weapon The Assessment of that Impact in Light of Article 3(a) of the Draft Articles The (Unrealistic) Scenario of the Use of a Low-Yield Nuclear Weapons in Remote Location 6.2.2 Relationship of the Draft Articles with Other Instruments Applicable to the Detonation of a Nuclear Weapon 6.2.2.1 General Remarks 6.2.2.2 The Relationship of the Draft Articles with IHL IHL as Lex Specialis Relevant IHL Norms Competing with the Draft Articles The Subsidiary, yet Important Role Played by the Draft Articles 6.2.2.3 Relationship of the Draft Articles with the TPNW 6.3 Main Responsibilities of States and the Duty to Cooperate 6.3.1 Under the Draft Articles 6.3.2 Under the TPNW 6.4 The Applicable Principles in Responding to Disasters 6.4.1 Human Dignity 6.4.2 Human Rights 6.4.2.1 General Remarks 6.4.2.2 The Relevant Human Rights Affected in the Event of a Detonation of a Nuclear Weapon The Right to Life Economic, Social and Cultural Rights 6.4.3 Humanitarian Principles and Vulnerable Groups 6.5 Final Observations References 7 Sanctions in Nuclear Non-Proliferation Law Abstract 7.1 Introduction 7.2 The First Avenue: Suspension of Membership Rights in and/or Expulsion from the United Nations Organization 7.3 The Second Avenue: The Treaty on the Prohibition of Nuclear Weapons 7.4 The Third Avenue: Autonomous Sanctions 7.5 Conclusions References Regional Matters 8 The Unclassical Match Between Brazil and Argentina: Past and Present of the Nuclear-Weapon-Free Zone in Latin America and the Caribbean Abstract 8.1 Introduction 8.2 First Stage: Preparation—Setting the Basis for the Brazilian-Argentine Nuclear Cooperation 8.3 Second Stage: Rapprochement—Brazilian-Argentine Cooperation on Nuclear Affairs 8.4 Third Stage: Internationalization—from Bilateral to Multilateral Nuclear Cooperation 8.5 Final Remarks References 9 Lessons from South Africa’s Voluntary Denuclearisation Process and the African Continent’s Position on Nuclear Weapons Abstract 9.1 Introduction 9.2 The South African Denuclearisation Experience 9.3 The African Position on Nuclear Weapons 9.4 Lessons for Disarmament 9.5 Conclusion References 10 Foreign Assistance in Establishing and Operating Nuclear Power Plants: The South African Experience Abstract 10.1 Introduction 10.2 Nuclear Energy in Africa 10.3 The Trojan Tsar—Russia’s Nuclear Expansion 10.4 The South Africa-Russia Nuclear Deal 10.5 Earthlife Africa Johannesburg and Another v Minister of Energy and Others 10.6 Conclusion References 11 Small Modular Reactors in Canada: Eroding Public Oversight and Canada’s Transition to Sustainable Development Abstract 11.1 Introduction 11.2 From Nuclear Renaissance to Nuclear Relapse 11.3 Nuclear Industry Regulator or Enabler: The Canadian Nuclear Safety Commission 11.4 Responding to the Legislative and Policy Barriers to SMR Development 11.4.1 Applying Sustainability-Based Criteria to SMRs 11.4.2 Consenting to Development: Consideration of Indigenous Interests and Rights 11.4.3 Perspectives on Radioactive Waste: Considerations of Intergenerational Equity and Public Trust 11.4.4 Contravening the Polluter-Pays Principle: Nuclear Liability Protection 11.4.5 Imposing Risk on Future Generations: Proliferation Concerns 11.5 Conclusion References New Approaches Towards Nuclear Disarmament 12 Understanding Nuclear Deterrence Within the International Constitutional Architecture Abstract 12.1 Introduction 12.2 International Constitutional Architecture Governing Peace and Security 12.3 UN Competence in Arms Control and Disarmament 12.4 The UN and the NPT 12.5 Great Power Security Governance 12.6 Security and Law 12.7 Nuclear Deterrence and International Security 12.8 Nuclear Deterrence and International Law 12.9 Managing Nuclear Deterrence in the Security Council 12.10 Conclusion: A New Consensus? References 13 Running Out of (Legal) Excuses: Extended Nuclear Deterrence in the Era of the Prohibition Treaty Abstract 13.1 Introduction 13.2 Australia, Extended Nuclear Deterrence and the TPNW 13.2.1 The Incompatibility of Extended Nuclear Deterrence and the TPNW 13.3 Article VI of the NPT 13.3.1 Interpreting the Article VI Obligation 13.3.1.1 The Twofold Obligation Interpretation 13.3.1.2 The Plain Meaning Interpretation 13.3.1.3 The Minimal Obligation Interpretation 13.3.2 Article VI in Summary 13.4 Is Reliance on Extended Nuclear Deterrence Compatible with Article VI? 13.4.1 Is Article VI Being Fulfilled? 13.4.1.1 The Place of the TPNW in the Current Global Security Environment 13.4.1.2 Australia Is in Breach of Article VI 13.5 Conclusion References 14 The Link Between Nuclear Disarmament and the 2030 Agenda for Sustainable Development Goals Abstract 14.1 Introduction 14.2 From Millennium Development Goals to Sustainable Development Goals: A Short History 14.3 Increased Focus on Global Peace and Security 14.4 Establishing the Link Between Denuclearisation and the SDGs 14.5 Aspects of the SDGs that Are Relevant to Denuclearisation 14.5.1 Goal 16: The Promotion of Peaceful Societies 14.6 Concluding Remarks Acknowledgements References 15 Possible Means to Overcome Tendencies of the Nuclear Weapons Ban Treaty to Erode the NPT Abstract 15.1 Introduction 15.2 The Obligation to Negotiate a Prohibition of Nuclear Weapons 15.2.1 The Obligation to Negotiate in Article VI NPT 15.2.2 Options with a View at Progressive Nuclear Disarmament Under Article VI NPT 15.3 The 2017 Ban Treaty and How it Relates to the Negotiating Obligation in Article VI NPT15 15.3.1 The Treaty and Some of its Possible Weaknesses 15.3.2 The Ban Treaty as Part of a Hybrid Approach? 15.4 The Ban Treaty and Further Elements of a Hybrid Approach 15.4.1 Opening Provisions in the Ban Treaty 15.4.2 Beyond TPNW 15.5 Conclusions References 16 Precarious Peace: Nuclear Deterrence and Defence Doctrines of Nuclear-Weapon States in the Post-Cold War Era Abstract 16.1 Introduction 16.2 The Concept of Deterrence 16.2.1 The NPT and State Obligations 16.3 Continued and Renewed Interest in Nuclear Deterrence 16.3.1 The United States 16.3.2 China 16.3.3 Russia 16.3.4 The United Kingdom 16.3.5 France 16.4 Complete and Verifiable Disarmament Under Article VI NPT 16.4.1 Deterrence and Peace 16.4.2 The Unravelling of US-Russian Bilateral Agreements 16.5 Conclusions References 17 Legal Aspects of Nuclear Weapons Doctrines Abstract 17.1 Introduction 17.2 Modernization of Nuclear Weapons and Delivery Systems 17.2.1 The United States 17.2.2 Russia 17.2.3 The United Kingdom 17.2.4 France 17.2.5 China 17.2.6 India 17.2.7 Pakistan 17.2.8 Israel 17.2.9 North Korea 17.2.10 Assessment 17.2.10.1 Nuclear-Weapons Strategies Are Still Treated as a Realistic Option 17.2.10.2 Banning Nuclear Tests 17.2.10.3 The Use of Nuclear Weapons Under International Law 17.2.10.4 Nuclear-Armed States not Party to the NPT 17.3 Missiles and Missile Defence 17.4 Nuclear-Weapon-Free Zones and Negative Security Assurances 17.4.1 Antarctica 17.4.2 Outer Space 17.4.3 Latin America 17.4.4 The Seabed and the Ocean Floor 17.4.5 South-East Asia 17.4.6 South Pacific 17.4.7 Mongolia 17.4.8 Africa 17.4.9 Central Asia 17.4.10 Assessment 17.5 Monitoring and Control Mechanisms 17.6 Principles and Procedures for Confidence Building 17.7 Conclusions References Index This fifth volume in the book series on Nuclear Non-Proliferation in International Law focuses on various legal aspects regarding nuclear security and nuclear deterrence. The series on Nuclear Non-Proliferation in International Law provides scholarly research articles with critical commentaries on relevant treaty law, best practice and legal developments, thus offering an academic analysis and information on practical legal and diplomatic developments both globally and regionally. It sets a basis for further constructive discourse at both national and international levels. -- Provided by publisher