Irina Gueorguiev, LL.B., LL.M.
Lors d’un échange étudiant à l’Université de Vienne lors de sa dernière session au baccalauréat en 2018, Irina se découvre un intérêt marqué pour les règles juridiques régissant les acteurs formant la société internationale, particulièrement en ce qui concerne la non-prolifération et le désarmement des armes nucléaire. Cela la pousse à faire une maîtrise en droit international à l’Université de Montréal et à rédiger un mémoire portant sur ce sujet. Ayant terminé la formation professionnelle du Barreau du Québec en mai 2021, elle complète présentement son stage dans le Cabinet S. Grynwajc à New York, dans les domaines du droit des nouvelles technologies, du droit des sociétés et du droit des données personnelles, tout en continuant à cultiver son intérêt pour le droit international.
Reconciling the Prevention of Nuclear Terrorism and Peaceful Nuclear Collaboration Among States
Nuclear weapons’ potential for destruction has been known ever since their creation in the past century. The current one saw the growth of the threat of terrorism, including in the atomic field. Nuclear terrorism is indeed transforming the international scene, especially since the September attacks of 2001[i]. It is particularly alarming as the general rules governing the community of nations in the non-proliferation and overall nuclear weapons field are rarely applicable when it comes to this disturbing reality[ii]. For instance, nuclear peace has been made possible these past decades due to nuclear deterrence. Even if the latter is not as safe an option as the much sought-after universal disarmament, it is indeed easier to achieve and has, for now, prevented countries from launching nuclear attacks or responses[iii]. Yet, it offers no security guarantee against terrorist organizations. International nuclear security needs to be enhanced in order to assure that this weapon of mass destruction does not fall in their hands. However, how can one reconcile strengthened security measures with the inalienable right of every sovereign state to “develop research, production and use of nuclear energy for peaceful purposes”, as sanctified by article IV of the Treaty on the Non-Proliferation of Nuclear Weapons[iv] of 1968? We shall start looking for answers at the level of the International Atomic Energy Agency[v] and its comprehensive safeguards agreement system. A pillar of the international non-proliferation system, the Agency still faces some obstacles, such as a restricted scope of verification and a lack of capacity to further intervene in noncompliance situations. This article identifies measures reinforcing the Agency’s capacity of regulation while underlining the importance of state cooperation.
Nuclear terrorism is defined by the International Convention for the Suppression of Acts of Nuclear Terrorism[vi] of 2005 as the usage or threat of usage of nuclear or radioactive material, fuel, products or waste or any other radioactive material with dangerous attributes for malign purposes[vii]. The only way for radicals to obtain a nuclear weapon is through stealing or buying separated plutonium or enriched uranium needed to develop the nuclear weapon, from states already possessing either of those[viii]. They therefore do not yet have the means, time and accommodations to produce them themselves[ix], which underlines the importance of state action preventing such leakage by improving the security of the sought-after material. The security upgrades of weapons- grade material, such as what was undertaken in the former Soviet Union by the United States starting in 1991, need a renewed political enthusiasm for cooperation on nuclear security[x].
The prevention of nuclear terrorism is a communal effort, to be undertaken by the combined efforts of the states’ individual actions in nuclear non-proliferation. The Convention itself underlines the importance of international cooperation[xi]. In order to allow for a peaceful nuclear collaboration in the field of atomic energy and technology, while preventing such menace of terror, the global atmosphere and security must be improved and its international apparatus, enhanced. The community of nations should inter alia aim to restore and reinforce the confidence among countries and foremost strengthen the international monitoring mechanism.
The essence of nuclear non-proliferation is inherently collaborative. Hence, there are steps to be initiated by countries individually, by the nuclear-weapon states specifically, and finally by the two institutions monitoring nuclear non-proliferation, the United Nations Security Council and the IAEA. We shall examine what actions could be undertook by the community of states at the Agency’s level.
The Agency’s role is fundamental in regard to non-proliferation and the peaceful uses of the atom. It is indeed a pillar of the cooperative system in the field. The IAEA’s objectives are to “accelerate and enlarge the contribution of atomic energy to ensure peace, health and prosperity throughout the world” while ensuring that “assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose”[xii]. The Agency does so by concluding comprehensive safeguards agreements[xiii] with the different states and by upholding a dialogue with the Security Council when violations are observed.
Verifications are primordial for the IAEA, ensuring that a state’s obligations under the safeguards agreement are respected. It must however be noted that the safeguards system suffers deficiencies. It permits the detection of diversion of nuclear material for military ends but is lagging when it comes to uncovering malicious uses of installations or clandestine sites[xiv]. This is particularly alarming when it comes to nuclear terrorism as such actions are often carried out in secrecy. It is to be noted that the Agency has the power to conduct special inspections when it considers “that information made available by the state, including explanations from the state and information obtained from routine inspections, is not adequate for the Agency to fulfil its responsibilities under the Agreement”[xv]. In practice, the Agency has been rather timid in this regard[xvi], which should not be, especially in such matter requiring a prompt intervention. The IAEA’s rights of access need nonetheless to be further enhanced. The Model Additional Protocol contained in INFCIRC/5(Corrected)[xvii], designed “to strengthen the effectiveness and improve the efficiency of the safeguards system as a contribution to global nuclear non-proliferation objectives”[xviii], expands the rights of access to information and locations of the Agency and supplements a state’s safeguards agreement. It should be made obligatory or, at the very least, all states should subscribe to it. The Agency itself has already urged them to do so[xix].
Furthermore, in case of noncompliance, the IAEA should temporarily be granted a greater authority of verification. The commitments undertaken by nations under a comprehensive safeguards agreement are often limited even when reinforced with an additional protocol[xx]. Expanded authority will give a greater chance to the Agency to refrain a nation or state actors from pursuing proliferation activities, which lessens the risk that terrorists obtain the weapon or material and resources. This implies also that the Agency should not wait to report a noncompliance situation to the Security Council, as imposed by the IAEA Statute[xxi]. Yet, in practice, the Agency’s Board of Governors waited until February 2006 before they reported Iran’s noncompliance, even though it should have been done as early as November 2003[xxii]. A zero-tolerance position is required to ensure the non-proliferation system’s credibility, which in turn is vital for the reinforcement of trust among nations, allowing them to stand united in front of the threat of nuclear terrorism. Individual states must also adopt such a stance. Among others, nation leaders shall abstain from glorifying the nuclear weapon, an alarming tendency observed in some countries, such as Russia, North Korea and the United States[xxiii]. Those possessing nuclear weapons should also consider reducing the role they allocate them in their national defense, as it is crucial to end the incentives for other states to acquire them[xxiv].
Finally, reinforced verifications through the Agency would enhance transparency concerning activities in the nuclear field of the different states, thus encouraging collaboration and accelerating exchanges of technologies and knowledge. This would be most beneficial to nations seeking access to peaceful nuclear energy and technology. Ultimately, effective heightened security measures allowing for peaceful global nuclear collaboration requires as much the participation of all nations as the reinforcement of the existing institutional mechanisms. For the atom, when well regulated, can be an important vector of peace and development.
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[i] El Baradei, Mohamed “Nuclear Terrorism: Identifying and Combating the Risks”, IAEA News Center, Speech delivered and the International Conference on Nuclear Security: Global Directions for the Future, 16 March 2005.[ii] Wolfsthal, Jon B., «Facing Double Jeopardy – Nuclear Proliferation and Terrorism.» Georgetown Journal of International Affairs, vol. 6, no. 1, Winter/Spring 2005, p. 15-22, p. 15.
[iii] The Mutually assured destruction (MAD) principle is a strong deterrent element.
[iv] Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, (5 March 1970), U.N.T.S. vol. 729, No. 10485, hence after “NPT”.
[v] Hereafter “the IAEA” or “the Agency”.
[vi] International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005, (7 July 2007), U.N.T.S. vol. 2445, p. 89, Res. A/RES/59/290, hereafter “the Convention”.
[vii] The Convention, art. 2.
[viii] Litwak, Robert S., Deterring Nuclear Terrorism, Washington, Woodrow Wilson, 2016, p. 5.
[ix] Wolfsthal, Jon B., supra, note 2.
[x] Ibid.
[xi] The Convention, preamble.
[xii] International Atomic Energy Agency Statute, 23 October 1956, (29 July 1957), hereafter “IAEA Statute”, art. II.
[xiii] The Comprehensive Safeguards Agreement is concluded with a non-nuclear weapon State under INFCIRC/153 (Corrected).
[xiv] Heinonen, Olli, “Strengthening the IAEA Safeguards Regime”, Harvard Kennedy School Belfer Center, 13 November 2013.
[xv] International Atomic Energy Agency, The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, INFCIRC/153 (Corrected), par. 73.
[xvi] Heinonen, Olli, supra, note 14.
[xvii] International Atomic Energy Agency, Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards, INFCIRC/540, September 1997, hereafter “INFCIRC/540”.
[xviii] INFCIRC/540, preamble.
[xix] See International Atomic Energy Agency, Resolution GC (48)/RES/14, §10, September 2004.
[xx] Goldschmidt, Pierre, “Nuclear Nonproliferation: Six Lessons Not Yet Learned”, Arms Control Today, 20 March 2018.
[xxi] IAEA Statute, art. XII (c).
[xxii] Kittrie, Orde F., “Averting Catastrophe: Why the Nuclear Nonproliferation Treaty is Losing its Deterrence Capacity and How to Restore it”, (2007) 28 Journal of Michigan 2, 337 – 430, p. 379.
[xxiii] Tannenwald, Nina, “The Vanishing Nuclear Taboo”, (2018) 97 Foreign Affairs 6, 16-24, p. 17.
[xxiv] Wolfsthal, Jon B., supra, note 2, p. 21.
