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By: Luke MacDowall

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.

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By: Luke MacDowall

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  1. Can international law resolve the conflict between the need for Global nuclear power and the desire to prevent nuclear proliferation? By: Luke MacDowall

  2. 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.

  3. 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 opiniojuris.” • Without unanimous participation in a treaty, the "traditional analysis of State practice and opiniojuris" is necessary to evaluate whether a treaty is universally binding even among nonsignors

  4. Nuclear power is a global energy source

  5. Global Nuclear Energy: 443 Power Plants Worldwide 17% of global electricity is provided through nuclear power

  6. Nuclear Power and the Risk of Proliferation:

  7. 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."

  8. History of Reprocessing:

  9. Legal Responses Non-Proliferation Treaty (NPT) Global Nuclear Energy Partnership (GNEP) Bilateral Agreements

  10. 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

  11. 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.

  12. 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.  

  13. IAEAProcedures

  14. 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.

  15. NPT as a Lego-Realist Institution Shadow of the Law Shadow of Violence • 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 (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.

  16. 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.

  17. 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

  18. 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.

  19. 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 free-markets, 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.

  20. Global Nuclear Energy Partnership

  21. 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. 

  22. 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.

  23. 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.

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