INTERNATIONAL LAW ASSOCIATION

SYDNEY CONFERENCE (2018)

NUCLEAR WEAPONS, NON PROLIFERATION & CONTEMPORARY INTERNATIONAL LAW

Members of the Committee

Professor Jonathan L Black-Branch (British): Chair

Dr Dieter Fleck (German): Rapporteur

Professor Anguel Anastassov (Bulgarian) Ms Emily Arnberg (Australian) Professor Masahiko Asada (Japan)

Alternate: Professor Akira Mayama Dr Sascha-Dominik Bachmann (British) Professor Seung Hwan Choi (Korean) Associate Professor Alberto Costi (New Zealand) Dr A J J de Hoogh (Netherlands) Ms Kate Deere (Australian) Mr Pierre-Emmanuel Dupont (French) Dr James Fry (Hong Kong) Dr Francis Grimal (British) - Nominee of the Chair Mr Ulf Haeussler (German)

Professor Larry Johnson (American) Prof Konstantinos Magliveras (Hellenic) Professor Thilo Marauhn (German) Dr Sarah McCosker (Australian) Professor Tereza Cristina Nascimento Franca (Brazilian) Mr Andreas Persbo (Swedish)

Alternate: Jur. lic. Dirk Roland Haupt Dr Daniel Rietiker (Swiss) Professor Marco Roscini (Italian) Professor Robbie Sabel (Israel) Ambassador Henrik Salander (Swedish) Professor Vasilka Sancin (Slovene) Dr Aurel Sari (British) Professor Gabriella Venturini (Italian)

FOURTH REPORT Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes

Table of Contents page Introduction 2 Part I: The Right to Peaceful Uses of Nuclear Energy 3 Part II: Terms and Conditions of Peaceful Uses of Nuclear Energy 5 A. Nuclear Security and Safety 6 B. Radioactive Waste Management 9 C. Damage Prevention and Reparation 9 Part III: Measures to Ensure Compliance 15 A. Retorsions 17 B. Countermeasures 17 C. Dispute Settlement 26 The Way Ahead 26 Annex: Tentative Conclusions and Recommendations 29 A Nuclear Non-Proliferation 29 B The Use of Nuclear Energy for Peaceful Purposes 30 C Nuclear Disarmament 31

D Compliance with and Enforcement of Nuclear Non-Proliferation Obligations and Commitments 32

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Introduction 1. Mandated ‘to consider competing legal approaches to non-proliferation and regulating nuclear weapons within the contemporary context’, the Committee is amidst a process of assessing the three pillars of the 1968 Nuclear Non-Proliferation Treaty (NPT)1 – i.e. non-proliferation of nuclear weapons; the right to develop research, production and use of nuclear energy for peaceful purposes; and nuclear disarmament – with a special focus on controversial issues and existing interdependencies between the three pillars. A Preliminary Report on key elements of the practice regarding nuclear energy, non-proliferation and the regulation of nuclear weapons was presented at the Sofia Conference (2012). The Second Report, which was discussed at the Washington Conference (2014), has concluded that steps towards fulfilling nuclear disarmament obligations and providing appropriate access to nuclear energy for peaceful uses may substantially influence compliance with nuclear non-proliferation obligations. It has underlined that effective non-proliferation may not only support developments towards nuclear disarmament, but also help to improve security and safety of peaceful uses. The Third Report, discussed at the Johannesburg Conference (2016), has addressed legal issues of verification within a broader context, covering also general legal aspects of compliance control, dispute settlement, and enforcement. It was based on a research project, conducted in November 2014 by the Rapporteur in cooperation with the Institute of International Peace and Security Law at the University of Cologne and kindly supported by the Fritz Thyssen Stiftung für Wissenschaftsförderung. Highlighting legal controversies raised in the literature and State practice, this Report emphasized that the International Atomic Energy Agency (IAEA) has a broad institutional mandate to implement new safeguards practices and States must cooperate to secure verification by the IAEA.2 The Committee will bear these Reports in mind when developing ‘options for future legal cooperation in this field’, which is the ultimate goal of the Committee’s Mandate. It should be noted that such options comprise not only existing principles and rules, but also desirable new rules. A first set of draft elements of the envisaged ILA Declaration on Legal Issues of Nuclear Weapons, Non-Proliferation and Peaceful Uses of Nuclear Energy was included in the Second Report and supplemented in the Third Report. This list has now been expanded to a complete ‘rolling text’ as shown in the Annex to the present Report. A comprehensive Commentary on all principles and rules will accompany the final Declaration. 2. The present Fourth Report of the Committee is devoted to Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes. A research project, conducted in November 2015 by the Rapporteur in cooperation with the Walther Schücking Institute of International Law at the University of Kiel, and again kindly supported by the Fritz Thyssen Stiftung für Wissenschaftsförderung, provided a particularly valuable opportunity to analyse contentious legal issues of nuclear safety and security, review arguments and counter-arguments, and explore possibilities for consensus solutions. Further input and support was received by a conference on ‘Human dimensions and Perspectives in a Nuclear World’ (Winnipeg, October 2017), which was hosted by the Committee Chairman with kind support

1 Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968) 729 UNTS 161. 2 ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law: Second Report: Legal Aspects of Nuclear Disarmament (Washington D.C., 2014), Third Report: Legal Issues of Verification of Nuclear Non-Proliferation Commitments (Johannesburg, 2016), http://www.ila-hq.org/en/committees/index.cfm/cid/1025.

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of the Canadian Museum for Human Rights. The results of these research projects have been and will be published in the book series edited by the Chairman and the Rapporteur.3 3. This Report is divided into four parts: After characterising the right to peaceful uses of nuclear energy as an inalienable right confirmed in the NPT (Part I), it will address terms and conditions of peaceful uses of nuclear energy including legal issues of nuclear security and safety; radioactive waste management; as well as damage prevention and reparation (Part II). Measures and means to ensure compliance with obligations arising from the NPT and other relevant norms of treaty law and customary law will be examined under current principles and rules of retorsions, countermeasures, and dispute settlement (Part III). This latter Part completes earlier discussions in the Second and Third Report, thus going beyond issues of the use of nuclear energy for peaceful purposes. Finally, the way ahead for the work of the Committee towards the envisaged ILA Declaration will be discussed (Part IV and Annex).4

Part I: The Right to Peaceful Uses of Nuclear Energy 4. General Context. The right to peaceful uses of nuclear energy existed prior to the conclusion of the NPT in 1968. It was a particular emphasis in President Eisenhower’s 1953 ‘Atoms for Peace’ initiative,5 which led to the creation of the International Atomic Energy Agency (IAEA). Indeed, it is confirmed as an ‘inalienable right’ in Article IV of the NPT, forming one of the Treaty’s three foundational pillars, together with the commitments to nuclear non-proliferation (Art. I-III NPT) and disarmament (Art. VI NPT). By the late 1960s many countries had research reactors, and there were power reactors operating in a number of non-nuclear-weapon States, including Canada, Germany, Italy and Japan. Confirmation of the right to peaceful uses of the atom as one of three essential pillars of the Treaty has also been understood as a vehicle to support compliance with and strengthen international cooperation to implement the NPT in toto. The right to use nuclear energy for peaceful purposes may be considered a fundamental part of the bargain underlying the NPT regime. The text of the Treaty does quite clearly link it to non-proliferation. However, there may arise some tensions between peaceful uses of nuclear energy and non-proliferation of nuclear weapons and other nuclear explosive devices. Nonetheless, the States Parties confirmed in the outcome of the 1995 NPT Review Conference that ‘[p]articular importance should be attached to ensuring the exercise of the inalienable right of all the parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles

3 Jonathan L. Black-Branch and Dieter Fleck (eds), Nuclear Non-Proliferation in International Law: Vol. I with Foreword by Mohamed ElBaradei; Vol. II Verification and Compliance; Vol. III Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes (Berlin/Heidelberg: Springer/Asser Press, 2014, 2015 and 2016). Vol. IV Human Perspectives on the Development and Use of Nuclear Energy is under preparation. 4 Special gratitude may be expressed to Committee members and friends, in particular to Masahiko Asada, Jonathan Black-Branch, Omer Brown II, Ida Caracciolo, John Carlson, Tom Coppen, Brian Drummond, Ulf Haeussler, Seth Hoedl, André de Hoogh, Larry Johnson, Konstantinos Magliveras, Grégoire Mallard, Steven McIntosh, Norbert Pelzer, Clara Portela, Daniel Rietiker, Marco Roscini, Michael Rosenthal, Vasilka Sancin, Carlton Stoiber, and Gabriella Venturini, for critical comments on earlier drafts of this Report. 5 See Address by Mr. Dwight D. Eisenhower, President of the United States of America, to the 470th Plenary Meeting of the United Nations General Assembly, https://www.iaea.org/about/history/atoms-for-peace-speech.

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I, II as well as III of the Treaty’.6 Effective non-proliferation is fundamental in promoting peaceful nuclear cooperation. It is also important to note that the right to peaceful uses is not an absolute right. There are clear limits for the use of nuclear energy as expressed in Article IV and relevant safety and security principles and procedures. The need to apply the most stringent standards of protection to plutonium and highly enriched uranium (HEU), the products of reprocessing and enrichment plants, is generally recognised. Further limits derive from human rights law7 and environmental law (see below, para. 7). The text of the NPT does not cover all relevant obligations. Safety and security of nuclear installations, radiation protection, radioactive waste management, as well as damage prevention and reparation, illustrate the need for complementing regulation and cooperation at global scale. Safety checks, technical assistance provided by the IAEA and consultations with the experts of the Agency continue to be instrumental for the execution of such tasks. 5. Complementing Regulation and its Limits. There is a large, and ever emerging, body of nuclear law today, developed in particular by the IAEA8 and compiled by the Organization for Economic Cooperation and Development (OECD).9 This body of law remains far from complete and many issues of high practical relevance seem to escape international treaty regulation. Nevertheless, normative behaviour continues to influence the implementation of principles and rules and their further development in practice. 6. Limits of International Cooperation. Despite a number of international commitments to ensure nuclear safety and security, there is no mandatory international control of the production of nuclear energy. Nuclear accidents such as the meltdown of the nuclear reactor at Chernobyl (1986) and the effects of the tsunami on the nuclear power plant at Fukushima Daiichi (2011) demonstrate that more international control would be desirable.10 Current international law and practice, however, continues to be largely characterized by an absence of international legal obligations (except for verification of

6 Final Document of the 1995 NPT Review & Extension Conference, Decision 2, para. 14. Recent NPT Review conferences have confirmed this, adding further considerations that States Parties must also act in conformity with Art. IV, see Final Document of the 2010 NPT Review Conference, Vol I, para. 31. The right to peaceful uses was again confirmed in the new Treaty on the Prohibition of Nuclear Weapons (7 July 2017), UN-Doc A/CONF.229/2017, preambular para. 21. 7 See Daniel Rietiker, ‘Between Prosperity and Destruction: A Modern Interpretation of the Right to Peaceful Uses of Nuclear Energy in Light of the Protection of Human Rights and Future Generations’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 21-61, at 41-56. See also Daniel Rietiker, Humanization of Arms Control. Paving the Way for a World free of Nuclear Weapons (Rutledge, 2017). 8 See Lawrence Scheinman, The International Atomic Energy Agency and World Nuclear Order (Routledge 1987, reprinted 2016); Carlton Stoiber, Abdelmadjid Cherf, Wolfram Tonhauser, Maria De Lourdes Vez Carmona, Handbook on Nuclear Law (Vienna: IAEA, 2003, <being updated>). 9 See OECD, Nuclear Energy Agency (NEA), International Nuclear Law: History, Evolution and Outlook. Tenth Anniversary of the International School of Nuclear Law (OECD, 2010), http://www.keepeek.com/Digital-Asset-Management/oecd/nuclear-energy/international-nuclear-law_9789264106888-en#.WHto9BRU28o#page1. 10 See IAEA, The Fukushima Daiichi Accident. Report by the IAEA Director General (Vienna: IAEA, 2015, STI/PUB/1710), 49: ‘The vulnerability of the Fukushima Daiichi NPP to external hazards had not been reassessed in a systematic and comprehensive manner during its lifetime. At the time of the accident, there were no regulatory requirements in Japan for such reassessments and relevant domestic and international operating experience was not adequately considered in the existing regulations and guidelines. The regulatory guidelines in Japan on methods for dealing with the effects of events associated with earthquakes, such as tsunamis, were generic and brief, and did not provide specific criteria or detailed guidance.’ For a systematic evaluation see Norbert Pelzer, ‘Safer nuclear energy through a higher degree of internationalisation? International involvement versus national sovereignty’, 91 Nuclear Law Bulletin (2013), 3-48.

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non-proliferation where safeguards agreements exist). For instance, it is only upon invitation that the IAEA may send safety experts and conduct peer reviews. Furthermore, safe nuclear waste management is not secured in many cases and while some still speak in terms of a ‘nuclear renaissance’, the challenges associated with identifying and operating final disposal sites for radioactive material (which need to be constructed in a way to ensure long-term safety and security independent from institutional controls or on-going maintenance for thousands of years)11 requires further efforts to be taken (see below, para. 12). To secure nuclear waste management there is a need for progressively developing appropriate standards, which should be made mandatory under international law. Major concerns are associated with increased risk regarding nuclear materials getting into the hands of non-State actors, to whom the NPT does not apply directly. States not party to the NPT, too, may engage in activities posing problems from a safety perspective. In the US, the Nuclear Regulatory Commission accepts safety of pool or cask storage of reactor spent fuel for about 120 years12 and has begun the process to examine licensing for 300 years. Other States apply different standards. It appears regrettable that existing challenges, which severely affect the life on this planet, are not discussed more widely and that politicians (and their voters) too often shy away from drawing the necessary consequences.

Part II. Terms and Conditions of Peaceful Uses of Nuclear Energy. 7. General. As stated in Article IV.1 NPT, the development, production and use of nuclear energy is to be carried out in conformity with the non-proliferation obligations under Articles I and II. Recent NPT Review Conferences have added further considerations, confirming that States Parties exercising this right have to act both in conformity with Articles I and II of the Treaty, and also in conformity with Articles III and IV.13 It is in this context that the obligation of NPT States Parties, to contribute to the fullest possible exchange for the peaceful uses of nuclear energy (Article IV.2 NPT), is to be implemented. In addition to non-proliferation law proper, further obligations apply to the use of nuclear energy. SC Res 1540 (2004) was adopted to fill existing gaps in non-proliferation treaties and to address deficiencies in national legislation, obligating States to use nuclear material and other nuclear-weapon-related materials, equipment and technology only in circumstances where they apply appropriate effective measures for its accounting, security, and physical protection and are subject to export controls. The Resolution also adds specific references to non-State actors, which are not specifically covered by the NPT. Further relevant obligations may be seen not only in human rights law, but also in environmental law with its principles of concern for the common heritage of mankind, sustainable development, equity, precaution and prevention, and common but

11 See Stoiber et al (eds), above (n 8), 97: ‘Since the radioactivity of some elements in radioactive waste decreases extremely slowly, the management of some existing radioactive waste will extend over several thousand years. The institutional control of disposal sites must therefore be planned for 10 000 years or more’. 12 ‘... the fuel can be stored safely in either pool or cask for at least 60 years beyond the licensed life of any reactor without significant environmental effects. At current licensing terms (40 years of initial reactor operation plus 20 of extended operation), that would amount to at least 120 years of safe storage. However, it is important to note that this does not mean NRC "allows" or "permits" storage for that period.’ Cf. https://www.nrc.gov/waste/spent-fuel-storage/faqs.html. 13 See Final Document 2010, NPT/CONF.2010/50 (Vol. I), para. 31.

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differentiated responsibilities.14 The obligation to conduct environmental impact assessments is important in this context. The relevant rights and obligations should be interpreted today in view of their development over time, considering changes in global security, nuclear security and safety, and environmental protection during the last decades.15 Experience gathered by the IAEA should be used as a reservoir to initiate, and inform, the discussion of existing challenges that could, in the event of further catastrophic incidents, severely affect human life on earth as a whole. In this context the use of nuclear technologies for application other than electricity production, such as medical isotopes for therapy, diagnosis and medical device sterilization, fundamental research, and material science research should be considered as well. Many peaceful use applications of nuclear energy do not require uranium enrichment (or even uranium or plutonium themselves) and so pose less of a nuclear non-proliferation risk. However, some radioactive materials used in medicine and industry could be used in radiological dispersal devices that non-State actors could use as weapons of terror. It also remains an open question whether enrichment, reprocessing or operation of heavy-water reactors qualify as peaceful use, when not undertaken in compliance with IAEA safeguards and subjected to inspections.

A. Nuclear Security and Safety 8. A Broad Definition of Terms. By its professional practice the IAEA has effectively contributed to closing gaps arising from the absence of a comprehensive international legal regime covering all aspects of the use of nuclear energy for peaceful purposes. As explained by the IAEA, nuclear safety comprises ‘the achievement of proper operating conditions, prevention of accidents and mitigation of accident consequences, resulting in protection of workers, the public and the environment from undue radiation hazards’, while nuclear security encompasses ‘the prevention and detection of, and response to, theft, sabotage, unauthorized access, illegal transfer or other malicious acts involving nuclear material, other radioactive substances or their associated facilities’. At the same time, IAEA practice shows that an exact distinction between nuclear safety and nuclear security cannot be made at all times, given that there is a significant overlap and synergy between the maintenance of nuclear safety and security.16 In view of the continued threat posed by non-State actors,

14 See Ved P. Nanda, ‘International Environmental Norms Applicable to Nuclear Activities, With Particular Focus on Decisions of International Tribunals and International Settlements’, 35/1 Denver Journal of International Law and Policy (2008), 47-65, at 49-64; Anguel Anastassov, ‘The Sovereign Right to Peaceful Use of Nuclear Energy and International Environmental Law’, in Black-Branch and Fleck (eds), op. cit., Vol. I (2014), 159-197, at 164-172; and Michael Bothe, ‘The Peaceful Use of Nuclear Energy and the Protection of the Environment’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 295-310. 15 See Fleck, ‘The Right to Develop Research, Production and Use of Nuclear Energy for Peaceful Purposes: Shortcomings and Loopholes in Legal Regulation’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 525-551. 16 IAEA Safety Glossary, Terminology Used in Nuclear Safety and Radiation Protection, 2007 Edition (IAEA, Vienna), http://www-ns.iaea.org/standards/concepts-terms.asp?s=11&l=90. As noted in this Glossary, there is ‘not an exact distinction between the general terms safety and security. – In general, security is concerned with malicious or negligent actions by humans that could cause or threaten harm to other humans; safety is concerned with the broader issue of harm to humans (or the environment) from radiation, whatever the cause. The precise interaction between security and safety depends on the context. „Safety and security synergies“ concern, for example: the regulatory infrastructure; engineering provisions in the design and construction of nuclear installations and other facilities; controls on access to nuclear installations and other facilities; the categorization of radioactive sources; source design; the security of the management of

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efforts to improve nuclear security must include activities to prevent unauthorised networks from obtaining the material and know-how that would be needed for developing nuclear weapons or from threatening the use of radiological sources for hostile purposes or the deliberate release of radioactive material by sabotage of facilities. While it still seems unlikely that non-State actors may soon be capable of producing nuclear material suitable for the manufacture of nuclear weapons, they may be able to steal or seize such material and could, by way of combining radiological material with conventional explosives, cause significant harm to people and the environment. It appears more and more important for States to regulate and control non-State actors operating within their respective jurisdictions. 9. Legal Implications. The nuclear incidents that have been occurring over time have shown a range of new challenges and risks associated with the development of nuclear energy.17 Whilst the potential of such risks may have existed before, these challenges appear to be more real in today’s perspective. Despite complex and highly professional national and international regulatory efforts to secure nuclear safety and security,18 the current state of affairs regarding international cooperation both at State level and industry level requires improvement. While international nuclear safety and security standards have been continuously and progressively developed, the use of these standards was never made mandatory. Many disagree with obligatory international controls, at least in part, because multilateral negotiation of standards often leads to outcomes that reflect the lowest common denominator. As this lack of comprehensive regulation and cooperation may have serious adverse effects on the safe and secure use of nuclear energy, SC Res 1540 (2004) has obligated UN Member States to adopt and enforce ‘appropriate effective measures’ to account for, secure and protect nuclear material. However, the Resolution establishes no standards for compliance, neither is compliance internationally controlled. In that regard, the recent adoption of SC Res 2325 (2016) endorsed the 2016 Comprehensive Review of the status of the implementation of Resolution 1540 (2004).

radioactive sources and radioactive material; the recovery of orphan sources; emergency response plans; and radioactive waste management. – Safety matters are intrinsic to activities, and transparent and probabilistic safety analysis is used. Security matters concern malicious actions and are confidential, and threat based judgement is used.’ 17 See Sonia Drobysz, ‘A Framework for the Secure Development of Nuclear Energy: Obligations, Challenges and Possible Solutions’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 247-275, at 263; Jonathan Black-Branch, ‘Nuclear Terrorism by States and Non-state Actors: Global Responses to Threats to Military and Human Security in International Law’, 22 JCSL (2017), DOI: https://doi.org/10.1093/jcsl/krx004. 18 For a general overview see Mohamed M. ElBaradei et al. (eds), The International Law of Nuclear Energy. Basic Documents. 2 Vols. (Dordrecht/Boston/London: Nijhoff, 1993), 151-1400. Significant treaty improvements have been achieved since with the Convention on Nuclear Safety (20 September 1994), INFCIRC/449, 1963 UNTS 293; the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, INFCIRC/546 (29 September 1997); the International Convention for the Suppression of Acts of Nuclear Terrorism – ICSANT – (13 April 2005), 2445 UNTS 89; the 2005 amendment of the Convention on the Physical Protection of Nuclear Material – CPPNM –, 1456 UNTS 125, INFCIRC/274/Rev 1 (amendment entered into force on 8 April 2016). See also Convention on Early Notification of a Nuclear Accident (26 September 1986), 1439 UNTS 275, INFCIRC/335; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (26 September 1986), 1457 UNTS 133, INFCIRC/336; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (3 May 1996), 35 ILM 1406, 1415 (1996); Convention on Supplementary Compensation for Nuclear Damage – CSC – (12 September 1997), INFCIRC/567, 36 ILM 1454 (1997); and, at regional level, the Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (21 June 1993), 32 ILM 1228, 1230 (1993).

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10. Regional Arrangements to Ensure Nuclear Cooperation. Comprehensive multiparty activities to improve safe and secure uses of nuclear energy for peaceful purposes have been developed in Europe.19 Furthermore, nuclear-weapon-free zones existing in Africa,20 Latin America,21 the South Pacific,22 South-East Asia,23 and Central Asia24 may have a potential for promoting cooperation to enhance safety and security for peaceful uses of nuclear energy. While political perspectives, priorities and available technological means are not fully comparable, cooperation on safe and secure uses of nuclear energy for peaceful purposes, i.e. the goal envisioned under Article IV (2) of the NPT should be uncontroversial. This idea has also been emphasised in the recent Accord between the E3/EU+3 (China, France, Germany, the Russian Federation, the United Kingdom and the United States) and Iran.25 EURATOM being the most developed system promoting cooperative uses of nuclear energy for peaceful purposes has been taken as an interesting template for States interested in creating a regional nuclear authority for the development of nuclear energy in the Middle East,26 albeit with significant modifications. This approach may also serve as a source of inspiration for regulatory efforts in other regions. 11. Global Efforts to Strengthen Nuclear Security. The Nuclear Security Summits held in Washington D.C. 2010, Seoul 2012, The Hague 2014 and Washington D.C. 2016 have driven tangible and meaningful improvements in nuclear security. They have also reaffirmed the central role of the IAEA in supporting the efforts of States to fulfil their nuclear security responsibilities. Indeed, one of the reasons that SC Res 1540 (2004) has had success (despite initial reticence) is the assistance provided to States in fulfilling their responsibilities in matters of nuclear security, as it obligates all States to apply appropriate, effective nuclear security measures. The review conference process conducted for the NPT and many other treaties may serve as a model that could be used as an important means for strengthening nuclear security. The initiative taken to develop a draft International Convention on Nuclear Security (ICNS) might help in initiating further reflection on the

19 Treaty Establishing the European Atomic Energy Community – EURATOM – (25 March 1957), OJ C 203, 7.6.2016, 1; see Jürgen Grunwald, ‘Peaceful Uses of Nuclear Energy Under EURATOM Law’, in Black-Branch and Fleck (eds), Vol. III, op.cit., 171-213; Grégoire Mallard, Fallout: Nuclear Energy in an Age of Global Fracture (University of Chicago Press, 2014), 117-158. Note that EURATOM’s activities have not been limited to Western Europe, but engaged Eastern European Members of the European Union as well. 20 African Nuclear-Weapon-Free Zone Treaty – Pelindaba Treaty – (11 April 1996) 35 ILM 698. 21 Treaty for the Prohibition of Nuclear Weapons in Latin America – Treaty of Tlatelolco – (14 February1967) 634 UNTS 326; Agência Brasileiro-Argentina de Contabilidade e Controle de Materiais Nucleares/ Agencia Brasileño-Argentina de Contabilidad y Control de Materiales Nucleares (ABACC); Agreement on the Exclusively Peaceful Use of Nuclear Energy – Guadalajara Agreement – (18 July 1991), http://cns.miis.edu/inventory/pdfs/abacc.pdf. 22 South Pacific Nuclear Free Zone Treaty – Rarotonga Treaty – (6 August 1985) 1676 UNTS 223. 23 Treaty on the South-East Asia Nuclear Weapon Free Zone – Bangkok Treaty – (15 December 1995) 1981 UNTS 129. 24 Treaty on a Nuclear-Weapon-Free Zone in Central Asia – Semipalatinsk Treaty – (8 September 2006), http://www.opanal.org/NWFZ/CentralAsia/canwfz_en.htm. 25 See Third Report (above, n 2), para. 9; Dirk Roland Haupt, ‘Legal Aspects of the Nuclear Accord with Iranand Its Implementation: International Law Analysisof Security Council Resolution 2231 (2015)’, in Black-Branch and Fleck (eds), Vol. III, op.cit., 403-469. 26 Grégoire Mallard, ‘A Proposal with Comments’, Robert Schuman Centre for Advanced Studies Global Governance Programme (2014), http://globalgovernanceprogramme.eui.eu/wp-content/uploads/2014/03/RSCAS-Gregoire_Mallard.pdf.

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need to strengthen the existing regime with proper reporting and periodic review mechanisms.27

B. Radioactive Waste Management

12. Legal and Practical Challenges. Reliable technologies for reprocessing all spent fuel may be available, but many States have chosen not to deploy and use them because of concerns about non-proliferation, risk of terrorism, and cost. If all spent fuel were reprocessed, enormous amounts of separated plutonium would result, unless they were put into MOX fuels. Without effective control measures and additional safeguards non-proliferation risks and risks of terrorism would increase significantly, and the storage of the remaining radioactive waste would remain an issue.

Some binding rules on the prevention of environmental pollution exist at global scale.28 It should be mandatory to employ common standards and the most developed technologies to this effect. A warning sign to assist human beings in effectively identifying radioactive waste even after thousands of years (assuming that such an aim is realistic) still needs to be developed.29 As none of these requirements have been met to date, existing safety standards and guidelines remain the only instruments to facilitate international cooperation. This again entails particular challenges in relation to non-State actors.

C. Damage Prevention and Reparation 13. Emergency Preparedness and Response. In the aftermath of the Fukushima Daiichi accident there has been significant activity to harmonise emergency preparedness and response, improve transboundary flows of emergency information, support enhanced independent peer review and regular testing, and strengthen international assistance mechanisms.30 Mandatory international review mechanisms and full support for the IAEA’s incident and emergency system including its assessment and prognosis mandate are still desirable.

It should be emphasised that regulation can contribute to developing a comprehensive solution to existing challenges, but would hardly be capable of creating a culture of preparedness. This underlines the importance of on-going work in this field. For organizations to be better able to deal with unexpected and unforeseeable challenges it is 27 Drobysz, loc.cit., at 273, see https://partnershipforglobalsecurity.org/2015/03/24/international-convention-on-nuclear-security-icns/. 28 See in particular the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (9 December 1972), 1046 UNTS 120; the Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (24 November 1986) and its Protocols, http://www.sprep.org/Multilateral-Environmental-Agreements/noumea-convention; and the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (29 January 1991), https://www.opcw.org/chemical-weapons-convention/related-international-agreements/toxic-chemicals-and-the-environment/bamako-convention/. 29 See Kerstin Odendahl, ‘Storage and Disposal of Radioactive Waste: The Search for a Global Solution’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 277-294, at 291-292. The current HIDRA Project Human Intrusion in the context of Disposal of Radioactive Waste conducted by the IAEA (see https://www-ns.iaea.org/projects/hidra/default.asp?s=8&l=124) includes the issue of warning signs. 30 See Günter Handl, ‘Nuclear Off-site Emergency Preparedness and Response: Some International Legal Aspects’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 311-354, at 351.

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necessary to build resilience (in terms of both personnel and equipment). They should be put in a position to test their relevant capacity and capabilities and translate the lessons learned from both past incidents and their training results into robust contingency plans. Doing all this will not prevent unexpected developments, but it may help to mitigate undesirable consequences. 14. Reparation of Nuclear Damage. The issue of liability for nuclear damage is complex, as it includes aspects of civil law and international law and it involves the need to reconcile the interests of potential victims, Governments, operators of nuclear installations and their suppliers, insurance firms, and of the general public. International conventions on civil compensation for nuclear damage31 establish a civil liability regime that is particularly tailored to ensure adequate and swift compensation for nuclear damage, including damage outside the borders of the country where the nuclear power plant is located (trans-boundary damage). The main elements of this regime are: liability without fault (strict liability) of the operator, i.e. triggered by the mere causation of a nuclear incident without proving fault on the part of the operator; exclusive liability of only the operator (legal or economic channelling),32 thus excluding all other persons, such as license authorities or suppliers; limitation of liability in amount while allowing for higher limits or even unlimited liability;33 mandatory financial security to ensure that compensation funds are available (whether adequate or not is another question); exclusive 31 The 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy (29 July 1960), 956 UNTS 251, amended by the Additional Protocol of 28 January 1964, 956 UNTS 335, the Protocol of 16 November 1982, 1650 UNTS 444 (hereinafter, the 1960 Paris Convention); the 1963 Brussels Convention Supplementary to the Paris Convention (31 January 1963), 1041 UNTS 358, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 1941 UNTS 358 (hereinafter, the 1963 Brussels Supplementary Convention); the 1963 Vienna Convention on Civil Liability for Nuclear Damage (21 May 1963), 1063 UNTS 293 (hereinafter, the 1963 Vienna Convention); the Protocol of 12 September 1997 to Amend the Vienna Convention on Civil Liability for Nuclear Damage (hereinafter, the 1997 Vienna Convention) Protocol, 36 ILM 1454, 1462 (1997), INFCIRC/556; the Joint Protocol relating to the Application of the Vienna Convention and the Paris Convention (21 September 1988), 1672 UNTS 302, (hereinafter, the 1988 Joint Protocol); and the Convention on Supplementary Compensation for Nuclear Damage – CSC – (12 September 1997), INFCIRC/567 (22 July 1997), 36 ILM 1454 (hereinafter, the 1997 CSC). For membership, see www.iaea.org/resources/treaties/treaties-under-IAEA-auspices, and www.oecd-nea.org/law/. The 1997 CSC is now the instrument covering the largest number of civilian nuclear installations worldwide. Finally, two Protocols of 12 February 2004 (not yet in force) were adopted under the auspices of the OECD/NEA, in particular to increase the liability amounts of the 1960 Paris Convention and the 1963 Brussels Supplementary Convention to not less than €1.5 billion (hereinafter, 2004 Paris Convention and 2004 Brussels Supplementary Convention), see www.oecd-nea.org/law/paris-convention-protocol.html and www.oecd-nea.org/law/brussels-supplementary-convention-protocol.html. For an overview of the different conventions see http://www.oecd-nea.org/law/multilateral-agreements/liability-compensation.html. 32 Under legal channelling, all legal liability is directed exclusively to the operator; no other person can be sued. Under economic channelling, all economic responsibility is directed exclusively to the operator; the operator pays for all judgments resulting from nuclear damage and, in effect, holds harmless all other persons that might be potentially legally liable. US domestic law (the Price-Anderson Act) was adopted in 1957 and thus predates introduction of legal channelling in the 1960s. Legal channelling and economic channelling achieve the same end-result – the operator bears sole responsibility for the nuclear damage resulting from a nuclear accident related to its nuclear power plant. Article 2 of the CSC Annex (the ‘grandfather clause’) permits the US to maintain economic channelling and to belong to the CSC as long as it meets certain conditions such as guaranteeing the availability of at least $1 billion of compensation in the event of a nuclear accident at a US nuclear power plant (in fact, US domestic law currently guarantees availability of approximately $13 billion). The CSC, like the Paris and Vienna Conventions, requires all other countries to adopt legal channelling. 33 For example, Austria, Finland, Germany, Japan and Switzerland are countries in which unlimited liability applies.

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jurisdiction of the courts of the Convention State in whose territory (or exclusive economic zone under the revised Conventions) the nuclear incident occurred; and equal treatment of all victims in all States where the regime applies.34

A primary reason for channelling liability exclusively to the operator is to avoid ‘pyramidization’ of insurance, as all suppliers otherwise would have to take out insurance for potential (product) liability for a nuclear incident for excessive costs and unlimited duration, which is neither available nor commercially viable. Channelling of liability to the operator enables insurers to provide a greater amount of insurance under a single policy than they would if they issued separate policies to multiple insureds. However, if expressly agreed to by written contract, the operator shall have a right of recourse against the supplier, should the supplier provide defective goods or services that resulted in a nuclear incident.35 While unlimited liability might be expected as being the only adequate liability scheme to address the nuclear risk, there are reasons in practice for limited liability.36 High or unlimited liability amounts provide compensation only to the extent funds are available. In other words, liability amounts are only as good as the insurance or other financial security (including governmental guarantees) that underlie those amounts. It is possible that nuclear installation operators alone may be unable to pay full compensation for damage

34 See, IAEA International Expert Group on Nuclear Liability (INLEX), the 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage− Explanatory Texts, International Atomic Energy Agency (IAEA). International Law Series No. 3 [STI/PUB/1279] (2007), www-pub.iaea.org/MTCD/Publications/PDF/Pub1279_web.pdf; OECD Nuclear Energy Agency, Nuclear Liability Conventions, https://www.oecd-nea.org/law/multilateral-agreements/liability-compensation.html; on the Paris Convention, https://www.oecd-nea.org/law/paris-convention.html; on the Brussels Supplementary Convention, https://www.oecd-nea.org/law/brussels-supplementary-convention.html; and see especially, the Expose des Motifs https://www.oecd-nea.org/law/nlparis_motif.html. See also B. McRae, ‘The Compensation Convention: Path to a Global Regime for Dealing with Legal Liability and Compensation for Nuclear Damage’, Nuclear Law Bulletin No. 61 (1998), https://www.oecd-nea.org/law/nlb/nlb-61/benfinal.pdf and ‘The Convention on Supplementary Compensation for Nuclear Damage: Catalyst for a Global Nuclear Liability Regime’ [www.oecd-nea.org/law/nlb/nlb-79/017-035%20-%20Article%20Ben%20McRae.pdf]); N.L.J.T. Horbach, Contemporary Developments in Nuclear Energy Law (Kluwer, 1999). 35 See Expose des Motifs https://www.oecd-nea.org/law/nlparis_motif.html, inter alia, Motif 17 and 18: ‘It is essential to the notion of channelling liability onto the operator that no actions may lie against any other person and in particular, for example, any person who has supplied any services, materials or equipment in connection with the planning, construction, modification, maintenance, repair or operation of a nuclear installation. In the ordinary course of law, on the contrary, should an incident arise due to a defect in design or in material supplied, a person suffering damage may well have a right of action against the supplier, for example, on the basis of the so-called products liability. Furthermore, the operator might well have a recourse for indemnity in respect of any compensation which he has to pay for damage to third parties. A corollary to the notion of channelling is therefore that possible recourse actions by the operator (or the insurer or other financial guarantor to whom the operator's right of recourse may have been transferred) against suppliers in respect of any sums which the operator has paid as compensation are barred. If they were not, each supplier would have to insure himself against the same risk already covered by the operator's insurance and this would involve a costly duplication of insurance with no benefit to victims.’ Similarly, see IAEA Explanatory Text to the 1997 Vienna Convention and CSC, op. cit., at pp. 12 et seq. 36 See, inter alia, Motif 1 to the 1960 Paris Convention that explains: ‘A special régime for nuclear third party liability is necessary since the ordinary common law is not well suited to deal with the particular problems in this field. Indeed, if the ordinary law were applied, there are several different persons who might be held liable for damage caused by a nuclear incident and victims would, in all likelihood, have great difficulty in establishing which of them was, in fact, liable. Moreover, that person would have unlimited liability without being able to obtain complete insurance cover. The prime objective of this special régime is to ensure the adequate compensation of damage caused to persons and to property by a nuclear incident. However, the operators of nuclear installations should not be exposed to an excessively burdensome liability and all those (such as builders or suppliers) associated with the construction or operation of nuclear installations should be exempted from liability.’ Expose des Motifs, op. cit.

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caused, even though they were required to obtain insurance or other financial security, so that people suffering from nuclear incidents may have to be assisted by Governments (i.e. the taxpayer). Moreover, in particular where limitations apply and in the absence of treaty relations that impose the liability of operators to trans-boundary damage suffered in non-convention States, that situation could result in forum shopping by victims, claiming compensation not only from operators, but also from suppliers, under general tort law.37 However, outside the nuclear liability regime, it may prove difficult for victims as this may result in years of cross-claim litigation to determine which, if any (the operator, any other organ involved or any of the hundreds of suppliers to the plant) may have contributed at some time in the near or distant past in some measure to the nuclear incident. This in turn would delay payments to victims.38

While only a minority of States in the world are party to the international nuclear liability conventions, most States operating nuclear power plants do adhere to one or more of the conventions and therefore most existing nuclear power plants are covered by an international regime, although these States are not necessarily in treaty relations with each other.39 For those States not party to one of the conventions, in cases of trans-boundary nuclear damage affecting them, claims for compensation are governed by general principles of private international law and the uncertainties of the general laws of conflict. Principles and rules of public international law and State responsibility are left unaffected by the conventions. But even where State responsibility is determined to exist, compensation may be insufficient, as happened in certain cases relating to the Chernobyl accident in 1986.40

The nature of the delayed effects of ionizing radiation on living cells means that in some cases it is difficult, if not impossible, to prove a causal link between the incident in question and the consequent damage, a problem that is not unique to damage caused by nuclear incidents. Furthermore, the amount of funds to cover nuclear damage is limited.41 37 See, e.g., Omer F. Brown II and Nathalie L.J.T. Horbach, ‘Resolving Nuclear Liability Disputes: Identifying the Competent Court’, at 3rd International Workshop on the Indemnification of Damage in the Event of a Nuclear Accident Bratislava, Slovak Republic 19 October 2017. 38 Andrea Gioia, ‘Nuclear Accidents and International Law’, in de Guttry A, Gestri M, Venturini G (eds), International Disaster Response Law (Springer/Asser Press, 2012), 85-104; see also Norbert Pelzer, ‘Nuclear Accidents: Models for Reparation’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 355-401, at 391. Risks of forum shopping and potential claims against suppliers in the absence of treaty relations with the disadvantage of prolonged lawsuits are not (and cannot fully be) excluded. 39 The Paris Convention now covers 110 of the world’s 447 operable nuclear power plants; the Vienna Convention covers 75; the Convention on Supplementary Compensation covers 191 (including the 102 U.S. plants for which economic rather than legal channelling applies); and the Joint Protocol covers 113. The 78 plants in China, Iran, South Korea, South Africa and Switzerland (the latter until it becomes party to the 2004 Paris Convention) are not covered by any Convention. 40 See ‘Four Chernobyl veterans from Kovel received the decision of the European Court of Human Rights according to which the state of Ukraine is obliged to pay money to them - extra charges for their pensions, and also to pay 1000 euros as compensation for moral harm’, http://legalspace.org/en/activities/success-stories/item/6560-kovelski-chornobyltsi-peremohly-u-yevropeiskomu-sudi-z-prav-liudyny.. This case, which may be mentioned here as a significant example for delayed and insufficient compensation, may not be fully representative. A comprehensive and global research into reparation for nuclear incidents remains desirable. 41 Operators’ liability limits currently vary per convention and per country. According to OECD-NEA, figures are between 80 million USD under the CSC (in the United States 12.81 billion USD) and 1,2 billion EUR under the Vienna Convention (in Germany unlimited). Financial protection amounts do not always match the liability limit and mandatory insurance amounts vary between only 15 million SDR (recommended 150 million SDR) under the 1960 Paris Convention; 5 million USD (in 1963 gold value, which now should be about 186 million USD) under the 1963 Vienna Convention; and 300 million SDR under the 1997 Vienna Convention and CSC. For example, the amount of insurance required for French operators covered by the 1960 Paris Convention is about 91 million euro. In the United States, the highest insured limit is about 13.5

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However, the amounts have never been foreseen to be compensation in full, but rather aim to provide swift compensation to be available for personal injury in particular. The 1960 Paris Convention currently only covers personal injury and property damage, like the 1963 Vienna Convention (though this may also cover ‘other loss’), while excluding any damage suffered on-site to the nuclear installation itself and/or any property located there. The 1997 Vienna Convention, the CSC, the 2004 Paris Convention and 2004 Brussels Supplementary Convention, however, have extended the scope of coverage to include also environmental damage and types of economic loss and costs of preventive measures, and accordingly increased the operator’s liability amounts, as well as providing for a supplemental international compensation fund to which predominately nuclear States would contribute, based on the principle of global financial solidarity.

A global nuclear liability regime based on worldwide treaty relations would be desirable and accurately reflect the physical environment. Indeed, the IAEA with support from all Member States, including in Europe, in 2011 adopted the IAEA Action Plan on Nuclear Safety [IAEA Doc. GOV/2011/59-GC(55)/14] which called upon its Member States ‘to work towards establishing a global nuclear liability regime … and to give due consideration to the possibility of joining the international nuclear liability instruments as a step towards achieving such a global regime’. Pursuant to the Action Plan, the IAEA’s International Expert Group on Nuclear Liability (INLEX) in 2012 issued Recommendations on how to facilitate achievement of a global nuclear liability regime.42 It also prepared a report highlighting the advantages and disadvantages of joining the international global nuclear liability regime. As called for in the IAEA’s 2011 Action Plan, States should strive toward establishing a global nuclear liability regime, especially since nuclear liability principles are ‘scattered’ over a variety of international instruments and national legislations. Regional Conventions would not, according to this approach, be fully sufficient for the increasingly global nuclear market.43 The CSC covers a greater number of the world’s 447 operable nuclear power plants. The Vienna Convention, as amended by its 1997 Protocol, too, is accessible by all IAEA Member States. Supplemental funds for

billion USD. In Germany mandatory insurance coverage is fixed at 2.5 billion euro, provided by a two-tiered system, whereby up to 256 million euro is covered by the operator’s insurance and the remaining jointly by nuclear power plants in Germany, which is available for domestic victims and victims of those States that provide full reciprocity. If the 2004 Paris Convention enters into force, mandatory insured minimum liability limit for operators will be fixed at 700 million EUR for installations and 80 million EUR for transport. See http://www.oecd-nea.org/law/table-liability-coverage-limits.pdf. 42 See Annex to the IAEA Action Plan on Nuclear Safety – Nuclear Liability (2012), https://gnssn.iaea.org/actionplan/Shared%20Documents/Action%2007%20-%20International%20Legal%20Framework/Recommendations%20on%20how%20to%20facilitate%20achievement%20of%20a%20global%20nuclear%20liability%20regime.pdf , recommending that ‘[a]ll Member States with nuclear installations should strive to establish treaty relations with as many States as practical with a view to ultimately achieving universal participation in a global nuclear liability regime that establishes treaty relations among all States’. The INLEX experts note that the CSC establishes treaty relations among States that belong to the Paris Convention, the Vienna Convention or neither, while leaving intact the Joint Protocol that establishes treaty relations among States that belong to the Paris Convention or the Vienna Convention. In addition to providing treaty relations, the CSC mandates the adoption of the enhancements developed under the auspices of the IAEA and contains features to promote appropriate compensation, including an international fund to supplement the amount of compensation available for nuclear damage. 43 There is evidence of damage from nuclear accidents in one region affecting another (e.g. due to tidal and weather patterns at the time). The Chernobyl incident is a case in point. A case now pending in U.S. federal courts in California <Cooper et al. v. Tokyo Electric Power Company, Inc., No. 12CV3032 JLS-WMO (S.D. Calif., San Diego Div.)> shows that a nuclear incident in far-away Japan resulted in litigation in the United States. It may be noted, however, that this latter case does not relate to damage suffered in California, but rather to damage allegedly suffered by US sailors on board a US naval vessel which was located just off the Japanese coast at the time of the incident.

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victims are provided under both the CSC and the Brussels Supplementary Convention to which some Paris Convention States are also Members. A successful future of the peaceful use of nuclear energy will need to be promoted and strengthened on the basis of a truly unified nuclear liability regime based on equal compensatory rights, global financial solidarity, equal treatment of victims wherever injured, and single court jurisdiction.

Another approach, by contrast, maintains that while a globally harmonised liability regime would have its advantages, it is not met by reality. According to this approach, global harmonisation has been characterized as ‘a goal too far, at least for the time being’44 and a realistic future is seen in ‘regional solidarity and in the mutual recognition of the international nuclear civil liability regimes currently in force’.45 It is maintained that current practice shows that regional approaches to international nuclear liability regimes may have a better chance of acceptance and implementation than efforts towards a global nuclear liability regime and they may also be more helpful for victims. Generally speaking, according to this view, the nuclear risk is not of such a nature that it necessarily requires a global treaty regime of damage reparation. Regions are directly exposed to the risks of nuclear activities performed in their respective areas. They form risk communities, which provide momentum for States to adhere jointly to liability conventions including instruments on supplemental compensation to be provided by public money of all States Parties.46

The present Report does not take a position between the universal or regional approaches, but notes the existence of the various conventions and legislation governing this matter. Proponents of both regimes strongly maintain the advantages of their regime and the disadvantages of the other regime. But the Committee may wish to emphasize that all Governments should address the issue of international nuclear liability and consider becoming party to one of the relevant conventions; they should also adopt appropriate national legislation.

Although the geographical scope of application of the revised nuclear liability conventions may include marine pollution, if national implementing legislation so provides, special provisions for such damages are not yet available, other than for maritime transport of nuclear material from one nuclear installation to another. For nuclear-powered ships beyond the general rule laid down in Article 23 and Part XII of the United Nations Convention on the Law of the Sea47 no special liability regulation has yet entered into force. The Convention on the Liability of Operators of Nuclear Ships48 was adopted at a time when the issue was not yet of practical relevance, a situation that might change,

44 Norbert Pelzer, ‘On Global Treaty Relations – Hurdles on the Way towardsa Universal Civil Nuclear Liability Regime’, 6 Zeitschrift für Europäisches Umwelt- und Planungsrecht – EurUP – (2008), 267-280, at 280. 45 Florence Touïtou-Durand, ‘The Convention on Supplementary Compensation for Nuclear Damage: A Solution for Europe?’, in Pelzer (ed), Europäisches Atomhaftungsrecht im Umbruch. European Nuclear Liability Law in a Process of Change (Baden-Baden: Nomos, 2010), 257-274, at 274. 46 Norbert Pelzer, ‘Nuclear Accidents: Models for Reparation’, loc.cit., at 397; Marc Beyens, Denis Philippe, Patrick Reyners, Prospects of a Civil Liability Regime in the Framework of the European Union. Proceedings (Brussels: Bruylant 2012, 207 pp); Norbert Pelzer (ed), Europäisches Atomhaftungsrecht im Umbruch. Tagungsbericht der AIDN/INLA Regionaltagung in Berlin 2009 (Baden-Baden: Nomos, 2010), 288 pp. 47 United Nations Convention on the Law of the Sea (30 April 1982), http://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm, Art. 23: ‘Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.’ See also UNCLOS Part XII Protection and Preservation of the Marine Environment. 48 Convention on the Liability of Operators of Nuclear Ships (25 May 1962), 57 (1) AJIL (January 1963), 268, http://www.minbuza.nl/en/key-topics/treaties/search-the-treaty-database/1962/5/009108.html.

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however, with new-generation nuclear vessels in the coming years. The International Convention for the Safety of Life at Sea49 has only general provisions on dangerous goods (Chapter VII) and nuclear ships (Chapter VIII). It applies to maritime transports of nuclear material, but does not deal with liability for nuclear incidents. Likewise, the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, in this respect comparable to the Convention on the Suppression of Unlawful Acts Relating to Civil Aviation,50 only provides for international cooperation for the suppression of terrorist acts, criminalizing certain conduct to that end. Yet there is no clear remedy in international law for nuclear contamination resulting from an incident involving nuclear-powered ships.51

As far as outer space is concerned, global regulation exists for the international liability for damage caused by space objects.52 Presumably, that would include nuclear objects.53

Part III: Measures to Ensure Compliance 15. Cooperative Nature. Measures to ensure compliance with obligations in the field of peaceful uses of nuclear energy should be considered in the context of existing obligations in the field of nuclear non-proliferation and nuclear disarmament. These measures will affect compliance with all obligations under the NPT54 and related treaty or customary rules. It should be noted that most measures to ensure compliance are cooperative in nature and, due to the complex technological issues involved and a shared interest in keeping up with professional standards, external advice by international organizations including the IAEA, by States, by industrial enterprise such as URENCO Ltd. (operating uranium enrichment plants in many countries including Germany, the Netherlands, the United States, and the United Kingdom), and by individuals, remains of particular importance. A specific measure to ensure compliance with nuclear non-proliferation obligations is the 49 International Convention for the Safety of Life at Sea (1 November 1974, as amended in 1981, 1983 with the 1978 SOLAS Protocol, 1990 and 1991, https://treaties.un.org/doc/Publication/UNTS/Volume%201184/volume-1184-I-18961-English.pdf. 50 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation – SUA Convention – (10 March 1988, amended by Protocol of 14 October 2005), 1678 UNTS 2014), www.imo.org/About/Conventions/Pages/Home.aspx; http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20-%202014.docx.pdf; http://www.state.gov/t/isn/trty/81728.htm; Beijing Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Beijing Protocol (10 September 2010), http://www.icao.int/secretariat/legal/Pages/TreatyCollection.aspx. 51 See Akira Mayama, ‘Combat Losses of Nuclear-Powered Warships: Contamination, Collateral Damage and the Law’, 93 International Law Studies (2017), 132-156. 52Art. VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies – Outer Space Treaty – (27 January 1967), 610 UNTS 205, http://www.unoosa.org/oosa/SpaceLaw/outerspt.html; Convention on International Liability for Damage Caused by Space Objects (29 March 1972), 961 UNTS 187, https://www.faa.gov/about/office_org/headquarters_offices/ast/media/Conv_International_Liab_Damage.pdf. 53 See Pavle Kilibarda, ‘Space law revisited (3/3): The regime of international liability in space’ (27 April 2017), http://blogs.icrc.org/law-and-policy/2017/04/27/space-law-revisited-international-liability/?mc_cid=8ba97e0c6e&mc_eid=cd03e80d49. 54 See in particular the obligation of nuclear-weapon States Parties to the NPT not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices (Art. I NPT); the obligation of non-nuclear-weapon States to accept safeguards (Art. III NPT); the obligation of all States Parties to the NPT to facilitate the fullest possible exchange of equipment, materials and scientific technological information for the peaceful uses of nuclear energy (Art. IV NPT); and the obligation of all States Parties to pursue negotiations in good faith on disarmament (Art. VI NPT).

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requirement under Art. III (1) NPT, to conclude a safeguards agreement with the IAEA. Its Board of Governors may report cases of non-compliance to all Member States and to the Security Council and the General Assembly (Art. III B 4 and Art. XII C IAEA Statute). 16. Coercive Measures. Unilateral measures become relevant in specific situations to prevent or stop breaches of existing obligations. While it seems to be common coinage to refer to ‘sanctions’ in this context, both when such action has been taken by States and by international organizations, that term is not strictly defined in international law. The UN Charter rather speaks of ‘measures’ under Article 41 and ‘action’ under Article 42 to be taken by the Security Council, to maintain or restore international peace and security, and its decisions have to be accepted and carried out by the Member States in accordance with Article 25 of the UN Charter. While the EU traditionally refers to ‘restrictive measures’ in its legal texts, precisely in order to avoid the semantic indeterminacy of the term ‘sanctions’, States and regional organizations including the EU also refer to ‘sanctions’ in their policy documents and public statements in various contexts, irrespective of the legal evaluation of the particular measure taken or envisioned.

Thus not only the question remains open as to whether such measures are directed against wrongful acts or a merely unfriendly or careless behaviour on the part of the target State, but also little care is taken to examine whether a so called sanction is legally to be characterized as unlawful per se, yet justified in view of the specific situation, or whether the sanction does not need such justification, e.g., in the case of denial of privileges that are not part of a legal obligation.

It is widely understood that sanctions comprise both retorsions – i.e. unfriendly acts which are not wrongful in the legal sense but may be offensive in the political or moral sense, or a simple discourtesy55 – and countermeasures56 (formerly referred to as reprisals not involving the use of force), i.e. measures that would otherwise be wrongful, had they not been taken in response to previous wrongful acts by the target State.57

It needs to be emphasized that countermeasures are legitimate only if they constitute a proportional reaction to an existing breach of an international obligation. Where the wrongful act is continuing, they have also the function to avoid forestall further negative consequences. Questions remain as to whether individual States should take coercive measures against other States not fulfilling their obligations under the NPT and other nuclear commitments. Strict differentiations are in place according to the type and extent of wrongfulness, to ensure that coercive measures are proportionate. Yet it is irrelevant in this context whether an obligation derives directly from the NPT or from other sources of conventional or customary law. Considering the consequences nuclear catastrophes could have, the responsibility of States for nuclear safety and security may not be considered as being in any respect of minor relevance than their responsibility for complying with obligations under the NPT.58 17. The Need for Dispute Settlement. It should be emphasized that to be effective and lasting, coercive measures may facilitate, but cannot replace dispute settlement by cooperative means, as required under Article 2(3) and Chapter VI of the UN Charter. Voluntary and friendly settlement will always be necessary here and in the delicate area of law and diplomacy building confidence remains essential. 55 Thomas Giegerich, ‘Retorsions’, MPEPIL (March 2011), para. 2. 56 See Art. 22, 49-54 of the Articles on Responsibility of States for Internationally Wrongful Acts – ARSIWA – UN Doc. A/56/10 (2001), Yearbook of the International Law Commission, 2001, Vol. II, Part Two. 57 Alain Pellet and Alina Miron, ‘Sanctions’, MPEPIL (August 2013), paras. 4-8. 58 See above, para. 9.

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A. Retorsions

18. Where coercive measures will become necessary, retorsions are normally taken as a legally uncontroversial means of reaction. Retorsions are lawful per se and they appear to be barely regulated.59 Yet it seems appropriate nevertheless, to consider whether legal or policy limitations apply here and which principles, such as proportionality, might entail legal obligations in this context. The principle confirmed in Article 49 (3) ARSIWA and Article 51 (1) DARIO, that countermeasures shall, ‘as far as possible, be taken in such a way as to permit the resumption of performance of the obligation in question’, is of general significance. Hence it should not be confined to countermeasures in the technical sense.

It is important for retorsions as for all other sanctions that they need to be continuously scrutinised and must be ceased as soon as they have fulfilled their purpose, a task the EU is very concerned with in respect of its role to develop and implement the recent Iran Accord.60 It should be noted here that the Joint Comprehensive Plan of Action (JCPOA) is, indeed, the most focused cooperative effort by the international community to deal with a perceived nuclear proliferation situation. It deserves and still requires active support by all participants.

B. Countermeasures 19. General Principles and Open Issues. As stated in the Third Report61 and critically discussed at the Johannesburg conference,62 countermeasures against non-compliance with the NPT and other relevant obligations remain an option, even when implementing activities are specifically regulated, and Security Council sanctions may have been put in place.

Significant efforts were made to capture the applicable conditions and rules for taking countermeasures.63 Yet some remaining gaps in the relevant legal framework point to the need for legal developments in this special domain: The relationship between countermeasures taken by States or groups of States on the one hand and actions taken by international organizations on the other needs to be further explored; to solve any tension between these two areas of activity, the development of a lex specialis and/or diplomatic initiatives by States and institutional frameworks should be considered; furthermore, in

59 See ARSIWA, Chapter II, commentary para. 3: ‘Countermeasures are to be contrasted with retorsion, i.e. “unfriendly” conduct which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act.’ 60 See e.g. Council Regulation (EU) 2015/1861 (OJ L 274, 18.10.2015, p. 1)Notice concerning the date of application (OJ C 15 I, 16.1.2016, p. 1) measures giving effect to the Joint Comprehensive Plan of Action (JCPOA) agreed with Iran, which apply from 16 January 2016. For a comprehensive assessment of the JCPOA see Third Report (above, n 2), para. 9; Dirk Roland Haupt, ‘Legal Aspects of the Nuclear Accord with Iranand Its Implementation: International Law Analysisof Security Council Resolution 2231 (2015)’, in Black-Branch and Fleck (eds), Vol. III, op.cit., 403-469. 61 Third Report (above, n 2), para. 24. 62 Conference Report Johannesburg 2016, http://www.ila-hq.org/en/committees/index.cfm/cid/1025. 63 Articles on Responsibility of States for Internationally Wrongful Acts – ARSIWA – (2001) UN Doc. A/56/10, Yearbook of the International Law Commission, 2001, vol. II, Part Two, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, Arts. 22, and 49 to 54; Draft Articles on the Responsibility of International Organizations (DARIO), UN Doc A/66/10, para. 87, Yearbook of the International Law Commission, 2011, vol. II, Part Two, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf, Arts. 22, and 51 to 57. See also Vincent-Joël Proulx, Institutionalizing State Responsibility: Global Security and UN Organs (OUP, 2016).

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view of the erga omnes character of essential obligations under the NPT, the role of States not directly affected, i.e. their entitlement to adopt countermeasures, needs to be discussed (see below, para. 22). States need to be held accountable in particular for any non-compliance with nuclear non-proliferation obligations.64 Yet again, it remains an unresolved question, under what conditions individual States may take countermeasures against other States not fulfilling their obligations under the NPT as well as other legally binding nuclear commitments. 20. A Limited Role for Countermeasures by the IAEA. As an independent international organization,65 the IAEA enjoys legal personality including privileges and immunities. While its objectives are broadly described in Article II of the IAEA Statute66 as ‘to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world’, its functions are more specifically defined in Article III. The latter Article also provides that ‘[i]n carrying out its functions, the Agency shall not make assistance to members subject to any political, economic, military, or other conditions incompatible with the provisions of this Statute’ (Art. III C) and ‘the activities of the Agency shall be carried out with due observance of the sovereign rights of States’ (Art. III D), subject to the provisions of the Statute and any agreements between the State and the Agency. Hence countermeasures to be taken by the Agency are limited to those expressly authorised under the Statute or by agreement.

The Agency has to apply safeguards (Art. XII) in respect of any Agency project or as requested. The General Conference may suspend privileges and rights of membership if it receives a recommendation to that effect from the Board of Governors (Art. XIX). If the Board determines there has been non-compliance by a Party to a safeguards agreement, it shall report that finding to the Security Council and the General Assembly (Art. XII C). Could the General Conference of the IAEA, based on Article V.D of the IAEA Statute, recommend collective measures to Members that would resemble enforcement measures – as the OPCW Conference of State Parties may do under Article XII.3 of the Chemical Weapons Convention?67 Whilst analogous application of the latter provision would not be an option, the IAEA Statute does not preclude such action,68 which could result in measures taken by States, in addition to curtailment or suspension of assistance or privileges or rights of membership under Article XII C of the IAEA Statute. 21. Security Council Sanctions. The Security Council has primary responsibility for the maintenance of international peace and security (Art. 24 of the UN Charter), a rule that concerns the allocation of responsibilities within the different organs of the Organization 64 See Jonathan L. Black-Branch, ‘Countermeasures to Ensure Compliance with Nuclear Non-Proliferation Obligations’, in Black-Branch and Fleck (eds), op. cit., Vol. II (2016), 351-387. 65 The Agency is sometimes seen by the UN as an ‘executing agency’ by the United Nations, see the statement of the UN Office of Legal Affairs in ILC, 63rd Session, A/CN.4/637/Add.1 (17 February 2011), ‘Responsibility of international organizations. Comments and observations received from international organizations’, para. 11. The other perspective is, however, true as well: the IAEA ‘uses’ the UN by reporting cases of non-compliance or other questions arising during the course of its activities (Arts. III B 4 and XII C IAEA Statute). 66 Statute of the International Atomic Energy Agency – IAEA Statute – (26 October 1956, amended 1963, 1973, 1989, and 1999), https://www.iaea.org/about/about-statute. 67 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), 13 January 1993, 1974 UNTS 45. In cases where serious damage to the object and purpose of the Convention might result from activities prohibited thereunder, the Conference of States Parties may recommend collective measures in conformity with international law. 68 Tom Coppen, Preventing the Spread of Nuclear Weapons. The Law of arms control and the international non-proliferation regime (Utrecht University, 2016), 59.

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and does not exclude an active role and even simultaneous activities of States, as long as they are consistent with their obligations under the Charter.69 Measures taken by the Security Council are those of the Organization and distinct from countermeasures taken by States.70 22. Countermeasures by States. The availability of the right to take countermeasures need not be stated in a treaty.71 But this right comes with certain customary limitations. In particular the principles and rules confirmed in the ARSIWA must be complied with, especially the principle of proportionality (Art. 51 ARSIWA), the obligation that the countermeasure must be discontinued as soon as the action in question has ceased,72 and the rule that countermeasures shall not affect fundamental obligations including to refrain from the threat or use of force (Art. 50 ARSIWA).

It should be noted that under Article 42 ARSIWA any injured State is entitled to invoke the responsibility of another State if the obligation breached is owed to that State individually or if it specially affects that State or if the breach ‘is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’. The ILC has confirmed in its Commentary that this latter case is analogous to Article 60, paragraph 2 (c), of the 1969 Vienna Convention on the Law of Treaties between States (VCLT)73 and examples include

a disarmament treaty, a nuclear-free zone treaty, or any other treaty where each party’s performance is effectively conditioned upon and requires the performance of each of the others.74

While this already suggests a broad notion of the term ‘injured State’ in the present context, Article 48 ARSIWA confirms that any State other than the injured State is also entitled to invoke the responsibility of another State, if the obligation breached is either ‘owed to a group of States including that State and is established for the protection of a collective interest of the group’, or ‘owed to the international community as a whole’. The first case could entitle the group of all NPT States Parties, the second case applies to any breach of erga omnes obligations.

A breach of obligations ‘owed to a group of States’ has been described in the ILC Commentary as the breach of an obligation the principal purpose of which is ‘to foster a

69 Anne Peters, ‘Art. 24’, MN 17’ in Bruno Simma et al. (eds). The Charter of the United Nations. A Commentary, 3rd edn (OUP, 2012). Early UN sanctions cases include South Africa and Iraq after the Kuwait war, see Andrea Charron, UN Sanctions and Conflict: Responding to Peace and Security Threats (London and New York: Routledge, 2011), Thomas J. Biersteker et al., Targeted Sanctions (CUP, 2016). 70 While diverging views have been expressed on this issue, see ILC, ‘Report of the International Law Commission on the Work of its 60th Session’ (5 May–8 August 2008) UN Doc A/63/10, 258-259, the role of the SC under Art. 24 of the Charter is to be recognised. 71 The same is true for the right to terminate or suspend a treaty as a consequence of its breach (Art. 60 VCLT), see the Namibia Advisory Opinion, ICJ Reports 1971, p. 16, at p. 47, para. 96, in which the ICJ held that the silence of a treaty cannot be interpreted to exclude the invocation of a right (to invoke a material breach as a ground for termination) originating outside of the treaty in general international law. See also the judgment in the Chorzow Factory case (PCIJ, Series A, No. 9, p. 21): ‘Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself’. 72 See Jonathan L. Black-Branch, ‘Countermeasures to Ensure Compliance with Nuclear Non-Proliferation Obligations’, in Black-Branch and Fleck (eds), op. cit., Vol. II (2016), 351-387. 73 Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, in force since 27 January 1980. 74 ARSIWA, commentary (above, n 56), para. 13 to Art. 42. This is not to be misunderstood as to extend the obligations under nuclear-weapon-free-zone treaties to States not parties thereof.

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common interest, over and above any interests of the States concerned individually’.75 The potential relevance of this first case shall not be excluded in the present context (e. g. within a treaty on the denuclearisation of a certain region or space), but it will not be necessary to broach it, as it would most probably be subsumed by the second case. It must also be borne in mind that the drafters of Article 48 were very conscious of this language’s potential to invite unilateral interventions disguised as alleged enforcement measures.

Essential obligations under the NPT, in particular those relating to nuclear non-proliferation, do have an erga omnes character,76 thus in principle allowing all States to take countermeasures for the breach of certain obligations.77 Thus also a State that is not directly injured itself would have a sovereign right to take countermeasures against a responsible State to invoke responsibility of the latter for serious breaches of such obligations. The ICJ has stated in Barcelona Traction that

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.78

With this consideration, the Court, although it eventually dismissed the claim of the Belgium Government seeking protection of Belgium shareholders of Barcelona Traction, a firm registered in a third State (Canada), has characterized a new category of obligations that are not only valid inter partes, but owed to the international community as a whole. Without describing the role of this new category in strict legal terms, the Court stated that it comprises ‘the outlawing of acts of aggression, and of genocide, as also … the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’,79 a list that may be open for further development. Indeed, the Court stated in East Timor80 that the right to self-determination of peoples is to be seen in this context as well. As specified in the latter case, even if the right in question is a right erga omnes, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. This is fully in line with Article 59 of the Statute of the International Court of Justice,81 but it does not affect the right of States to invoke the responsibility of the

75 Id, para. 7 to Art. 48. 76 See Matthew Happold, ‘The „injured state“ in the case of breach of a non-proliferation treaty and the legal consequence of such a breach’, in Daniel H. Joyner and Marco Roscini (eds), Non-proliferation Law as a Special Regime. A contribution to fragmentation theory in international law (CUP, 2012), 175-195, at 190. 77 Sahib Singh, ‘Non-proliferation law and countermeasures’, in Joyner/Roscini (eds), op. cit.,196-249, at 219 78 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, I.C.J. Reports 1970, p. 3, at p. 32, para. 33. 79 Id., para. 34. 80 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, at p. 102 para. 29; see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at p. 257 para. 79 and p. 258 para. 83; and Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595, at pp. 615–616 paras. 31–32; and in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. Reports 2003, p. 136, at p. 171 paras. 88, p. 199 paras. 155 and 156. 81 Statute of the International Court of Justice (26 June 1945), Art. 59: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ What is essential in this respect is the requirement of consent to the jurisdiction of the Court (Art. 36).

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responsible State and claim cessation of the wrongful act, assurances and guarantees of non-repetition and reparation in the interest of the injured State (Art. 48 para. 2 ARSIWA). 82 Obligations erga omnes have become an accepted special type of rules of international law. They are conceptually different from peremptory norms (jus cogens),83 but have also been seen as comparable in that an obligation owed to the international community as a whole, because of its fundamental nature, could also be considered an obligation arising under a peremptory norm of general international law accepted by the international community and from which no derogation is permitted.84 This principle is deeply rooted in the history of international law. Hugo Grotius already emphasized a right of sovereigns to insist in the punishment of perpetrators, irrespective of whether they are directly affected by the norm that had been breached.85 Under Article 41 ARSIWA no State shall recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general international law. As shown above, Article 42 ARSIWA offers a very broad definition of injured States entitled to invoke the responsibility of another State for a wrongful act. Furthermore, Article 48 ARSIWA emphasizes that even a State other than an injured State is entitled to invoke the responsibility of a responsible State, if the obligation breached is owed to the international community as a whole. Essential obligations relating to nuclear security do have an erga omnes character, a matter that should not be controversial considering the potential results of breaches of such obligations. Indeed, not only States directly injured, but ‘all States can be held to have a legal interest’, if not also a material interest, in compliance with existing obligations to protect from nuclear disaster.86 This is not only true because of the potential devastating effects of nuclear weapons but also of radiation in peacetime nuclear catastrophes. Hence the right to take countermeasures addressing compliance with these obligations is not limited to specific States; yet it remains subject to further development of international law under which circumstances this right might be exercised.87 It may also be noted in this context that the range of States entitled to take 82 See Jonathan L. Black-Branch, ‘Countermeasures to Ensure Compliance with NuclearNon-Proliferation Obligations’, in Black-Branch and Fleck (eds), Vol. II, op.cit., 351-387, at 377-380. See also Jochen A. Frowein, ‘Obligations erga omnes’, in MPEPIL (December 2008), at para. 14: ‘present-day international law seems to permit non-forcible proportionate countermeasures of States against violations of obligations erga omnes where no institutional system exists or an existing system does not function properly’. 83 See Articles 53 and 64 of the Vienna Convention on the Law of Treaties. 84 Jochen A. Frowein, above (n 82), at para. 3; but see also Paolo Picone, ‘The Distinction between Jus Cogens and Obligations Erga Omnes’, in: Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (OUP, 2011), 411-424, insisting on the distinction between the two concepts, considering their different historical origins, their effects, and the reciprocal fields of application. 85 H. Grotius, De iure belli ac pacis, book II, chapter 20, para. xl (1646): ‘Sciendum quoque est reges & qui par regibus ius obtinent ius habere poenas poscendi non tantum ob iniurias in se aut subditos suos commissos, sed & ob eas quae ipsos peculiariter non tangent, sed in quibusuis personis ius naturae aut gentium immaniter violant. …’ [Kings have the right to insist in punishment not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. …] 86 See Jonathan L. Black-Branch, ‘Countermeasures to Ensure Compliance with Nuclear Non-Proliferation Obligations’, in Black-Branch and Fleck (eds), op. cit., Vol. II (2016), 351-387, at 378-379. On the notion of ‘particularly interested States regarding the prohibition of nuclear weapons see also Daniel Rietiker, ‘New Hope for Nuclear Disarmament or “Much Ado About Nothing?”: Legal Assessment of the New “Treaty on the Prohibition of Nuclear Weapons” and the Joint Statement by the USA, UK, and France Following its Adoption’, Harvard International Law Journal (8 December 2017), http://www.harvardilj.org/2017/12/new-hope-for-nuclear-disarmament-or-much-ado-about-nothing-legal-assessment-of-the-new-treaty-on-the-prohibition-of-nuclear-weapons-and-the-joint-statement-by-the/. 87 See ARSIWA, Commentary, Yearbook of the International Law Commission, 2001, vol. II, Part Two, para. 6 to Art. 54: ‘At present there appears to be no clearly recognized entitlement of States referred to in article 48 to take countermeasures in the collective interest. Consequently it is not appropriate to include in the

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countermeasures is not limited, when non-compliance of obligations arising under peremptory norms of general international law would be at stake. All States do not only have a droit de regard to follow and invoke compliance with these obligations, but also a right to react in case of breaches, irrespective whether they are directly injured. Yet countermeasures in case of breaches must be the last resort. Furthermore, Article 54 ARSIWA confirms that also lawful measures (such as retorsions) may be taken by States other than injured States, as the use of the word ‘countermeasure’ has been deliberately avoided here. Thus it may be appropriate and sufficiently effective to consider retorsions, e.g., denial of information or regular termination88 of a trade agreement on nuclear cooperation in the event of non-compliance with a safeguards agreement (i.e. a bilateral commitment following international standards in the interest of the international community as a whole), before countermeasures, including perhaps extraordinary suspension or termination under Article 60 VCLT, will be declared as a last resort. Even when countermeasures are taken this still requires a will to cooperate.89 Countermeasures must be reviewed and terminated as soon as cooperative solutions become possible again. These fundamental principles apply likewise to international organizations. 23. Countermeasures by International Organizations. Where countermeasures are taken by international organizations, in particular regional organizations such as the EU, there may be more legal limitations. These limitations are not completely described in DARIO, an instrument that may be characterised as an attempt to apply the principles and rules of ARSIWA, as much as possible to international organizations. The comments and observations received by the ILC in particular from the Council of Europe, the European Commission, NATO, the OECD, and the UN90 have expressed a number of objections against accepting these standards for measures to be taken by international organizations.

Specific concerns are related to the conditions and procedures for countermeasures, when in fact an international organization acts within its mandate. The mandate is of course different for each international organization, so that different conditions and procedures will apply to a use of countermeasures. Other concerns have addressed the question of responsibility in a very fundamental form, pointing inter alia to the rules on internal decision-making: in the case of NATO the consensus principle applies; it is based neither in the treaties establishing NATO nor in any formal rules but is rather the result of the practice of the organization and may make it difficult to trace responsibilities. The Eighth Report91 and the ILC’s deliberations on the observations received92 may not have fully given justice to such arguments. It must also be acknowledged in this context that ‘practice concerning responsibility of international organizations has developed only over a

present Articles a provision concerning the question whether other States, identified in article 48, are permitted to take countermeasures in order to induce a responsible State to comply with its obligations. Instead chapter II includes a saving clause which reserves the position and leaves the resolution of the matter to the further development of international law.’ 88 See e.g. Art. 57 VCLT. 89 This follows from the requirement to call upon the responsible State to fulfil its obligations, Arts. 52 in conjunction with 48 (3), 43 ARSIWA. 90 Responsibility of international organizations. Comments and observations received from international organizations, UN Doc. A/CN.4/637 (14 February 2011); UN Doc. A/CN.4/637 Add. 1 (17 February 2011). 91 Eighth report on responsibility of international organizations by Giorgio Gaja, Special Rapporteur, UN Doc. A/CN.4/640 (14 March 2011). See also Institute of International Law, Resolution on Obligations erga omnes in International Law (Institute of International Law [IDI]) IDI Resolution I/2005, (2005) 71(2) Ann IDI 286. 92 International Law Commission, Sixty-third session (first part), Provisional summary record of the 3084th meeting, UN Doc. A/CN.4/SR.3084 (8 July 2011).

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relatively recent period’,93 and that ‘international organizations are quite different from States, and in addition they do present great diversity among themselves’.94 As well explained by Sir Michael Wood during the ILC’s deliberations on DARIO,

[c]ountermeasures by an international organization might fall into three categories: first, those taken by an international organization in response to a breach of international law by a non-member of an organization, secondly, those taken by an international organization in response to a breach by a member of the organization of a rule of international law that was binding on the member other than by reason of its membership and, thirdly, those taken by an international organization in response to a breach by a member of the organization of a rule of international law that was binding on the member because of its membership (for example failure to pay its assessed contributions).95

The first of these three categories may be relevant e.g. for the legal evaluation of the nuclear counter-proliferation policy of the EU. But it should be noted that it is not specifically dealt with in DARIO, as its Articles 22 (2), and 51-63 are only concerned with countermeasures of the second and third category. The Commentary96 suggests that for countermeasures by an injured international organization against a responsible State one may apply by analogy the conditions that are set out for countermeasures taken by a State against another State in Articles 49 to 54 ARSIWA. It may be assumed here that the EU is an ‘injured international organization’ in that the failure to perform an erga omnes obligation affects the EU in addition to its Member States. This raises the question regarding the extent to which rules addressing the responsibility of States may apply to international organizations either directly or mutatis mutandis. Where modifications become necessary, these might derive from the founding documents and the practice of the organization concerned which of course only bind its own members, a matter that needs further research and may lead to different results for different organizations. While academic discussions may be helpful to support insight on this issue, international organizations themselves should consider applicable principles and rules in the course of their practice. In view of its high priority for rule of law issues and its transparent sanctions practice, the EU would be in a unique position to take an active role in this respect. 24. The EU Non-Proliferation Strategy. The European Union has gone a long way in developing and continuously implementing its Strategy Against Proliferation of Weapons of Mass Destruction, which is designed ‘to prevent, deter, halt and, where possible, eliminate proliferation programmes of concern worldwide’.97 The measures envisioned to secure these goals were in the first place political and diplomatic preventative action based on multilateral treaties and export control regimes with resort to the competent international organisations; but coercive measures ‘under Chapter VII of the UN Charter and international law (sanctions, selective or global, interceptions of shipments and, as appropriate, the use of force)’ [my italics] were mentioned as well.98 This statement, while

93 DARIO (above, n 63), General Commentary para. 5. 94 Id, para. 7. 95 Above (n 90), p. 4. 96 DARIO, Commentary to Article 22, para. 2. 97 EU Doc 15708/03 (10 December 2003), Annex, para. 2. Early EU sanctions for nuclear non-proliferation objectives had already been imposed against Iran and North Korea, see Clara Portela, ‘The EU’s Evolving Responses to Nuclear Proliferation Crises: From Incentives to Sanctions’, No. 46 EU Non-Proliferation Consortium Non-Proliferation Papers (July 2015). 98 EU Doc 15708/03 (10 December 2003), Annex, para. 15.

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emphasising the role of the UN Security Council, indicates that the EU retains the right to adopt retorsions and countermeasures without a Security Council mandate. The Treaty on European Union (TEU), Title V, Chapter 2 on Specific Provisions on the Common Foreign and Security Policy,99 and Article 215 of the Treaty on the Functioning of the European Union (TFEU)100 provide for a legal regulation for the interruption or reduction of the Union’s economic and financial relations with third countries.101 The current list of EU sanctions102 includes detailed measures against some States and individuals named as members of ‘terrorist groups (foreign terrorist organisations)’ all over the world. While several States are being targeted with arms and technology export embargoes, it is only in two cases (Iran and the Democratic People’s Republic of Korea) that such measures are expressly declared as means to combat nuclear proliferation.

A comprehensive legal evaluation of the role of the EU in combating proliferation of weapons of mass destruction103 recommends an even more active and autonomous role of the EU in implementing its non-proliferation strategy to strengthen existing agreements and verification systems, support the 1540-Committee104 of the Security Council, and promote relevant cooperation programmes. As of today, the EU still appears ‘far from being a full-fledged non-proliferation actor’.105

99 Treaty on European Union (TEU), OJ 2016 C 202 (consolidated version). 100 Treaty on the Functioning of the European Union (TFEU), OJ C 326 of 26 October 2012, 47 (consolidated version), Article 215 (ex Article 301 TEC): ‘(1) Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof. (2) Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities. (3) The acts referred to in this Article shall include necessary provisions on legal safeguards.’ 101 See Council Regulation (EC) No. 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items. 102 See European Union, External Action, EU Sanctions Map, http://ec.europa.eu/dgs/fpi/what-we-do/sanctions_en.htm. The purpose of the measures against States is not always provieded in detail here, but in some cases it is stated that the sanction is directed against ‘the Taliban’, ‘serious human rights violations’, ‘trade in cultural goods’, ‘internal repression’ in the target State, ‘the campaign against Latin-script schools in the Transnistrian region’, ‘Russia’s annexation of Crimea’, ‘misappropriation of Tunisian State funds’, ‘actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine or which obstruct the work of international organisations in Ukraine’, or against ‘certain effects of sanctions applied by the USA’. It is to be acknowledged that such public advertisement is purposely limited to ‘shorthand’ information and the reasons for the imposition of a sanctions regime (and even for the listing of individuals affected) may not be specified. The interested reader should not rely on such black letter statements and ought to consult the text of the individual legislative acts which are linked electronically to the list. But it seems that a more differentiated public policy would be preferable. 103 Jana Hertwig, Die Europäische Union und die Bekämpfung der Verbreitung von Massenvernichtungswaffen. Theorie und Praxis der europäischen Nichtverbreitungsstrategie (Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien: Peter Lang, 2010); Jana Hertwig, ‘European Union Initiatives: Strategy Against Proliferation of Weapons of Mass Destruction’, in J Black-Branch and D Fleck (eds), Vol. II op.cit., 225-256. 104 See SC Res 1540 (2004), para. 4. 105 See Clara Portela and Benjamin Kienzle, ‘European Union Non-Proliferation Policies Before and After the 2003 Strategy: Continuity and Change’ [at 64], and Clara Portela, ‘EU Strategies to Tackle the Iranian and North Korean Nuclear Issues’, both chapters in Spyros Blavoukos, Dimitris Bourantonis and Clara Portela (eds), The EU and the Non-Proliferation of Nuclear Weapons. Strategies, Policies, Actions (London: Palgrave Macmillan, 2015), 48-66 and 188-204. The role of the EU in promoting a solution to the Iran nuclear

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It appears to be in some contrast to their political importance that EU sanctions have not been given broad attention in legal and policy discussions so far.106 While a comprehensive examination of the legality of sanctions under international law and a proportionality assessment as related to their purpose and negative side-effects is still lacking, some contentious cases107 have given rise to reconsideration of certain aspects. This is not fundamentally different from US sanctions, which are under constant review by the Department of the Treasury’s Office of Foreign Assets Control (OFAC),108 but deserve and require an even more in-depth discussion as to their legality and appropriateness in view of declared goals and purposes.109

A peculiar situation exists with the Iran and North Korea sanctions:110 there is a UN regime, implemented by the EU, and an autonomous EU regime imposed independently from that of the UN. The distinction between both does not always appear to be clear-cut.111 In some cases the question to what extent EU sanctions are covered by or go beyond Security Council mandates may be difficult to answer. It would support declared EU efforts to ensure transparency in this field, if parameters and procedures of the EU’s sanctions policy would be continuously monitored and evaluated under legal principles and rules. 25. Conclusions. Based on these considerations the questions posed in the Third Report and discussed at the Johannesburg Conference112 may be answered as follows: While measures to be taken by international organizations are subject to the provisions of the UN Charter and of applicable Statutes:

− States remain responsible for taking appropriate action in accordance with international law to ensure compliance with the NPT and other relevant obligations.

− No State or international organization shall recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general

issue was particularly remarkable when contrasted to its reactions to previous proliferation crises, see Clara Portela, ‘The UN, the EU, the U.S.: The Triumph of “Team Work”’ (9 February 2017), https://peacepolicy.nd.edu/2017/02/09/the-un-the-eu-the-us-the-triumph-of-team-work/ 106 But see Francesco Giumelli, The Success of Sanctions: Lessons Learned from the EU Experience (Farnham, Ashgate, 2013); Paul James Cardwell, ‘The Legalisation of European Union Foreign Policy and the Use of Sanctions, 17 Cambridge Yearbook of European Legal Studies (December 2015), https://doi.org/10.1017/cel.2015.11, 287-310; Clara Portela, European Union Sanctions and Foreign Policy: When and Why do they Work? (London and New York: Routledge, 2011. 107 For recent jurisprudence of the ECJ see e.g. Case C-200/13 P Council v Bank Saderat [2016], Case T-494/10 Bank Saderat Iran v Council [2013], Case C-176/13 P Council v Bank Mellat [2016], confirming that if the Council is going to rely on listing proposals by Member States as its evidence, it must give access to its files and disclose them to applicants to enable them to respond. While most litigation at the ECJ involves the designation of individuals and the lack of due process: https://www.publications.parliament.uk/pa/ld201617/ldselect/ldeucom/102/102.pdf, little attention has been given to other aspects connected to the use of sanctions to stem proliferation. 108 See, e.g. ‘Publication of Updated Iranian Transactions and Sanctions Regulations’ (22 December 2016), https://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20161222.aspx. 109 See e.g. Michael O'Kane, ‘Iran calls for E3/EU+3 meeting over US sanctions renewal’ (21 December 2016), https://europeansanctions.com/category/iran/. 110 See: Jonathan L. Black-Branch, ‘The Effectiveness of UN Sanctions in the Case of North Korea Nuclear Disarmament and Non-Proliferation in International Law’, in I Caracciolo and M Pedrazzi (eds) Nuclear Weapons: Strengthening the International Legal Regime (Den Haag: Eleven International Publishing, 2015), 23-32. 111 See Thomas Biersteker and Clara Portela, ‘EU sanctions in context: three types’, 26 European Union Institute for Security Studies, Brief Issue (July 2015), http://www.iss.europa.eu/uploads/media/Brief_26_EU_sanctions.pdf. 112 See above (n 62).

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international law. Appropriate action includes cooperative forms to ensure compliance, retorsions, and countermeasures.

− Any injured State, a term not narrowly to be defined in the law of nuclear non-proliferation because of the potential effects of proliferation, is entitled to invoke the responsibility of another State. As essential obligations under the NPT and relevant safeguards agreements do have an erga omnes character, also a State that is not injured itself may be eligible for taking countermeasures for serious breaches of such obligations, yet there is no general rule under which circumstances and conditions this right might be exercised.

− All States have a droit de regard to follow compliance with these obligations and a right to react in case of breaches, irrespective of whether or not they are directly injured.

States and international organizations have the right to invoke the responsibility of the responsible State and claim cessation of the wrongful act, assurances and guarantees of non-repetition, and reparation in the interest of the injured State; beyond that, coercive measures should be a last resort. They require a will to cooperate and need to be continuously scrutinised and terminated as soon as they have fulfilled their purpose. As this will be a long-lasting process, suspension of coercive measures need not take place immediately. Nuclear cooperation might resume only after confidence in a State’s bona fide practice has been restored.

C. Dispute Settlement

26. An indispensable Role of States. As stated in the Third Report (para. 23), a cooperative role of States to ensure compliance with non-proliferation obligations remains essential for reaching longer-lasting solutions. Cooperation with States trying to abuse their right to develop nuclear energy for peaceful purposes should lead participating States to prioritise lawful means available to take preventive action, to support measures taken by international organizations and other States in the case of breaches, and to engage in dispute settlement to solve open issues, activities that are also addressed in treaties on nuclear-weapon-free zones. While this could entail the development of new legal principles to ensure proportional reactions to breaches, no fixed set of rules and procedures should be envisaged here. Pertinent situations may be too different and practice is too complex to allow for strict regulation. But the need for peaceful settlement (which is also an obligation under Chapter VI of the Charter) remains, as none of the cases of non-compliance with nuclear non-proliferation obligations reported to the Security Council so far have been brought to a final resolution solely by sanctions imposed under Chapter VII.113

The Way Ahead

27. The Interplay Between Legal Obligations and Political Commitments. To fully address the relevant legal issues for international cooperation regarding the implementation of the NPT and other pertinent norms of treaty law and customary law, a distinction needs to be maintained between legal obligations, best practice and aspirations for new law. The interplay between legal obligations and political commitments remains an important element of compliance in this field. Indeed, few fields encompass such an intertwining of politics, law and diplomacy. Existing gaps or shortcomings will not necessarily require the

113 Dieter Fleck, ‘Disputes on Nuclear Proliferation: Means and Methods for their Settlement’, Black-Branch and Fleck (eds), op.cit., Vol. II, Chapter 17. 389-412.

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development of new legal rules and regulatory frameworks. Best practices and political commitments will always have an effective role in this interplay with legal regulation. Confidence-building remains an integral aspect of balancing between legal and political compliance in State practice. 28. Open Issues. To accomplish the Committee’s mandate and deliver comprehensive recommendations on the implementation of the three pillars of the NPT, relevant issues that have not been discussed or fully developed so far still need to be investigated and clarified. Pertinent examples are the relationship between nuclear law and human rights law;114 the relationship between nuclear law and environmental law; the ICJ Judgments on Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (5 October 2016);115 legal issues evolving from the new Treaty on the Prohibition of Nuclear Weapons, adopted on 7 July 2017 with a vote of 122-1-1, in which no nuclear-weapon State participated;116 the U.S. 2018 Nuclear Posture Review (NPR);117 and recent developments in the nuclear doctrine of the Russian Federation.118 The considerations and proposals related to nuclear disarmament developed in the Second Report (2014) need to be complemented in the light of these developments.119 Most 114 See Daniel Rietiker, ‘Between Prosperity and Destruction: A Modern Interpretation of the Right to Peaceful Use of Nuclear Energy in Light of the Protection of Human Rights and Future Generations’, in Black-Branch and Fleck (eds), op. cit., Vol. III (2016), 21-61; Humanization of Arms Control. Paving the Way for a World free of Nuclear Weapons (London: Routledge, 2017). 115 Marshall Islands v. United Kingdom, http://www.icj-cij.org/files/case-related/160/160-20161005-JUD-01-00-EN.pdf; Marshall Islands v. India, http://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-00-EN.pdf; Marshall Islands v. Pakistan, http://www.icj-cij.org/files/case-related/159/159-20161005-JUD-01-00-EN.pdf. 116 See UNGA Res 71/258 (23 December 2016) Taking forward multilateral nuclear disarmament negotiations; UNGA Res 71/259 (23 December 2016) Treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices; text of the treaty at UN Doc A/CONF.229/2017/8 (7 July 2017), at https://www.un.org/disarmament/ptnw/. 117 National Security Strategy of the United States of America, December 2017, https://www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf, 30-31; DoD Official: National Defense Strategy Will Rebuild Dominance, Enhance Deterrence (11 January 2018), https://www.defense.gov/News/Article/Article/1419045/dod-official-national-defense-strategy-will-rebuild-dominance-enhance-deterrence/; Nuclear Posture Review 2018, https://www.defense.gov/News/Special-Reports/0218_npr/; Hans Rühle and Michael Rühle, ‘Contours of a Third Nuclear Age’, National Institute for Public Policy, 421 Information Series (17 July 2017). 118 Military Doctrine of the Russian Federation (2014), para. 27; ‘Insight - Russia's nuclear strategy raises concerns in NATO’ (4 February 2015), https://uk.reuters.com/article/uk-ukraine-crisis-russia-nuclear-insight/insight-russias-nuclear-strategy-raises-concerns-in-nato-idUKKBN0L825A20150204; European Parliament, Directorate-General for External Policies, Policy Department, ‘Russia’s national security strategy and military doctrine’ and their implications for the EU (January 2017), http://www.europarl.europa.eu/RegData/etudes/IDAN/2017/578016/EXPO_IDA(2017)578016_EN.pdf; Adrian Croft; Presidential Address to the Federal Assembly (1 March 2018), http://en.kremlin.ru/events/president/news/56957; Anton Troianovski, ‘Putin claims Russia is developing nuclear arms capable of avoiding missile defenses’, The Washington Post (2 March 2018). 119 See in particular the Hiroshima Report. Evaluation of Achievement in Nuclear Disarmament, Non-Proliferation and Nuclear Security in 2016 Hiroshima Prefecture/ Center for the Promotion of Disarmament and Non-Proliferation/ The Japan Institute of International Affairs, eds), 2017, http://www.pref.hiroshima.lg.jp.e.bq.hp.transer.com/site/peace-en/hiroshimareport2017e.html; conferences and further activities on the humanitarian impact of nuclear weapons, https://www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/; Resolution of the Council of Delegates of the International Red Cross and Red Crescent Movement ‘Working towards the elimination of nuclear weapons’ (Antalya, 11 November 2017, CD/17/R4); the Hague Code of Conduct Against Ballistic Missile Proliferation (HCOC), http://www.hcoc.at. For a comparison between non-proliferation regimes, see Bakhtiyar

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particularly the discussion concerning the review of nuclear strategies needs to be evaluated here.120 As for peaceful uses many aspects deserve to be further pursued, including the open question addressed in para. 7 above whether peaceful uses could entail a right to enrichment/reprocessing or operation of heavy-water reactors, when not undertaken under IAEA safeguards and inspections.

The Committee will also continue in its efforts to outreach to activities beyond its membership. 29. A Declaration on Legal Issues of Nuclear Weapons, Non-Proliferation and Peaceful Uses of Nuclear Energy will be presented as the final step of the Committee’s work. It will be based on the efforts made so far, addressing relevant issues of existing international law, best practice and proposed new rules. The Declaration will be accompanied by a commentary. Draft elements of the Declaration are annexed to this Report.

Tuzmukhamedov, ‘Legal Dimensions of Arms Control Agreements, in 377 RdC (2016), 320-467, at 398-401. 120 See e.g. Ramesh Thakur, Nuclear Weapons and International Security. Collected essays (London and New York: Routledge, 2015), 216-233: ‘The problem of nuclear weapons and what to do about it’; Gareth Evans, ‘Nuclear Deterrence in Asia and the Pacific’, 1:1 Asia & the Pacific Policy Studies (2014), 91-111; Brian Drummond, ‘Is the United Kingdom Nuclear Deterrence Policy Unlawful? in 11 New Zealand Yearbook of International Law (2013), 107-139, http://www.nzlii.org/nz/journals/NZYbkIntLaw/2013/4.html; and nn 50-56 and accompanying text of this Committee’s Second Report (above, n 2).

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Annex Tentative Conclusions and Recommendations

The following draft elements of the forthcoming ILA Declaration on Legal Issues of Nuclear Weapons, Non-Proliferation and Peaceful Uses of Nuclear Energy are listed here in a still tentative manner. The propositions made in the Second and Third Report are incorporated in bold type. A. Nuclear Non-Proliferation

(A 1) To effectively ensure non-proliferation of nuclear weapons or other nuclear explosive

devices, both legally and politically binding commitments are necessary.

(A 2) While the NPT and treaties on nuclear-weapons-free zones require the application of comprehensive IAEA safeguards by their States parties, special and supplementary safeguards systems are in effect to ensure nuclear non-proliferation for the 28 Member States of the European Atomic Energy Community (EURATOM) and for the two States cooperating under the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials (ABACC). 121

(A 3) With respect to implementation of safeguards agreements, the IAEA is fully authorised

to verify the correctness and completeness of declarations made by States.122 Rights and obligations specifically agreed in Comprehensive Safeguards Agreements and Additional Protocols require States parties to them to cooperate with the IAEA, but they are not limiting the mandate of the Agency as confirmed in its Statute, agreement by its Governing Bodies, and consistent practice endorsed by the Security Council on numerous occasions. The ability of the IAEA to draw sound and independent conclusions about the correctness and completeness of States’ declarations and thereby provide all States credible assurance of the non-diversion of nuclear material and the absence of undeclared nuclear material or activity is an indispensable predicate of nuclear cooperation.

(A 4) To appropriately reduce proliferation risks associated with certain peaceful nuclear activities, civil use of nuclear-weapon-usable nuclear material should be regulated and international control of uranium enrichment and reprocessing of spent fuel should be ensured. For this purpose relevant measures need to be harmonised, while assuring fuel supply for peaceful purposes and preventing unbalanced or discriminating interference with international trade.123

(A 5) Nuclear-test-ban verification, for which the IAEA is not mandated, is conducted by a

special organization under the Comprehensive Nuclear Test Ban Treaty (CTBT). While the entry into force of the CTBT still depends on ratification by another eight States, one of the Treaty requirements, stipulating that at entry into force of the Treaty the verification regime shall be capable of meeting the verification requirements of this Treaty, is already met. Verification activities conducted by the Preparatory Commission are based on a shared interest of participating States.124

(A 6) There is a continuing need for a universal nuclear security regime. Methods for developing

such regime could be based on an endeavour to universalise existing legally binding instruments (such as

121 There are also bilateral safeguards treaties entered into by many countries which complement States’ obligations under the NPT and IAEA safeguards agreements, see e.g. http://dfat.gov.au/international-relations/security/non-proliferation-disarmament-arms-control/policies-agreements-treaties/nuclear-cooperation-agreements/Pages/australias-network-of-nuclear-cooperation-agreements.aspx. 122 Before the non-diversion of nuclear material from declared activities can be assured, cooperation between these States and the IAEA is required by safeguards agreements (Art. 3 INFCIRC/153 and Art. 1 INFCIRC/540) and is essential to facilitate the implementation of them. 123 Cooperation and control on dual-use technology transfers are complementary (and not conflicting) elements of effective non-proliferation. 124 Even after the Treaty’s entry into force there may be disputes with a State affected by certain verification activities on the proper conduct or the assessment of such activities. Irrespective of whether such State will be party to the Treaty or not, there will be hardly any successful dispute settlement except by international cooperation.

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CPPNM125, ICSANT126). They could also involve efforts to reinforce existing mechanisms, such as the Global Initiative to Combat Global Terrorism (GICNT),127 or the Nuclear Energy Agency of the OECD (NEA),128 in an effort to strengthen them and making them more transparent with further legally binding commitments.129 Industry bodies such as the World Institute of Nuclear Security (WINS)130 may be helpful to provide know-how and assistance.

(A 7) Effective implementation by all States of their obligations under Security Council Resolutions

1540 (2004) and 2325 (2016) would make a significant contribution to strengthening the cause of nuclear non-proliferation, enhancing nuclear security world-wide, and reducing the risk of nuclear terrorism. B. Use of Nuclear Energy for Peaceful Purposes

(B 1) The right to develop research, production and use of nuclear energy for peaceful purposes without discrimination entails a responsibility to ensure nuclear security and nuclear safety, including a safe radioactive waste management system.131

(B 2) The right to peaceful use of nuclear energy is conditioned by an obligation to accept

verification and control of full compliance with non-proliferation agreements and to implement the obligations under Security Council Resolutions 1540 (2004) and 2325 (2016).132

(B 3) The IAEA, as confirmed by its mandate and current international law, has a central role in

supporting States in meeting their nuclear safety and security responsibilities. (B 4) The storage and disposal of radioactive waste require binding rules at global scale. It should

be mandatory to employ common standards and the most developed technologies to this effect. Determined efforts need to be made towards sustainable radioactive waste management, including through technological solutions based on future innovations that may help in addressing challenges, which may appear to be irresolvable at the present stage. A warning sign to protect and assist human beings in effectively identifying radioactive waste even after thousands of years (assuming that such an aim is realistic) should be developed.

(B 5) To ensure the good functioning of relevant treaty systems and assist States in effective

implementation, mandatory international review mechanisms, as they already exist under the CNS and the Joint Convention, are desirable.

(B 6) Multilateral arrangements could help to improve cooperation on safe and secure uses of nuclear

energy for peaceful purposes.133

125 Convention on the Physical Protection of Nuclear Material – CPPNM – (1 November 1979), 1456 UNTS 125, entered into force on 8 February 1987, amended on 8 July 2005 (amendment entered into force on April 8, 2016), INFCIRC/274/Rev 1, http://www.iaea.org/Publications/Documents/Conventions/cppnm.html, http://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf. There are already 156 Parties to the CPPNM and 116 Parties to the CPPNM Amendment. 126 International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention – ICSANT – (13 April 2005), 2445 UNTS 89, http://untreaty.un.org/cod/avl/ha/icsant/icsant.html (113 Parties). 127 See http://www.gicnt.org. 128 See https://www.oecd-nea.org. 129 See also below, C 13. Synergy effects between non-proliferation controls and measures to ensure nuclear safety and security should be used. It also needs to be recognized in an environment of increasing terrorist activity that ensuring nuclear safety and nuclear security must be treated together. 130 See https://www.wins.org. 131 See OECD Nuclear Energy Agency (NEA), International Nuclear Law: History, Evolution and Outlook (2010), including the following contributions: Carlton Stoiber on Nuclear Security (pp 219-242), Laura Rockwood on IAEA Safeguards (pp 243-270), Quentin Michel on Control of Nuclear Trade (pp 271-306), Odette Jankowitsch on Transport of Nuclear Materials (pp 187-218). 132 It is also in this context that the question needs to be clarified whether and under what conditions enrichment/reprocessing may be considered peaceful use (see above, para. 7). 133 This applies both for operation of nuclear facilities and for enrichment.

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(B 7) A global nuclear liability regime based on worldwide treaty relations would be desirable and accurately reflect the physical environment. As long as it is not in force, regional harmonisation remains necessary. All Governments should address the issue of international nuclear liability and consider becoming party to one of the relevant conventions. They should also adopt appropriate national legislation.134

(B 8) Considering the likelihood of serious harm being caused by explosive devices combining

radioactive material with conventional explosives, tighter regulation regarding access to radioactive materials is an important method in the prevention of nuclear terrorism.

(B 9) Full support needs to be given to the IAEA’s incident and emergency system including its

assessment and prognosis mandate. C. Nuclear Disarmament

(C 1) The obligations recognised in Article VI NPT have three objectives: − the cessation of the nuclear arms race at an early date, − nuclear disarmament, and − general and complete disarmament.

Each of these objectives requires negotiations to be pursued in good faith and implementation measures under strict and effective international control.

(C 2) Article VI is far from conditioning nuclear disarmament on the achievement of general

and complete disarmament. Rather, it requires States to take effective steps to end the nuclear arms race and to enhance international security at lower levels of armament.

(C 3) To reach these objectives the Parties must pursue negotiations in good faith on effective

measures. This obligation goes beyond a mere obligation of conduct in that it includes an obligation to achieve a precise result.

(C 4) Subsequent practice during the last four decades has not weakened the aforementioned

legal obligations, but confirmed a growing need for a legal instrument that will prohibit the use of nuclear weapons and lead to their elimination under strict and effective international control, even if that process takes time.

(C 5) Until such time as stricter legal rules may be adopted, States having nuclear weapons are

under a legal obligation to strictly limit their relevant strategies to ensure that the threat or use of such weapons are means of last resort in an extreme circumstance of self-defence in which the very survival of the State would be at stake.

(C 6) States modernising their nuclear arsenals should exercise transparency as to the purpose

and effects for nuclear safety and consequences in accordance with existing obligations under international humanitarian law, human rights law and environmental law.

(C 7) The aforementioned legal obligations are valid erga omnes, as they affect the

international community as a whole rather than a particular State or group of States. As part of customary international law or at least evolving customary norms they are not limited to States Parties to the NPT.

(C 8) States Parties to the NPT must cooperate with one another as well as with non-Parties to

implement these obligations. (C 9) A development towards mutually verifiable nuclear disarmament requires

− confidence-building measures and consequences for military doctrines, force structures and alert levels;

− joint action on interim steps including a comprehensive nuclear test ban and the termination of the production of weapons-usable fissile material except under appropriate international control;

134 See Norbert Pelzer, ‘Facing the Challenge of Nuclear Mass Tort Processing’, 99 Nuclear Law Bulletin (2017), 45-69.

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− cooperative approaches to anti-ballistic missile defence; and − further limitations to military uses of outer space.135

(C 10) Negative security assurances by nuclear-weapon States are to be reviewed and further

developed, including by the establishment of further nuclear-weapon-free zones. (C 11) A repository of information on measures taken by States in furtherance of nuclear

disarmament and non-proliferation should be established. It should include information on the role of remaining nuclear weapons and their alert status.

(C 12) National headquarters of nuclear-weapon States might be enabled to exchange liaison

officers with appropriate working conditions as a confidence-building measure. (C 13) The challenge of nuclear terrorism requires cooperative responses by States

implementing their non-proliferation obligations and ensuring law enforcement and criminal prosecution.136

D. Compliance with and Enforcement of Nuclear Non-Proliferation Obligations and Commitments (D 1) Extensive international exchange and more extensive cooperation is essential to ensure

compliance with non-proliferation obligations. (D 2) Nuclear disarmament, deterrence, confidence-building, non-proliferation, security, and

even the safe use of nuclear energy for peaceful purposes are interconnected. This remains essential for any convincing approach to effectively control nuclear armament. In the same sense nuclear safety, security and non-proliferation, albeit subject to different legal regimes, are directly and inextricably linked to each other.137

(D 3) In the event of withdrawal from the NPT States Parties are bound to fully comply with

their obligations under Article X.1 NPT. (D 4) To help ensure compliance with arms control and disarmament obligations States may

utilise exploratory tasks, and negotiations, pursue long-term settlements, and cooperate, as appropriate. When the Security Council has taken measures under Chapter VII of the UN Charter to ensure compliance with arms control and disarmament obligations, States will still have to pursue long-term settlements that should endure daily pressure, and co-operate towards this end.138

(D 5) States are obligated to cooperate in the settlement of any dispute related to nuclear non-

proliferation, the use of nuclear energy for peaceful purposes, or nuclear disarmament. (D 6) Both States directly, as well as those indirectly involved in a nuclear dispute should

cooperate in this context, as non-compliance with pertinent obligations could affect much wider regions even beyond neighbouring States.

135 In the context of this paragraph it should be considered that (1) fissile material and other naval applications can be repurposed for weapons; and (2) existing stockpiles of fissionable material will have to be covered. 136 See also above, A 6, addressing nuclear security obligations. 137 If these issues were dealt with separately, neither the cessation of the nuclear arms race nor substantive nuclear disarmament could be achieved, and neither safety nor security of the use of nuclear energy could be ensured in an effective manner. While the use of nuclear energy for peaceful purposes under sound non-proliferation conditions that do not involve sensitive nuclear activities can and should be ensured regardless of progress in disarmament. Denial of such use, absent indications of non-compliance with non-proliferation obligations may undermine nuclear non-proliferation. 138 The Commentary will address specific cases and also discuss whether the pertinent obligations stem from treaties like the NPT or from Chapter VII decisions and whether this makes any difference.

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(D 7) Measures by the Security Council including measures under Chapter VI of the UN Charter may help to ensure nuclear non-proliferation, support strict and effective export controls and provide transparent procedures for pertinent activities.

(D 8) Implementation of recommendations by the UN General Assembly with regard to

principles of cooperation in the maintenance of peace and security and principles governing disarmament and the regulation of armaments may add to transparency in nuclear-non-proliferation.

(D 9) Reporting activities by the UN Secretary-General and the exercise of his or her right of

initiative may be essential for nuclear non-proliferation steps made by the General Assembly, as well as for measures taken by the Security Council and by States.

(D 10) To ensure compliance with existing rules and best practice, incentives may be more

effective and more important than enforcement measures. Incentives should be developed in international cooperation.139

(D 11) Procedures and objectives of verification should be continuously scrutinised.

Cooperative action should be taken to reach nuclear balance at lower levels, ensure non-proliferation of nuclear weapons and nuclear explosive devices, and abolish chemical and biological weapons.

(D 12) Incentives for compliance may be an important tool at all stages of dispute settlement.

Different forms of cooperation may be required at those different stages. (D 13) The lack of judicial control of enforcement measures performed on behalf of the United

Nations remains an important issue for further legal development in this field.

(D 14) Whilst international organizations may take such measures as envisaged in the UN Charter and applicable constituent acts, States retain the primary responsibility for taking appropriate action in accordance with international law to ensure compliance with the NPT and other relevant nuclear obligations.

(D 15) No State shall recognize as lawful a situation created by a serious breach of an obligation

arising under a general norm of international law. Appropriate action includes cooperative measures to ensure compliance, retorsions, and countermeasures. All States have a droit de regard to follow and invoke compliance with these obligations and a right to react in case of breaches.

(D 16) Retorsions, i.e. lawful acts or omissions (such as export limitations, traffic controls, travel

restrictions and criminal prosecution to ensure compliance with non-proliferation obligations), deserve more attention in current discussions on compliance with arms control obligations. It is important for retorsions as for all other sanctions that they need to be proportionate to their intended outcome, continuously scrutinised and ceased as soon as they have fulfilled their purpose.

(D17) In case of serious breaches of international legal obligations associated with the sovereign right to the peaceful uses of nuclear energy, any injured State, a term not narrowly to be defined in the law of nuclear non-proliferation, is entitled to invoke the responsibility of another State and claim cessation of the wrongful act, assurances and guarantees of non-repetition and reparation in the interest of the injured State.140

(D 18) Essential obligations under the NPT and comprehensive safeguards agreements have

an erga omnes character. All States should cooperate in ensuring compliance with those obligations. Even if a State is not directly injured itself, it may be eligible to take countermeasures against serious breaches of such obligations. Likewise, international organizations may have aright to take countermeasures subject to their constituent documents and existing principles and rules of international law.

(D 19) Coercive measures may only be taken as a last resort. They must be in conformity with

existing legal standards. They are not meant to punish a State, but are aimed at bringing about compliance

139 This might lead to a prioritisation of lawful means available and may entail the development of new legal principles and rules. 140 D16 and D17 need to be further contextualised to the nuclear domain.

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with an international obligation. They must be proportionate, temporary in nature, require a will to cooperate, need to be continuously scrutinised and withdrawn when the act in question ceases.141

(D 20) States and international organizations should consider the relationship between countermeasures and the peaceful settlement of disputes. Coercive measures may facilitate, but cannot replace dispute settlement by cooperative means, as required under Article 2(3) and Chapter VI of the UN Charter.

(D 21) It would support declared EU efforts to ensure transparency in this field, if parameters and

procedures of the EU’s sanctions policy would be continuously monitored and evaluated in accordance with legal principles and rules.

(D 22) Under SC Res 1540 (2004) States are obliged to criminalise, establish appropriate penalties and prosecute actions by non-State actors that undermine the effectiveness of the non-proliferation regime.142

141 The Commentary shall also address the notion of punitive measures aimed at bringing about compliance with the international obligation breached. 142 Relevant obligations are spelled out in SC Res 1540 (2004) with respect to many actions relevant to nuclear non-proliferation and nuclear terrorism. It should be examined what additional action is required. The Commentary will need to explain what are the non-proliferation obligations in question. See Handbook on Nuclear Law (above, n 8). Part V of the Handbook specifically deals with Non-Proliferation and Physical Protection (Chapter 12 on Safeguards, Chapter 13 on Export and Import Controls and Chapter 14 on Physical Protection).