Improving Nuclear Security: Voluntary Commitments or Legal Regimes?

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President Barack Obama and then-President Dmitry Medvedev at the Nuclear Security Summit on April 13, 2010 | Photo by Kremlin.ru

President Barack Obama and then-President Dmitry Medvedev at the Nuclear Security Summit on April 13, 2010 | Photo by Kremlin.ru

On March 31, 2016 heads of state from around the globe will convene in Washington, DC for the fourth and final Nuclear Security Summit (NSS). Launched in 2010, this high-level biennial meeting seeks to address the threat of nuclear terrorism and the vulnerability of states to nuclear theft. In advance of the summit, writers and civil society groups have already provided policy recommendations and requirements for a successful summit. As is the case with many international initiatives, a common recommendation is to close gaps in the law and improve mechanisms for monitoring and enforcement.  However, in the nuclear security arena, a continued focus on voluntary commitments may be more prudent and fruitful in the near future.

Background

In his 2009 Prague Speech, President Obama stated that the danger of terrorists acquiring nuclear weapons “is the most immediate and extreme threat to global security.” In light of this threat, he announced an international initiative of securing all fissile material within four years. While this ambitious goal has not been fully achieved, the threat of nuclear terrorism has significantly decreased over the past six years. Moreover summits in 2010, 2012, and 2014, have ensured that nuclear security remains a top priority for the international community. One of the greatest successes of the summits has been the announcement by states of “gift baskets,” voluntary steps they have taken to reduce the vulnerability of their nuclear materials and facilities. In the lead up to the 2010 NSS, 29 of the 47 states that participated in the summit announced various gift baskets and over 60 percent of those commitments were filled within one year.

 The Legal Framework in Place

While President Obama brought renewed attention to the issue of nuclear terrorism in 2009, the international community has been aware of the threat for decades. A patchwork of overlapping and decentralized institutions and legal instruments currently exists. The International Atomic Energy Agency (IAEA) has provided a comprehensive backgrounder on these instruments. Three main instruments are worth considering here:

Convention on Physical Protection of Nuclear Material (1979) & the 2005 Amendment

The Convention on the Physical Protection of Nuclear Material (CPPNM) is the oldest international treaty responsible for promoting nuclear security. Adopted in 1979 (and in force since 1987), the CPPNM has 153 state parties and is the only international, legal instrument related specifically to the physical protection of nuclear material and facilities.

In 2005, an amendment was adopted that would broaden the scope of the convention. Specifically, the amendment would make the convention applicable not only to materials during transport, but also to nuclear materials and facilities within domestic control. The amendment does not enter into force until two-thirds of State Parties ratify it (102 states). As of December 2015, only 91 have done so.

International Convention on the Suppression of Acts of Nuclear Terrorism (2005)

The International Convention on the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention), which became effective in 2007, is a UN treaty that obliges states to criminalize acts of nuclear terrorism and promotes international cooperation to prevent the commission of such acts. Currently, 100 countries have signed on to the treaty. The United States became the latest State Party when it ratified the convention in September 2015.

The Nuclear Terrorism Convention covers not only nuclear, but all “radioactive materials,” as defined by the convention. It also covers materials and facilities used for military purposes (which is expressly excluded by the CPPNM and 2005 Amendment).

UN Security Council Resolution (UNCSR) 1540 (2004)

Passed under the Security Council’s Chapter VII authority, UNSCR 1540 imposes a series of obligations on all states related the “threat of terrorism…and the risk that non-State actors may acquire, develop, traffic in or use nuclear…weapons.” Obligations include, establishing domestic controls over the security, export, transfer, and storage of nuclear weapons and related materials; adopting laws that prohibits the transfer of nuclear weapons to non-State actors; and renewing and fulfilling commitments within the IAEA framework. It also established a monitoring committee to which states are obliged to provide reports on their implementation of their obligations under the resolution. In addition to nuclear security-related obligations, UNSCR 1540 creates and reinforces general obligations related to nonproliferation.

Gaps in the Regime

Though nuclear security has undoubtedly improved over the past six years, commentators have highlighted gaps in the regime. First, security over nuclear materials used for military, rather than civilian, purposes continues to be a major issue. As the Nuclear Threat Initiative (NTI) points out, 83 percent of all stocks of fissile material are designated as military material. Regulations under the CPPNM do not apply to these materials, which continue to pose a threat to nuclear security as evidenced by a 2012 security breach of a nuclear bomb facility in Oak Ridge, Tennessee.

Second, uneven compliance with UNSCR 1540 limits its effectiveness. NTI and other authors note that countries have not complied with all their obligations, particularly their reporting obligations, under UNSCR 1540. At the 2014 NSS, many states acknowledged the need to address this gap in a joint-statement titled:  Promoting the full and universal implementation of United Nations Security Council Resolution (UNSCR) 1540.

A Legal Solution?

Experts and commentators consistently call for improvements to the binding legal framework and for strengthening the enforcement mechanisms currently in place. However, within the context of nuclear security, the international community should continue to focus on voluntary measures and political—rather than legal—commitments by states. Improving nuclear security through non-legal means should be favored for three reasons. First, unlike many other international issues, nuclear security benefits all states. Whereas regulation of the environment, for example, may create winners and losers, all states stand to benefit from increased nuclear security and the prevention of nuclear terrorism. Each state has its own individual incentive to voluntarily improve its nuclear security. Granted, for developing states, the costs of implementing security measures may be high. However, voluntary technical assistance can easily solve this problem. Second, in the nuclear arena, states are particularly wary of binding agreements. This is partially due to the fact that some non-nuclear weapon-states feel that the nuclear weapon-states are not making good on their commitments under the Nonproliferation Treaty (NPT). By continuing to focus on voluntary commitments for nuclear security issues, the international community can keep nuclear security separate from nonproliferation. Doing so will likely keep the issue of nuclear security from stalling. Finally, voluntary measures have proven to be successful tools in the nuclear arena. For example, in 1993, South Africa voluntarily abandoned its nuclear weapons program. Already, the “gift basket” approach has proven successful.

While legal solutions may be needed in the long term, at this time the international community should focus on the promotion of nuclear security through soft law techniques. By prioritizing voluntary measures and informal relationship building, states can continue to build on the momentum of the four summits.

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