Guest Post: A Comparison of Two Geological Disposal Facilities, and the Implications of International Nuclear LawPosted: June 27, 2018
This past March I taught a week-long course at the University of Manchester, in the UK. The course was, as far as I know, unique. The title of the course was “International Nuclear Energy Law.” I designed the course to cover the international legal sources regulating the civilian nuclear energy industry. So both hard and soft law sources on nuclear safeguards, trade in nuclear technologies, nuclear facility and materials safety and security, nuclear incident liability, nuclear materials transport, radioactive waste disposal and the environment, and international investment law related to nuclear facility new builds. This was definitely a bit of a stretch from my usual short-course subject of nuclear nonproliferation law, but of course there is considerable overlap and I wanted to expand my teaching and research repertoire. And as it happens, Manchester has both a very strong nuclear engineering school and an excellent law school. So along with friends on both faculties, we designed this course to be cross listed for both law students and nuclear science students. The result was just remarkable. The class of 28 students was comprised about equally of law students and nuclear science (engineering, physics, chemistry, etc.) students. And the discussions that ensued were fascinating, with both groups contributing insights from their disciplines. I think the group work particularly was enjoyable for the students. Every day in the afternoon I would give them a case study based on the morning’s lecture, and break them into groups containing both law students and nuclear science students, and have them work together to come up with an answer which they then reported to the full class. Seeing the discussions that they had among the different disciplines was really exciting. I’m hoping the course will become a regular, annual event.
So, among the final papers that were submitted by the students in the course, I thought I would post one of the best ones here, so that readers could see the kind of subjects we discussed in the course. The below is the course paper submitted by Amber Mason, who is a PhD student in her second year at the Materials Science and Engineering Department at the University of Sheffield. Her research involves investigating potential materials for the purpose of nuclear waste immobilisation, with a particular focus on the plutonium stockpile currently stored at Sellafield, UK. She wrote the below paper for the course comparing two different examples of geological disposal facilities for radioactive waste, and also considering the requirements of international law for such facilities. I thought it was a great paper, so wanted to share it (with her permission of course). Comments welcome.
I’m pleased to introduce the below guest post by Olha Bozhenko. She is an LL.M student in International Litigation (Public International Law) at the Institute of International Relations Kyiv National Taras Shevchenko University. She holds a BA (Hons) in International Relations from the same university. She is an Associate at Marchenko Danevych law firm (Ukraine).
I like this piece because I think it address some timely dynamics in nuclear arms control, and then provides an interesting and meaningful discussion of some of the implications of these dynamics for international law. Comments welcome.
Is the Conventionalization of Nuclear Weapons Detrimental to the Associated International Legal Regime?
By Olha Bozhenko
Nuclear weapons enjoy a separate and unique regime under international law. The majority of states struggle to establish a complete prohibition of nuclear weapons, as in the case of other categories of WMD. In fact, in its only authoritative pronouncement on the matter, the ICJ stressed ‘the unique characteristics of nuclear weapons, and in particular their destructive capacity’ (para 36).
Yet in view of some recent developments, to be discussed below, this distinction has been gradually disappearing, with the line between nuclear and conventional weapons becoming blurred. This means that nuclear weapons are not stigmatized as their WMD counterparts, but rather conventionalized.
This piece is an attempt to, first, ascertain the progressing conventionalization among the current trends related to nuclear weapons and, second, delineate its consequences for the international legal regulation of armaments.
Paths of conventionalization
Nuclear weapons conventionalization has been referred to as ‘nuclear entanglement’, which essentially means the merger of nuclear and conventional weapons. Broadly understood, it manifests itself in the following ways.
Increased reliance on non-strategic (tactical) nuclear weapons
As early as in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion, Judge Shahabudeen suggested that assuming tactical nuclear weapons could be no more destructive than conventional weapons, they should not be less lawful than the latter (p. 159). Hence, placing nonstrategic nuclear weapons (NSNW) at the top of ‘conventionalization agenda’ is not a brand-new idea. Besides, it has recently been emphasized in national strategies.
The most striking example is, of course, the US 2018 Nuclear Posture Review (NPR), which radically departs from its predecessor in mandating the development of a range of nonstrategic low-yield nuclear options (p. 52). The Trump Administration considers this departure necessary as a response to Russia’s substantial reliance on and expansion of non-strategic nuclear arsenal, which considerably outstrips that of the US (p. 53). At face value, this means that the two most powerful nuclear-weapon states have embarked upon the rapid expansion of their non-strategic nuclear options.
Such an approach depicting NSNW as quite a usable tool to advance military and non-military goals significantly lowers the threshold for the actual use. Such reliance on a limited nuclear strike can well lead to the full-blown nuclear escalation, which the ICJ considered among the possible consequences of using low yield nuclear weapons (para 94).
Integration of nuclear and conventional planning and operations
The integration of nuclear and conventional capabilities also contributes to the conventionalization. This is ‘nuclear entanglement’ in the original meaning of the term. The integration includes equipping dual use means of delivery with nuclear and non-nuclear warheads, merging nuclear and conventional support facilities, as well as integrating planning and training for both nuclear and non-nuclear forces. China and Russia are said to pursue this strategy whether deliberately or as a matter of historical legacy. Furthermore, the US’ NPR specifically mandates ensuring ‘the ability to integrate nuclear and non-nuclear military planning and operations’ (p. 21) to ‘deter limited nuclear escalation and nonnuclear strategic attacks’ (p. 58).
These developments are frowned upon for a number of reasons. They tend to erode the line between nuclear and conventional forces in the most palpable manner. They also increase the risk of adversary’s misinterpretation of the nature of an attack, which can simultaneously target ‘entangled’ capabilities.
Expanding range of scenarios for the use of nuclear weapons
Much has been said on the expanded range of scenarios where the US contemplates first use of nuclear weapons, also in response to non-nuclear threats (2018 NPR, p. 21). Although the US strategy is most widely discussed owing to its considerable departure from the previous pattern, other nuclear-weapon states either preserve deliberate ambiguity with regard to the possible use of nuclear weapons (e.g. the UK and France) or explicitly declare their readiness to balance an adversary’s conventional superiority with a nuclear strike (e.g. Russia and Pakistan).
Expanding the role of nuclear weapons beyond deterring nuclear threats alludes to an increased rationality and military utility of a nuclear strike. This further undermines the arguments that there exists opinio juris prohibiting recourse to nuclear weapons, except for the purposes of deterrence (para 65). In view of such developments it is understandable why the ICJ refused to acknowledge that the non-recourse to nuclear weapons since 1945 had been due to such opinio juris rather than the absence of military necessity (para 67).
Nuclear saber rattling
Finally, never before has it been so common for political leaders to boast of their states’ nuclear capacities. One may recall Vladimir Putin’s threats to deploy nuclear weapons in the course of Crimea crisis and against Baltic states, or his most recent brandishing cutting-edge nuclear technology with animated nukes striking Florida in an address to the Parliament. Along the same lines, Donald Trump publicly threatened North Korea with ‘fire and fury’ and even with ‘total destruction’.
Although the ICJ refused to differentiate between nuclear and conventional weapons, when assessing the legality of the threat of nuclear weapons use (para 48), the state practice seems to have accepted a special standard for nuclear threats which is measured against the strategy of deterrence. For instance, the UK’s High Court of Justiciary stated that ‘deployment of nuclear weapons in time of peace … is utterly different from the kind of specific ‘threat’ which is equated with actual use’ (p. 452). Under this approach, states would only cross the line of nuclear deterrence and resort to the threat of using nuclear weapons if such a threat is specific enough, i.e. directed against a specific target.
Considering that the arbitral tribunal went so far as to equate the phrase ‘to face consequences’ to a threat of the use of force in Guyana v Suriname (para 439), it is doubtful that states are still within the safe harbor of deterrence when directing their nuclear threats explicitly and specifically against other states.
Consequences for international law
Driven by analogy with other types of WMD, international law seeks to raise the threshold for using of nuclear weapons (or even contemplating such use) as high as possible. The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is among the most notable developments to this end. Still, there is an observable tension between the movement towards nuclear weapons ban as enshrined in the TPNW and the trends described above. International legal instruments like the TPNW are grounded on humanitarian considerations. In this particular case, the TPNW is meant to stigmatize nuclear weapons to the extent of their total abandonment by nuclear-weapon states. Considering that nuclear-weapon states refused to take any part in the ‘ban campaign’ leading to the adoption of the TPNW, it is reasonable to assume that such progressive stigmatization (which can eventually generate a parallel customary prohibition) is the only way to endow the TPNW with normative force. Analogy may be drawn with other disarmament treaties such as Convention on Anti-Personnel Mines Ban and Convention on Cluster Munitions: they contributed to the establishment of the customary prohibition of respective armaments even without directly binding all states possessing them.
However, when nuclear weapons are postured to be as usable as conventional ones, the normative boundary between the two is not hardened at all. No stigma is likely to appear for weapons possessing which is dictated and justified by strong military utility. As long as the conventionalization of nuclear weapons is taking place, no binding obligations will probably proceed from the newly established TPNW regime, either as treaty rules or as a crystallizing custom.
Along with the TPNW, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is to bear a major part of ramifications. The core obligation of non-proliferation under Article II is likely to be affected, since nuclear weapons, if conventionalized, make their acquisition by non-nuclear-weapon states more conceivable. Additionally, the deployment of tactical nuclear devices makes nuclear weapons more accessible and ‘proliferable’ in the technical sense, spurring their acquisition by non-state actors, particularly, by terrorist groups. This is an alarming possibility considering that the non-proliferation to non-state actors still constitutes a legal gap largely left to Security Council Resolution 1540.
Besides, the conventionalization of nuclear weapons invites their advancement, which is hardly in line with the (allegedly customary) obligation of nuclear disarmament under Article VI of the NPT. States are not in compliance with their disarmament obligation ‘to achieve a precise result – nuclear disarmament in all its aspects’ (para 99) when they engage in the ‘vertical proliferation’ (i.e. modernizing their nuclear arsenals or expand the range of scenarios to deploy nuclear weapons).
Should the described trends gain traction, their impact will in no way be limited to nuclear weapons regulation, but extend to the whole set of rules on the use of force. In particular, the gradually vanishing line between the threat of use of force and nuclear deterrence will further blur. It is questionable whether teetering on the brink of threats to use nuclear weapons is still justifiable under the concept of nuclear deterrence, which the ICJ was careful to characterize as practice ‘adhered to by states’ (para 67). Consequently, it is doubtful whether nuclear deterrence should enjoy such leniency with respect to the standard of the threat of use of force.
The jus ad bellum requirements for self-defense may also be affected by nuclear entanglement. For instance, it is highly questionable whether a limited strike with tactical nuclear weapons to preclude a massive conventional attack fails to meet the standard of proportionality. Similarly, it is not that clear whether anticipatory nuclear strike against a missile equipped with non-nuclear warhead is unlawful, since a state intercepting such a missile can be misled by its dual-use capacity in view of nuclear entanglement.
The questions of similar nature will arise with respect to jus in bello. With the gap between nuclear and conventional weapons narrowing, there is less room to assert that employing nuclear weapons should ab initio be contrary to the proportionality principle. Correspondingly, what concerns the lawfulness of belligerent reprisals conducted with the use of nuclear weapons, a pre-defined approach exclusively based on the ‘nuclear element’ is likely to give ground to the qualification irrespective of the type of weapons. To put it bluntly, the ICJ’s reasoning that the legality of the use of nuclear weapons shall be considered on the basis of case-to-case compliance with jus in bello (para 2D) seems to be regaining relevance.
While any radical transformation of the international legal regime governing nuclear weapons is still unlikely, there is definitely room for considering its adequacy for current challenges. In the near future we should be ready to make a choice of either raising the bar on the conventionalization of nuclear weapons or easing this process. Simply put, international law may find itself in need of deciding whether it is better to ban nuclear weapons altogether rather than to regulate them.
Readers may have seen reports in the media about IAEA Director General Yukiya Amano’s most recent report to the IAEA Board of Governors on Iran. Jonathan Tirone has a good one here, as usual. Although the BOG report itself is restricted distribution, once again in the interests of transparency a Vienna source has provided a copy of the report to Arms Control Law for public dissemination. You can find it at the link below.
Generally speaking, this report is consistent with the other recent DG reports on Iran’s compliance with the terms of the JCPOA and the IAEA’s monitoring and verification activities pursuant to Iran’s comprehensive safeguards agreement and its additional protocol agreement, which Iran is provisionally applying according to the terms of the JCPOA.
This report, as previous reports have done, finds Iran in compliance with its various safeguards commitments and with the terms of the JCPOA. It’s worth reiterating in that context some of the facts of the IAEA’s extensive and really unprecedented monitoring activities in Iran, as the IAEA itself reported in its 2017 Safeguards Implementation Report which I recently posted here.
In 2017, the IAEA conducted 419 safeguards inspections in Iran. This is far and away more than in any other safeguarded state. Added to this, the IAEA conducted a total of 35 complementary access inspections in Iran, pursuant to the terms of Iran’s additional protocol agreement. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection. These complementary access inspections can also be requested at a broader range of sites than normal inspections under the comprehensive safeguards agreement. Again, the number of complementary access inspections conducted by the IAEA in Iran in 2017 was significantly higher than in any other state.
Back in March, Amano said that the IAEA “has the world’s most robust verification regime in place in Iran” and has access to “all the locations” that it needs within Iran.
So it is a bit surprising that in this most recent Iran report to the BOG, while again confirming Iran’s compliance with the terms of both the JCPOA and its safeguards agreements, Amano chose to editorialize by saying:
The Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has conducted complementary accesses under the Additional Protocol to all the sites and locations in Iran which it needed to visit. Timely and proactive cooperation by Iran in providing such access would facilitate implementation of the Additional Protocol and enhance confidence.
Timely and proactive cooperation? The 419 completed inspections and 35 granted complementary access requests weren’t good enough for you? Geesh. There’s just no pleasing some people!
It’s pretty obvious what the motivation for this superfluous editorializing was. It was almost certainly to throw a bone to the state that brought Amano to the DG dance in the first place, and then got him his second and now third terms in the job. Remember those Wikileaks docs on the “cozy” relationship between Amano and the U.S. delegation to the IAEA? Well this appears to be him doing his part by inserting this unnecessary language that allows the Trump administration to have a small but useful negative talking point about the IAEA report.