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Preventing nuclear terrorism

International law and nuclear security governance
Herbach, J.D.

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Herbach, J. D. (2019). Preventing nuclear terrorism: International law and nuclear security
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Download date:24 Aug 2025

 Preventing Nuclear Terrorism
International Law and Nuclear
Security Governance

Jonathan Herbach
Preventing Nuclear Terrorism: International Law and Nuclear Security Governance Jonathan Herbach
 Preventing Nuclear Terrorism:
International Law and Nuclear Security
Governance

Jonathan Herbach
© 2019, J. Herbach

All rights reserved

Preventing Nuclear Terrorism: International Law and Nuclear Security Governance

ACADEMISCH PROEFSCHRIFT

ter verkrijging van de graad van doctor

aan de Universiteit van Amsterdam
op gezag van de Rector Magnificus
prof. dr. ir. K.I.J. Maex
ten overstaan van een door het College voor Promoties ingestelde commissie
in het openbaar te verdedigen in de Agnietenkapel
op dinsdag 5 maart 2019, te 14.00 uur
door Jonathan David Herbach
geboren te Menomonie
Promotiecommissie:

Promotores: prof. dr. T.D. Gill Universiteit van Amsterdam

prof. mr. dr. E.P.J. Myjer Universiteit Utrecht

Overige leden: prof. dr. P.A.L. Ducheine Universiteit van Amsterdam

prof. mr. dr. H.G. van der Wilt Universiteit van Amsterdam
mr. dr. C.M. Brölmann Universiteit van Amsterdam
prof. dr. T. Marauhn Justus-Liebig-Universität Gießen
prof. dr. D. Fleck Former Director of International
Agreements and Policy of the
German Ministry of Defence

Faculteit der Rechtsgeleerdheid

Acknowledgements

This book took shape over a period of four years, but my research and work in the area of
nuclear security goes back even longer. I was fortunate enough to get involved in the Nuclear
Security Summit process, starting in the run-up to the 2014 Summit in The Hague and
continuing through the final Summit in 2016 in Washington, DC. It was a crash course in
multilateral diplomacy, and it jump started my interest specifically in the topic of international
law applicable to nuclear security. I am particularly grateful to the Ministry of Foreign Affairs
of the Netherlands for giving me the opportunity to be part of such a unique experience.
The idea behind this research was nurtured by Professor Eric Myjer, whose
encouragement convinced me to pursue this as a topic of PhD study. I owe him a debt of
gratitude, not only for supervising my work but also for introducing me to the area of
international arms control law, which set me on my current career path. My gratitude also
goes to Professor Terry Gill. His guidance as my co-supervisor and his always pertinent,
challenging questions noticeably enhanced the quality of the book.
The perseverance necessary to see this project through was only possible with the
support of my wife, Petra. She put up with, if not always enthusiastically, the many late nights
sitting at the computer and not infrequent outbursts of exasperation, knowing what achieving
this goal meant to me. Also, my mother's weekly words of encouragement have been a crucial
source of support. Thank you, as well, to the group of family and friends who stood behind
me and kept me on the ball by regularly inquiring about my progress.
Lastly, I would be remiss if I did not express my thanks to colleagues I have had the
privilege to work with over the years and the friends I have made travelling the world for this
research. They have inspired me to push myself, to see things differently and have provided
me with invaluable insights that fundamentally shaped my thinking for this book.

i
Acknowledgements i

Table of Contents
1. General Introduction to the Study 1

Part I: Theoretical Framework

2. International Law and Governance of Global Issues 15

3. Nuclear Security in Context: International Law of Arms Control 37

Part II: The Legal Framework for Nuclear Security: Substance

4. Historical Background 57

5. Interpreting the Legal Framework for Nuclear Security 75

6. Elements of Legally Binding Instruments Applicable to Nuclear Security 83

7. Legally Non-Binding Instruments 119

Part III: The Legal Framework for Nuclear Security: Organization

8. The Role of International Organizations and Informal Groupings of States 141

in Nuclear Security

Part IV: The Path Forward and Conclusions

9. Strengthening the International Legal Framework for Nuclear Security 163

Appendix 1: Abbreviations 181

Bibliography 183
Summary (English) 199
Samenvatting (Nederlands) 205
Chapter I: General Introduction to the Study

Contents
I.1 Introduction
I.2 Main questions of the study
I.3 Research methodology
I.4 Contextualizing nuclear security
I.4.1 IAEA definition of nuclear security
I.5 Societal relevance of the present study
I.6 Structure

I.1 Introduction

International efforts to control nuclear energy – the related materials, applications, facilities
and technologies – have evolved greatly since the first and only use of nuclear weapons
against Japan in 1945 towards the end of World War II. The devastation wrought by relatively
small bombs, in terms of the nuclear material employed,1 shocked the conscience of the
international community and led to immediate attempts to prevent nuclear weapons from ever
being used again. The basic principle underlying these efforts was that nuclear energy – the
continuing role of nuclear weapons in military doctrine and strategy (i.e. deterrence), and
efforts aimed at reducing the numbers and role of such weapons, notwithstanding – should
only be used for peaceful purposes, considering applications for energy production and
medicine, among others, with the paramount consideration being the protection of people, the
environment and society. The intervening years, however, have seen eight more states
develop nuclear weapons capabilities, with a number of others embarking upon and then
rethinking nuclear weapons programs or remaining causes for concern while not yet having
taken the step of producing a nuclear weapon. In addition, three major accidents involving
nuclear power plants – Three Mile Island in the U.S. (1979), Chernobyl in the Soviet Union
(1986), and Fukushima Daiichi in Japan (2011) – have prompted a range of reactions at
various times, from the strengthening of the international nuclear safety framework in the
wake of Chernobyl to more recently the discontinuation of nuclear power programs, most
notably in Germany, following Fukushima.
Regardless of these issues, the technology to develop and make use of atomic energy
has spread and the number of peaceful uses for the materials has increased, and with it so too
has the potential for catastrophic events. States, namely the U.S. and the Soviet Union,
realized early on that it was neither possible nor desirable to attempt to withhold or deny
others the benefits of atomic energy. Placing the right to peaceful use as a cornerstone of the
system devised for controlling atomic energy – founded on the Treaty for the Non-
Proliferation of Nuclear Weapons (NPT), which enshrines the right of parties to the treaty to
develop research, production and use of nuclear energy qualified by the obligation not to
divert nuclear energy to nuclear weapons purposes, and pursuant to and further developed by
the institutional framework of the International Atomic Energy Agency (IAEA) – has meant
that potentially dangerous materials and facilities are globally prevalent and are likely to
become even more so going forward. Unfortunately, it was inevitable that nefarious actors
would eventually seek to misuse these materials and facilities. To combat this threat, the
concept of nuclear security was devised.

1
According to the World Nuclear Association, around 60 kilograms of highly-enriched uranium was used in the
bomb that was dropped on Hiroshima, and the explosive charge of the bomb dropped on Nagasaki three days
later came from eight kilograms of plutonium, available at www.world-nuclear.org. The explosive yields were
about 15 kilotons and 21 kilotons, respectively.

1
 Nuclear security has been placed high on the international agenda in the past few
years, not least of all due to high-level attention it received under the previous U.S.
presidency of Barack Obama. This is not to say that nuclear security is an entirely new
phenomenon. Nuclear security is a broad area, defined by a substantial body of rules, norms,
principles and guidelines at the international, regional and national levels, separate from, but
certainly related to, the non-proliferation of nuclear weapons (and the safeguards system) and
nuclear safety. Its component parts have been in development for some time. However, this
development has been characterized by an ad hoc and fragmented approach resulting in
considerable shortcomings, particularly with respect to the international legal framework,
whether it be certain gaps in the law or inadequate national implementation of international
obligations or lack of mechanisms to provide assurances of compliance with legal (both hard
and soft law2) commitments.
The relatively recent increased focus on nuclear security as a separate topic in the
international discourse3 is in great part due to two inter-related issues: firstly, the
acknowledged vulnerability of a significant amount of nuclear4 and other radioactive
material5 throughout the world, both as part of6 and outside of weapons programs, and,
secondly, the demonstrated desire to obtain and expected willingness to use such materials by
terrorists.7 The former stems in large part from the fall of the Soviet Union and end of the
2
‘Soft law’ is an oft-debated concept in legal academic discourse. It, however, plays an essential part in the
international legal framework for nuclear security and will, therefore, be a central component of the theoretical
framework for this study, as discussed in a subsequent chapter.
3
For instance, the Office of Nuclear Security within the International Atomic Energy Agency (IAEA) – as of
2014, it has been raised to the level of Division of Nuclear Security – was only established in 2002.
4
‘Nuclear material’ is defined in par. 112 of The Structure and Content of Agreements between the Agency and
States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons (INFCIRC/153
(Corrected)). This definition refers to any source or any fissionable material as defined in Article XX of the
IAEA Statute. ‘Source material’, according to Article XX(3) of the Statute, means uranium containing the
mixture of isotopes occurring in nature; uranium depleted in the isotope 235; thorium; and any of the foregoing
in the form of metal, alloy, chemical compound, or concentrate. ‘Special fissionable material’, as defined in
Article XX(1) of the Statute, means plutonium-239; uranium-233; uranium enriched in the isotopes 235 or 233
(meaning ‘uranium containing the isotopes 235 or 233 or both in an amount such that the abundance ratio of the
sum of these isotopes to the isotope 238 is greater than the ratio of the isotope 235 to the isotope 238 occurring
in nature’); and any material containing one or more of the forgoing.
A broader definition is included in ‘Nuclear Security Recommendations on Radioactive Material and
Associate Facilities,’ IAEA Nuclear Security Series No. 14, which defines ‘radioactive material’ as “any
material designated in national law, regulation, or by a regulatory body as being subject to regulatory control
because of its radioactivity,” which includes nuclear material, sealed sources, unsealed radioactive material and
radioactive waste.
5
‘Other radioactive material refers to ‘any radioactive material that is not nuclear material’, see Nuclear Security
Recommendations on Radioactive Material and Associate Facilities (Nuclear Security Series, no. 14).
‘Radioactive sources’ are a separate, common category of material referred to in the legal framework for nuclear
security. According to the Code of Conduct for the Safety and Security of Radioactive Sources, “‘radioactive
source’ means radioactive material that is permanently sealed in a capsule or closely bonded, in a solid form and
which is not exempt from regulatory control. It also means any radioactive material released if the radioactive
source is leaking or broken, but does not mean material encapsulated for disposal, or nuclear material within the
nuclear fuel cycles of research and power reactors.”
6
A famous example of the vulnerability of nuclear material in weapons programs, which is supposed to be
material that secured to the highest standards, was the break-in by an 84-year-old nun at the Y-12 National
Security Complex in the United States. The facility is contains the primary storage of highly enriched uranium
for nuclear weapons for the U.S. See E. Schlosser, ‘Break-In at Y-12: How a handful of pacifists and nuns
exposed the vulnerability of America’s nuclear-weapons sites,’ The New Yorker, 9 March 2015.
7
See, for example, P. Malone and R.J. Smith, ‘The Islamic State’s Plot to Build a Radioactive ‘Dirty Bomb’,’
Foreign Policy, 29 February 2016; I. Ersan, ‘Al Qaeda say would use Pakistani nuclear weapons,’ Reuters, 22
June 2009; ‘New al-Qaeda Chief Zawahiri has Strong Nuclear Intent,’ Forbes, 29 June 2011; R. Mowatt-
Larssen, ‘Al Qaeda Weapons of Mass Destruction Threat: Hype of Reality,’ Belfer Center for Science and
International Affairs, January 2010 (including timeline of terrorists’ efforts to acquire WMD.

2
Cold War, leading to unaccounted for and unsecured materials and facilities, as well as from
increased demand for nuclear energy and the extensive global use of radioactive materials in
peaceful activities, resulting in the spread of the materials, technologies and capabilities. The
latter issue, and the one that has been the primary catalyst driving evolution of the nuclear
security regime,8 came to the fore in the wake of the terrorist attacks on September 11, 2001,
displaying a new strain of mass-casualty international terrorism. In fact, some claim that 9/11
was the defining event for the development of the nuclear security regime, in the same way
that the Chernobyl accident prompted strengthening the global framework for nuclear safety
and the situation in Iraq in the 1990s lead to developments in the safeguards system.9
These milestones are reflected in the evolution of the nuclear security regime.
Following the entry-into-force of the Treaty on the Non-Proliferation of Nuclear Weapons in
1970, physical protection recommendations were developed by the International Atomic
Energy Agency (IAEA) in 197210 and negotiations commenced in 1977 that eventually led to
the adoption of the Convention on the Physical Protection of Nuclear Material (CPPNM).
Thereafter, the regime progressed through Security Council Resolutions 1373 and 1540 and
others related thereto, relatively recent legal instruments such as the International Convention
for the Suppression of Acts of Nuclear Terrorism (ICSANT), activities undertaken under
multilateral initiatives, including the Global Initiative to Combat Nuclear Terrorism (GICNT)
and the G8 Global Partnership Against the Spread of Weapons and Materials of Mass
Destruction (Global Partnership), to the Nuclear Security Summit (NSS) process initiated in
2009. The result has been a complex web of legally binding instruments (treaties, Security
Council resolutions); guidelines, recommendations and technical documents produced by the
IAEA (providing details of regulatory structures for implementation in domestic legislation);
collective law enforcement activities (i.e. through Interpol); regional and international
collaborations (often under the auspices of regional or international organizations); and
political partnerships establishing shared principles and providing a platform for coordinated
projects, all forming part of the overall nuclear security regime.
This introductory chapter is meant to lay the foundations for the study. First, it will set
forth the main questions that will form the focus of the study. The chapter will then lay out
the research methodology to be followed in the remainder of the study. A brief word will be
devoted to setting up the context within which nuclear security will be approached in this

8
Regime in the sense used here adopts Stephen Krasner’s classic international relations definition of “a set of
implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations
converge in a given area of international relations;” see S. Krasner, ‘Structural Causes and Regime
Consequences: Regimes as Intervening Variables,’ in S. Krasner (ed.), International Regimes, Ithaca: Cornell
University Press (1983), p. 2. This definition differs from the one traditionally used by lawyers, namely “regimes
are formed on a foundation of treaty or treaties concluded between states or international organizations; their
objective is to realize either the shared interests of the states concerned or the general interests of the
international community as a whole; member states are required to fulfill nonreciprocal obligations toward the
regime; and regimes have self-contained procedures to settle claims and disputes among members.” See A.
Slaughter, A. Tulumello and S. Wood, ‘International Law and International Relations Theory: A New
Generation of Interdisciplinary Scholarship,’ 1998 American Journal of International Law, no. 3, p. 378 at fn.
75. The latter is more in line with what the present study terms the (international) legal framework. The
distinction between the nuclear security regime and the international legal framework for nuclear security, the
first being broader than the second, will be referenced throughout this study as it is the only way to properly
address the full scope of nuclear security.
9
This argument was made by Laura Rockwood, former section head for Non-Proliferation and Policy Making at
the IAEA’s Office of Legal Affairs, in her remarks during a panel discussion focused on ‘How the Evolving
Domestic, Regional, and IAEA Safeguards Requirements and Practices are Influencing Safeguards
Implementation and Culture,’ at the 55th Annual Meeting of the Institute of Nuclear Materials Management, 22
July 2014.
10
Subsequently revised in 1975 and published as INFCIRC/225.

3
study, taking as a basis the definition used by the IAEA. The chapter will conclude by
explaining the societal relevance of the study in general.

I.2 Main questions of the study

The central question that this study seeks to answer is: what is the role of international law in
nuclear security governance and how can and should the law be developed, implemented and
enforced to further strengthen the global nuclear security regime? By its nature, this question
is forward looking, but in order to answer it, one must start by considering how the legal
framework for nuclear security is structured. What is meant by nuclear security governance?
What are the existing relevant rules, norms and principles, how do they fit together to give
structure to the international nuclear security regime, and what, if anything, is missing that
negatively impacts the effectiveness of the legal framework? Related to that, and an integral
feature of governance in the area of nuclear security, is the role of soft law, in the form of
guidelines, recommendations and codes of conduct, and how it relates to hard law and
contributes to the effectiveness of the legal framework. Lastly, a question that permeates the
entirety of the study is how do the legal rules, processes and institutions comprising the
framework for nuclear security impact the behavior of relevant actors, and conversely how do
the relevant actors, in light, inter alia, of considerations of sovereignty, cooperation and
interdependence, impact the development of the law pertaining to nuclear security? The goal
of answering these questions will not only be the exposition of the law, but also, borrowing
from Slaughter, Tulumello and Wood, diagnosing substantive problems and attempting,
where possible, to frame better legal solutions.11
This study seeks to provide a comprehensive overview of the international law
applicable to nuclear security. In so doing, it establishes a framework for better understanding
how the international law of nuclear security is structured and why it is structured in this way,
provides a critical analysis of possible shortcomings as pertains to the component instruments
themselves or the legal framework as a whole, and gives a prescriptive assessment looking at
how relevant legal mechanisms, processes and institutional arrangements (including, for
instance, review, amendment and/or supervision) can be invoked or employed to facilitate
efforts to enhance the regime’s effectiveness.
Before moving on, one small disclaimer is in order. Nuclear security is by no means a
static topic. New developments, whether in terms of the threat of nuclear terrorism or with
respect to political or technical considerations, are occurring frequently. Such a study is,
therefore, always a product of its time, and, in the course of the research, an attempt has been
made to update any elements, where applicable, in accordance with these new developments.
Where developments after the conclusion of writing were already to be expected, these have
been indicated. The main focus, though, is of course on arriving at an interpretation and
analysis of the international law of nuclear security that is of general application, and as such
any time-sensitive information is used solely to inform the argumentation and conclusions.

I.3 Research methodology

Following the positivist legal method, the study analyzes the recognized rules as derived from
the formal sources of international law, namely in this case law-making conventions.

11
AM Slaughter, A. Tulumello and S. Wood, ‘International Law and International Relations Theory,’ 1998
American Journal of International Law, no. 3, pp. 367-397. Oppenheim also saw bringing the gaps into view and
offering an opinion de lege ferenda of how to fill them in as a possible task for the international legal scholar;
see L. Oppenheim, ‘The Science of International Law: Its Tasks and Method,’ 1908 American Journal of
International Law, no. 2, at 335.

4
Customary law, as with international arms control law more generally, does not really play a
role in legal framework for nuclear security.12 It does not lend itself to the clarity,
predictability and often-technical specificity required, and as such no customary law can be
said to have developed in the area of nuclear security. The lex lata of nuclear security, with
only two primary treaties of restricted scope, is admittedly limited if one considers only the
Austinian “law properly so-called” and thereby views the relevant soft law as only a device
for the attribution of meaning to the settled legal rules.13 As mentioned above, soft law – in
the form of inter alia guidelines and codes of conduct – plays an important role in the
international legal framework for nuclear security. For nuclear security, the binary view of
hard law and soft law as law and non-law, the legal value of soft law being mostly restricted
to its potential role leading to hard law, is too restrictive. This is where the study diverges
somewhat from the positivist approach. With respect to the international legal framework for
nuclear security, there is a case to be made for adopting the rationalist perspective that hard
and soft law have distinct attributes, which leads to states choosing one or the other in
different contexts.14 That hard and soft law cannot simply be reduced to a strict dichotomy of
binding and non-binding in this case is clear in even a cursory examination of the nuclear
security regime.
Some characteristics of nuclear security – technical complexities, need for adaptability
to deal with changing circumstances and evolving threats – lend themselves more to softer
forms of legalization. The legal framework for nuclear security, and arms control law more
broadly, is not unique in employing soft law instruments. Dinah Shelton, for example has
explored the contribution of soft law instruments, and examined related issues of compliance,
in the areas of environmental law, trade and finance, and human rights.15 What can be
considered unique with respect to WMD arms control law in particular, is the soft law
instruments related to nuclear security do not only (or primarily) provide direct normative
support for the binding rules,16 but also establish ‘standalone’ norms. To illustrate this point,
one can look at the Code of Conduct on the Safety and Security of Radioactive Sources,
which is the only instrument (hard or soft law) to address radiological security. States
specifically chose the legally non-binding Code, having considered the possibility of a treaty
on radiological security, as the most appropriate form of instrument on this topic and have
noted the effect of the Code in strengthening radiological security.17 As will be discussed later
in this study, this shows the impact of the soft law on state behavior, even if states cannot be
held legally responsible for breaching soft law commitments.
In order to cope with the hard and soft law issue, this study widens the scope
somewhat and takes a regime approach, giving for instance particular consideration to context
and process. In this approach, soft law can indeed serve as a means of attributing meaning to

12
See E.P.J. Myjer and G. Den Dekker, ‘Wapenbeheersingsrecht,’ in N. Horbach et al. (eds.), Handboek
Internationaal Recht, The Hague: TMC Asser Press (2007), pp. 598-599; G. Den Dekker, The Law of Arms
Control: International Supervision and Enforcement, The Hague: Martinus Nijhoff (2001), pp. 62, 64.
13
See B. Simma and A.L. Paulus in Symposium on Method in International Law, 1999 American Journal of
International Law, no. 2, pp. 302-316.
14
See G.C. Shaffer and M.A. Pollack, ‘Hard vs. Soft Law: Alternatives, Complements, and Antagonists in
International Governance,’ 2010 Minnesota Law Review, at 716.
15
See D. Shelton (ed.), Commitment and Compliance, Oxford: Oxford University Press (2003).
16
One can think here of the Nuclear Suppliers Group (NSG) that sets norms and guidelines to harmonize
members’ export control systems in order to support the non-proliferation regime founded on the NPT. Political
agreements between the U.S. and the USSR in the context of strategic arms limitation talks are another example
of this, as they can be related back to the obligation to negotiate towards nuclear disarmament pursuant to the
NPT, Art. VI.
17
See International Conference on the Safety and Security of Radioactive Sources: Maintaining Continuous
Control of Sources throughout Their Life Cycle, Findings of the President of the Conference, 27-31 October
2013.

5
the legal rules, perhaps establishing subsequent agreement or practice impacting interpretation
of the rules. On the other hand, though, the soft law instruments could themselves establish
norms of behavior creating expectations of conduct, namely that the norms are to be followed
in accordance with the principle of good faith. To construct this regime approach, the study
analyzes the primary sources, namely treaties, official documents (such as resolutions,
guidelines, and codes of conduct) of international organizations, communiqués and other
outcomes of intergovernmental conferences, and guiding principles of political partnerships.
Also part of this approach is determining the applicable powers and functions of the relevant
organizations. Of course, account must be taken of the fact that not all states are parties to
each of the treaties nor are all states involved in each of the international organizations or
political partnerships. Universality is the ideal but not the reality. Nonetheless, the travaux
preparatoires for instance of ICSANT demonstrate that even the negotiating states were
considering this instrument in the broader context of the already existing regime, that at the
time consisted primarily of the CPPNM.
The stocktaking exercise of determining what the law is will be a prelude to
identifying lacunae. This process involves placing the law against the backdrop of the
definition and objectives of nuclear security. This definition, which for the purposes of this
study is drawn from the IAEA, is described below. Some of the gaps are obvious, whereas
others may not be as easily discernable. Those that have no clear pathway for legal remedy
will fall outside the scope of the study. For instance, the choice of certain states to remain
outside the nuclear security regime, or the choice to exclude certain states from the
cooperative fora, is a political issue and better left to an international relations examination.
This is not to say that the purpose of the study is an exploration de lege ferenda, rather it is an
acknowledgement that the law applicable to nuclear security is still in development, with
progressive momentum due to the high-level NSS process, and therefore identifying gaps and
prescribing solutions is extremely useful.
A study of the nuclear security regime from an international law perspective cannot,
however, avoid the role that inter-state relations and political considerations play in the
development of international law. Put another way, one cannot remove the law entirely from
the political environment in which it has developed. Therefore, where appropriate, the
political influence on the establishment of legal rules and processes will be raised. This is
particularly relevant for a study of nuclear security, as certain states, namely the U.S. and
Russia with by far the largest caches of nuclear material, play a disproportionate role in the
effectiveness of the regime.

I.4 Contextualizing nuclear security

This study considers nuclear security within the context of the international law of arms
control, but it must be prefaced by an acknowledgement that nuclear security is not arms
control law in the standard sense:

that part of public international law that deals both with the restraints internationally
exercised upon the use of military force (in general) and on the use and/or the
possession of armaments (in particular), whether in respect of the level of armaments,
their character or deployment and with the applicable supervisory mechanisms.18

18
E.P.J. Myjer, ‘Supervisory Mechanisms and Dispute Settlement,’ in J. Dahlitz (ed.), Avoidance and Settlement
of Arms Control Disputes, Vol. 2 Arms Control and Disarmament Law (New York: United Nations), 1994, p.
151.

6
Nuclear security, for one, does not necessarily deal with weapons as such, that for instance
must be limited or destroyed, but rather more comprehensively covers the ‘building blocks’ of
weapons, or in other words the materials, and associated facilities, that have numerous
peaceful uses but could also be weaponized, thereby securing them from illegal use.19
This is not in itself unique, as the legal regimes for biological and chemical weapons,
for example, must each contend with materials that have both peaceful and malicious
applications. While it is possible to some extent to combine chemical, biological, radiological
and nuclear (CBRN) security issues,20 there are traits distinguishing nuclear security (which
encompasses radiological security), making it an area warranting dedicated study. The
primary difference in legal approaches is that the legal frameworks concerning chemical and
biological weapons are both based on state obligations to destroy or convert existing weapons
stocks and related facilities, while at the same time requiring states parties not to develop,
produce, acquire, retain, or stockpile the respective weapons.21 In other words, the primary
legal instruments dealing with chemical (Chemical Weapons Convention, CWC) and
biological (Biological Weapons Convention, BWC) weapons entail full bans on these entire
categories of weapons. Nuclear security does not have that basis. Being an extension of the
nuclear non-proliferation regime, the starting point is that a number of states retain nuclear
weapons stockpiles. The continued existence of these stockpiles, and the related material
remaining in military-use, impacts the nuclear security regime. It is estimated that 83 percent
of weapons-usable nuclear material, meaning HEU and separated plutonium, is in military
programs located in the nine states with nuclear weapons.22 Legally binding physical
protection measures, however, do not currently contend to cover military applications of
nuclear material. On the contrary, the primary legal instrument in the area of nuclear security,
the Convention on the Physical Protection of Nuclear Material (CPPNM), is concerned with
materials used for peaceful purposes involved in nuclear energy, research reactors, medical
and industrial capacities, among other uses. Nonetheless, the security of military-use materials
and related facilities falls under the umbrella of nuclear security, even as it remains the most
glaring gap of the international framework.
Another difference is that the CWC and BWC each to some extent deal with the issue
of non-state actors. The CWC does this in its article on national implementation, which inter
alia obligates states to prohibit natural and legal persons on its territory or under its
jurisdiction from conducting any activity prohibited to states parties under the convention,
and thereby adopting appropriate penal legislation.23 The BWC is less specific, only referring
to an obligation for states parties not to transfer to “any recipient whatsoever” any agent or
toxin having no peaceful application and any weapon, equipment or means of delivery

19
This is generally referred to as the dual-use dilemma.
20
Often CBRN issues are approached as a combined category, encompassing the materials, facilities and
technologies related to weapons of mass destruction and being differentiated from conventional weapons. This
is, for example, the scope of UN Security Council Resolution 1540. See, also, the EU CBRN Action Plan,
Council of the European Union, document 15505/1/09 REV 1 (December 2009); and the follow-up ‘Action Plan
to enhance preparedness against chemical, biological, radiological and nuclear security risks’, contained in
COM(2017) 610 final (18 October 2017).
21
See 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on Their Destruction (BWC), Article I, and 1993 Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
(CWC), Article I.
22
As of the beginning of 2014, the employment of the material was broken down as follows: 7% naval fuel cycle
and reserve, 10% retired warheads, 11% material declared excess, 13% active warheads, 43% other government-
owned material potentially available for military use (e.g. material in bulk, in weapons components, and used in
research). See, ‘Nuclear Materials Security Index,’ Nuclear Threat Initiative, Jan. 2014.
23
CWC, Article VII, paras. 1(a) and 1(c).

7
designed to use such agents and toxins for hostile purposes or in armed conflict.24 For nuclear
weapons, the focus in the NPT is entirely state-centric, concerning inter alia state-to-state
proliferation and diversion of material by a state from peaceful to military uses.25
A third major difference, related to the previous paragraph, is that nuclear security,
namely in the sense of physical protection of both material and facilities and criminalization,
has its own separate body of law (dedicated treaties). This study therefore focuses in on
nuclear security and not CBRN security more broadly, though where applicable reference will
be made to that broader context.
A further main point to be made here, and one which will be developed later in this
study in discussing the setting in which the international law pertaining to nuclear security
should be placed, is that while nuclear security is not directed at the use or possession of
armaments by states as such, it does concern the prevention of the spread of nuclear or
radiological weapons and capabilities to non-state actors, which falls within the remit of arms
control law.
There is also a counter-terrorism element of nuclear security that concerns the
criminalization of certain acts (criminal justice). Each of the treaties that make up the
international legal framework for nuclear security, namely the CPPNM (as amended) and
ICSANT, obligate states parties to incorporate new offenses into their domestic criminal
codes, thereby establishing bases for jurisdiction, namely the nationality and territoriality
principles.26 Such criminalization obligations, which follow the prosecute or extradite
formula, are standard for the body of counter-terrorism treaties that has been developed since
1963, starting with the Convention on Offences and Certain Other Acts Committed On Board
Aircraft, of which the nuclear security-related treaties are considered part.27 The part of
nuclear security that can be categorized as counter-terrorism under international law will be
considered later in this study.
In addition, it bears being mentioned already here that from the beginning, nuclear
security has been formulated as fundamentally a national responsibility of states pursuant,
where applicable, to certain international obligations. This is due primarily to the fact that
nuclear security touches upon domestic law enforcement, national defence and intelligence
activities and energy production, among other sensitive sectors, meaning that it can be seen to
pertain to fundamental aspects of national sovereignty.

I.4.1 IAEA definition of nuclear security

The IAEA considers nuclear security as focusing on ‘prevention of, detection of, and response
to, criminal or intentional unauthorized acts involving or directed at nuclear material, other
radioactive material, associated facilities, or associated activities.’28 This definition comes
from the top-level document in the IAEA’s Nuclear Security Series, describing the ‘nuclear
24
BWC, Article III, read in conjunction with Article I.
25
See NPT, Articles I, II, and III.
26
For instance, ICSANT (Article 9) requires states parties to establish jurisdiction over offenses committed on
the territory of the state, on board a sea vessel or aircraft registered to that state at the time the offense is
committed, and by a national of that state (territorial and active nationality jurisdiction). The state may also, if it
so chooses, establish jurisdiction over offenses committed, for instance, against a state or government facility of
a state abroad.
27
Besides the CPPNM and ICSANT, there are a number of other treaties that have aspects, primarily
criminalization provisions, that place them in the framework for nuclear security. These include the International
Convention for the Suppression of Acts of Terrorist Bombings, Protocol to the Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation, 2005 Protocol to the 1988 Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, and the
Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (not yet in force).
28
Objective and Essential Elements of a State’s Nuclear Security Regime, Nuclear Security Series No. 20, p. 1.

8
security fundamentals’. A previous iteration of the definition was narrower in scope,
specifically listing acts such as theft, sabotage and ‘other malicious acts’, the combating of
which nuclear security efforts were to be directed.29 The newer definition also includes
associated activities in addition to materials and facilities, which could be read to encompass
for instance cyber-related issues, such as information theft. Consequently, the scope of the
new definition is more comprehensive, which is a positive development, but it also means that
the cohesion of the regime is complicated due to the range of activities, organizations,
processes, and other aspects that fall under the nuclear security umbrella as so defined.
Immediately clear from the definition is that nuclear security is not solely, perhaps
even not primarily, an issue of international law. The focus on specific acts – ‘criminal or
intentional unauthorized acts’ – concerns domestic law, particularly when it comes to
contravention of authorization. The definition does, though, provide a scope for relevant
actions at the international level, as well, some of which lend themselves more clearly to an
international legal solution. For example, setting a baseline requirement for physical
protection of nuclear material to prevent nuclear terrorism, which is a specific category of
criminal act, is a form of prevention (preventing acquisition of the material) best codified in
an international legal instrument. Similarly, response activities can be carried out at the
national level, but because of cross-border effects of radiological incidents, response can also
involve assistance with, inter alia, recovery and subsequent protection of stolen material, the
framework for which is logically laid down in a treaty. However, international cooperation or
coordination need not always or necessarily be codified in a legally-binding instrument. As
such, the definition encompasses but is not limited to the international law approach.
Another point that should be made here is that the definition foresees action by states,
i.e. relevant national authorities, to address acts of non-state actors. In terms of international
law, then, nuclear security diverges from non-proliferation in that the latter concerns
preventing states from diverting nuclear energy from peaceful uses to nuclear weapons
(military use), whereas the former concerns preventing misuse of nuclear and other
radioactive material by persons or entities rather than states. In other words, nuclear security
is about criminal acts, nuclear terrorism being chief among them. Criminal acts can lead to
national nuclear weapons development, such as in the case of A.Q. Khan who stole centrifuge
designs and information on acquiring materials and components for fissile material
production from URENCO in the Netherlands and used them in his native Pakistan to develop
nuclear weapons. According to the definition, the theft of information would be pertinent to
nuclear security, while the development of nuclear weapons by Pakistan is an issue of
proliferation. The line between the two can certainly be thin and rather grey.

I.5 Societal relevance of the present study

As a whole, the study is meant to contribute to the international discourse on the means and
methods of strengthening the international nuclear security regime. Though it is a legal
academic study, one cannot ignore the fact that it concerns issues of contemporary interest
and practical relevance. Therefore, it is written not only for those with an academic interest in
the topic, but also bearing in mind the practitioners, at the national governmental and
intergovernmental levels, and other stakeholders, such as non-governmental organizations,

29
See, INTERNATIONAL ATOMIC ENERGY AGENCY, Security in the Transport of Radioactive Material,
Implementing Guide, IAEA Nuclear Security Series No. 9, IAEA, Vienna (2008); INTERNATIONAL
ATOMIC ENERGY AGENCY, Security of Radioactive Sources, Implementing Guide, IAEA Nuclear Security
Series No. 11, IAEA, Vienna (2009); and INTERNATIONAL ATOMIC ENERGY AGENCY, Educational
Programme in Nuclear Security, Technical Guidance, Nuclear Security Series No. 12, IAEA, Vienna (2010).

9
that may find the insights useful in informing their own approaches to nuclear security. A
number of people, groups and organizations were consulted in the course of the research.
The study has been undertaken because of an unfortunate lack in the academic
literature of research into nuclear security in the context of public international law. Perhaps
this has to do with the ad hoc and non-legally binding nature of many of the instruments and
initiatives under, or the highly technical nature of, the nuclear security regime. Nonetheless,
nuclear security is an issue that requires harmonization of approaches, confidence on the part
of states that certain standards are being met by all other states to reduce security
vulnerabilities, and close international cooperation to deal with a common threat and to
realize shared interests. As such, there is a need in nuclear security for legal obligation for
which states can be held accountable, and with the necessary supervision. International law
plays an undervalued role, at least in the literature.
Furthermore, it is clear that the threat of nuclear terrorism is considered one of the
most pressing issues facing the international community. While an act of nuclear terrorism is
considered a low-probability event, the potential consequences in terms of loss of life and
damage to the environment, property and economies would not be confined to within national
borders. In this sense, states are interdependent – an attack in one state will affect others, and
states with weaker systems could be exploited to the detriment of other states. This means that
states have a responsibility to work together that effort should be dedicated to ensuring that
such an event never happens. International law, and namely international arms control law,
will provide the framework through which this is accomplished.
Finally, the number of states pursuing indigenous nuclear power programs is likely to
continue to increase, even following the Fukushima accident, and radioactive sources are
present and used worldwide even in states with no nuclear power plants nor plans to develop
nuclear power. At the same time terrorist groups and other criminal actors still seek to employ
the materials, related facilities and technologies for nefarious purposes. The need for strong
nuclear security will only increase over time. Therefore, a study of nuclear security from an
international legal perspective will provide an important contribution to the international
discourse on how to address weaknesses and further strengthen the system.

I.6 Structure

The study will be composed of four main parts. Following this general introductory chapter,
the first part will consider the theoretical framework that can be used to understand the
substance and structure of the international law applicable to nuclear security. The first
chapter of Part I will consider the concept of governance, thereby describing how legal rules,
process and institutional arrangements (or organization) characterize international governance
structures. It is intended that this chapter will further elucidate how international law can
serve as a tool of governance. The subsequent chapter will examine the international legal
framework for nuclear security as part of the international law of arms control, putting nuclear
security in context and enhancing the understanding of how it fits into broader international
law.
From theory to rules and norms, Part II goes into detail on the treaties and other (‘soft
law’) instruments that make up the international legal framework for nuclear security,
focusing the examination around common elements: technical/administrative elements,
criminalization and international cooperation. Part II, split into chapters on the legally-binding
instruments and the non-legally binding instruments, also considers how the relevant
instruments – that often on their own have a restricted scope – fit together to form the bigger
whole of the nuclear security regime, and thereby identifying overlaps and potential gaps. It
looks at the role that non-binding instruments play inter alia to strengthen implementation of

10
the relevant legally binding instruments (namely treaties and Security Council resolutions) or
potentially impact legal interpretation of relevant treaties; to help develop the rules in light of
changing circumstances, by for instance potentially serving as precursors to the modification
of existing treaties or the adoption of new legal instruments, to fill in possible gaps in the
relevant treaties, though not by establishing legal obligation; and/or to substitute for the lack
of a legally binding instrument in a certain area (i.e. with respect to security of radioactive
sources).
Having looked at the rules, in Part III the focus is on the role of international
organizations, as well as to a lesser extent other initiatives, in the area of nuclear security. The
chapter looks at the nuclear security-related powers and functions of the relevant
organizations, namely the International Atomic Energy Agency and the UN. Due inter alia to
the significant part of the international legal framework for nuclear composed of soft law,
there is a lack of international supervision in the sense of traditional arms control law when it
comes to nuclear security. Nonetheless, international organizations play a role in norm-
setting, facilitating cooperation, information sharing, and confidence-building, and to a certain
extent monitoring of compliance with the rules. This role could be expanded.
Part IV of the study identifies and details international legal approaches to
strengthening international nuclear security, looking to the rules and roles of international
organizations elaborated in the foregoing chapters. One of the important considerations is
dealing with technological developments and emerging threats, such as cyber security, which
is considered a pressing topic and one of the biggest challenges to nuclear security at the
moment. As long as the threats evolve, so too must the international legal framework to
address such threats. If evolutive capacity is a facet of the governance structure for nuclear
security, it stands to reason that methods for evolution exist within the international legal
framework as needed to deal with contemporary changes in the threat environment. Processes
for conducting legal review of treaties can be one of these methods.30 The CPPNM (as
amended), for instance, contains provision for at least one but potentially regular review
conferences to “review the implementation of this Convention and its adequacy as concerns
the preamble, the whole of the operative part and the annexes in the light of the then
prevailing situation.”31 Review conferences can inter alia allow states parties to clarify or
adapt interpretation of treaty provisions or could lead to amendment proceedings depending
on how the treaty is written, amendment being another evolutionary method. It is with regard
to evolutionary needs that the soft law instruments, more easily adapted, could play and
important role. Part IV finally considers whether there is, in fact, a need for new law and, if
so, what form this would take, before drawing general conclusions for the study as to the
importance of international law to nuclear security governance.

30
See K. Ipsen, ‘Explicit Methods of Arms Control Treaty Evolution,’ in J. Dahlitz and D. Dicke (eds.), The
international law of arms control and disarmament: proceedings of the symposium, Geneva, 28 February-2
March 1991, New York: United Nations (1991), pp. 75-93.
31
CPPNM (as amended), Article 16.

11
12
PART I: Theoretical Framework

13
14
Chapter II: International Law and Governance of Global Issues

Contents
II.1 Introduction
II.2 Governance features and the concept of an “issue-area”
II.3 International law as an instrument of governance
II.3.1 Substance
II.2.1.1 Role of soft law
II.2.1.2 Relationship between hard and soft law
II.2.1.3 Compliance pull
II.3.2 Organization
II.4 Concluding remarks

II.1 Introduction

Governance as a model denotes a multifaceted approach – in terms of tools and stakeholders,

whether they be states, international organizations, corporations, civil society or individuals –
to an issue or topic that favors flexibility in order to account for changing circumstances and
evolving needs and interests. International law is an important tool of governance, providing
where necessary a strong level of obligation and accountability, but so are softer forms of
legalization, such as recommendations, guidelines and codes of conduct. These latter tools
are, in principle, more easily adaptable and can potentially provide greater precision, but can
still serve to shape behavior of those involved, primarily states in the case of nuclear security.
Governance can benefit from, or be hampered by, the relationship between the “hard law” and
“soft law” instruments, combining obligation and accountability with adaptability and
precision. It is not that, for instance, law alone (a treaty) would necessarily be insufficient, but
it may be preferable in some circumstances, taking into account for instance political
considerations, to adopt soft law instruments. International law-making, including amending
existing agreements, may for example be too arduous and time-consuming when addressing
particular, perhaps urgent, changing circumstances. This chapter looks at governance as it
applies to nuclear security and describes how the international legal framework composed of
legally binding and non-legally binding instruments fits in. In so doing, the chapter more
broadly illustrates how to look at the role of international law as a tool of governance.

II.2 Governance features and the concept of an “issue-area”

One of the primary traits of nuclear security is that it is dynamic, subject to relatively frequent
technical, scientific, political, social and economic changes that necessarily shape how it can
and should be approached. For this reason, one can best think of nuclear security, with the
broad scope of its definition, as an “issue-area.” This term suggests a somewhat holistic
approach to a subject that involves looking at the range of interlinking elements as a whole –
objectives, tools, relevant actors – instead of trying to isolate individual pieces. In other
words, rather than a problem to be solved, nuclear security is defined by a comprehensive set
of related but distinct goals1 and is by nature evolving, not least of all in terms of the threat
and risks involved.2 At the same time, the recognized need for some set of international

1
See IAEA definition: prevention of, detection of, and response to, criminal or intentional unauthorized acts
involving or directed at nuclear material, other radioactive material, associated facilities, or associated activities;
in Nuclear Security Series No. 20: Objective and Essential Elements of a State’s Nuclear Security Regime.
2
Threat, as used here, denotes the intentions, motivations and capabilities of potential adversaries (i.e. terrorist
groups). Risk, on the other hand, looks at potential threats and factors in vulnerabilities and possible impacts,
such as damage resulting from an act. Risk goes up, for instance, in light of the number of states contemplating
new nuclear power programs.

15
standards is tempered by domestic sensitivities, having to do with the impact on national
defense and intelligence sectors, and energy production – often considered fundamental
aspects of national sovereignty – which affects the extent to which states are willing to enter
into binding obligations.3 These challenges are reflected in the seemingly ad hoc mixture of
treaties, guidelines, codes of conduct, initiatives and political partnerships that characterize
approaches to this issue-area. Though it may be tempting to peel apart the components of the
regime, which often differ in terms of precise focus, scope and participation while sometimes
overlapping with one another, and assess them on their own merits, such an approach is not
conducive to making sense of how the regime works and would only hinder attempts to
determine means and methods for strengthening international nuclear security.
The best way to frame the examination of the nuclear security regime and the role of
international law therein is to approach it from the perspective of governance. The term
governance, mostly discussed in the context of international relations, has been used broadly
and so many different facets have been projected onto it that there is a risk that it will cease
being useful as an analytical framing device. Governance has been variously, and non-
exhaustively, described as a system of rule backed by shared goals, whether or not backed by
law and not necessarily dependent on coercive enforcement;4 as a perspective to be used as an
organizing framework;5 as a set of mechanisms together with the relevant law that applies to
those mechanisms;6 as a form of policy-making in response to the internationalization of
certain problems;7 or, even more generally, as the “sum of the many ways individuals and
institutions, public and private, manage their common affairs.”8 In addition, governance is
invoked in relation to various levels – from global governance to domestic governance – and
in various settings – corporate governance, good governance, and so forth.
While governance seems to be a malleable concept, there are a number of
distinguishable features that serve as a common thread and illustrate why governance
provides the proper framework for studying nuclear security at the international level. First
among these is having the basis of common aims,9 sometimes also called shared goals or
“ends” upon which decision-making is based.10 In the case of nuclear security, common aims
include preventing, detecting and responding to unlawful activities involving nuclear or other

3
See B. Kellman, ‘Protection of Nuclear Materials,’ in D. Shelton (ed.), Commitment and Compliance: The Role
of Non-binding Norms in the International Legal System, Oxford: Oxford University Press (2000), pp. 486-505;
see also K. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance,’ 2000 International
Organization, no. 3, p. 435.
4
J. Rosenau, ‘Governance, order and change in world politics,’ in J. Rosenau and E. Czempiel (eds.),
Governance without Government: Order and Change in World Politics, Cambridge: Cambridge University Press
(1992), p. 3-5.
5
G. Stoker, ‘Governance as Theory: Five Propositions,’ 1998 International Social Science Journal, no. 155, pp.
17-28.
6
See, for example, A. von Bogdandy, P. Dann and M. Goldmann, ‘Developing the Publicness of International
Law: Towards a Legal Framework for Global Governance Activities,’ 2008 German Law Journal, no. 11, pp.
1390-1395.
7
W. Werner, ‘State Sovereignty and International Legal Discourse,’ in I. Dekker and W. Werner (eds.),
Governance and International Legal Theory, Leiden: Martinus Nijhoff (2004), p. 128. Werner questions whether
modes of policy-making such as governance is a threat to national sovereignty.
8
See Our Global Neighborhood, Report of the Commission on Global Governance (1995) available at
http://www.gdrc.org/u-gov/global-neighbourhood/.
9
Weil refers to the “dual functions” of classic international law: coexistence and common aims. P. Weil,
‘Towards Relative Normativity in International Law?,’ 1983 The American Journal of International Law, no. 3,
p. 419.
10
Term used by Schachter and described as one of the types of legally relevant norms. “Ends” refers to policies
or objectives that underlie legal principles or rules. They can be precise or abstract, and they serve to inform
choices among conflicting rules or principles. O. Schachter, International Law in Theory and Practice,
Dordrecht: Martinus Nijhoff (1991), pp. 20-21.

16
radioactive material or related facilities. Beyond common aims, there is secondly a level of
interdependency when it comes to the given issue-area. The acknowledgment that terrorists
could seek, and have sought,11 to exploit vulnerabilities in the security of nuclear or other
radioactive material in one state to cause destruction on a massive scale in another, the
demonstrated existence of illicit trafficking networks, as well as the porousness of national
borders both physically and in cyberspace, have cultivated “mushrooming interdependencies”
among states.12 This can otherwise be portrayed as the predominance of difficult global
issues, such as the threat of nuclear terrorism, that require a coordinated international
response.13 Third, then, is the need for cooperation, which realizes the coordinated response.
This brings to mind Friedmann’s famous exposition of the international law of cooperation
that accounted for growing interdependence and recognized the need not only for making
commitments but also for institutionalization (namely through establishment of international
organizations) to fulfill the common interests and provide for the common welfare of states.14
It is, however, important for the present study to understand that cooperation in a certain
issue-area at the international level is conducted not only on an inter-state basis, but also for
instance through so-called transgovernmental networks of specialized governmental agencies
interacting directly with one another,15 as well as through collaborations with and among non-
governmental organizations and interaction at the level of industry.
This leads to perhaps the most important feature of governance: it comprises both
formal and informal tools employed to structure cooperation. Formal tools in the sense used
here include the legally binding rules, whether in treaties or in other legal instruments such as
UN Security Council resolutions, as well as the mechanisms for cooperation and iterative
interaction contained in relevant treaties, such as review conferences and reporting.
International organizations – those “established by a treaty or other instrument governed by
international law and possessing its own international legal personality”16 – are formal tools
but are not themselves law and may lack legislative power to adopt binding rules applicable to
the conduct of their member states, though even then resolutions and decisions of an
international organization can have normative effect.17 On the informal side of the spectrum,
the tools include forms of ‘soft law’ such as codes (of conduct) and guidelines, memoranda of
understanding, as well as political/diplomatic processes and political partnerships.18 The
formality and informality of the tools, as will be made clearer below, should not be conflated
with a judgment on the tool’s legal value or effect. The choice of tool employed in a particular

11
See, for example, S. Harris, ‘The Time U.S. Spies Thought Al Qaeda was Ready to Nuke D.C.,’ The Daily
Beast, 10 September 2016; S. Gregory, ‘The Terrorist Threat to Pakistan’s Nuclear Weapons,’ CTC Sentinel
(Combating Terrorism Center at West Point), no. 7, July 2009; R. Mowatt-Larssen, ‘Al Qaeda’s Nuclear
Ambitions,’ Foreign Policy, 16 November 2010; J. Warrick and L. Morris, ‘How ISIS nearly stumbled on the
ingredients for a ‘dirty bomb’,’ Washington Post, 22 July 2017; K. Vick, ‘ISIS Attackers May Have Targeted
Nuclear Power Station,’ Time, 25 March 2016.
12
Rosenau, note 4.
13
See S. Wood, A. Slaughter and A. Tulumello, ‘International Law and International Relations Theory: A New
Generation of Interdisciplinary Scholarship,’ 1998 The American Journal of International Law, no. 3, pp. 370-
371.
14
See W. Friedmann, The Changing Structure of International Law, New York: Columbia University Press
(1964).
15
See K. Raustiala, ‘Architecture of International Cooperation: Transgovernmental Networks and the Future of
International Law,’ 2002 Virginia Journal of International Law, no. 1, pp. 2-92.
16
International Law Commission, Draft articles on the responsibility of international organizations, 2011,
Article 2.
17
Such resolutions, decisions, etc. could have binding effect on the activities of the organization, such as its
technical bodies (secretariat).
18
Formal and informal tools as discussed here should not be confused with the concepts of formal and informal
regimes used in IR theory; see D. Puchala and R. Hopkins, ‘International regimes: lessons from inductive
analysis,’ in S. Krasner (ed.), International Regimes, Ithaca: Cornell University Press (1983), p. 65.

17
situation will depend on several variables, inter alia, motivations of the actors, political
calculations, perceived interests, intended and expected consequences, and time
considerations. Regardless of the tool ultimately chosen under specific circumstances, the
intention is to contribute to the achievement of desired outcomes.
Before turning to a discussion of the role and characteristics of international law as an
instrument of governance, it is necessary to make some concluding remarks on this section. It
was stated above that governance is a pliable concept, making it essential to establish a
concise meaning, based on the aforementioned characteristics, for the purposes of the present
study in order for it to maintain any theoretical value. Governance, as used here, denotes the
array of means and methods that characterize, coordinate and regulate practices and
interactions at the international level, backed by common aims and applied to a given issue-
area or area of activity. In the context of a regime approach mentioned in the first chapter,
governance refers to the establishment and management of a regime, or from the reverse
perspective, “regimes are sets of governing arrangements that include networks of rules,
norms, and procedures that regularize behavior and control its effects.”19 Using governance as
a theoretical framework means focusing on the substance (rules) and organization, including
in particular the functions and purposes thereof, that give order to international affairs, in this
case in the area of nuclear security.20

II.3 International law as an instrument of governance

Having discussed governance generally, the subsequent question becomes how international
law fits into the picture. Governance, which pointedly diverges from government, takes away
somewhat from the role of the state as the central agent wielding power in favor of
incorporating actions by other relevant actors guided by the shared aims.21 The interactions
among the various actors can certainly have an impact on the making, interpreting and
enforcing of law,22 but states remain the primary players, undoubtedly the case when it comes
to an area such as nuclear security that touches upon fundamental issues of national security.
The focus in the first instance will, therefore, be on the rights and duties of, and interactions
among, states within the broader context of nuclear security governance.
When one talks about international law as an instrument of (nuclear security)
governance, the discussion can be divided into two interrelated categories, which for the
purposes of this study will be named substance and organization. This rather unspecific
terminology requires some elaboration. Substance refers to the rules that prescribe, proscribe
or guide conduct. Organization, which can also be termed institutionalization, means not only
international organizations with separate international legal personality but also simply
interaction, whether formalized or conducted through informal arrangements, and whether
regularized or functioning on an ad hoc basis. In other words, organization should not simply
be equated to “full-blown organizations” but should also be read as including “frameworks

19
J. Nye and R. Keohane, Power and Interdependence: World Politics in Transition, Boston: Little, Brown
(1977), p. 19. Rosenau has a different view of regimes and governance, in which regimes differ from governance
in the sense that the former apply to an issue-area while the latter does not; Rosenau, in Governance without
Government, pp. 8-9.
20
See Wood, Slaughter and Tulumello, p. 384. ‘Substance’ as used here should not be equated with
‘substantive’, as in substantive as opposed to procedural law. ‘Substance’ denotes rules, norms, principles, etc.,
while ‘organization’ concerns institutional arrangements and process.
21
See G. Anders, ‘Lawyers and Anthropologists: A Legal Pluralist Approach to Global Governance,’ in Dekker
et al. (eds.), note 7, p. 39.
22
See H. Koh, ‘Transnational Legal Process,’ 1996 Nebraska Law Review, no. 1, pp. 181-207.

18
for occasional diplomacy.”23 The key when it comes to governance is the interplay between
substance and organization in a given issue-area. Hedley Bull recognized the importance of
this relationship, describing substance, specifically rules, as imperatives that require persons
or groups to behave in certain ways, while institutions are meant to help secure adherence to
the rules through, inter alia, rule formulation, interpretation, enforcement and adaptation.24
Commitment underlies and informs interaction; interaction reinforces, expands upon and/or
adjusts commitment.
A central tenet of this discussion is the importance of process, from defining common
aims to coordinating action to decision-making to choosing the appropriate form of
instrument implementation to information sharing to monitoring, and so forth. Each of these
is, of course, a process in itself, and not necessarily arranged along a linear scale.25 What this
means too is that context plays a role in the analysis. For instance, the analysis should
consider how and by whom substance (in the parlance established here) is created or what the
purpose of the law is in order to assess adequacy of the rules to meet shared goals.26 In this
respect, analysis of international law as an instrument of governance seems to lend itself to
the New Haven School – sometimes called policy-oriented jurisprudence – that incorporates
social context and contends that law is shaped by processes of interaction among relevant
actors.27 This does not diminish the value of identifying and examining a set of rules, but
rather understands the limitations of such an approach. The contextual and process analysis is
particularly appropriate when looking at the classification of soft law, as will be discussed
further below. In the area of nuclear security, there is an existing but limited body of rules
contained in treaty texts. The point here is that restricting the legal analysis to the provisions
of these instruments would be giving short shrift to what is in actuality a complex regime.

II.3.1 Substance

In an international governance structure, as in the case of nuclear security, rules play a central
role in at least setting expectations for, if not always accurately determining, behavior of
relevant actors, namely states. The question arises as to what should be thought of as
comprising rules. In Hart’s formulation, primary rules – rules of substantive obligation – in
the international system are actually standards of conduct accompanied by a sense of duty,
and backed by a certain level of social pressure, which inter alia plays a role in determining

23
J. Klabbers, An Introduction to International Institutional Law, 3rd Edition, Cambridge: Cambridge University
Press (2015), p. 12.
24
See H. Bull, The Anarchical Society: A Study of Order in World Politics, London: The Macmillan Press
(1977), p. 54.
25
See S.J. Toope, ‘Emerging Patterns of Governance and International Law,’ in M. Byers (ed.), The Role of Law
in International Politics, Oxford: Oxford University Press (2000), pp. 91-108. Toope considers the relationship
between substance and process, stating: “Law is … neither pure substance nor pure process, but a continuing
interplay of legitimate means and legitimate ends,” at 98. See also O. Lobel, ‘The Renew Deal: The Fall of
Regulation and the Rise of Governance in Contemporary Legal Thought,’ 2004 Minnesota Law Review, no. 2,
pp. 342-470. Lobel, discussing governance at the national level, explained: “Unlike the regulatory model, the
governance model does not insist that legislation, implementation, enforcement and adjudication are separate
stages; rather seeks to form dynamic interactions among these processes,” at 391.
26
Koskenniemi acknowledges that governance goes beyond looking at formal law to examine the purposes
behind the law but questions what the outcome would be should there be no agreement on those purposes. He is
admittedly considering the concept of global governance rather than governance of an issue-area. M.
Koskenniemi, ‘Global Governance and Public International Law,’ 2004 Kritische Justiz, no. 3, pp. 241-254.
27
According to the New Haven School, law is a continuous process of authoritative and controlling decisions
instead of a stable body of rules. See M. McDougal and H. Lasswell, ‘The Identification and Appraisal of
Diverse Systems of Public Order,’ in R. Beck et al. (eds.), International Rules: Approaches from International
Law and International Relations, Oxford: Oxford University Press (1996), pp. 113-143.

19
the existence of obligation.28 This reflects resignation to the fact that there is no supranational
sovereign issuing commands backed by coercion in the Austinian sense. Moreover, regarding
rules as standards of conduct driven by duty and social pressure allows one to conceive of
them as not just deriving from the formal sources of international law set forth in Article 38 of
the statute of the International Court of Justice, or the recognized rules of law with their
attendant commands.29 In the governance context, states agree to standards of conduct in
various forms – such as political commitments, recommendations, codes or guiding principles
– partially to ensure that standards are not too rigid or too loose to accommodate the
realization of common aims.30 Such non-binding (but perhaps politically binding)
undertakings can guide and drive (expectations of) state behavior, even if breaching them
does not entail consequences relating to state responsibility as is the case when it comes to
legal obligations.
Therefore, the foregoing is not to say that there is no distinction between what is
legally binding and what is non-binding. On the contrary, this distinction remains part and
parcel of international law, even with the diverse and growing body of soft law instruments.31
A common feature of governance, however, is the employment of “softer” forms of
legalization due to distinct advantages, while still recognizing the importance, where
necessary and feasible, of establishing legally binding obligations. In certain cases, ongoing
interaction and increasing coordination among states resultant expectations may by design
lead to legally binding rules. Where the distinction occasionally gets fuzzy is when it comes
to the effect given to rules originating from hard law or soft law instruments in domestic
jurisdictions. If internationally formulated standards of conduct, regardless of the
classification of the instrument from which they are derived, are translated into domestic
legislation or regulation, what does that say about the hardness or softness of the standards?
The following subsections will go into further detail on the state of play, concentrating on the
role of soft law, the relationship between hard and soft law, which will be seen in subsequent
chapters to define the international legal framework for nuclear security, and the impact of a
substantial reliance on soft law on expectations of compliance, or compliance pull.

II.3.1.1 Role of soft law

The very existence of soft law remains controversial. A number of scholars and practitioners
maintain the traditional binary conception of law, even if acknowledging the importance of
types of commitments and undertakings other than binding law on the conduct of
international relations.32 Adopting the binary conception would make the very term “soft law”
useless, as one would only need to speak of law or non-law. To leave the discussion there
would be to ignore empirical evidence demonstrating the effect of instruments outside the
formal sources of law on state conduct. What such evidence suggests is that international law
is not binary, but rather should be viewed as a continuum from binding obligation to complete
freedom of action, with several points denoting various forms of commitment, responsibility,
expectation, and so forth, distributed across the continuum. Franck has aptly described this
phenomenon as a rule’s capacity to obligate as a matter of degree in international law, as

28
H.L.A. Hart, The Concept of Law, Oxford: Oxford University Press (1961), pp. 82-88. Hart contrasts an actor
having an obligation with an actor being obliged to do something, which is motivated by, for instance the
likelihood of suffering sanction for disobedience.
29
See Oppenheim, ‘The Science of International Law,’ at 314-315.
30
See Koskiennemi, supra not 24.
31
D. Shelton, ‘International Law and ‘Relative Normativity’,’ in M. Evans (ed.), International Law, 4th Edition,
Oxford: Oxford University Press, p. 138.
32
See, for instance, J. Klabbers, ‘The Redundancy of Soft Law,’ 1996 Nordic Journal of International Law, no.
2, pp. 167-182. Shelton, supra note 29, describes the binary perspective of practitioners, governments and NGOs.

20
diametrically opposed to national law.33 The continuum conception of international law is
highly relevant to the nuclear security international legal framework as elements thereof are
not legally binding but do clearly contribute to the normative structure, being at least
“declaratory of aspirational norms of international behavior.”34 Here, as described above,
process also plays an important role. In many cases, the institutional process involved in
developing non-legally binding instruments, such as the IAEA’s Nuclear Security Series
documents in the case of nuclear security, provides them with added weight and legitimacy.
Soft law is therefore a category distinguishable from non-law based on some level of
restriction on the freedom of action – observable through such elements as (political)
commitment and effect on behavior – though not reaching the level of legal obligation and
required compliance that flows from hard law.
Furthermore, one could argue that broad acceptance of soft law instruments can serve
to legitimize conduct and make it more difficult to maintain the legality of opposing positions,
or that soft law may even provide evidence of settled state practice or opinio juris, the
conviction that a practice is obligatory due to a rule of law requiring it,35 required to
demonstrate that a rule has become customary law.36 Of course, soft law that meets these
conditions and has thus become reflective of customary law is no longer ‘soft’ but has entered
the realm of hard law. The recasting of soft law in the guise of one of the formal sources of
international law is the approach taken, for instance, by the ICJ in the Nicaragua case, namely
with respect to certain UN General Assembly resolutions,37 which are non-binding but can
influence the formation of customary law, reflecting in principle the perspectives of (the
majority of) the 193 member states.38 The extent to which and the circumstances under which
General Assembly resolutions are indicative of customary international law is a point of some
contention among states and scholars, though there appears to be general agreement that such
resolutions may in some cases constitute evidence of customary law.39 For instance, Higgins,
in discussing the process by which the content of norms is clarified or developed, makes

33
T. Franck, The Power of Legitimacy Among Nations, Oxford: Oxford University Press (1990), p. 29.
34
As described by Richard Williamson in ‘Hard Law, Soft Law, and Non-Law in Multilateral Arms Control:
Some Compliance Hypotheses,’ 2003 Chicago Journal of International Law, no. 4.
35
See North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, par. 77.
36
See A. Boyle and C. Chinkin, The Making of International Law, 2007, pp. 211-212. See also the Nuclear
Weapons Advisory Opinion, in relation to General Assembly resolutions, para. 70.
37
The term ‘recommendations’ and ‘decisions’ in reference to acts of the General Assembly are used in the UN
Charter (see articles 10 and 18). This doesn’t demonstrate a clear legal distinction, though decision is used as
both an all-encompassing term for an act or as a legally binding decision, namely with respect to UN
membership (Art. 4(2)); see K. Hailbronner and E. Klein, ‘Article 10’, in B. Simma et al., The Charter of the
United Nations: A Commentary, Second Edition, Oxford: Oxford University Press 2002, pp. 267-274.
38
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America), I.C.J. Reports 1986, paras. 191-195. See also Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971, inter alia par. 53; Western Sahara, Advisory Opinion, I.C.J.
Reports, paras. 54-65. Charter of the United Nations, 1 UNTS XVI, Article 18.
39
See Hailbronner and Klein, supra note 37. Schwebel examines the discussion regarding the Declaration of
Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National
Jurisdiction [Resolution 2749 (XXV)], namely with respect to its being declaratory of legal rules governing
exploitation of the deep seabed. The Group of 77 maintained that a General Assembly resolution that is adopted
without dissent and following extensive negotiation and which directly addresses an issue of international law
suffices to establish international law, in particular in an area where there was no preceding law. This
perspective was not shared by the United States and other Western states. Schwebel explains that this
demonstrates the profound division among states when it comes to the impact of General Assembly resolutions
on international law; S. Schwebel, ‘The Effect of Resolutions of the U.N. General Assembly on Customary
International Law,’ 1979 Proceedings of the Annual Meeting (American Society of International Law), vol. 73,
pp. 306-309.

21
reference to a specific type of resolution that is intentionally declaratory of existing law,
which if adopted by overwhelming majority or unanimity would seem to clearly give
probative evidence of states’ convictions concerning rules of law.40 Such declaratory
resolutions would seem to be a statement of lex lata (the law as it is), and the ICJ inter alia
confirmed that such resolutions could provide evidence of existing customary law in its
advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.41 What for some
may be a statement of lex lata, though, may for others be lex ferenda. Certain aspects, such as
language (i.e. ‘should’ versus ‘shall’) and circumstances of adoption (who voted in favor of or
against the resolution, the explanations of vote or paragraph by paragraph voting by states),
should be examined to determine the legal effect of the resolution.42 Depending on the
language and circumstances of adoption, it would seem clear, then, that General Assembly
resolutions could be part of the process of forming new rules of customary international law.
As to whether the resolutions can of themselves create customary law, the issue is more
complex. It may be that if certain conditions are met – for instance, unanimous or near
unanimous acceptance and the clear intention of the supporting states to set forth by means of
the resolution a rule of international law – the resolution is able exceptionally to create
general customary law by virtue of its adoption.43 A general observation one can thus make is
that both process, which is part of the organization element of governance, and intent are
essential for determining evidence of or identifying the development of customary
international law. Some scholars have taken a view, also referring to the case of General
Assembly resolutions, that the “legal significance” of non-binding rules, meaning the
normative effect they have on decision-making, lies in the relation they have to the formal
sources of international law.44 However, it would seem that the term “legal significance” in
relation to non-binding rules is used too restrictively in this line of argumentation. Schachter
contends that the legal implications of certain non-legal instruments have to do with them
being official acts of states, which means that the legal significance lies in expressing official
positions on a point of law that may not be clear or may be disputed.45 What these different
positions attest to is that, one, soft law is legally significant or holds legal implications and,
two, soft law takes different forms which can have different relationships to the formal
sources of international law. This latter point is the focus of the next subsection. While hard
law, the binding legal rules, is synonymous with lex lata, soft law is not necessarily to be
considered as de lege ferenda. This characterization would work if one thinks of soft law
solely as the part of a spectrum in which norms are being developed and on their way to
becoming binding legal rules. However, though soft law norms or instruments may reflect lex
ferenda in certain cases,46 this characterization seems slightly reductive considering the

40
R. Higgins, ‘The Development of International Law by the Political Organs of the United Nations,’ 1965
Proceedings of the American Society of International Law at its Annual Meeting (1921-1969), vol. 59, pp. 121-
123.
41
I.C.J. Reports 1996, par. 70: “The Court notes that General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain circumstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a
given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is
also necessary to see whether an opinio juris exists as to its normative character.”
42
R. Mullerson, Final Report of the Committee on the Formation of Customary (General) International Law,
International Law Association, London Conference (2000), pp. 54-65.
43
Ibid.
44
See I. Dekker and R. Wessel, ‘Governance by International Organizations: Rethinking the Normative Force of
International Decisions,’ in Dekker et al. (eds.), note 7, p. 218.
45
Schachter, supra note 10, p. 99.
46
For some, grounding soft law in the concept of de lege ferenda is necessary for it to be considered ‘law’. See
J. Cerone, ‘A Taxonomy of Soft Law: Stipulating a Definition,’ in S. Lagoutte et al. (eds.), Tracing the Roles of
Soft Law in Human Rights, Oxford: Oxford University Press (2016), pp. 15-26.

22
various relationships soft law can have to hard law, as outlined below, or the possibility of
soft law standalone normative instruments.47
It is also possible to characterize law as “hard” or “soft” based not on the nature of the
source from which it is derived, but rather on whether it creates enforceable rights and
duties.48 Such characterization does not have to apply to an instrument as a whole; it can also
apply to particular provisions within a binding agreement. Examples of non-enforceable,
hortatory obligations contained in a legally binding instrument would be a treaty provision
calling on states to cooperate to achieve certain aims, or one encouraging states to consider
certain principles in taking measures toward defined goals. This would suggest that even the
differentiation between hard and soft law is based on some sort of measurement, whether that
be enforceability or, in the model developed by Abbott and Snidal, a function of three
dimensions – obligation, precision and delegation.49 According to Abbott and Snidal, hard
law refers to legally binding obligations that are precise, or that can be made precise through
for instance adjudication, and that delegate authority for implementation and interpretation of
the rules.50 “Softening” can occur along each of the dimensions, with the domain of soft law
beginning when one or more of the dimensions is weakened.51 In other words, the form –
recommendations, guidelines, codes of conduct or provisions in a treaty – does not matter so
much as certain characteristics in determining whether or not something can be considered
soft law.
More than just confirming the existence of soft law, a discussion of its role must
examine the attributes that make its use advantageous for international governance,
particularly in the area of nuclear security. As described above, nuclear security governance
must contend with uncertainty arising from changing threat environments, technological
advances and evolving capabilities and relationships; and sensitivities that restrain the extent
of willingness to enter into agreements, which corresponds to what is known as sovereignty
costs in IR theory, denoting the extent to which states cede discretion and authority over
national policies and decision making;52 while at the same time there is a shared interest in
harmonized standards of conduct and a need for cooperation to realize common goals. Abbott
and Snidal contend that when both uncertainty and perceived sovereignty costs are high, soft
forms of legalization will be the approach of choice.53
Considering the circumstances surrounding nuclear security governance, there are
clear advantages to be had in employing soft law. With respect to uncertainty, soft law
provides flexibility. Instead of having to go through formal procedures of amendment or
modification when circumstances change, with specific requirements for taking effect, legally
non-binding instruments can be amended or replaced relatively quickly in light of the then

47
See Shelton, Commitment and Compliance, at 161-163.
48
See, R.R. Baxter, ‘International Law in Her “Infinite Variety”,’ 1980 The International and Comparative Law
Quarterly, no. 4, p. 549.
49
See Abbott and Snidal, supra note 3, pp. 421-456.
50
Ibid, p. 421.
51
Ibid, p. 422.
52
Abbott and Snidal refer to a range of sovereignty costs “from simple differences in outcome on particular
issues, to loss of authority over decision making in an issue-area, to more fundamental encroachments on state
sovereignty,” supra note 3 at 436. Sovereignty costs will depend on the nature of the legal obligation, whether it
be an agreement that limits behavior in certain circumstances or one that establishes an international
organization to which states surrender aspects of national authority. See also E.M. Hafner-Burton et al., ‘Human
Rights Institutions, Sovereignty Costs and Democratization,’ 2013 British Journal of Political Science, no. 1, pp.
1-27; O.A. Hathaway, ‘International Delegation and State Sovereignty,’ 2008 Law and Contemporary Problems,
no. 1, pp. 115-149.
53
Ibid, p. 444.

23
current situation.54 International law-making, which remains primarily carried out through
negotiating and becoming party to treaties, is often a cumbersome process. Multilateral treaty
negotiations require sufficient alignment of motivations, among states that could differ
significantly in terms of domestic interests, perspectives, capacities and inter-state
relationships; extensive compromise; and substantial political will. Subsequent ratification of
or accession to a treaty can also be complex and time-consuming, depending on the nature of
the specific domestic processes.55 Moreover, amending or otherwise modifying existing
treaties requires following procedures ranging from a reflection of general treaty law, as laid
down in Part IV of the Vienna Convention on the Law of Treaties (VCLoT), to complex
provisions contained in specific treaties.56 Soft law, though detailed institutional processes
may govern its adoption,57 nonetheless need not adhere to the rules and procedures for
conclusion and entry into force involved in international law-making.58 The choice of soft
law, however, should not be equated with states not intending to keep their commitments or
expecting other states to do so, which in most cases they still do.59 Rather it offers a path that
may be preferable in certain circumstances. Therefore, when it comes to governance of a
relatively rapidly changing issue-area, the flexibility offered by soft law is essential to the
continuing viability of the relevant legal framework.
When it comes to hesitance to entering into binding obligations, due to particular
domestic sensitivities, or perceived sovereignty costs, soft law could be the preferred option.
The threshold for states is lower when an instrument does not take the form of hard law.
States that view a particular issue as falling squarely in the domestic realm may nonetheless
be willing to coalesce around prescribed actions if they entail no legal obligation nor, perhaps
more importantly, the possibility of being held legally responsible. Reluctance to enter into
legally binding obligations may not solely be related to potential sovereignty costs, but rather
could be related to process as discussed in the previous paragraph. For instance, the domestic
ratification or accession process may present an insurmountable obstacle, or at least a
considerable hindrance, to becoming party to a treaty thus delaying or avoiding necessary
action.60 In such a case, states may choose to forego hard law in favor of a soft law approach.
Due to the form of commitment, and the concomitant consequences of non-
compliance being limited, soft law also allows for increased precision and detail.61 Greater
precision and detail, to an extent not achievable in multilateral treaty-making, in turn supports
harmonization of conduct by reducing room for varying interpretations and limiting state
discretion when it comes to measures taken. This particular attribute of soft law, also termed

54
See D. Shelton, ‘Introduction: Law, Non-Law and the Problem of ‘Soft Law’,’ in D. Shelton (ed.), supra note
3, pp. 12-14.
55
See Schachter, supra note 10, p. 97; in which he explains that domestic constitutional or other legal
requirements would have to be met in case of a treaty, but not if the commitment is merely political or moral.
56
See K. Ipsen, ‘Explicit Methods of Arms Control Treaty Evolution,’ in J. Dahlitz and D. Dicke (eds.), The
international law of arms control and disarmament : proceedings of the symposium, Geneva, 28 February - 2
March 1991, New York: United Nations (1991), pp. 75-93.
57
Such processes undoubtedly contribute to the perceived legitimacy of the resultant instrument, as will be
discussed later in the case of the Nuclear Security Series.
58
VCLoT, Part II.
59
Schachter, p. 97.
60
A nuclear security-related example of this scenario is the delayed ratification by the United States of the 2005
Amendment to the Convention on the Physical Protection of Nuclear Material because of a disagreement
primarily between two senators over application of the death penalty to the criminal offenses set forth in the
treaty. For this reason, unrelated to the enhanced physical protection measures contained in the treaty, it took the
U.S. ten years to pass the necessary implementing legislation to facilitate ratification. The U.S. finally deposited
its instrument of ratification with the IAEA (depositary) on 31 July 2015.
61
See A. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law,’ in V. Gowlland-Debbas (ed.),
Multilateral Treaty-Making, The Hague: Kluwer Law International (2000), pp. 25-31.

24
determinacy, would in Franck’s estimation contribute to the rules’ legitimacy, which is a
property that is then manifested in the rule’s compliance pull.62 The concept of compliance
pull, as opposed to compliance versus non-compliance with rights and duties that are
enforceable, will be discussed further below, as will the role of process and institutions in
legitimacy. Elaboration of rules in greater precision and detail not only can be beneficial in a
standalone instrument but also when it comes to functioning in tandem with other instruments
that make up the governance structure.
A final attribute that bears mentioning here is that recourse to soft law offers the
potential for greater participation of non-state actors, such as industry, in the development
process, something not typically foreseen as part of traditional international law-making.
Private enterprise plays a significant role in nuclear security as, amongst others, producers,
operators or end-users of nuclear or other radioactive material and related facilities that are
responsible for implementing various security measures under the nuclear security
framework, though private enterprise is not directly regulated by international law nor directly
subject to requirements of international organizations, such as the IAEA. The International
Maritime Organization (IMO), for instance, has recognized the potential of an approach
allowing active participation by non-state actors in decision-making. For example, in
acknowledging its place as “the primary forum for technical matters of all kinds affecting
international shipping and related legal matters” and aiming to enhance its effectiveness, the
IMO has decided to “actively engage the various stakeholders (…) in the shipping arena,
including non-governmental organizations, industry and the public, to ensure a more inclusive
approach to decision-making.”63 It has been further argued that the legitimacy of the rules
created is a function of allowing participation, to some extent, of all relevant actors.64

II.3.1.2 Relationship between hard and soft law

In a governance structure, such as that for nuclear security, in which the legal framework is
made up of hard and soft law, it is necessary to consider the possible forms the relationship
between the two sets of instruments can take, both for the purposes of characterizing the
existing framework and for devising recommendations for future actions. Hard and soft law
need not be viewed in the either/or sense, but rather can be approached as instruments
employed in certain ways based on prevailing conditions, such as identified needs or

62
Franck, supra note 31, pp. 24, 52-54. Klabbers disagrees, stating that soft law is often deliberately kept vague
and therefore only contributes to indeterminacy; see Klabbers, supra note 30, p. 178. Of course, it is possible for
soft law provisions or instruments to be indeterminate, but they allow for additional determinacy by virtue of the
form. Boyle suggests that indeterminacy would even deprive a legally binding instrument or provision of the
character of hard law, ostensibly because such provisions would be unenforceable; see A. Boyle, ‘Soft Law in
International Law-Making,’ in Evans (ed.), supra note 29, p. 126. Hans Morgenthau also made reference to lack
of precision in international law, from a realist perspective, describing it as by design allowing states to pursue
their desired ends, promoting national interests and evading obligations they deem harmful; H. Morgenthau,
Politics Among Nations: The Struggle for Power and Peace, Columbus: McGraw Hill (1993), p. 131.
63
International Maritime Organization, Resolution A.989(25), adopted on 21 December 2007, par. SD 1.2. On
the importance of engaging with civil society and industry with respect to the chemical weapons regime,
including safety and security considerations, see C. McLeish and M. Lak, ‘The Role of Civil Society and
Industrial Non-State Actors in Relation to the Chemical Weapons Convention,’ in W. Krutzsch, E. Myjer and R.
Trapp (eds.), The Chemical Weapons Convention: A Commentary, Oxford: Oxford University Press (2014), pp.
37-50. McLeish and Lak the importance of engagement with civil society and industry as part of a governance
model to prevent (re-)emergence of chemical weapons.
64
See C. Ryngaert, ‘Imposing International Duties on Non-State Actors and the Legitimacy of International
Law,’ in M. Noortmann and C. Ryngaert (eds.), Non-State Actor Dynamics in International Law: From Law-
Takers to Law-Makers (2010), pp. 69-90.

25
feasibility.65 The political context will drive decisions regarding the form of legalization. Hard
law as a form of commitment (legal obligation) provides predictability and enforceability,
including measures or mechanisms to redress a breach of an obligation. Soft law that derives
from and builds upon a basis of legal obligation (in a treaty) can serve to provide further
technical detail in exposition of the rules, and can establish standards for implementing and
interpreting the hard law. The process by which soft law is developed, including intent of the
parties, as well as its form and structure can give it normative effect, setting standards for and
expectations of conduct. This could be attractive when commitment is needed but, for
instance, geopolitical issues or time constraints (in the case of an evolving threat) make
traditional international law-making difficult. However, the aspect of accountability for
violations will be missing, which could detract from the confidence in other states complying
with soft law norms/commitments.
It is possible to identify four types of relationship of soft law to hard law: substitute,
complement, opponent, and precursor.66 The attributes of soft law as described above inform
the choice of how it is employed, though other forces could shape the approach taken,
including power differentials among the actors.
Soft law as a substitute is fairly self-explanatory. This refers to a situation in which
there is agreement that an international undertaking is required to address an issue, and the
undertaking could potentially take the form of either hard or soft law. For certain reasons,
perhaps the perceived difficulty of negotiating a legally binding instrument or when there is
recognition that action is needed but no agreement yet on the specifics of the required action,
states may choose to employ soft law instead of hard law. Eventually, states may come to see
the soft law approach as sufficient, though whether this is in fact the case has to do with
considerations like effectiveness in achieving collective aims.
The second type of relationship – complement – places hard and soft law side-by-side
and characterizes how soft law supports the development and effectiveness of binding rules.
In broad terms, soft law as a complement can function in two ways: either laying the
groundwork for arriving at or supporting the effectiveness of legally binding obligations, or
elaborating legally binding rules. In the constructivist view, soft law helps facilitate processes
like persuasion and socialization and create an environment conducive to hard law
development through generating knowledge and advancing common norms and shared
ideas.67 In other words, soft law can help establish common practice, upon which hard law
can build thereby lowering the threshold to implementation and compliance.
Additionally, soft law can serve to fill in gaps or resolve ambiguities in the text of the
legally binding instruments and support adherence to the legal framework by providing
further guidance to states on how to act in accordance with international obligations. A clear
example of this is found in the nuclear safety regime. Both the Convention on Nuclear Safety
(CNS) and the Joint Convention on the Safety of Spent Fuel Management and on the Safety
of Radioactive Waste Management (Joint Convention) make direct reference in their

65
See G. Schaffer and M. Pollack, ‘Hard vs. Soft Law: Alternatives, Complements and Antagonists in
International Governance,’ 2010 Minnesota Law Review, vol. 94, pp. 712-716. Shelton is slightly more nuanced,
stating that it is rare to find soft law operating in isolation; Shelton, supra note 29, pp. 161-163. She does,
however, point out examples of “free-standing normative instruments” that are neither related to hard law nor
meant to develop into hard law, referring specifically to export control guidelines developed by weapons
supplier states.
66
The first three of these types of relationships follow generally the analysis of Schaffer and Pollack, ibid.
However, they do not specifically consider soft law as a precursor, which is an important type of relationship
deserving of a separate category.
67
Ibid, pp. 720-721; see also D.M. Trubek, P. Cotrell and M. Nance, ‘“Soft Law”, “Hard Law”, and European
Integration: Toward a Theory of Hybridity,’ in G. De Búrca and J. Scott (eds.), Law and New Governance in the
EU and the US, Oxford: Hart Publishers (2006), pp. 65-94.

26
respective preambles to international standards, invoking them as guidance on how parties
can achieve the object and purpose of the treaties. The Joint Convention, in particular, uses
the international standards as guidance for fulfilling specific obligations in the operative
text.68 Soft law that is explicitly meant to provide guidance for complying with a treaty or to
authoritatively resolve ambiguities in the treaty text serves an interpretive function in
accordance with Articles 31 and 32 of the VCLoT. Soft law could conceivably reflect
subsequent agreement with respect to interpretation of a treaty or application of its provisions.
Or, when soft law instruments shape states’ conduct, such instruments could be indicative of
“subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation.”69
Whereas in the case of substitutes soft law is chosen based on characteristics that make
it the preferable approach to nonetheless achieve certain shared aims, the third type of
relationship – opponent – denotes conflict. Basically, an opponent relationship tends to arise
out of differing preferences that manifest themselves in attempts to undermine, confuse or
supplant existing rules. This could conceivably occur where one legal order perhaps with a
particular dispute settlement mechanism interacts with hard and soft law provisions of another
related legal regime.70 Schaffer and Pollack point to various theoretical underpinnings for this
phenomenon. These include, for instance, distributional conflict, which means that states have
differing perspectives on preferred outcomes and try to get their way, thereby forcing others
to adjust accordingly; and so-called “regime complexes” that allow states to seek out
competing legal fora in order to advance their substantive preferences.71 It is not hard to
imagine that adversarial political relations, often influenced by perceptions of power, could
lead to this conflictual scenario. However, such an approach need not only stem from inter-
state disagreement but could in fact also arise due to domestic considerations, such as
capacity and influence of national stakeholders – i.e. industry or civil society. States may, for
instance, be forced to look for the path of least resistance, which could favor soft law, or
institutional arrangements, contradictory of or separate from existing rules.72
The fourth type of relationship arises when soft law serves as a precursor to legally
binding rules or a legally binding instrument – soft law as pré-droit.73 To a certain extent, this
is an extension of the second relationship (complement) in that it has to do with standards of
conduct that are established in soft law form facilitating relatively rapid adoption as hard law.
This primarily happens as an incremental development or, on the contrary, when there is a
sense of urgency, as was the case with respect to the Convention on Early Notification of a
Nuclear accident, which was based on the IAEA Guidelines on Reportable Events, Integrated

68
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management, UNTS vol. 2153, no. 37605, see Articles 4 and 11.
69
See VCLoT, Article 31(3), subparagraphs (a) and (b). See also B. Simma and A. Paulus, ‘The Responsibility
of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View,’ in S. Ratner and A.M.
Slaughter (eds.), Symposium on Method in International Law, 1999 American Journal of International Law, no.
2, pp. 302-315. Simma and Paulus note that “soft law is an important device for the attribution of meaning to
rules and for the perception of legal change,” at 308.
70
Schaffer and Pollack refer to the issue of genetically modified foods and how the WTO dispute resolution
system has had to cope with overlaps and conflicts between the WTO and other regimes, in this case application
of the Convention on Biodiversity’s Biosafety Protocol; at 752-765.
71
Supra note 51, pp. 728, 730-741.
72
Situations in which the existing rules are indeterminate would be better suited to this type of opponent
relationship.
73
Bederman contends that in any case when international actors “informally” establish standards of conduct,
there is a sort of inevitability of soft law hardening into legal obligation; D. Bederman, ‘REVIEW ESSAY:
Constructivism, Positivism, and Empiricism in International Law: Legal Rules and International Society. By
Anthony Clark Arend,’ 2001 Georgetown International Law Journal, p. 484. This position is not supported by
evidence and seems designed to wedge soft law into a positivist conception.

27
Planning and Information Exchange, enabling the treaty to be swiftly adopted in the wake of
the Chernobyl accident. Furthermore, mapping on to soft law can support increased
compliance.
An additional possibility that can be grouped in with the precursor relationship
category is incorporation of soft law – particular provisions or entire instruments – in a legally
binding instrument, thereby giving the soft law a legally binding character. There are
examples of this in practice, including in the area of nuclear security.74 IAEA physical
protection guidelines have been made, to a certain extent,75 legally binding in a number of
contexts, including by means of Project and Supply Agreements76 and Revised
Supplementary Agreements for the Provision of Technical Assistance by the IAEA. This has
also been the case with respect to bilateral nuclear cooperation agreements entered into by the
United States with several other states, so-called 123 Agreements.77 Additionally, the African
Nuclear Weapon-Free-Zone Treaty (Treaty of Pelindaba) contains a provision on physical
protection (Art. 10) obliging states parties “to apply measures of physical protection
equivalent to those provided for in the Convention on Physical Protection of Nuclear Material
and in recommendations and guidelines developed by IAEA for that purpose.” Incorporation
of soft law by reference into a legally binding agreement would turn it into hard law for the
purposes of that agreement. In other words, once a soft law instrument assumes a legally
binding character by incorporation into a legally binding instrument, it is no longer “soft”.
An examination of nuclear security governance reveals three of the four hard and soft
law relationships: substitute, complement and precursor. How these relationships have
functioned in practice will be discussed later in this study when analyzing the legal
framework for nuclear security in detail. By further identifying the benefits and shortcomings
of the existing set of relationships based on the theory of hard and soft law relationships, it
will be possible to suggest future actions employing law as an instrument to strengthen
international nuclear security.

II.3.1.3 Compliance pull

Effectiveness of laws is hard to establish. For instance, if a legal norm is preventive in nature,
devised to discourage a certain act or behavior, then a measure of effectiveness could be a low
instance of or absence of this behavior.78 One would expect that a legal framework aimed at
preventing terrorist, or other criminal, activities involving nuclear or other radioactive
materials and related facilities would be deemed to be effective in the absence of cases of
nuclear terrorism. However, it is not possible at this moment, when no acts of nuclear
terrorism have taken place, to draw such a causal link, and as there remain clearly identifiable

74
See Chapter IV on the historical development of the international legal framework for nuclear security. In
addition, physical protection recommendations and guidelines for nuclear material and facilities have been
incorporated in the nuclear non-proliferation regime, namely in nuclear-weapon-free zone treaties; see in
particular Treaty on the Nuclear-Weapon-Free Zone in Africa (Pelindaba Treaty), 35 ILM 698 (1996), Article
10. See also Boyle, supra note 50, p. 118. Boyle refers specifically to the example of the Nuclear Safety
Convention.
75
Formulations in the text of agreements often require measures ‘comparable’ to those outlined in
INFCIRC/225.
76
See, for example, INFCIRC/834 (Agreement between the International Atomic Energy Agency, the
Government of Chile and the Government of the United States of America Concerning the Transfer of Enriched
Uranium for Two Research Reactors).
77
See, for instance, Agreement for Cooperation Between the Government of the United States of America and
the Government of India Concerning Peaceful Uses of Nuclear Energy, which requires that ‘each Party shall
apply measures in accordance with levels of physical protection at least equivalent to the recommendations
published in IAEA document INFCIRC/225/Rev.4’ (emphasis added).
78
See A. Allott, ‘The Effectiveness of Laws,’ 1981 Valparaiso University Law Review, no. 2, pp. 229-242.

28
gaps in the international legal framework, as well as the implementation thereof, effectiveness
would seem on the contrary to be undermined. To give an example, there is no multilateral
treaty that obligates the physical protection of nuclear material in military use, a category that
represents by far the most nuclear material in the world. It would be counterintuitive to argue
that these materials should not be subject to the same security obligations that material in
civilian use is. Not covering these materials would seem to undermine the effectiveness of a
legal framework aimed at preventing acts of nuclear terrorism. Yet, even without such legal
obligations no military nuclear materials have been used in a terrorist act. There are other
reasons for this reality, but that does not detract from the added preventive value of a strong,
comprehensive legal framework.
One obvious and relatively tangible metric of trying to determine effectiveness is
compliance.79 Compliance looks at the “matching of state behavior and international
norms,”80 or in other words compliance entails adherence, in practice, to the provisions or
norms of a legal instrument, as well as adherence to relevant implementing legislation and
regulations. Studies have generally proven the famous statement that “almost all nations
observe almost all principles of international law and almost all of their obligations almost all
of the time.”81 The purpose of this sub-section is to discuss whether and to what extent the
type of instrument – hard law or soft law – impacts compliance therewith, and to lay out
certain methods for possibly increasing compliance with soft law instrument.
The process of concluding an international legally binding instrument is so time-
consuming and requires such a substantial expenditure of political capital that the exercise
will only be worthwhile if there is a resultant increase in compliance, and as a result,
effectiveness. Taking the form of hard law generally carries with it particular expectations of
compliance. This is at least partially due to the options, contained in treaties themselves and
under the general law of treaties, for redress in cases of non-compliance, as well as recourse
to judicial dispute settlement. Violation of legally binding obligations results in international
responsibility. Soft law, on the other hand, does not lend itself to particular options for
enforcement, such as litigation, in the event of non-compliance or alleged non-compliance.
However, even absent said options for enforcement, there can still in certain circumstances be
strong expectations of compliance with non-binding norms.82 This has to do with the effect on
state behavior, as states consider it in their interests to comply and that other states similarly
comply with the non-binding norms.
A key feature of governance theory is the idea that compliance pull is not based purely
on the form a rule or norm takes – hard or soft law.83 Compliance pull instead more generally
suggests the force that leads states to behave in a certain way, and the strength of the
compliance pull is an essential factor, related to but not necessarily dependent on whether
states comply with a particular rule in any given situation or not.84 Compliance pull is a
function of a number of elements, including, inter alia, institutional process, ranging from rule
and norm creation to monitoring and verification to confidence building; determinacy, which

79
Shelton states that compliance is required by the rule of law in order for law to be effective, and this makes
compliance an issue of general concern for the international community; see Shelton, supra note 42, p. 9.
80
Shelton, supra note 42, p. 5. See also, H. Jacobsen and E. Weiss, ‘Strengthening Compliance with
International Environmental Accords: Preliminary Observations from Collaborative Project,’ 1995 Global
Governance, no. 2, pp. 119-148.
81
L. Henkin, How Nations Behave, 2nd Edition, New York: Columbia University Press (1979), p. 47.
82
Shelton, supra note 29, pp. 160-163. Shelton goes so far as to suggest that if states expect compliance and
themselves comply with soft law instruments as well as they do with the formal sources of law, then conceptions
of international law or the list of sources should possibly be expanded.
83
See Koskenniemi, supra note 24.
84
T. Franck, ‘Legitimacy in the International System,’ 1988 American Journal of International Law, no. 4, pp.
712-724.

29
shapes expectations of conduct; iterative interaction, including opportunities for capacity
building and implementation assistance); and incentives, either negative (sanctions) or
positive (economic and technical cooperation), as well as what can be termed interest
incentives (strengthening national security). It would be disingenuous to claim that form,
legally binding or non-binding, plays no role in compliance pull. A treaty’s compliance pull
can be understood as deriving in large part from the process of creation, which stimulates a
sense of obligation.85 Additionally, treaties that have strong supervisory mechanisms,
mechanisms that are characteristic of the law of arms control as will be discussed in the next
chapter, increase the chances of detecting non-compliance as well as provide for certain
corrective measures that establish costs for violations, thereby augmenting compliance pull.
Therefore, it can be expected that treaties, in light of the elements listed above that contribute
to compliance pull, innately create more of a pull toward compliance and duly enhance the
credibility of commitment.86
What does that mean, however, for a legal framework that relies in large part on soft
law instruments? Is it inevitable that compliance will remain an issue impeding the
effectiveness of the framework? If hard law creates a pull toward compliance that soft law
does not, relying on soft law alone (substitute relationship) would then be expected to result in
reduced compliance in comparison to hard law obligations and, therefore, less effectiveness.
It would seem, then, that soft law would work best in conjunction with or in support of hard
law (complement relationship). An underpinning in hard law appears to increase the
acceptance of and adherence to soft law instruments.87 However, taking soft law on its own,
one can identify certain means and methods for strengthening the compliance pull. One way
to do this is by including an explicit expression of commitment. Such an expression of
commitment should not be mistaken for a declaration of intention to become legally bound,88
but it does represent a clear intention to behave in a certain way in accordance with the soft
law instrument. An example of this is the arrangement that has been devised for expressing
political commitment with regard to the Code of Conduct on the Safety and Security of
Radioactive Sources (Code of Conduct). States are encouraged to express in writing, to be
submitted to the IAEA, that it endorses the efforts of the Agency to increase radioactive
source safety and security and that it is working toward following the Code of Conduct’s
guidance. The Director General of the IAEA has been requested to compile and maintain a list
of states that have made such written statements.89 This type of arrangement should serve to
build confidence among states in one another’s conduct.
Compliance pull when it comes to soft law instruments should also be stronger the
more the process of soft law development is seen as legitimate. Legitimacy in this sense could
be a function, for instance, of inclusiveness or involvement of or endorsement by an
international organization. For the nuclear security fundamentals, recommendations and
guidance adopted under the auspices of the IAEA, the process involves participation in the
development of the instruments by experts from member states and culminates in at 120-day
review period during which member states can make comments and raise concerns. In the

85
A. Chayes and D. Shelton, ‘Commentary,’ in D. Shelton (ed.), supra note 3, pp. 526-528.
86
Ibid; see also Abbott and Snidal, supra note 3, pp. 429-430, arguing that even when non-compliance is hard to
detect, legally binding obligation compensates by increasing costs of violation.
87
See Kellman, supra note 3, p. 487.
88
See Nuclear Tests Case (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, par. 43-44.
The ICJ has declared that “when it is the intention of the state making the declaration that it should become
bound according to its terms, that intention confers on the declaration the character of a legal undertaking,” and
then further explained that “not all unilateral acts imply obligation, but a state may choose to take up a certain
position in relation to a particular matter with the intention of being bound.”
89
IAEA General Conference Resolution GC(47)/RES/7.B (2003), paras. 4 and 5.

30
end, the instruments that are eventually published reflect broad international agreement and
are considered standards.
Another option to support compliance with soft law instruments is through
institutional arrangements aimed at, inter alia, information exchange, confidence building and
monitoring.90 In nuclear security governance, the IAEA has the expertise and legitimacy to
facilitate relevant arrangements, and duly provides voluntary review services to assess
national regimes of member states. International Physical Protection Advisory Service
(IPPAS) missions, for instance, review a state’s physical protection system in light of IAEA
guidelines and recommendations as well as recognized best practices and, as such, provide
added support for compliance with these standards. International Nuclear Security Advisory
Service (INSServ) missions serve similar functions, examining, among other things, a state’s
legislative and regulatory framework for nuclear security as well as physical protection of
nuclear and other radioactive material. The Integrated Regulatory Review Service (IRRS)
looks at ways to enhance a state’s regulatory system for nuclear, radiation, radioactive waste
and transport safety and security of radioactive sources. Many such institutional arrangements
exist. As states voluntarily undergo these types of reviews, including follow-up missions to
assess progress, the more the institutional relationship in this area develops, supporting
transparency and thereby strengthening the pull of compliance with the non-binding norms.
Mechanisms that provide for provision of information to and analysis by an international
organization, in this case the IAEA, means that states do not have to inform one another of the
details, thereby protecting any confidential information which would be made subject to strict
confidentiality procedures, but instead the IAEA can test the information against the object
and purpose and terms of the soft law instrument. This institutionalization in itself, without
providing information directly from one state to another, should to an extent build confidence
in compliance.
Again specifically for radioactive sources, such an institutional arrangement in the
form of a “formalized” (not in the legal sense) process was established in 2006 for a “periodic
exchange of information and lessons learned and for the evaluation of progress made by states
towards implementing the provisions” of the Code of Conduct and the associated Guidance
on the Import and Export of Radioactive Sources (Import/Export Guidance).91 The objectives
in promoting information exchange include, inter alia, assisting states in implementation of
the Code of Conduct and Import/Export Guidance and inviting and encouraging more states
to implement and politically commit to the two instruments.92 This process, partially because
it is not a formalized review procedure as often foreseen in legally binding instruments,
allows for greater flexibility, particularly in the broader participation including both IAEA
member states and non-member states and those that have not yet made political
commitments to the Code of Conduct and Import/Export Guidance. Such a process can serve
both to increase the sense of obligation among states that have already committed to one or
both of the instruments, thereby strengthening the compliance pull, and to incentivize those
states that have yet to commit to do so.
Another possibility is to employ bilateral or multilateral assurance mechanisms.
Assurance is a broad concept, one that is commonly used in international law, which
generally involves the gathering and sharing of information between or among states, whether
or not through an international organization, to demonstrate compliance with agreements. The
various activities encompassed by the concept of assurances can range from certification of
facts, such as providing other states, directly or through the IAEA, with evidence that the
physical protection recommendations and the Code of Conduct have been implemented in

90
L. Henkin, supra note 68.
91
GC(49)/RES/9, par. 59.
92
See Attachment to Chair report from TM 28817, 31 May to 2 June 2006, par. 1.

31
domestic legislation, to the sharing of confidential information or allowing peer reviews of
nuclear security measures at national facilities. The transparency that results from such
activities builds confidence and trust among states and allows for a better coordination of
activities. There need not be a uniform set of assurances, but rather the idea is to encourage
any means to show enhanced compliance with, in this case, non-legally binding norms.
Each of these options should serve to motivate compliant behavior. The question can
be asked, though, as to whether there might be any legal recourse in response to a breach of a
soft law instrument. Put another way, would non-compliance with a non-legally binding
instrument be totally outside the domain of international law?93 Schachter suggests that this
could be a matter of good faith, in the legal sense rather than just in the political sense, when
states commit to act in accordance with non-legal instruments, as a political or moral
obligation, and others have reason to expect and rely on compliance.94 A state could then
possibly invoke the principle of good faith to hold another state responsible for non-
compliance with a soft law instrument. It is unlikely that such claim would be successful as it
would have to show intention and expectation of a legal instead of strictly political character.
The situation is different when soft law is incorporated into a legally binding
instrument – a form of precursor relationship described above. In its judgment in the Pulp
Mills case, the ICJ discussed the role of guidelines and recommendations of international
technical bodies, referenced in the 1975 Statute of the River Uruguay (1975 Statute), as part
of the legal obligation to protect and preserve the aquatic environment of the river. Pursuant
to Article 41(a) of the 1975 Statute, the guidelines and recommendations of international
technical bodies, as distinct from international agreements to which Argentina and Uruguay
are parties and which are thus legally binding, are to the extent they are relevant to be taken
into account so that the rules and regulations the states adopt, and the measures they take, are
compatible with said guidelines and recommendations.95 According to the Court, the
responsibility of a state party to the 1975 Statute would be engaged if it violated its due
diligence obligation to adopt and enforce appropriate rules and measures with respect to
relevant public and private actors under its jurisdiction.96 The Court goes on to say that the
obligation of due diligence is further reinforced by the requirement, inter alia, to take account
of internationally agreed technical standards.97 In other words, the failure to take account of
certain non-legally binding technical standards in devising applicable rules and measures in
this case could result in a breach of the obligation of due diligence for which the state would
be held legally responsible. Though this example does not directly demonstrate legal
responsibility arising from non-compliance with soft law, it does show how soft law having
been integrated in a legal framework can play a role in establishing state responsibility for
breach of an obligation.

II.3.2 Organization

The second fundamental element of international law as an instrument of governance is

organization. As mentioned above, organization in the sense used here has broadly to do with
institutionalization, as well as sustained interaction, which shape the behavior of states, as
well as other relevant actors, and through which cooperative action is taken.98 Organization

93
Schachter, supra note 10, p. 100.
94
Ibid.
95
Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, par. 62.
96
Ibid, par. 197.
97
Ibid.
98
See Bogdandy, Dann and Goldmann, supra note 6, p. 1394, where they argue: “In order to be commensurate to
the challenge of global governance, international institutional law should encompass not only the activities of

32
also entails process, as in the process of developing rules and norms that, particularly for the
soft law instruments, could give added normative weight. Examples include the process of
expressing (political) commitment to the Code of Conduct on the Safety and Security of
Radioactive Sources, which is overseen by an international organization (the IAEA), or the de
facto consensus adoption of nuclear security guidelines and recommendations as part of the
IAEA Nuclear Security Series. If governance is concerned with realizing common aims and
fulfilling shared interests, the legal aspect concerns the process of interaction by which rules
develop in order to clarify and secure these interests.99 The relation of organization to
substance in the governance context is both constitutive and evolutionary. Repeated
interaction among relevant actors, namely states, will serve several functions which include:
generating and interpreting rules; building confidence in and/or monitoring adherence to those
rules; generally enhancing transparency; assessing changing circumstances and adjusting
rules as necessary; and addressing concerns, where necessary through, for instance facilitating
recourse to appropriate methods of peaceful dispute settlement. Such iterative interactions in a
given issue-area could even reconstitute (perceptions of) interests in favor of compliance with
a set of rules and norms.100
The groupings that serve to establish, give structure to, and maintain continuing
relationships and facilitate cooperation, or that function to pursue common interests, can take
various forms. One form is that of international organizations established by treaty or other
instrument, having legal personality under international law and possessing distinct powers
and functions. Such organizations are tasked with exercising authority pursuant to the scope
of their mandates and in the interest of achieving their purposes, namely ascribed to them by
their member states. The actions of international organizations are, of course, dictated by their
specific powers, so it is important to consider how such powers should be interpreted. There
are different ways of assessing the scope of the powers of international organizations, and it
suffices here to briefly describe them. The doctrine of attributed powers contends that an
organization’s mandate, and that of its organs, are limited to those powers expressly granted
in the constituent instruments. In other words, the organization can only do those things which
its member states have explicitly empowered it to do. In practice, this doctrine would appear
to be far too rigid and restrictive as organizations could then be incapable of adapting to fulfill
the aims for which they were established in light of changing circumstances, unless
constituent instruments are duly modified. Klabbers refers to organizations being dynamic
and living creatures that are meant to develop, since the founders could not possibly foresee
every possible future contingency.101 For this reason, the doctrine of implied powers is
advantageous. This doctrine provides for a certain flexibility by asserting that an
organization’s powers go beyond expressly delegated powers and extend to powers that can
be deduced from the purposes and functions of the organization. The result is that there is
room to interpret the scope of an organization’s powers, if it is possible to draw powers out of
the founding documents by implication, while at the same time care must be taken that actions
are not ultra vires.102 A third doctrine is that of inherent powers, which essentially entails that
an organization’s powers extend to actions aimed at achieving its purposes and not expressly

international organizations sensu stricto but also that of institutions with a different legal status, such as treaty
regimes and informal regimes (e.g. the OSCE).”
99
This statement follows the approach of the New Haven School. See S. Wiessner and A. Willard, ‘Policy-
Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human
Dignity,’ in Ratner and Slaughter (eds.), supra note 57, p. 320. See also Toope, supra note 23, p. 100.
100
See H. Koh, ‘Why Do Nations Obey International Law,’ 1997 Yale Law Journal, no. 8, p. 2646.
101
Klabbers, supra note 21, pp. 65-66.
102
White notes the difficulties that arise in determining whether an action is ultra vires or not when flexibility is
given in interpreting powers. See N. White, The Law of International Organisations, Manchester: Manchester
University Press (1996), pp. 128-131.

33
prohibited by the organization’s constituent instrument.103 This implies that certain powers are
intrinsic to organizations, whether or not intended by the founders. Inherent powers differ
from implied powers in this way, the latter still being reflective of the intent of the members
and therefore more in line with the principle of consent. Questions regarding the delimitation
of the powers of international organizations in a given issue-area are central to understanding
the governance structure.104
Groupings need not take the form of international organizations, however. Groupings
can also be based, for instance, on legal mechanisms contained in treaties. Examples of this
would be review conference mechanisms or mechanisms for other sorts of interaction, such as
consultation. Regularized review conferences or consultation processes have the character of
formal institutional arrangements – as opposed to, say, diplomatic conferences – through
which states increase coordination and transparency in the interest of ensuring
implementation of obligations. The benefit of such groupings is that the interaction is founded
on a set of legally binding commitments, which provides an agreed framework for action.
Interactive structures can also be established as a more informal organizational tool.
The example of the “formalized” process for the periodic exchange of information and
lessons learned and for the evaluation of progress made by states towards implementing the
provisions of the Code of Conduct for radioactive sources that is mentioned above
demonstrates that commitments forming the basis of an institutional arrangement do not
necessarily have to originate from legally binding instruments. In fact, this type of
arrangement can serve to (further) harmonize measures and unify interests in a way that
potentially lowers the threshold to future law-making, taking a non-binding instrument as a
basis. Yet other groupings have been set up to take on what are essentially executive functions
to address particular issues.105 In the nuclear security realm, one can think of the Global
Initiative to Combat Nuclear Terrorism or the Global Partnership Against the Spread of
Weapons and Materials of Mass Destruction. The former is a voluntary partnership that
undertakes concrete actions and projects to enhance nuclear security based on a set of general
guiding principles, and the latter was launched by the G8 to develop, coordinate, implement
and finance cooperation projects aimed at furthering non-proliferation, disarmament, nuclear
safety and counter-terrorism goals. The way these informal institutions are governed is not
dissimilar to the way in which international organizations are governed.106 Rules are put in
place to guide decision-making, set agendas, inform admissions and determine roles (i.e.
rotating chairmanship). Lastly, temporary informal groupings – such as the Nuclear Security
Summits – can bring attention to an issue-area and incentivize action in a way that reinforces
governance.
Each of these types of groupings can contribute to the governance architecture by
providing the organizational context for the substance explained in the previous sections. The
organizational context within which rules, guidelines and related measures are developed,
adopted and operate greatly influences the impact they have in practice, which is something
that is particularly important when there is substantial reliance on soft law and the resulting
issues having to do with possible loss or lessening of compliance pull deriving from soft law

103
See Klabbers, supra note 21, pp. 60-81. Klabbers contrasts the doctrines of attributed and implied powers
from that of inherent powers, stating that the doctrines of attributed and implied powers place the member states
in control whereas the doctrine of inherent powers puts international organizations under the control of the
international legal order. White suggests that the doctrine of inherent powers actually reflects reality; See White,
pp. 131-134.
104
See I. Dekker and W. Werner, supra note 7, p. xiv.
105
See D. Curtin, P. Mair and Y. Papadopoulos (eds.), Accountability and European Governance, New York:
Routledge (2012), p. 4.
106
Bogdandy et al., supra note 6, p. 16.

34
instruments as opposed to hard law instruments.107 In other words, institutional arrangements
relating to soft law instruments can serve to enhance compliance pull with those instruments.

II.4 Concluding remarks

Governance denotes the combined impact of standards and expectations of conduct

(substance), on the one hand, and institutional arrangements and process (organization), on
the other, which gives shape to and guides the behavior of relevant actors in a given issue-
area. The interplay of these two elements of a governance structure provides for sufficient
evolutive capacity to cope, inter alia, with changes in the threat environment, as well as with
the advancement and spread of technologies.
Nuclear security is a dynamic issue-area, requiring the applicable rules to be flexible
and sufficiently precise, and to be able to account for domestic sensitivities that impede the
extent to which states are willing to enter into legally binding obligations. The substance side
of the equation is therefore heavily reliant on softer forms of legalization – guidelines,
recommendations and codes of conduct. Still, there is a clear benefit to having an
underpinning in hard law for which states can be held responsible, and which carries with it a
stronger compliance pull due to the form of commitment. In this type of situation, soft law
acts as a complement to hard law by further elaborating the hard legal rules or resolving
ambiguities in the legal texts. Where the underpinning is absent, for example when soft law is
a substitute for hard law, measures can be taken to enhance the compliance pull with soft law
instruments. Such measures include the establishment of institutional arrangements that serve
to facilitate sustained interaction through which states become increasingly transparent by
sharing information, consulting and coordinating to harmonize action, and allowing
monitoring of adherence to standards of conduct. The legitimacy of the process that develops
soft law is also fundamental to strengthening the compliance pull. In the case that soft law
serves as a precursor to hard law, either through codification or incorporation in a binding
instrument, the soft law itself takes on a legal character.
Various types of groupings established among relevant actors provide the institutional
context through which cooperative action is taken and substance is given greater effect in
shaping behavior. Organization – though formal institutions, treaty-based mechanisms,
informal partnerships for executive action, and other frameworks for occasional diplomacy –
can function in several capacities depending on the form and scope, ranging from generating
and interpreting rules, to monitoring and verifying compliance with obligations, to addressing
interpretation and compliance concerns. Assessing substance and organization as two sides of
the same coin that represents international law as an instrument of governance serves both to
characterize the current international legal framework for nuclear security and to craft
recommendations for strengthening the framework in order to maintain its viability going
forward.

107
Baxter, supra note 37, p. 562.

35
36
Chapter III: Nuclear Security in Context: International Law of Arms Control

III.1 Introduction
III.2 Arms control within public international law
III.3 Developments in arms control
III.3.1 The inter-war period
III.3.2 The United Nations and arms control in the nuclear age
III.4 Arms control law: form and characteristics
III.4.1 The security dimension
III.4.2 The preventive aspect
III.4.3 Other characteristics of arms control law
III.5 Nuclear security in relation to nuclear issues more broadly
III.6 Concluding remarks

III.1 Introduction

This chapter argues that nuclear security falls within the broader context of the international
law of arms control, due to certain characteristics including the focus on armaments and the
security dimension. To do so, it will first look more generally at how arms control has
developed, with particular focus on how the advent of nuclear weapons have impacted the
international security environment and arms control efforts. Then, it will go into some detail
on the form and characteristics of arms control law, and how nuclear security fits in. Nuclear
security’s place in relation to other nuclear-related issues will be considered, before making
some concluding remarks.
Where applicable, the chapter will discuss chemical, biological, radiological and
nuclear (CBRN) security more broadly. A number of the characteristics and elements of
nuclear security that places it within the context of international arms control law apply to
chemical and biological security, as well. CBRN issues are often approached as a whole.1 The
legal framework for nuclear security is somewhat different, however. This has to do primarily
with the fact that, while the dual-use issue (same materials, equipment, technologies, and
facilities can be used for both peaceful and non-peaceful uses) is the same, the legal regimes
for chemical and biological weapons are based on the full prohibition of those types of
weapons. The legal regime relating to nuclear weapons from which the nuclear security
framework derives, on the other hand, is founded on the Non-Proliferation Treaty which
legally codifies the continued existence of nuclear weapons as possessed by certain states,
albeit with the obligation to negotiate toward nuclear disarmament. In addition, as described
before in this study, the main treaties with respect to chemical and biological weapons (CWC
and BWC, respectively) have provisions regarding non-state actors. The CWC obligates
parties to in national implementing legislation prohibit natural and legal persons from
undertaking any activity prohibited to states under the convention and enact penal legislation
accordingly.2 The BWC prohibits transfer of any of the agents, toxins, weapons, equipment or
means of delivery under the treaty to any recipient, as to take necessary measures to prohibit
and prevent development, production, stockpiling, acquisition, or retention of such items
under its jurisdiction or control.3 Each of these provisions encompasses issues related to non-
state actors, and the need to address bioterrorism in national implementing measures was
explicitly recognized in subsequent review conferences.4 The NPT, for its part, does not

1
See, for instance, the 2017 EU Action Plan to enhance preparedness against chemical, biological, radiological
and nuclear security risks (also known as the CBRN Action Plan), COM(2017)610.
2
CWC, Art. VII.
3
BWC, Art. III, Art. IV.
4
BWC/CONF.IV/9 Part II, 1996, under the discussion of Art. IV.

37
address the issue of non-state actors, which is the primary reason why a separate framework
has been developed specifically for nuclear security.

III.2 Arms control within public international law

Arms control law is part of the broader rules and norms of public international law relating to
international peace and security. As the scope of international law has expanded, the
preservation of peace and security, through inter alia the principle of the non-use of force, has
remained a central concern of the international legal order.5 This is spelled out clearly in the
first article of the UN Charter, stating that among the purposes of the UN is the maintenance
of international peace and security through collective measures to prevent threats to the peace,
to suppress breaches of the peace and to settle international disputes by peaceful means. 6 This
is the foundation of the UN system of collective security that pursues the peaceful settlement
of disputes and regulates the resort to the use of force, either in self defense as a response to
an armed attack,7 or as part of an enforcement action mandated by the Security Council to
restore peace and security having determined a threat to the peace, breach of the peace or act
of aggression.8 Peace and security in the Charter’s conception concerns more than just a
negative peace, meaning the absence of war. It also entails international cooperation to work
towards economic and social stability within and among states.9 Even peace in the sense of an
absence of war and defined by international cooperation, is not necessarily synonymous with
security.
Security as a concept, which will be discussed further below in the context of arms
control law, has both an objective and subjective dimension. The objective dimension can be
thought of to denote the absence of threats to interests and values, while the subjective side
denotes an absence of fear from attacks on such values.10 Security is not an either-or
proposition, meaning that a state is not either secure or insecure, but rather it has various
degrees. International security can be thought of as a function of the relative security of each
state in the global order.11 The collective security system of the UN draws on the basic
security of states, but entails a compromise on the perception of security around common
values and principles (non-use of force, non-intervention), determination of encroachment
upon those values and principles and the taking of collective action to preserve them or
restore order.
Arms control law is directly related both to the rules governing the use of force in that
limitation of armaments and certain military capabilities can limit the possibility and effect of

5
Shaw notes that the scope of international law has expanded beyond the primary concern of international peace
to encompass various areas of international relations; M. Shaw, International Law, Seventh Edition, Cambridge:
Cambridge University Press (2014), pp. 31-35.
6
UN Charter, Art. 1(1).
7
UN Charter, Art. 51.
8
UN Charter, Art. 39 in conjunction with Art. 42.
9
See R. Wolfrum, ‘Article 55 (a) and (b),’ in B. Simma et al. (eds.), The Charter of the United Nations: A
Commentary, Second Edition, Oxford: Oxford University Press (2002), pp. 897-917. Sur refers to this as the
preventive approach or ‘soft security’, focusing on “economic and social progress, public health, cultural
cooperation, education, universal and effective respect for human rights and all without any form of
discrimination;” S. Sur, International Law, Power, Security and Justice: Essays on International Law and
Relations, Oxford: Hart Publishing (2010), pp. 256-259. This is as opposed to Sur’s conception of ‘hard
security’, which involves military action both to discourage military threats and, if necessary, respond to armed
violations of international peace.
10
A. Wolfers, ‘National Security as an Ambiguous Symbol,’ in A. Wolfers (ed.), Discord and Collaboration:
Essays on International Politics, Baltimore: Johns Hopkins University Press (1962), pp. 147-165.
11
See G. den Dekker, The Law of Arms Control: International Supervision and Enforcement, The Hague:
Martinus Nijhoff Publishers (2001), pp. 27-35.

38
resorting to force, as well as to the conduct of armed conflict in restricting the means and
methods of warfare through regulation of state arsenals. Arms control law in eliminating
certain types of weapons or establishing bilateral or multilateral equilibrium/balance in the
level of armaments of states, often confirmed through applicable verification mechanisms12
and reflecting the fact that absolute security is unattainable, can help to preserve peace and
avoid war. A related humanitarian element is that arms control law can restrict or do away
with weapons that cause excessive damage or suffering, and is often informed by that
concern.13
Therefore, to place international arms control law in a broader public international law
context, it is related to and overlaps with other areas of the law that concern use of force (law
of collective security) and the conduct of hostilities (international law of armed conflict).
Arms control law is meant to work and be applied in both times of peace and times of war.
Arms control law comprises a quite extensive body of instruments that, as Den Dekker has
pointed out, generally concern a common subject matter (regulation of armaments) and aim
for a common objective (eventual general and complete disarmament).14 Thus this body of
instruments, which make reference to and build upon one another and which share common
features as described below, can be considered to constitute a branch of public international
law, falling under the broader context of the law related to international peace and security.

III.3 Developments in arms control

Efforts aimed at controlling armaments have taken various forms throughout history. The
earliest examples appear to have involved victors imposing disarmament on defeated enemies
following wars, or attempts to disallow the use in combat of certain particularly ‘treacherous’
or ‘barbarous’ weaponry.15 Fast forwarding to more modern conceptions of arms control in
international law, the Hague Peace Conferences in 1899 and 1907 represent one of the first
instances of multilateral arms control negotiations taking place in peacetime aimed at
agreements applicable to a large number of states, or worldwide.16 The 1899 Conference was
convened in part for the express purpose of limiting the number and restricting the
destructiveness of arms, with explicit reference to the economic impact of arms buildups,
which was taken up by one of the Conference’s three committees.17 The Convention IV

12
To give parties assurance that breaches will be detected if they occur so that other states will not be at a
military, tactical or strategic disadvantage.
13
See, for instance, the 1997 Convention on the Prohibition of the Use Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction.
14
Den Dekker, The Law of Arms Control, p. 36. The goal of general and complete disarmament is tempered in
the UN system of collective security by allowing at least the minimum level of armaments needed for a state to
defend itself and take part in collective military enforcement measures under Article 42 of the UN Charter.
15
Examples of disarmament measures imposed on vanquished enemies can be traced back to the ancient world,
such as when Rome forced Macedon and Carthage to accept elimination of naval capabilities as well as, in the
case of the latter, destruction of war elephants in the 2nd Century BCE, as described in S. Croft, Strategies of
Arms Control: A History and Typology, Manchester: 1996, pp. 21-22. Boothby also gives a short overview of
early attempts to regulate weaponry, often unsuccessfully, such as the Hindu Code of Manu prohibiting poisoned
arrows in about 200 CE and the Lateran Council attempt to ban cross-bows in 1139 CE; in W. Boothby,
Weapons and the Law of Armed Conflict, Oxford University Press: 2009.
16
See J. Goldblat, Arms Control: The New Guide to Negotiations and Agreements, 2nd Edition, London: Sage
Publications, pp. 19-20.
17
See the Mouravieff circular of 30 December 1898, which formed the basis of negotiations: ‘The subjects
submitted for international discussion at the Conference could, in general terms, be summarized as follows: 1.
An understanding not to increase for a fixed period the present effective of the armed military and naval forces,
and at the same time not to increase the budgets pertaining thereto …. 2. To prohibit the use in the armies and
fleets of any new kind of firearms whatever, and of new explosives, or any powders more powerful than those
now in use, either for rifles or cannon. 3. To restrict the use in military warfare of the formidable explosives

39
adopted at the 1907 Hague Conference further defined laws and customs of war on land,
including establishing that the ‘the right of belligerents to adopt means of injuring the enemy
is not unlimited’, and thereby expressly forbidding the employment of poison or poisoned
weapons as well as generally weapons calculated to cause unnecessary suffering.18 The Hague
Conferences and conventions served to codify rules pertaining to the conduct of war,
including restrictions on certain types of weaponry – asphyxiating gases, expanding (Dum-
Dum) bullets and submarine mines – the former two of which, at least, reflect customary
international law forbidding the use of certain means and methods of warfare.19

III.3.1 The inter-war period

Such efforts to regulate arms worldwide continued as part of post conflict settlements, namely
the post-World War I settlement involving putting restrictions on the size of the German
military under the Treaty of Versailles, the further development of rules pertaining to war,
including limitations on the types of weapons used such as the 1925 Geneva Protocol,20 and
more generally attempting to establish international peace and security. The Covenant of the
League of Nations recognized the role of arms reductions in maintaining peace, and envisaged
reductions of armaments, based on plans formulated by the Council, as well as the exchange
of information on weaponry and size of militaries.21 Other efforts were aimed at preventing
naval arms races, with conferences convened in Washington, Geneva and London where steps
were taken by the UK, US, France, Japan and Italy to limit tonnage and restrictions were
placed on building ships and bases.
A significant milestone was the Kellogg-Briand Pact of 1928 by which participating
states, including the US, which was not party to the League of Nations Covenant, renounced
war as an instrument of national policy and committed to settling all disputes and conflicts
solely by peaceful means. Against this backdrop, a General Disarmament Conference was
convened in 1932 to discuss universal reductions and limitations of all manner of armaments,
thereby expanding upon the Washington and London naval agreements. A couple of notable
aspects of the General Disarmament Conference, attended by 60 states, included the focus in
the first instance on the quantitative disarmament of offensive weapons, based on a proposal
from US President Roosevelt in an attempt to make progress and with an eye toward securing
state independence by making national defenses impregnable; the consideration of a system of
collective security, favored in particular by France in order to ensure compliance with arms
reductions by Germany; a proposed prohibition on chemical, incendiary and bacteriological
weapons; and an emphasis on the need for institutionalized and effective international control
of compliance, for which a Permanent Disarmament Commission was to be established to,
inter alia, investigate alleged breaches and conduct regular inspections.22 The Conference

already existing, and to prohibit the throwing of projectiles or explosive of any kind from balloons or by any
similar means. 4. To prohibit the use, in naval warfare, of submarine torpedo boats or plungers, or similar
engines of destruction; to give an undertaking not to construct, in the future, vessels with rams.’ Available at
http://avalon.law.yale.edu/19th_century/hag99-02.asp [accessed on 30 July 2017]. See also description in
American Commission to the Peace Conference of The Hague 1899, available at
http://avalon.law.yale.edu/19th_century/hag99-04.asp [accessed on 30 July 2017].
18
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations respecting the
Laws and Customs of War on Land, Section II – Hostilities, Chapter I – Means of Injuring the Enemy, Sieges
and Bombardments, Articles 22 and 23.
19
See D. Schindler and D. Toman, The Laws of Armed Conflicts, Dordrecht: Martinus Nijhoff, 1988.
20
1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of
Bacteriological Methods of Warfare.
21
1919 Covenant of the League of Nations, Article 8.
22
See Goldblatt supra note 2. See also, Disarmament Discussions 1932-1934 available at
https://www.mtholyoke.edu/acad/intrel/WorldWar2/disarm.htm [accessed on 3 August 2017].

40
was, in the end, unsuccessful. Germany at first was adamant that other states disarm to the
levels imposed on it under the Treaty of Versailles and eventually withdrew from both the
Conference and the League of Nations in 1933 following Hitler’s rise to power, having
rejected all proposals that would not establish arms parity with other powers. In 1934, Japan
presented notice of withdrawal from the 1922 Washington Naval Treaty.

III.3.2 The United Nations and arms control in the nuclear age

By the time World War II ended, the international community found itself in an entirely new
arms context. The advent of nuclear weapons had unleashed unprecedented destructive power
that, taken to the extreme, threatened the very survival of humanity. The global security
context was reshaped, based on the possession of nuclear weapons, as more states developed
and sought them, and on (extended) nuclear deterrence, a context that continues to define
international, and for a number of states national, security to this day.23 Arms control became
primarily, though not exclusively, about the avoidance of nuclear war, in addition to the more
general improvement of national and international security.
The Charter of the United Nations placed the maintenance of international peace and
security front and center, banning the threat or use of force against the territorial integrity or
political independence of any state and requiring the settlement of disputes by peaceful
means.24 This prohibition of the use of force in Article 2(4) of the Charter represents a
significant step beyond the Kellogg-Briand Pact by outlawing resort to all kinds of military
force, not only recourse to war. Another important, related development under the UN Charter
was the embedding of these principles – ban on force, peaceful settlement of disputes – in a
system of collective security. At its center is the Security Council, a body entrusted with
primary responsibility for maintaining international peace and security, able to enact legally
binding enforcement measures in the case of a threat to or breach of the peace or act of
aggression, including mandating the use of force.25
When it comes to matters related to arms control, the UN Charter is markedly weaker
than the League of Nations Covenant, the incorporation of provisions in the UN Charter
similar to the Covenant having been rejected.26 The League of Nations took the approach of
peace and security through disarmament, while the UN’s approach is based on peace and
security through collective security. This means that member states of the UN can be
expected to have armaments at a minimum necessary to participate in collective security,
23
Laurence Martin put addressing the role of nuclear weapons in the broader security context quite succinctly:
“[T]he nuclear weapon having been conceived, it can never henceforth be removed as an element, if only,
potential, in the strategic balance. To try to do so could actually be counter-productive. At the very least it is a
complicated business needing careful appraisal.” L. Martin, ‘Can there be National Security in an Insecure Age?
A balance sheet of conventional hopes & nuclear dangers,’ 1983 Encounter, p. 19.
24
Charter of the United Nations, 24 October 1945, 1 UNTS XVI articles 2(4) and 2(3) respectively.
25
UN Charter, Chapter VII, articles 39-42. The legally binding nature of such decisions is based on article 25,
which states “The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter.” The Covenant of the League of Nations also foresaw collective
action – including economic and diplomatic sanctions, as well as using force as recommended by the Council –
in the event of a state resorting to war having disregarded the provisions for peaceful dispute settlement. The
provisions on peaceful dispute settlement in the Covenant did not prohibit war, but rather restricted it
(“[Members of the League of Nations] agree in no case to resort to war until three months after the award by the
arbitrators of the judicial decision, or the report of the Council,” article 12).
26
E. Klein and S. Schmahl, ‘Chapter VI: The General Assembly, Functions and Powers, Article 11,’ in B.
Simma et al. (eds.), The Charter of the United Nations: A Commentary, Volume 1 (3rd Edition), Oxford: Oxford
University Press, 2012, pp. 491-505. Goldblatt explains this difference as having to do with the belief that World
War I had been caused by the arms race leading up to hostilities, whereas there was a feeling that World War II
could have been avoided had the great powers maintained sufficient military capacity and readiness to use it;
Goldblatt supra note 2 at 33.

41
helping secure the peace through actions pursuant to Article 4227 of the Charter, as well as to
defend themselves in line with Article 51,28 providing the context within which calls for
general and complete disarmament must be considered.29 The fact that the UN Charter was
negotiated in the midst of war for which possession of arms was necessary, but prior to the
first and only use of nuclear weapons, explains the few references made to control of
armaments in the Charter, with both the Security Council and General Assembly given a role
to this end. It has been said that had the advent and sheer destructive force of nuclear weapons
been known to negotiators of the Charter, ‘the provisions of the Charter dealing with
disarmament and the regulation of armaments would have been far more emphatic and
realistic.’30
The General Assembly is tasked with considering ‘principles governing disarmament
and the regulation of armaments’ which is specifically mentioned as being among the general
principles of cooperation in maintaining international peace and security and with regard to
which it can make recommendations to the Security Council.31 This gives the General
Assembly a broad mandate, which has translated into the adoption of a multitude of
resolutions, including a number of resolutions annually concerning aspects of nuclear arms
control; the establishment of subsidiary bodies, most notably the UN Disarmament
Commission that annually considers two substantive disarmament-related issues, which for a
number of years have been ‘recommendations for achieving the objective of nuclear
disarmament and non-proliferation of nuclear weapons’ and ‘practical confidence-building
measures in the field of conventional weapons’;32 and the convening of three Special Sessions
devoted to Disarmament in 1978, 1982 and 1988.33
The Security Council is tasked with formulating plans to be submitted to UN member
states for establishing a system for regulating armaments.34 Being specifically mentioned as
part of the Security Council’s functions and powers under Chapter V means that dealing with
regulation of armaments in the parlance of the UN Charter, such as ostensibly non-
proliferation of nuclear weapons and other aspects of arms control, is not limited to Chapter
VII enforcement actions, but is rather more generally part of the Security Council’s role in

27
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations, blockade, and other operations
by air, sea, or land forces of Members of the United Nations.” Measures taken by Members in the exercise of
this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under the present Charter to take at any time such action
as it deems necessary in order to maintain or restore international peace and security.” See Simma et al.,
Commentary on the United Nations Charter, supra note 12, at 857.
28
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security.”
29
See for instance the Soviet draft “Treaty on General and Complete Disarmament under Strict International
Control”, which considered general and complete disarmament to allow for “strictly limited contingents of
police (militia) … for the discharge of their obligations with regard to the maintenance of international peace and
security under the United Nations Charter;” ENDC/2, 15 March 1962.
30
John Foster Dulles, ‘The Challenge of Our Time: Peace with Justice,’ 1953 American Bar Association
Journal, no. 12, p. 1066.
31
UN Charter, article 11.
32
See, for instance, Report of the Disarmament Commission for 2017, A/72/42.
33
See further on, for instance, the Dutch proposal on an International Disarmament Organization, E.P.J. Myjer
(ed.), Issues of Arms Control Law and the Chemical Weapons Convention, The Hague: Martinus Nijhoff (2001),
pp. 132-onward.
34
UN Charter, Article 26. The Security Council is to be advised and assisted in this task by a Military Staff
Committee on all questions related to the Council’s military requirements for the maintenance of international
peace and security (UN Charter, Article 47).

42
maintaining international peace and security.35 There is scant, if any, practice pursuant to
Article 26. Mostly, non-Chapter VII, pre-end of the Cold War action by the Security Council
concerning regulation of armaments as envisioned under Article 26 involved the
establishment of subsidiary bodies, such as the Atomic Energy Commission (established by
the General Assembly but being made up of members of and reporting to the Security
Council) or the Commission for Conventional Armaments (meant to help build confidence in
order to make progress on nuclear arms control). Disagreements between Western powers and
the Soviet Union impeded progress by these two bodies, which were dissolved in 1952.
Article 26 has thus remained unfulfilled, and Security Council action related to arms control,
in particular related to weapons of mass destruction and nuclear non-proliferation, has
primarily been taken under Chapter VII following the end of the Cold War, the political
climate being amenable.36 Attempts by states to circumvent the legal framework and attempt
to acquire, develop or spread nuclear weapons or other WMD, as well as the possibility of
such weapons into the hands of nefarious non-state actors seem clearly to fall within the
purview of the Security Council’s responsibility to maintain international peace and security,
and have been taken up by the Council under its Charter powers.
The age of nuclear weapons has reinforced interdependencies in the international
community, based largely on mutual vulnerability. This is what underlies a central tenet of
nuclear weapons strategy, namely deterrence, which refers to the credible threat of nuclear
retaliation to prevent nuclear attack.37 A manifestation of this was the military doctrine of
mutually assured destruction that was prevalent during the Cold War, which emphasized the
prospect of annihilation on both sides to prevent conflicts from involving nuclear exchange.
The arms control steps taken, bilaterally between the US and the Soviet Union/Russian
Federation as successor state, regionally and multilaterally have sought to preserve a strategic
stability, or a semblance of stability in military relationships. In practice, this led to largely
incremental progress depending on political considerations, often in light of fluctuations in
great power relations, and technical capabilities, both with respect to weapons production and
verification techniques. Bernard Brodie, the well-known nuclear strategist, put the influence
of nuclear weapons on military strategy succinctly when he wrote, “Thus far the chief purpose
of our military establishment has been to win wars. From now on its chief purpose must be to
avert them.”38
This brief overview39 is not meant to be comprehensive, but rather it gives a sense of
how arms control is interrelated with other areas of international law, namely the law of

35
See J. Fry, ‘Early Security Council Efforts at Nuclear Non-Proliferation Law and Policy: Cooperation
Forgotten,’ 2012 Transnational Law & Contemporary Problems, vol. 21, pp. 337-358.
36
In Simma et al., Commentary on the UN Charter, Article 26 is referred to as a dead letter (at 869). Fry (ibid.)
takes umbrage with intimations that the Security Council was largely inactive with respect arms control, namely
nuclear non-proliferation, and deferred to the General Assembly. He points to the establishment and work of the
mentioned subsidiary bodies as evidence of the Security Council’s achievements, albeit of limited effectiveness
in light of Soviet-Western disagreements.
37
Several scholarly works have been written about nuclear deterrence. See, for instance, T. Schelling, Arms and
Influence, New Haven: Yale University Press (1966); G. Schultz and J. Goodby, The War that Must Never be
Fought: Dilemmas of Nuclear Deterrence, Stanford: Hoover Institution Press (2015); H. Shue (ed.), Nuclear
Deterrence and Moral Restraint, Cambridge: Cambridge University Press (1989); S. Cimbala, The Past and
Future of Nuclear Deterrence, London: Praeger (1998); H. Kissinger, Nuclear Weapons and Foreign Policy,
Council on Foreign Relations (1957); E.P.J. Myjer, Militaire Veiligheid door Afschrikking:Verdediging en het
Geweldverbod in het Handvest van de Verenigde Naties, PhD dissertation, Deventer: Kluwer (1980); and G.
Kavka, Moral Paradoxes of Nuclear Deterrence, Cambridge: Cambridge University Press (1987).
38
B. Brodie (ed.), The Absolute Weapon, New York: Harcourt, Brace (1946), p. 76.
39
For a more complete discussion of the historical development of arms control, see inter alia Croft (Strategies
of Arms Control), Goldblatt (Arms Control) or Boothby (Weapons and the Law of Armed Conflict).

43
collective security and the law of armed conflict. These three areas together comprise what
can be termed international conflict and security law.40

III.4 Arms control law: form and characteristics

Though there may be no generally accepted definition of arms control,41 it is traditionally, or

classically, thought of as encompassing regulation of, limitations on or elimination of certain
military capabilities between or among (potential) adversaries. It is often described in terms of
certain principles and objectives like reducing the likelihood of war, namely nuclear war;
limiting the extent of damage should war occur, death and destruction being more
catastrophic if nuclear weapons are used; fostering stability and predictability; and reducing
expenditures on military forces.42 Bull refers to this latter objective as secondary in a
hierarchy of objectives, the first being the reduction of the likelihood and potential
destructiveness of war, and a third being a moral and social goal of combatting society’s
militarization.43
Arms control law,44 involves the development and codification of rules, norms and
standards to achieve the broader arms control structure and objectives, legal agreement often
being the goal and result of arms control processes. Agreement, or consent, is key, as the
starting point is the freedom to possess armaments unless a state accepts rules by which its
level of armaments is limited.45 Agreements to accept such rules can be bilateral, regional or
international. Agreements can take a number of different forms, from hard law such as
treaties, conventions, decisions of international organizations and protocols, to softer forms of
rule-making and norm-setting (soft law) such as recommendations and guidelines,
memoranda of understanding and codes of conduct, to political commitments contained in
joint statements and declarations, and final documents of international conferences.46 Arms
control agreements have involved various measures of control: disarmament (including
reducing or abolishing certain categories of weapons); limitations on the numbers or
deployment of armed forces and weaponry; non-proliferation (preventing the spread of
40
The Journal of Conflict and Security Law is a primary source of writing on the interrelationships of these areas
of international law. See also, E.P.J. Myjer, ‘The Law of Arms Control and International Supervision,’ 1990
Leiden Journal of International Law, no. 3, pp. 99-123; and E.P.J. Myjer (ed.), Issues of Arms Control Law and
the Chemical Weapons Convention, The Hague: Martinus Nijhoff (2001). Other recent publications on this topic
have included N. White and C. Henderson eds., Research Handbook on International Conflict and Security Law,
Cheltenham: Edward Elgar Publishing (2013); and N. White, Advanced Introduction to International Conflict
and Security Law, Cheltenham: Edward Elgar Publishing (2014).
41
Den Dekker, The Law of Arms Control: Supervision and Enforcement, p. 22.
42
See T. Schelling and M. Halperin, Strategy and Arms Control, New York: 1961; H. Bull, ‘Arms Control and
World Order,’ 1976 International Security, no. 1, pp. 3-16; and E. Dahinden, The Future of Arms Control Law:
Towards a New Regulatory Approach and New Regulatory Techniques, 2005 Journal of Conflict & Security
Law, no. 2, pp. 263-277.
43
Bull, Arms Control and World Order, at 4. See also E.P.J. Myjer, ‘Hedley Bull: The International Lawyer and
the Use of Force,’ 1993 Leiden Journal of International Law, no. 1, pp. 171-193.
44
Freeman refers to arms control as a larger concept than arms control law, the legal dimension being ‘distinct
and normative in character but not exhaustive of practice; J. Freeman, ‘Is Arms Control Law in Crisis?’, 2004
Journal of Conflict & Security Law, no. 3, pp. 303-313. Myjer and Den Dekker note that arms control law, at its
most fundamental, is about limitation of military power; E.P.J. Myjer and G. Den Dekker,
‘Wapenbeheersingsrecht,’ in N. Horbach et al. (eds.), Handboek Internationaal Recht, The Hague: TMC Asser
Press (2007), p. 594. See also I. Anthony, ‘Reflection on Continuity and Change in Arms Control,’ 2006 SIPRI
Yearbook: Armaments, Disarmament and International Security, p. 596, in which it is argued that in a ‘modern
understanding’ legal instruments comprise one among several elements that together make up arms control.
45
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America), ICJ Reports 1986, par. 269. The Court goes on to say that ‘this principle is valid for all states without
exception.’
46
Goldblatt, supra note 2, lists a number of these forms.

44
weapons); prohibitions on the testing of weapons, namely nuclear weapons; proscriptions of
or regulations on the transfer of militarily relevant items; constraints or prohibitions on certain
weapons during armed conflict (or methods of war); and measures to build confidence (such
as through increasing openness and transparency in military matters).47
The question at hand in this study is how does nuclear security fit in? The question can
similarly be asked in relation to CBRN security more broadly. There has been a shift in
thinking about security threats, predating but gaining steam following the attacks on
September 11, 2001, which has focused on the possibility of non-state actors, namely
terrorists, producing or acquiring and using WMD. In other words, this still concerns
armaments, but instead of those possessed by state militaries, the focus here is on possession
of weapons by non-state actors. Arms control is thus no longer confined to states, but also
concerns denying capabilities to non-state actors in order to prevent WMD terrorism.
Generally, nuclear security48 involves protection of both existing armaments and the raw
materials – nuclear and other radioactive material and related technologies – that go into
producing weapons. However, the efforts aimed at protecting material and technology is not
limited to the military sphere, but also to civilian applications. In other words, the relevant
laws and regulations are aimed at controlling potential “military” capabilities of non-state
actors, material and technology that could be used in weapons, as opposed to limiting or
reducing existing military capabilities of states. In addition, the instruments that make up the
law related to nuclear security are concluded between states but are not focused on setting
limits on weaponry and forces (types, quantities), but rather on agreeing to and setting
standards of protection to prevent items that can be used to produce weapons from falling into
non-state actor hands. This type of measures – setting standards and guidelines for the
protection of material, related facilities and technologies for weapons of mass destruction –
should be included in the list of “traditional” measures listed above. Moreover, preventing
non-state actors from developing or acquiring WMD should be considered as part of the basic
objectives of arms control.49 To this end, one could define arms control law: the part of public
international law that deals both with the restraints internationally exercised upon the use of
military force (in general) and on the use, development, transfer and/or the possession of
armaments (in particular), including their component parts and related technologies, whether
in respect of the level of armaments, their character or deployment and with the applicable
supervisory mechanisms.50

III.4.1 The security dimension

Arms control law is characterized by the centrality of security considerations. This gives this
area of international law a special character, as it is part of broader efforts to support

47
See Goldblatt, p. 3.
48
This study is about nuclear security, but much of this (i.e. protective measures related to material and
facilities) applies also to chemical and biological security, as well.
49
The Chemical Weapons Convention incorporates criminalization in the treaty text as part of the national
implementation measures (Article VII). For the Biological Weapons Convention, criminalization, though not
obligated explicitly in the treaty text, is often incorporated in national implementing legislation. See, for
instance, the Australian Crimes (Biological Weapons) Act (1976); the US Biological Weapons Anti-Terrorism
Act (1989); the French Law on the Prohibition of Biological Weapons (1972); and Canada’s Biological and
Toxin Weapons Convention Implementation Act (2008). The Nuclear Non-Proliferation Treaty is focused on
states and does not pertain to criminalization.
50
This is a modification of the definition introduced in Chapter 1 and put forward by Myjer in ‘Supervisory
Mechanisms and Dispute Settlement,’ in J. Dahlitz (ed.), Avoidance and Settlement of Arms Control Disputes,
Vol. 2 Arms Control and Disarmament Law (New York: United Nations), 1994, p. 151 (modification
emphasized in italics).

45
international, and by extension national, security.51 This means that a state will enter into an
arms control agreement if it feels that doing so will strengthen or at least underscore its
security, whether they be military in nature (military security), relating to the state’s ability to
defend itself and to participate in collective security actions, or related to other aspects of
security – economic or energy security (important when it comes to regulating nuclear energy
to ensure its use solely for peaceful purposes), among other areas of “interest” security.
Efforts aimed at preventing terrorist attacks involving nuclear or other radioactive material, or
related facilities, are fundamentally about national and international security.
Among the rights and obligations established by arms control agreements, provisions
supporting aspects of interest security of states are frequently included to provide incentives
for becoming party to multilateral arms control treaties with the aim of universalization. This
is true in particular with regard to treaties related to WMD, which concern inherently dual-use
material, processes and technologies (those with both peaceful and military applications).
States are encouraged to become parties in order to enjoy the full benefits of peaceful uses of
these materials and technologies. Article XI of the Chemical Weapons Convention (CWC),
for instance, affirms the right of states parties to benefit from peaceful applications of
chemicals, requiring that the treaty be implemented in such a way as not to hamper the
economic and technological development of states parties. Further, states parties have the
right to conduct research with, as well as to develop, produce, acquire retain, transfer, use and
participate in trade in chemicals for purposes not prohibited under the treaty. The CWC also
sets out rights and measures to ensure assistance to and protection of states parties against
attacked or if threatened by attack with chemical weapons.52 The Treaty on the Non-
Proliferation of Nuclear Weapons (NPT) contains similar provisions on facilitating the
enjoyment of benefits of peaceful applications. Under the NPT, the non-nuclear weapon states
(NNWS) give up nuclear weapons ambitions and submit to a system of supervision (the IAEA
safeguards system53) to ensure no diversion of peaceful-use nuclear material to nuclear
weapons, in exchange for the recognized right to peaceful uses of nuclear energy and a
commitment by nuclear weapon states (NWS) to negotiate toward nuclear disarmament. Here,
again, the right of states parties to participate in the exchange of equipment, materials and
scientific and technological information for peaceful activities is established, with specific
reference to development of peaceful applications of nuclear energy within NNWS and with
due consideration for the needs of developing states.54 Nuclear security plays an important
role in the peaceful use of nuclear energy in line with the right set out in Article IV of the
NPT,55 though there is a range of views as to whether efforts to strengthen nuclear security
are a prerequisite for or hamper cooperation in peaceful nuclear activities.56 Disincentives are

51
See Myjer and Den Dekker, supra note 28, at 598.
52
CWC, Article X.
53
The safeguards system comprises the provision of the IAEA Statute and safeguards agreements modeled on
INFCIRC/153 (corrected), otherwise known as a comprehensive safeguards agreement, as well as the Model
Additional Protocol (INFCIRC/540) which extends the power of the IAEA with respect, inter alia, to gathering
information and having site access. Many states see the comprehensive safeguards agreement plus the Model
Additional Protocol as the safeguards standard for fulfilling Article III of the NPT. The objective of the
safeguards system is to detect and deter the diversion of significant quantities of nuclear material from peaceful
nuclear activities to the production of nuclear weapons or of other nuclear explosive devices for purposes
unknown. For a good description of the IAEA safeguards system see T. Coppen, The Law of Arms Control and
the International Non-Proliferation Regime, Leiden: Brill Nijhoff (2016), pp. 123-152, 255-331; and Den
Dekker supra note 22.
54
NPT, Article IV.
55
See, for instance, par. 58 and Actions 57, 60 and 62 of the Final Document of the 2010 Review Conference of
the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/50 (Vol. I).
56
That nuclear security requirements could hamper cooperation in peaceful use is an argument often made
predominantly by G77 states, who argued in favor of the inclusion of a paragraph in the 2016 nuclear security

46
also employed to convince states to adhere to arms control agreements. For instance, the
Nuclear Suppliers Group disallows nuclear trade with states not party to the NPT and in full
compliance with NPT obligations,57 though a waiver was accorded to India, which is not a
party to the NPT, in 2008. This had the effect of undermining the disincentive somewhat. The
CWC for its part has a provision that, following three years after entry into force, transfers of
Schedule 2 chemicals under the treaty will only be allowed among states parties to the
CWC.58
The security dimension of arms control also means that a state will only accept
restraints on its possession of armaments if it is confident that other states are adhering to
their obligations and if breaches of obligations will be detected. In “traditional”, adversarial
arms control agreements this aspect is meant to assure states that other states – potential
adversaries – are not gaining military advantages that could be used to their strategic
disadvantage.59 Supervision is thus part and parcel of arms control law. The IAEA, OPCW
and, eventually, the CTBTO (for the NPT, CWC and CTBT, respectively) are examples of
institutionalized arms control law supervision. Myjer has developed a clear model that
describes supervision as it pertains to arms control treaties.60 The model foresees four main
functions of supervision: collection, review, creative and correction. Collection of relevant
information (through legally obligated declarations, by way of national technical means
(NTMs), via on-site inspections, etc.), review of said information and judging the behavior for
conformity with the relevant legal rules, and interpreting or clarifying the rules (creative
function) together form the process of verification. Verification is meant to produce clear and
convincing evidence of a state’s compliance or non-compliance with legal obligations in a
timely manner.61 Techniques for verification can vary, but include on-site inspection,
containment and surveillance, national technical means (NTMs), such as satellite imagery,
and other international technical mechanisms, such as the International Monitoring System
comprised of monitoring stations throughout the world and laboratories designed to detect and
analyze nuclear tests and other nuclear explosions, being established for the Comprehensive
Nuclear-Test-Ban Treaty under the auspices of the Provisional Technical Secretariat.
Correction pertains to remedying breaches of a treaty, for which there can be various models
such as: provisions contained within the treaty text and having treaty-specific application,
such as for the CWC and CTBT; measures contained in verification-related instruments, as in
the case of the safeguards system under the NPT; or reliance on general rules of international
law in case of a breach. Measures that can be invoked to address a situation of non-
compliance could include restrictions of rights and privileges under the treaty, such as

resolution adopted by the IAEA General Conference (GC(60)/RES/10) to the effect that states should ensure that
measures to strengthen nuclear security ‘do not hamper international cooperation in the field of peaceful nuclear
activities, the production, transfer and use of nuclear and other radioactive material, the exchange of nuclear
material for peaceful purposes and the promotion of peaceful uses of nuclear energy, and do not undermine the
established priorities of the Agency’s technical cooperation programme.’
57
See Guidelines for Nuclear Transfers (NSG Part 1 Guidelines), INFCIRC/254/Rev.13/Part 1 (8 November
2016), par. 6.
58
CWC, Verification Annex, Part VII, par. 31.
59
See E. Myjer and J. Herbach, ‘Violation of non-proliferation treaties and related verification treaties,’ in D.
Joyner and M. Roscini (eds.), Non-proliferation Law as a Special Regime, Cambridge: Cambridge University
Press (2012), pp. 119-120.
60
E.P.J. Myjer, ‘The Organization for the Prohibition of Chemical Weapons: Moving Closer towards an
International Arms Control Organization? A Quantum Leap in the Institutional Law of Arms Control,’ in E.P.J.
Myjer (ed.), Issues of Arms Control Law and the Chemical Weapons Convention, The Hague: Martinus Nijhoff
(2001), pp. 104-107. On supervisory processes, see also Coppen supra note 36 (at 42-58) and Den Dekker supra
note 22 (at 115-161).
61
See Principles of Verification, UN Disarmament Commission, endorsed by the General Assembly in
resolution 43/81 (1988).

47
restricting a parties right to access equipment, materials, science and technology benefits as
discussed above, interruptions of economic relations, sanctions, countermeasures or reporting
situations of non-compliance to the UN Security Council and/or General Assembly, the
choice of measures depending in large part on the severity of the breach.62 In these latter cases
in which a situation is reported to the organs of the UN, the Security Council and General
Assembly can take measures in line with their powers and functions under the UN Charter;
arms control treaties do not ascribe them additional powers. As the powers and functions
derive from the Charter, the UN organs need not wait for a report of non-compliance from a
treaty body; for instance, if a breach of an arms control treaty is deemed by the Security
Council to constitute a breach of international peace and security, it may take enforcement
measures foreseen under Chapter VII.
Arms control arrangements aimed at preventing non-state actors (i.e. terrorists) from
gaining WMD capabilities is of a slightly different nature. Rather than be cooperative but
adversarial, such WMD security arrangements are cooperative, aimed at collective action to
address a shared threat, or meet a common objective. That is not to say that states are not
concerned with other states adhering to obligations and commitments, as failure to take
appropriate measures in one state can directly affect the security of another states, but
assurances more generally take the form of confidence-building measures rather than
verification mechanisms and supervision. Confidence-building measures, or transparency and
confidence-building measures or confidence and security building measures, could be
codified in a treaty, or part of a bilateral or multilateral agreement, or foreseen in a final act of
a conference, or voluntary measures taken on a unilateral, bilateral or multilateral basis.63
There is no precise definition of confidence-building measures,64 but they are identifiable
somewhat tautologically by their primary objective, namely to build confidence: in credibility
of and adherence to commitments, in peaceful intentions of activities, by enhancing
communication and understanding, etc. Nuclear security is technically complex and has to do
with various activities, processes and functions often considered nationally sensitive – such as
national defense, law enforcement and intelligence gathering – as well as fundamental aspects
of state sovereignty (such as energy production). As such, nuclear security does not
necessarily lend itself to supervision in the sense of “traditional” arms control instruments,

62
See, for instance, G. Den Dekker, ‘Article XII: Measures to Redress a Situation and to Ensure Compliance,
Including Sanctions,’ in Myjer et al. (eds.), The Chemical Weapons Convention: A Commentary, Oxford: Oxford
University Press (2014), pp. 365-385. Under the CWC, cases ‘of particular gravity’ are to be brought to the
attention of the UN General Assembly and Security Council. Under the IAEA safeguards system, the Board of
Governors is to report any cases of non-compliance with safeguards to the Security Council and General
Assembly (IAEA Statute, Article XII(C)). See also A. Fisher, ‘Arms Control and Disarmament in International
Law,’ 1964 Virginia Law Review, no. 7, pp. 1200-1219, in which the author describes the importance of
considering responses to possible violations of arms control law agreements at the time of drafting, as this cannot
be dealt with adequately after suspected breach has occurred (at 1216).
63
Examples of such measures include: Helsinki Final Act (1975) and the Stockholm Document (1986); the
Vienna Documents of 1990, 1992, 1994 and 1999; the UN Register of Conventional Arms; and the set of
confidence-building measures agreed during review conferences of the Biological Weapons Convention,
necessary due to absence of a supervisory organization. They have been included in bilateral agreements
concluded between India and China in 1993 and 1996; India and Pakistan in 1972 and 1991; Israel and Egypt in
1974 and 1978 (the Camp David Accords); North and South Korea in 1991; the US and Soviet Union in 1972
and 1989. The French draft text of a Fissile Material Cutoff Treaty (FMCT) from 2015 includes a treaty
provision on Transparency and Confidence Building Measures (e.g. declarations on fissile material produced for
civilian use prior to the treaty’s entry into force, and declaration on fissile material for military purposes,
including nuclear weapons and other nuclear explosives, prior to entry into force).
64
Confidence (and Security) Building Measures are a standard instrument in the system of the Organization for
Security and Cooperation in Europe (OSCE). They involve, inter alia, exchanging military information or
control measures related to small arms and conventional ammunition, see
https://www.osce.org/secretariat/107484 (accessed on 9 September 2017).

48
though many of the relevant facilities and materials are already subject to verification under
IAEA safeguards pursuant to the NPT. This means that certain aspects of supervision and the
implementation of certain supervisory mechanisms should not be problematic. Still, a number
of confidence-building steps are available: from legal obligation to report on laws and
regulations giving effect to treaty commitments to voluntarily sharing information on
measures applied to protect material and facilities, either publicly, directly with other states or
confidentially with an international organization, namely the IAEA, for instance through its
Nuclear Security Information Management System (NUSIMS). The closest thing to
verification under the nuclear security framework are the advisory services, peer review
missions voluntarily requested by a state and carried out under the auspices of the IAEA using
groups of designated national experts. International Physical Protection Advisory Service
(IPPAS) missions, for example, review a state’s physical protection system and assess it in
line with international instruments – applicable treaties and international guidelines. There is
no correction function, as the instruments tested against are not necessarily binding and the
mission team has no supervisory mandate, but the action of undergoing one or more of these
missions is in itself a confidence-building measure. In addition, the advisory missions will
provide recommendations for improvements upon which states are not obligated but can be
expected to act.

III.4.2 The preventive aspect

A particular element of nuclear security, and CBRN65 security more broadly, is that it is
aimed primarily at prevention. The objective is to prevent non-state actors (terrorists) from
developing or obtaining the nuclear or radiological (chemical or biological) weapons
capabilities.66 Again this aspect is true of chemical and biological security, as well. WMD
arms control law more generally is preventive in nature – preventing the spread of weapons
(non-proliferation) or preventing the possession or use of WMD through disarmament –
because of the particularly destructive nature of these weapons. It does not matter whether
they are employed by states in the course of military action (though such use would likely be
more destructive) or by terrorists carrying out an attack. The need for prevention is why non-
proliferation is an important part of the counter-terrorism toolbox,67 next to other security
measures. Security Council resolution 1540 is an instrument, legally binding on UN member
states, that clearly brings together different strands of measures –non-proliferation and other
preventive security measures – needed to address the threat of WMD terrorism.68 Resolution
1540 labels, inter alia, the proliferation of nuclear weapons and their means of delivery, as
well as illicit trafficking in nuclear weapons, their means of delivery and related materials, as
a threat to international peace and security. It is aimed at combatting the threat of WMD
terrorism and, as such, relates to non-proliferation with respect to non-state actors, a key
aspect missing from traditional state-centric treaty regime. Under Resolution 1540, the
Security Council requires all member states of the UN to adopt and enforce laws prohibiting
non-state actors from developing, acquiring, using and transferring nuclear, biological or

65
CBRN, meaning chemical, biological, radiological and nuclear, is the term of art when referring to security of
material, related facilities and technologies because this encompasses peaceful applications that can be used for
harmful purposes, as well as military applications. WMD is a more specific term referring to the weapons using
these materials. Yet these terms are often used interchangeably.
66
Other aspects having to do with detection, response and mitigation are covered in criminalization and
international cooperation provisions rather than the security of material and facilities provisions.
67
See Myjer and Den Dekker, supra note 28, at 596. See also, using the ‘toolbox’ terminology, R. Matthews,
‘WMD Arms Control Agreements in the Post-September 11 Security Environment: Part of the ‘Counter-
Terrorism Toolbox’,’ 2007 Melbourne Journal of International Law, no. 2, pp. 292-310.
68
S/RES/1540 (2004). Resolution 1540 was adopted by consensus.

49
chemical weapons. In addition, all states must develop and maintain appropriate and effective
measures to account for and secure relevant items in production, use and storage as well as
appropriate and effective physical protection measures, border controls and export controls.

III.4.3 Other characteristics of arms control law

Another feature of arms control treaties that is directly related to the security of the state are
clauses for withdrawal. A standard formulation refers to the right for a state party to withdraw
if extraordinary events have jeopardized the supreme interests of the state.69 This right of
withdrawal is seen as a facet of national sovereignty. The threshold – ‘extraordinary events’
and ‘supreme interests’ – is meant to be high reflecting the significant security stakes for the
withdrawing party as well as the other parties to the treaty should one withdraw, as well as
wishing to preserve the principle of pacta sunt servanda by not making withdrawal easy.
However, justification is left up to the state itself, which is given substantial discretion in
determining the need to withdraw. The procedure for withdrawal can differ per treaty, for
instance with respect to period of time prior to withdrawal taking effect notice has to be
given.70 Generally, the notice is given to other states parties, the executive body of a treaty
organization if applicable, the depositary in the case of the CWC and CTBT, and the UN
Security Council. No process for assessing and determining the validity of a notice of
withdrawal is foreseen in these treaty texts, again having to do with national sovereignty, and
the consent of the party to be bound, but the Security Council could determine such a
withdrawal constitutes a threat to international peace and security and take enforcement
measures.71 Treaties that make up the legal framework are slightly different. The Convention
on the Physical Protection of Nuclear Material (CPPNM), which to the extent that covers
security of nuclear material and facility can be considered as an arms control instrument,
contains for instance a provision on denunciation72 that requires only written notification to
the depositary (IAEA) after which the denunciation will take effect after 180 days. This
difference has to do with the subject matter of the CPPNM, prescribing protective measures
for as states party’s nuclear material and facilities, and nuclear security being the sole
responsibility of the state is a basic principle reflected in the CPPNM. There is not a direct
military impact on other states due to the withdrawal as in the case of the “traditional” WMD
arms control treaties. That said, one might expect the threshold to be higher because of the
impact of one state party’s withdrawal on the security of other states. Another characteristic
of arms control law, that holds true for the legal framework for nuclear security, is the
absence of an established body of customary law.73
Developments – technical, scientific and with respect to threats – will often have an
impact on arms control treaty regimes, requiring a certain evolutive capacity, particularly for
treaties and regimes of unlimited duration. The need for evolution is taken up in certain
elements of arms control treaties, namely review and amendment provisions. Specific review

69
See NPT, Article X; CWC, Article XVI; BWC, Article XIII; CTBT, Article IX. See a more in depth
discussion of withdrawal from arms control law treaties in N. Ronzitti, ‘Article XVI: Duration and Withdrawal,’
in Myjer et al. (eds.), The Chemical Weapons Convention, supra note 45; and G. Den Dekker and T. Coppen,
‘Termination and Suspension of, and Withdrawal from, WMD Arms Control Agreements in Light of the General
Law of Treaties,’ 2012 Journal of Conflict and Security Law, no. 1, pp. 25-47.
70
NPT has a period of three months, as do the BWC and the CWC (90 days); CTBT has a period of six months.
71
This was the case with respect to North Korea in light of its withdrawal in 2003 from the NPT, see
S/RES/1718 (2006).
72
Denunciation is an interchangeable legal concept with withdrawal, both being unilateral acts by a state party to
a treaty ending its membership in the treaty; see UN Office of Legal Affairs, Final Clauses of Multilateral
Treaties Handbook, UN Sales No E04V3 (2003), at 109.
73
See Den Dekker, The Law of Arms Control: Supervision and Enforcement, pp. 62-65.

50
conference provisions are a common feature of treaty regimes concerning WMD. The
wording of the review conference provisions is fairly consistent across the WMD-related
treaties, the aim being to review the operation of the treaties with a view to ensuring that the
purposes of the treaty are realized. The purview of review conferences is not explicitly
amendment or modification of the treaty itself, though review could be a catalyst for such
processes or new instruments. Instead, the evolutionary impact has to do with their role in
clarification, development of common understandings or illustration of subsequent practice
that can have a bearing on treaty interpretation.74 Amendment or modification, on the other
hand, refers to procedures for altering provisions of the treaty with respect to all parties or to
two or more parties as between themselves, respectively. Processes for amendment contained
in WMD-related treaties vary in terms of procedural requirements for introduction, adoption
and entry into force.75 Through an amendment process, such as in the case of the CPPNM, the
treaty can be modified, such as broadening the scope, to take account of changing
circumstances.

III.5 Nuclear security in relation to nuclear issues more broadly

Unlike in the case of the BWC and the CWC that comprise total bans on entire categories of
weapons, the legal regime for nuclear weapons, centered on the Treaty on the Non-
Proliferation of Nuclear Weapons (NPT) codifies a stratified system in which certain states –
those that had manufactured and exploded a nuclear weapon or other nuclear explosive device
prior to 1 January 196776 - retain their nuclear weapons while others commit to foregoing
such weapons. The legally justified continued existence of nuclear weapons – along with
stocks of nuclear material in weapons, dedicated for use in weapons, declared excess to
weapons needs, produced for other military purposes, namely naval propulsion – and the
material, facilities and technologies used for peaceful purposes, means that measures are
needed to ensure security against misuse. Two weaknesses of the NPT regime persist – the
lack of universality, leaving four states possessing nuclear weapons outside of the treaty
regime,77 and the fact that the NPT does not adequately address the threat of nuclear-terrorism
perpetrated by non-state actors, which is the primary purview of the nuclear security
framework.78
The consensus communiqué adopted at the first Nuclear Security Summit in
Washington in 2010 declared nuclear security to be a shared objective alongside the goals of
non-proliferation, nuclear disarmament and peaceful uses of nuclear energy, thereby placing
nuclear security on the level of the three pillars of the NPT.79 Instead of being a “fourth pillar”
of the nuclear non-proliferation regime, however, the structure that has been developed for

74
See, for instance, Article VIII, paragraph 22 of the CWC. For the CWC, with its supervisory organization the
Organization for the Prohibition of Chemical Weapons (OPCW), the review conference mechanism is embedded
in the powers and functions of the OPCW, namely in the role of the plenary body, the Conference of States
Parties. Treaties without such supervisory bodies will be reviewed by the States Parties, see Article XII of the
BWC.
75
Compare Article VIII of the NPT, pursuant to which at least certain States (namely nuclear weapon States)
must approve the amendment, with Article XV of the CWC, which differentiates between amendments to the
Convention and changes to the Annexes. By contrast, Article XI of the BTWC is highly simplistic.
76
NPT, Article IX(3).
77
India, Pakistan and Israel never became party to the NPT and all have developed nuclear weapons. North
Korea withdrew from the NPT in 2003, invoking the withdrawal clause in Article X of the treaty, and has also
developed nuclear weapons.
78
See R. Johnson, ‘Rethinking the NPT’s Role in Security: 2010 and Beyond,’ 1993 International Affairs, no. 2;
and J. Garvey, ‘A New Architecture for the Non-Proliferation of Nuclear Weapons, 2007 Journal of Conflict and
Security Law, no. 3.
79
Communiqué of the Washington Nuclear Security Summit, 13 April 2010.

51
nuclear security – based on the separate body of rules, norms, principles and organization –
plays a fundamental role in supporting the elements of the non-proliferation regime.
That nuclear security has a cross-cutting function has long been recognized. The focus
on preventing and detecting theft of nuclear material, detecting and responding to illicit
trafficking, physically protecting nuclear material and developing nuclear forensics
capabilities contributes to realizing non-proliferation objectives.80 State systems of accounting
and control (SSAC) of nuclear material are of importance equally to non-proliferation and
security goals, both to prevent diversion from peaceful to military purposes and to prevent
theft or sabotage. Similarly, cooperation to employ nuclear energy for peaceful purposes
through transfer of nuclear materials and related technologies requires that those materials and
technologies be secured. In other words, a strong nuclear security framework will be
instrumental in preventing and detecting diversion of nuclear material, equipment and
technology at both the state-level, thereby supporting the safeguards system, as well as to
individuals and groups,81 while allowing for peaceful cooperation to harness the benefits of
nuclear energy.
Nuclear security has increasingly been incorporated into the broader nuclear
discussion alongside the three pillars of the NPT. The UN Security Council Summit that
resulted in adoption of Resolution 1887, hailed as the Council’s first comprehensive action on
nuclear issues since the mid-1990s,82 included nuclear security-related actions in addition to
discussing proliferation, disarmament and peaceful use. Resolution 1887 not only encourages
universal adherence to the 2005 Amendment to the CPPNM and to the International
Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT), but it also calls on
all states to share best practices in the interest of improving nuclear security practices, to raise
standards of nuclear security in order to reduce the risk of nuclear terrorism, as well as to
improve national capabilities to detect, deter, and disrupt illicit trafficking in nuclear
materials.83 Furthermore, at the 2010 NPT review conference, the Conference of States
Parties reiterated the importance of effective physical protection of all nuclear material and
the need for stronger international cooperation on physical protection.84 In the list of
recommendations for follow-on actions, the Conference listed several actions related to
nuclear security in the context of both non-proliferation and peaceful uses of nuclear energy.
Such actions included encouraging states to maintain the highest possible security standards
for nuclear materials and facilities; to apply IAEA recommendations on physical protection of
nuclear material and related facilities; to ratify the 2005 Amendment to the CPPNM and
become party to ICSANT; to implement the Code of Conduct on the Safety and Security of
Radioactive Sources; and to improve efforts aimed at combatting illicit trafficking. Therefore,
while nuclear security and its related international legal framework is distinct, it is clearly part
of the broader context of arms control law applicable to nuclear weapons and of peaceful use
of nuclear energy.
While the legal framework for nuclear security is part of arms control law, it must be
acknowledged that nuclear security in some respects diverges from arms control law. The
differences specifically have to do with the criminal justice aspect of nuclear security that is
focused on addressing specific criminal acts as opposed to controlling arms and their related

80
IAEA, Nuclear Security – Measures to Protect Against Nuclear Terrorism, Report by the Director General,
GOV/2006/46-GC(50)/13, 16 August 2006.
81
2015 NPT Review Conference working paper submitted by the Vienna Group of Ten,
NPT/CONF.2015/PC.II/WP.9, 6 March 2013.
82
Press release, “Historic Summit of Security Council Pledges Support for Progress on Stalled Efforts to End
Nuclear Weapons Proliferation,” 24 September 2009.
83
S/RES/1887 (2009), paras. 21, 24 and 26.
84
2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final
Document, Volume I, NPT/CONF.2010/50 (Vol. I), 18 June 2010.

52
materials as such. The argument in this study, however, is that the rules and norms concerning
securing material, technology, equipment and facilities (through, for instance, physical
protection or reductions of weapons-usable material) in order to prevent them from falling
into the hands of terrorist actors are the central tenet of the legal framework for nuclear
security. This is because the defining feature of nuclear terrorism that makes it potentially
particularly devastating, and the most difficult part of carrying out an act of nuclear terrorism,
is obtaining and using nuclear or other radioactive material. Still, it is necessary, in order to
fully understanding nuclear security, to consider both its arms control features as well as its
criminal justice (counter-terrorism) features, which is the approach taken throughout this
study.

V.6 Concluding remarks

Nuclear security, and CBRN security more broadly, to the extent that it aims to prevent non-
state actors, namely terrorists, from developing WMD capabilities is an integral part of arms
control. The legal framework for nuclear security that sets out rules, norms, guidelines and
standards of conduct to, inter alia, protect material, related facilities and technologies from
misuse by terrorists falls within the area of arms control law. Examining nuclear security in
the context of the international law of arms control, as this study does, has to do with specific
characteristics of this area of the law, namely the centrality of the security dimension and the
focus on armaments or weaponization of the component parts of arms. The element of
security has a clearly political dimension, based for instance on calculations of strategic
stability. It also means that states will enter into agreements and make commitments if they
feel that doing so will not be detrimental to their security, by for example giving a strategic
military advantage to a potential adversary. For this reason, supervision, or some other form
of assurances of compliance are necessary, not only for nuclear security but for CBRN
security more broadly. There are differences between nuclear security instruments and
‘traditional’ arms control law instruments, which have to do with the slightly different nature
of the two. Whereas ‘traditional’ instruments are focused on military capabilities and are thus
cooperative but inherently adversarial, CBRN security instruments are cooperative based on
shared objectives. This leads to certain variations, such as weaker withdrawal clauses and lack
of supervisory mechanisms. In general, understanding nuclear security as part of arms control
law helps elucidate an examination of nuclear security’s characteristics and rationale, and
serves to develop approaches to further strengthen the nuclear security legal framework.

53
54
Part II: The Legal Framework for Nuclear Security: Substance

55
56
Chapter IV: Historical Background

Contents
IV.1 Introduction
IV.2 Recognition of Problems Raised by Atomic Energy and the UN Definition of Weapons
of Mass Destruction
IV.3 Establishment of the IAEA
IV.4 Non-proliferation, the NPT and Physical Protection
IV.5 Conference on Disarmament: radiological weapons
IV.6 End of the Cold War and Cooperative Threat Reduction
IV.7 Measures to eliminate international terrorism
IV.8 The safety and security of radioactive sources
IV.9 September 11, 2001
IV.10 Security Council Resolution 1540
IV.11 Establishment of international political initiatives with a nuclear security component
IV.12 Nuclear Security Summit process
IV.13 Concluding remarks

IV.1 Introduction

A cursory examination of the historical background is important in order to place the legal
framework for nuclear security in its proper historical context. Put another way, drawing from
Oppenheim, the historical component plays an essential role in the exposition of the rules of
international law.1 Exposition of the rules will follow in later chapters. This introduction
offers an opportunity to consider the historical development of the law applicable to nuclear
security. The purpose of this section, though, will not be to rehash the full history of every
action and initiative related to nuclear energy and the use of radioactive materials. Instead,
this section will focus in on a few vital moments that have most directly shaped the current
legal framework for nuclear security. It will be obvious after this abbreviated history that the
international law related to nuclear security has developed in a fragmented manner, elements
having been taken up in various fora spread over many years, though certainly becoming
more concentrated in the aftermath of the terrorist attacks of 11 September 2001. The 9/11
attacks, in fact, were the primary catalyzing moment for the development of nuclear security
governance, in terms of binding instruments (Resolution 1540, entry-into-force of the
CPPNM amendment and ICSANT), non-binding instruments (development of the Nuclear
Security Series guidance instruments, strengthening security focus of the Code of Conduct for
the Safety and Security of Radioactive Sources), institutional arrangements (establishment
first of the Office and later raised to Division of Nuclear Security in the IAEA), and political
initiatives (Nuclear Security Summit process, Global Initiative to Combat Nuclear Terrorism,
Proliferation Security Initiative, Global Partnership against the Spread of Weapons and
Materials of Mass Destruction). However, consideration of issues related to nuclear security
started much earlier.

IV.2 Recognition of Problems Raised by Atomic Energy and the UN Definition of

Weapons of Mass Destruction

In its first ever resolution, the UN General Assembly established a Commission to ‘deal with
the problems raised by the discovery of atomic energy’, referred to as the Atomic Energy
1
See L. Oppenheim, ‘The Science of International Law: Its Task and Method,’ 1908 The American Journal of
International Law, no. 2, p. 316.

57
Commission (UNAEC).2 The UNAEC was tasked with making proposals, inter alia, to
control atomic energy in order to limit its use to peaceful purposes and for the ‘elimination
from national armaments of atomic weapons and of all other major weapons adaptable to
mass destruction’. The General Assembly subsequently requested the Security Council to
expedite its consideration of the reports that would be submitted by the UNAEC, as well as
consideration of conventions providing for ‘the creation of an international system of control
and inspection’ and including prohibition of ‘atomic and all other major weapons adaptable
now and in the future to mass destruction and the control of atomic energy to the extent
necessary to ensure its use only for peaceful purposes.’3
The UNAEC, in its first report to the Security Council, noted ‘the intimate relation
between the activities required for peaceful purposes and those leading to the production of
atomic weapons; most of the stages which are needed for the former are also needed for the
latter.’4 Though this statement refers to the processes rather than the materials involved, it
nonetheless represents an early formulation of the dual-use dilemma. The concern at the time,
of course, was State-centric and had to do with diversion of materials to use for military
purposes, not accounting for the later phenomenon of nuclear terrorism. Nonetheless, it is
worth noting that the UNAEC concluded from its preliminary findings that an ‘international
control agency’ must be responsible for a system of safeguards and control. Among other
things, this international control agency ‘should control the storage and shipment of [nuclear]
materials to the degree necessary for security purposes’ and ‘should itself store and handle all
enriched or pure nuclear fuel in transit.’5
It was at the first meeting of the UNAEC on 14 June 1946 that the so-called ‘Baruch
Plan’ was put forward by U.S. delegate Bernard Baruch, which was seen in a favorable light
by the Commission in its first report, voted on positively by a tally of 10-0 (the Soviet Union
and Poland abstaining). The Baruch Plan conceives of an international organization – the
International Atomic Development Authority – to be ‘entrusted [with] all phases of the
development and use of atomic energy.’6 The Plan foresaw a system for control of atomic
energy, assigning to the international authority, inter alia, managerial control or ownership of
all atomic energy activities of potential danger to world security and the power to control,
inspect and license all other atomic activities. The authority would also be the seat of atomic
knowledge in order to comprehend, and thus be able to detect, any misuse of atomic energy.
Once an adequate system of control was in place, including but not limited to renunciation of
atomic bombs as weapons, along with establishing violations of the system of control as
‘international crimes’, only then would production of atomic bombs cease and existing bombs
be disposed of. This course of action – first a system of control and then disposal of existing
weapons – favored the U.S., which at the time had a monopoly on the possession of nuclear
weapons.
In his statement announcing the plan to the UNAEC, Baruch prefaced his explanation
of the plan with a prescient observation, one that still characterizes much of the discourse on
approaches to strengthening the nuclear security framework. Referring to the collective
populace of participating states, Baruch stated, ‘They are not afraid of an internationalism that

2
UNGA Res. 1(I) (24 January 1946). This is not to be confused with the U.S. Atomic Energy Commission
which was established as the national nuclear regulatory body under the Atomic Energy Act of 1946. The U.S.
AEC was abolished in 1974, and the Nuclear Regulatory Commission was established pursuant to the Energy
Reorganization Act adopted that year.
3
UNGA Res. 41(I) (14 December 1946).
4
First Report of the Atomic Energy Commission to the Security Council, December 30, 1946, 1947
International Organization, no. 2, p. 389.
5
Ibid., p. 392.
6
Baruch Plan, Presented to the United Nations Atomic Energy Commission on June 14, 1946.

58
protects; they are unwilling to be fobbed off by mouthings about narrow sovereignty, which is
today’s phrase for yesterday’s isolation.’7
It was claimed to be in deference to national sovereignty that the Soviet Union
countered five days later with a draft convention, referred to as the Gromyko Plan, which
flipped the steps, this time starting with the prohibition of manufacturing and use of nuclear
weapons and the destruction of existing weapons. Once the prohibition was in place and the
destruction of existing weapons had occurred, which was to take place within a period of
three months, a system to ensure compliance with the terms of the convention would be
established. The system of control, in other words, would follow later, the focus being in the
first instance on disarmament as a clear rebuttal to the Baruch Plan. The Soviet Union also
insisted on having control be consistent with the UN Charter, meaning maintaining the veto
powers for permanent members of the Security Council, which is something the Baruch Plan
argued against in the case of the control of atomic energy. Then, in 1947, the Soviet Union
added to its proposal the establishment of an International Control Commission, which would
inspect facilities used for mining, production and stockpiling of raw materials and atomic
materials and those used for the ‘exploitation of atomic energy.’ The Commission would
further investigate suspected violations and be able to subsequently provide recommendations
to the Security Council on the measures to be taken in response to breaches.
Even with these disagreements, the UNAEC tried to continue its work, focusing on
attempts to reach a compromise between the divergent points of view. However, by the time
of the third report of the UNAEC to the Security Council, it had reached an impasse. The UN
General Assembly having already tried to push progress on controlling atomic energy forward
by approving the UN Majority Control Plan, a reworked version of the Baruch Plan, dissolved
the UNAEC in 1952, by which point the Soviet Union and the UK had each also developed
nuclear weapons capabilities, and established the United Nations Disarmament Commission
under the Security Council with the same membership and rules of procedure as the
UNAEC.8 Though by no means can it be considered a success, in an indirect fashion, the
UNAEC did foreshadow the repercussions of technological advancements in research and
development and the potential for natural persons to misuse nuclear material and processes
for malicious ends, thereby prescribing prohibition of both ‘nations and individuals from
using the nuclear fuel for the ‘perfecting, production or assembly of any atomic weapon
whatsoever.’9
The similarly short-lived Commission on Conventional Armaments, established by the
Security Council in 1947 to consider the regulation and reduction of conventional armaments
and armed force,10 was also incapacitated due to disagreements between the Soviet Union and
Western powers. However, the Commission on Conventional Armaments did contribute a
lasting definition of weapons of mass destruction, in order to differentiate these weapons from
conventional armaments. The term weapons of mass destruction was to include ‘atomic
explosive weapons, radioactive material weapons, lethal chemical and biological weapons,
and any weapons developed in the future which have characteristics comparable in destructive
effect to those of the atomic bomb or other weapons mentioned above.’11 This definition not
only persevered through the work of the Conference on Disarmament (see below), but also

7
Ibid.
8
General Assembly Resolution 502 (VI), January 1952. This Disarmament Commission met inconsistently until
1978 when it was replaced by a successor Disarmament Commission under the General Assembly, composed of
all member states.
9
Second Report of the Atomic Energy Commission to the Security Council, September 11, 1947, A Decade of
American Foreign Policy 1941-1949, Avalon Project, Yale Law School.
10
S/RES/18 (1947).
11
Resolution of the Commission for Conventional Armaments, August 12, 1948.

59
introduced the concept of radioactive material weapons, or radiological weapons, as a
category additional to nuclear weapons.

IV.3 Establishment of the IAEA

The Soviet Union and the UK’s entry into the club of nuclear-armed states, along with nuclear
programs being initiated by a number of other states, caused increased concern about the
further spread of nuclear weapons. At the same time, however, the policy of secrecy and
denial that had particularly pervaded the American approach to nuclear issues gave way to a
nuclear policy centered on safeguarded assistance and cooperation, as the role of beneficial
exchanges relevant to fissile material production to support the U.S. atomic defense complex,
as well as to assist with submarine propulsion systems, became clear.12 Secrecy and denial
had proved incapable of preventing the spread of information and technology, and there was a
growing interest in developing the peaceful commercial applications of atomic energy,
prompting concerns, particularly from the U.S. perspective, that a state would further develop
the commercial uses of nuclear technology and establish a dominant advantage.13
This change in approach formed the foundation of proposal put forward by U.S.
President Eisenhower in his 1953 ‘Atoms for Peace’ speech before the UN General
Assembly. Acknowledging fears of the destructive power and spread of nuclear weapons but
also the promise of atomic energy used for peaceful purposes, while proclaiming that ‘if a
danger exists in the world, it is a danger shared by all,’ Eisenhower outlined the establishment
of an international atomic energy agency under the aegis of the United Nations. Joint
contributions of fissile material would be made by possessor states to the new agency, which
would then be in charge of the holding, storage and protection of thereof. The agency would
be assigned the role of allocating material from this bank to peaceful uses. This fissile
material bank proposal was put forward partially as a way to avoid, at least from the outset,
contentious discussions aimed at setting up ‘a completely acceptable system of world-wide
inspection and control.’
The ‘Atoms for Peace’ proposal eventually led to the establishment of the IAEA, with
the objective to ‘accelerate and enlarge the contribution of atomic energy to peace, health and
prosperity throughout the world.’14 The IAEA is composed of three organs: the General
Conference, the Board of Governors and the Staff, or Secretariat. The General Conference,
which is the plenary body of the organization, is made up of all member states of the IAEA
and has the authority to take decisions on any matter specifically referred to it for this purpose
by the Board of Governors, to propose matters for consideration by the Board and to request
reports from the Board on any matter relating to the functions of the IAEA.15 The Board of
Governors is the executive body of the organization having thirty members, ten designated by
the outgoing board and twenty elected by the General Conference in accordance with
equitable geographical representation.16 The Staff is the permanent administrative, scientific
and technical body, headed by the Director General, whose function is to a large extent
overseen by the Board.17
Primarily by way of its statutory functions, namely providing training and technical
advice, providing equipment or supplies, and facilitating exchange of information and related

12
L. Scheinman, The International Atomic Energy Agency and World Nuclear Order (Washington: Resources
for the Future, Inc., 1987), pp. 56-59.
13
Ibid.
14
IAEA Statute (1957), Article II.
15 IAEA Statute, Article V.F.
16 IAEA Statute, Article VI.
17 IAEA Statute, Article, VII.

60
services,18 the IAEA has played a central role in fostering international cooperation in nuclear
security as a way of ensuring peaceful uses of nuclear technology.19 More general nuclear
security-related activities, such as those laid down in the triennial Nuclear Security Plans, the
most recent of which runs from 2014 to 2017, are founded in Board or General Conference
resolutions. The IAEA also assists states, through its Division of Nuclear Security upon
request, in strengthening their national nuclear security systems and helps facilitate regional
and international cooperation. The institutional element of nuclear security will be discussed
further in more detail later in this study.

IV.4 Non-proliferation, the NPT and Physical Protection

Nuclear security, as it is known today, began in the form of measures aimed at the physical
protection of nuclear material as an extension of the non-proliferation regime. Pursuant to
Article III of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), non-
nuclear-weapon states parties are obligated to conclude an agreement with the IAEA under
the Agency’s safeguards system with a view to preventing diversion of nuclear energy from
peaceful uses to nuclear weapons or other nuclear explosive devices. The Agency was given
this verification role as it already had a system of safeguards to facilitate the peaceful use of
nuclear energy and to ensure that material, equipment and facilities did not further any
military purpose.20 The Statute provides for the application of safeguards to any multilateral
arrangement at the request of the parties.21 The IAEA consequently developed
INFCIRC/153,22 which is formatted as the model agreement for states to fulfill their NPT
Article III obligations and is based on the concept of nuclear material accountancy. While the
safeguards system was set up to focus on detecting and deterring diversion by states of
nuclear material to non-peaceful purposes, it was recognized that physical protection of
nuclear material and nuclear facilities from acts such as theft and sabotage was also highly
important to both non-proliferation and radiation safety, though such measures were not
obligated under the safeguards agreements and the Agency was given no responsibility with
respect to a State’s physical protection system. Acknowledging the need for some guidance to
assist states in developing physical protection systems, a series of meetings were held
between 1971 and 1972 which resulted in the document “Recommendations for the Physical
Protection of Nuclear Material”, which was subsequently revised in 1975 and published under
the INFCIRC series as INFCIRC/225.23
These original guidelines, along with subsequent revisions, have been of fundamental
importance to the development of the international legal framework for nuclear security,
prompting further consideration of ways to support international cooperation in addressing

18
IAEA Statute, Articles III.A.4, III.A.1 and 2, and Articles III.A.3 and VIII, respectively. See also, IAEA
International Law Series no. 4: The International Legal Framework for Nuclear Security.
19
See 2010 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, Final Doc. Vol I,
par. 28.
20
IAEA Statute, inter alia Art. XII. See also IAEA Safeguards Agreements and Additional Protocols: Verifying
Compliance with Nuclear Non-Proliferation Undertakings, IAEA (2011).
21
IAEA Statute, Art. III.A.5.
22
INTERNATIONAL ATOMIC ENERGY AGENCY, ‘The Structure and Content of Agreements between the
Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons’,
INFCIRC/153 (corrected).
23
Entitled: The Physical Protection of Nuclear Material. The 1972 Recommendations were revised upon review
by a group of experts in order to reflect progress in physical protection as well as challenges posed by increasing
use of nuclear material for peaceful purposes.

61
physical protection issues.24 Under the auspices of the 1975 Review Conference of the Treaty
on the Non-Proliferation of Nuclear Weapons (NPT), the Conference of States Parties called
upon all states to ‘enter into such international agreements and arrangements as may be
necessary to ensure’ the physical protection of nuclear material in use, storage and transit,
‘including principles relating to the responsibility of states, with a view to ensuring a uniform,
minimum level of effective protection for such material’ and ‘in the framework of their
respective physical protection systems, to give the earliest possible effective application to the
IAEA’s recommendations [INFCIRC/225]’.25 This statement prompted the negotiation and
conclusion of the 1980 Convention for the Physical Protection of Nuclear Material (CPPNM),
which entered into force in 1987 and remains the primary treaty in the area of nuclear
security. Several diverging viewpoints were expressed during the negotiations concerning the
scope of the CPPNM, with a number of states advocating comprehensive coverage including
material in domestic use, storage and transport. In addition, several states argued in favor of
applying the Convention to all nuclear material, encompassing material employed for military
use. However, in the end, the scope with respect to physical protection was narrowed to apply
to nuclear material used for peaceful purposes while in international transport in order to draw
the broadest amount of support. The IAEA General Conference that same year further
recognized the need for increased international cooperation on common issues with respect to
physical protection of nuclear material and facilities, including problems related to
international transfer of nuclear material, and called upon the Director General and member
states to consider the ways and means of facilitating such cooperation. 26
Following the formulation of the INFCIRC/225 guidelines, provisions related to
physical protection began to be included, and therefore made legally binding, in a number of
bilateral and trilateral agreements involving the application of Agency safeguards to material
and/or equipment pursuant to Article III.A.5 of the IAEA Statute.27 This practice started with
INFCIRC/237, The Text of the Safeguards Agreement of 26 February 1976 between the
Agency, Brazil and the Federal Republic of Germany. This practice has continued, often
directly referencing the most recent revision of INFCIRC/225 or more generally the
“recommendations and guidelines” produced by the IAEA, in project and supply agreements
and revised supplementary agreements for the provision of technical assistance by the IAEA.
INFCIRC/225, by virtue of its non-legally binding form, provides and was intended to
provide a level of flexibility in that it can be more rapidly amended or replaced, compared to
legally binding instruments, in order to be able to meet contemporary challenges.
INFCIRC/225 has subsequently been revised a number of times, the most recent being
Revision 5 adopted in 2011, to take into account new developments and instruments in the
area of nuclear security. INFCIRC/225/Rev.5 is intended to help states with implementing a
comprehensive physical protection regime for nuclear material and nuclear facilities and
thereby serve to fulfill relevant obligations flowing from the international legal instruments in
the area of nuclear security.28

24
INTERNATIONAL ATOMIC ENERGY AGENCY, General Conference Resolution adopted during the
183rd plenary meeting on 26 September 1975, PHYSICAL PROTECTION OF NUCLEAR MATERIAL,
GC(XIX)/RES/328.
25
Final Declaration of the Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear
Weapons, NPT/CONF/35/I, Annex I (emphasis added).
26
Supra note 22.
27
W. Morawiecki, ‘The IAEA's Role in Promoting Physical Protection of Nuclear Material and Facilities,’ 1978
IAEA Bulletin, vol. 20, no. 3, pp. 39-45.
28
INTERNATIONAL ATOMIC ENERGY AGENCY, General Conference Resolution adopted during the 199th
plenary meeting on 30 September 1977, THE PHYSICAL PROTECTION OF NUCLEAR FACILITIES,
MATERIALS AND TRANSPORTS, GC(XXI)/RES/350.

62
 The interconnectedness of nuclear security and non-proliferation is clear. Each is
founded on dealing with the risk of nuclear material being diverted to non-peaceful purposes,
whether criminal or terrorist use or diversion to nuclear weapons in state military programs,
respectively. The NPT, based on the “grand bargain” by which non-nuclear weapon states
(NNWS) give up nuclear weapons ambitions, and submit to a system of verification (founded
in the IAEA’s safeguards system) to ensure no diversion of peaceful-use nuclear material to
nuclear weapons, in exchange for the recognized right to peaceful uses of nuclear energy and
a commitment by nuclear weapon states (NWS) to negotiate on nuclear disarmament, does
not account for the acquisition of weapons or weaponization of nuclear or other radioactive
materials by non-state actors.29 One can view, then, the physical protection of nuclear material
as an addition to, but still part of, the broader non-proliferation regime.30

IV.5 Conference on Disarmament: radiological weapons

Radioactive materials other than nuclear materials are considered to be particularly attractive
to would-be terrorists due to the characteristics that are described below. Though no state has
been known to produce such weapons, a discussion on banning radiological weapons has been
on the agenda of the Conference on Disarmament (CD) for many years. The Committee on
Disarmament, the immediate precursor to the CD, was established by the first special session
of the UN General Assembly devoted to disarmament (SSOD I) in 1978. It was set up as the
single multilateral negotiating forum for disarmament, limited in size (currently 65 member
states) and operating on the basis of consensus.31 SSOD I emphasized that the build-up of
weapons, particularly nuclear weapons, constituted a threat to mankind.32 The CD was
preceded by other disarmament negotiating fora, including the Ten-Nation Committee on
Disarmament (1960), the Eighteen-Nation Committee on Disarmament (1962-1968), and the
Conference of the Committee on Disarmament (1969-1978).
Based on the inclusion of ‘radioactive material weapons’ in the aforementioned 1948
definition of WMD, the issue of radiological weapons was taken up in 1979 in the Committee
on Disarmament, which became the Conference on Disarmament, as part of the discussion on
‘new types of weapons of mass destruction and new systems of such weapons; radiological
weapons.’ This followed from the introduction of an ‘Agreed joint USSR-United States
proposal on major elements of a treaty prohibiting the development, production, stockpiling
and use of radiological weapons.’33 Under the proposal, radiological weapons were defined
specifically to be distinct from nuclear weapons, namely as any device other than a nuclear
explosive device that is designed to disseminate radioactive material to cause destruction,
damage or injury through radiation produced by the material’s decay, as well as radioactive
material, other than that produced by a nuclear explosive device, specifically designed for that
use.34 In other words, the destruction, damage and injury would be caused by the emission of
radiation from the radioactive material in the radiological weapon, instead of by the results of

29
Garvey considers the fact that the NPT does not address the proliferation concern of nuclear terrorism as a sign
of its collapse. J. Garvey, ‘A New Architecture for the Non-Proliferation of Nuclear Weapons,’ 2008 Journal of
Conflict and Security Law, no. 3, p. 344.
30
See J. Goldblat, Arms Control: A Guide to Negotiations and Agreements (London: Sage Publications), 1994, p
85.
31
See Resolution adopted on the report of the Ad Hoc Committee of the Tenth Special Session, General
Assembly official records: Tenth Special Session, Supplement No. 4 (A/S-10/4), 23 May-30 June 1978, par. 120.
32
See The Conference on Disarmament: Issues and Insights, United Nations Institute for Disarmament Research
(UNIDIR), UNIDIR/2012/4.
33
See ‘Report of the Committee on Disarmament, Volume I,’ General Assembly, Official Records: Thirty-
Fourth Session, Supplement No. 27 (A/34/27), p. 17.
34
Supra note 45, at 115-117.

63
the nuclear explosion process (heat, blast, radioactive fallout) as created by a nuclear weapon.
An ad hoc committee on radiological weapons was thereafter established on an annual basis
to further consider the issue, and it was maintained until 1992.
Progress on the radiological weapons convention has persistently been thwarted by
two main issues. First, disagreements regarding the definition of such weapons have been
unable to be resolved. Some states, for instance, felt excluding nuclear explosive devices from
the definition would legitimize the use of nuclear weapons.35 The second issue had to do with
the scope of the convention. A proposal was advanced to include in the prohibitions attacks
on nuclear reactors and other nuclear facilities that could cause damage through the release of
radiation. The question of precisely which facilities would be included, however, remained
open.36
Though the work of the ad hoc committee on radiological weapons stopped in 1992,
there was an attempt to revive the issue in the CD following the terrorist attacks of 11
September 2001. At its thirty-eighth session in 2002, the UN Advisory Board on
Disarmament Matters37 advised that the issue of radiological weapons should again be taken
up by the CD, but this time with the focus on the potential terrorist use of such weapons.38
This topic has remained on the agenda of the CD, discussions having taken place as recently
as 2006 in the plenary and thereafter in informal settings. However, the discussions have
remained inconclusive.

IV.6 End of the Cold War and Cooperative Threat Reduction

The end of the Cold War following the collapse of the Soviet Union in 1991 brought with it
concerns regarding the security of the nuclear weapons and related materials left over in
Belarus, Ukraine, Kazakhstan and Russia, including around 30,000 nuclear weapons and
2,500 strategic nuclear delivery systems.39 Inadequate material accounting, smuggling of
nuclear weapons and related components, and the transfer of weapons and weapons-related
knowledge were considered among the most urgent threats. The Cooperative Threat
Reduction program or Nunn-Lugar program, named after U.S. senators Sam Nunn and
Richard Lugar who founded the program, was therefore established in 1991 to focus in
particular on four main objectives: dismantling the former Soviet states’ nuclear weapons and
associated infrastructure; consolidating and securing the nuclear weapons, related technology
and materials; increasing transparency and adherence to nuclear agreements; supporting
defense and military cooperation with the aim of preventing proliferation. Over the years, the
Cooperative Threat Reduction program has achieved a number of nuclear security-related
milestones, such as securing sites containing hundreds of metric tons of weapons-usable
nuclear material, facilitating more secure nuclear shipments, and helping place former
weapons personnel in sustainable jobs.
35
Ibid.
36
Report of the Conference on Disarmament, Official Records of the Forty-Seventh Session of the General
Assembly, Supplement No. 27, A/47/27. It is worth mentioning that under the law of armed conflict, ‘nuclear
electrical generating stations … shall not be made the object of attack’ if the attack may cause the release of
radiation causing civilian deaths (Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 56).
37
The Board is tasked, among other things, with advising the Secretary-General on matters within the area of
arms limitation and disarmament, including on studies and research under the auspices of the United Nations or
institutions within the United Nations system.
38
Work of the Advisory Board on Disarmament Matters, Report of the Secretary-General, A/57/335, 22 August
2002.
39
See United States General Accounting Office Report to Congressional Committees, ‘COOPERATIVE
THREAT REDUCTION: DOD’s 1997-98 Reports on Accounting for Assistance Were Late and Incomplete,’
March 2000.

64
 IV.7 Measures to eliminate international terrorism

The threat of international terrorism has been considered under the auspices of the UN
General Assembly since the 1970s, when the organ began adopting resolutions on measures to
prevent international terrorism as well as two counter-terrorism conventions, Convention on
the Prevention and Punishment of Crimes against Internationally Protected Persons (1973)
and the International Convention against the Taking of Hostages (1979). In 1994, the General
Assembly refocused its efforts on international terrorism by means of declaration on measures
to eliminate nuclear terrorism.40 The declaration condemns all acts of terrorism, states that
acts of terrorism constitute a grave violation of the purposes and principles of the UN Charter
and declares that criminal acts intended to provoke terror are unjustifiable. It goes on to assert
that states must refrain from organizing, instigating, assisting or participating in terrorist acts
in territories of other states, or acquiescing in or encouraging activities on their territories
directed at such acts. Not only must states abstain from certain activities, though, they are also
encouraged to take ‘effective and resolute measures … for the speedy and final elimination of
international terrorism,’ including inter alia taking the necessary steps to implement the
international counter-terrorism conventions to which they are party. States are thereby further
encouraged to examine the existing international law in order to ensure that there is a
comprehensive legal framework covering all aspects of the matter.
Following increasing concern that terrorists could obtain and seek to use radioactive
materials, particularly in the wake of the end of the Cold War and subsequent reports of
unaccounted radioactive material, the declaration was supplemented in 1996 with another
resolution41 that, among others, established an Ad Hoc Committee to elaborate an
international convention on terrorist bombings, and subsequently an international convention
for the suppression of acts of nuclear terrorism. In 1997, the Russian Federation introduced a
draft Convention on the Suppression of Acts of Nuclear Terrorism under the auspices of the
Ad Hoc Committee. This draft contained, among other provisions, a wider obligation to take
physical protection measures going beyond the CPPNM to include generally all radioactive
material, not only to nuclear material and not only to material used for peaceful purposes. The
convention, adopted in 2005 and entered into force in 2007, further adds offenses involving
activities with radioactive material other than nuclear material to the list of international
crimes, as long as they are accompanied by the requisite intent to cause death or serious
bodily injury or substantial damage to property or to the environment, and lays out rules for
handling radioactive material that is seized or taken control of by states following commission
of one of the offenses, including provisions related to cooperation among states and with the
IAEA.

IV.8 The safety and security of radioactive sources

A conference held in Dijon, France, in 1998 was the first to be devoted to the safety of
radioactive sources and the security of radioactive materials following a number of
radiological incidents.42 The IAEA General Conference subsequently requested that the
40
Un General Assembly, Measures to eliminate international terrorism, A/RES/49/60, 1994.
41
A/RES/51/210.
42
Safety and security are related but distinct areas. Safety broadly refers to protecting people and the
environment through prevention of accidents and mitigation of accident consequences. Security concerns
preventing harm to people and the environment from intentional, unlawful acts. In other words, the ultimate goal
of preventing harm is the same, but the focus is different. The distinction is complicated by the fact that many
languages have a single word for safety and security (i.e. ‘veiligheid’ in Dutch, though the term ‘beveiliging’ is
frequently used for security).

65
Director-General prepare a report for consideration by the Board of Governors on, inter alia,
‘whether international undertakings concerned with the effective operation of such systems
and attracting broad adherence could be formulated.’43 One of the recommendations arising
out of the Director-General’s report was the possible need for an “international undertaking”,
such as a convention or other instrument, aimed at the safety and security of radioactive
sources and attracting the broad adherence of states.44 An exploratory discussion on such an
international undertaking was then initiated upon request by the Board of Governors in which
some members expressed the viewpoint that undertaking should take the form of a code of
practice or conduct, as a convention was thought of as too ambitious at the time.45 The result
was the Code of Conduct on the Safety and Security of Radioactive Sources (Code of
Conduct), first adopted in 2000.
In the wake of the 9/11 attacks (see below), there was a desire to strengthen the Code
of Conduct to deal with concerns regarding deliberate and malicious use of radioactive
sources. This issue was addressed in an open-ended meeting in 2002 of technical experts
tasked with considering the effectiveness of the Code of Conduct.46 The Code of Conduct was
thereafter revised to better address security of radioactive sources, including reference to the
need to protect facilities where sources are managed in addition to securing the sources
themselves. It is notable that the technical experts actually considered at the time whether the
status of the Code of Conduct should be enhanced to that of a binding instrument in the
interest of encouraging broad adherence, though consensus was not reached on this point.
The issue of terrorist acquisition of radioactive sources in particular has also been
taken up in other fora, including the UN General Assembly. In a 2012 Resolution, tabled by
France, states were encouraged to support international efforts to prevent terrorists from
acquiring radioactive materials and sources, to take and strengthen national measures to this
end, as well as to prevent terrorist attacks on nuclear plants and facilities, and inviting states
to support the relevant IAEA efforts and follow relevant IAEA guidelines, including the Code
of Conduct, among other steps.47

IV.9 September 11, 2001

As mentioned above, the terrorist attacks of 11 September 2001 proved to be an important

catalyst for action in the area of nuclear security. The attacks did not involve nuclear or other
radioactive material nor were they directed at nuclear facilities. However, the intent of the
perpetrators to cause casualties and damage indiscriminately on such a massive scale raised
the specter that such actors would seek to employ the most destructive weapon known to man
to achieve their aims. This coupled with the knowledge that a number of terrorist
organizations – Al Qaeda, Chechen separatists, Lashkar-e-Taiba and Aum Shinrikyo among

43
INTERNATIONAL ATOMIC ENERGY AGENCY, General Conference Resolution adopted on 25
September 1998 during the 10th plenary meeting, THE SAFETY OF RADIATION SOURCES AND THE
SECURITY OF RADIOACTIVE MATERIALS, GC(42)/RES/12.
44
INTERNATIONAL ATOMIC ENERGY AGENCY, MEASURES TO STRENGTHEN INTERNATIONAL
CO-OPERATION IN NUCLEAR, RADIATION AND WASTE SAFETY, The Safety of Radiation Sources and
the Security of Radioactive Materials, GOV/1999/46-GC(43)/10, Attachment 1.
45
INTERNATIONAL ATOMIC ENERGY AGENCY, MEASURES TO STRENGTHEN INTERNATIONAL
CO-OPERATION IN NUCLEAR, RADIATION AND WASTE SAFETY, The Action Plan for the Safety of
Radiation Sources and the Security of Radioactive Materials, GOV/2000/34-GC(44)/7.
46
INTERNATIONAL ATOMIC ENERGY AGENCY, MEASURES TO STRENGTHEN INTERNATIONAL
CO-OPERATION IN NUCLEAR, RADIATION, TRANSPORT AND WASTE SAFETY, Implementation of
the Revised Action Plan for the Safety and Security of Radiation Sources, Draft Revised Code of Conduct on the
Safety and Security of Radioactive Sources, GOV/2002/35/Add.1-GC(46)/11/Add. 1.
47
Preventing the acquisition by terrorists of radioactive sources, Resolution adopted by the General Assembly,
A/RES/67/51, 4 January 2013.

66
them – have demonstrated interest in obtaining nuclear weapons, lead to increased
international activity to address this threat.
The two primary acknowledged nuclear/radiological threats posed by terrorists are the
potential use of a nuclear explosive and the use of a radiological device. In broad terms,
terrorists could obtain nuclear explosive capabilities by stealing or otherwise acquiring a
nuclear weapon or by constructing an improvised nuclear device (IND). Both present a
number of obstacles to would-be nuclear terrorists, but yet warrant a closer look in order to
ensure such scenarios are prevented due to the seriousness of potential devastation. Nuclear
weapons storage facilities seem to be well guarded and protected. If a terrorist network were
to succeed in enlisting the help of an insider and obtaining the significant financial and
personnel resources, possible theft of a nuclear weapon would most likely be thwarted by
safety and security systems on the weapons themselves designed to prevent an unwanted
nuclear explosion. The construction of an IND would present less daunting obstacles and, as
such, is a more probable occurrence than theft and use of a nuclear weapon. This would first
require obtaining, by stealing, buying or otherwise obtaining, the necessary fissile materials.
The amount of fissile material needed to make a crude nuclear explosive, that would still be
roughly equivalent to the power of the bombs dropped on Hiroshima and Nagasaki, is fairly
minimal – 25 kilograms of HEU or 8 kilograms of separated plutonium.48 The actual
production of the nuclear material is the most difficult step; fashioning it into an IND presents
fewer challenges. Around 2000 metric tons of HEU and plutonium exists at several sites
throughout the world, and judging by the cases in which officials have uncovered such
material in unauthorized control,49 the threat cannot be dismissed.
Radiological weapons, on the other hand, tend to be removed from the categorization
of WMD and are considered more as weapons of mass disruption. This has to do with the
limited number of fatalities expected to be caused by the radioactivity from terrorist use of a
radiological weapon. However, the panic resulting from the use of such a weapon, along with
economic and intangible costs associated with cleaning up and making safe and usable the
area affected by such an attack, would still cause substantial problems for the state or states
involved. Considering that terrorism is often thought of as aiming to ‘intimidate a population,
or to compel a government or an international organization to do or to abstain from doing any
act’,50 a radiological weapon would be highly attractive to would-be terrorists. The potential
impact of such an attack may be lessened, but the relative availability – radioactive sources
are used to some degree in every country, the highest risk sources coming from the medical
and industrial sectors – and lower levels of associated security would seemingly make an act
of terrorism using a radiological weapon more likely than one using a nuclear device.
Radiological weapons could come in many forms. The one that most often springs to mind is
a so-called ‘dirty bomb’ consisting of radioactive material dispersed by means of a
conventional explosive. Others methods of maliciously employing radioactive material
include other forms of radiological dispersion devices (RDDs), for instance spraying
radioactive material from commercially available drones, radiological incendiary devices

48
See ‘Nuclear Terrorism Fact Sheet,’ Belfer Center for Science and International Affairs, Harvard Kennedy
School, available at http://belfercenter.ksg.harvard.edu/publication/20057/nuclear_terrorism_fact_sheet.html.
49
See supra note 12. See also the IAEA INCIDENT AND TRAFFICKING DATABASE (ITDB), figures as
described in the IAEA Nuclear Security Plans (the most recent being for the period 2014-2017) and related
yearly reports.
50
This comes from Article 2 of the 1999 International Convention for the Suppression of the Financing of
Terrorism (Terrorist Financing Convention). While there is as yet no international definition of terrorism, the
definition under the Terrorist Financing Convention is considered to come the closest. With respect to
radiological terrorism as intimidation, one can think of the incident in November 1995 in Moscow in which
Chechen rebels alerted the press to a radioactive source (cesium-137) buried in Ismailovsky Park. The group
wanted to demonstrate its ability to construct a dirty bomb.

67
(RIDs) or radiological emission devices (REDs), which are stationary devices that release
radioactivity.51 Each year, more than 100 incidents of theft, loss, illegal possession, attempts
to sell radioactive source reported to the ITDB. Some of the more widely reported cases
occurred in 2013 in Mexico, where a truck containing cobalt-60 was stolen, and in the UK,
where a radiography camera containing iridium-192 was stolen.
The threat of nuclear terrorism certainly predated the 11 September 2001 attacks, as
evidenced by the prior initiatives mentioned above to combat this threat, but 9/11 accelerated
the progress on strengthening nuclear security both internationally and nationally. For
instance, already in the late 1990s, a number of states began to express a concern that the
CPPNM was incomplete and should be reviewed. The IAEA Director-General convened an
Expert Meeting in 1999 to examine whether the CPPNM should be revised. The Expert
Meeting established an open-ended Working Group to assess the relevant issues, and in 2001
the Working Group’s Final Report identified a need to strengthen the international physical
protection regime by means of, inter alia, an amendment to the CPPNM pursuant to Article
20. The impact of the terrorist threat as demonstrated by the 9/11 attacks then served to
convince even hesitant states that the rules needed to be strengthened. Following requests to
convene an amendment conference by a majority of CPPNM states parties, as required under
the CPPNM, the conference was held in 2005. The resulting amendment, which in 2016
gained the ratification, acceptance or approval of two-thirds of the CPPNM states parties and
therefore entered into force, comprises a general broadening of the scope of the CPPNM to
include the commitment to apply physical protection measures to nuclear material in domestic
use, storage or transport and to nuclear facilities, thereby laying out fundamental principles of
physical protection, increased international cooperation and the added criminal offense of
sabotage of nuclear material or a nuclear facility. At the national level, 9/11 seems similarly
to have been the most significant single cause of changes in approaches to nuclear security
among states with nuclear weapons, HEU or separated plutonium.52

IV.10 Security Council Resolution 1540

Also reflecting the changing dimensions of the perceived terrorist threat following the 9/11
attacks, the UN collective security system has taken a role in addressing the issue of WMD
terrorism. In 2004, the UN Security Council unanimously adopted Resolution 1540 which
labels, inter alia, the proliferation of nuclear weapons and their means of delivery, as well as
illicit trafficking in nuclear weapons, their means of delivery and related materials, as a threat
to international peace and security. Adopted under Chapter VII of the UN Charter, Resolution
1540 is binding on all member states of the UN. It requires states, among other actions, to
develop and maintain appropriate and effective measures to account for and secure relevant
items in production, use and storage as well as appropriate and effective physical protection
measures, border controls and export controls.53 The scope is limited to nuclear, chemical and
biological weapons, their means of delivery and ‘materials, equipment and technology
covered by relevant multilateral treaties and arrangements, or included on national control
lists, which could be used for the design, development, production or use of nuclear, chemical

51
For a more complete description of the possible radiological weapons, see C. Ferguson, ‘Ensuring the Security
of Radioactive Sources: National and Global Responsibilities,’ USKI Working Paper Series, US-Korea Institute
at SAIS, March 2012.
52
This was shown by a 2014 survey that asked nuclear security experts from various countries a number of
questions to explain domestic perceptions of the threat and the subsequent approaches to the issue over the
previous 15 years (M. Bunn and E. Harrell, ‘Threat Perceptions and Drivers of Change in Nuclear Security
Around the World: Results of a Survey,’ Report, Project on Managing the Atom, Belfer Center for Science and
International Affairs, Harvard Kennedy School, March 2014.)
53
S/RES/1540 (2004), par. 3.

68
and biological weapons and their means of delivery’ (‘related materials’), which means that
radioactive sources are not covered.
In the years following the adoption of Resolution 1540, the Security Council has
reaffirmed on a number of occasions the measures foreseen therein. Each of the subsequent
resolutions54 mandates the 1540 Committee, established to oversee implementation of that
Resolution, to intensify efforts to promote implementation. Each also continues to call upon
states not having done so to provide a first report on steps they have taken or intend to take to
implement Resolution 1540. This illustrates persistent difficulties in ensuring that the terms of
Resolution 1540 are given effect in national systems. Resolution 1977 goes into more detail in
terms of implementation assistance activities to be carried out by the 1540 Committee in
cooperation with states, international, regional and sub-regional organizations. It also makes
direct reference to transparency in terms of measures and activities instituted by the 1540
Committee and further supports the Committee’s outreach activities.

IV.11 Establishment of international political initiatives with a nuclear security

component

Further international cooperation to combat the threat of nuclear terrorism in the wake of the
9/11 attacks have taken the form of multilateral political partnerships, namely the Global
Partnership Against the Spread of Weapons and Materials of Mass Destruction (Global
Partnership) and the Global Initiative to Combat Nuclear Terrorism (GICNT). Such
partnerships have the benefit of informality of structure and processes that allows them to take
action in certain areas more rapidly and with more flexibility.
The Global Partnership was established by the G8 in 2002 and conceived as a program
to prevent terrorists, or other actors, from acquiring or developing weapons of mass
destruction or related materials. It was initially set up for a period of 10 years, but this was
extended at the G8 Summit in 2011. The Global Partnership is not focused strictly on nuclear
security and nuclear terrorism. It has a broader scope, including efforts to prevent chemical
and biological terrorism. The Global Partnership works to develop, coordinate, implement and
finance cooperation projects in the areas of non-proliferation, disarmament, counter-terrorism
and nuclear safety. The work of the Partnership is guided by a commitment to six principles
covering treaty adherence; security of materials; physical protection of facilities; effective
border controls, law enforcement and cooperation to combat illicit trafficking; national export
and transshipment controls; and management and disposal of stocks of, inter alia, fissile
materials. Other countries that join similarly commit to these principles.
In 2011, upon renewal of the Global Partnership past the original 10-year mandate,
four priority areas were agreed, one of which was nuclear security. This was followed in 2012
by the establishment of the Nuclear and Radiological Security sub-Working Group, proposed
by Canada and set up under the chairmanship of the U.S. The purpose of this sub-Working
Group was to serve as a forum for discussing priority areas for nuclear and radiological
security and to help coordinate the activities of its members. The sub-Working Group
primarily aims to be an effective tool for bringing together the resources and expertise of
members with existing requirements and demands for nuclear security collaboration.
The Global Initiative to Combat Nuclear Terrorism (GICNT) was established in 2006
by the U.S. and Russia, who remain the group’s co-chairs. It is a voluntary partnership of
states that have signed-on to a broad set of principles aimed at preventing, detecting and
responding to nuclear terrorism. The eight principles to which the partner states have
committed are meant to increase capacity to combat nuclear terrorism consistent with relevant

54
S/RES/1673 (2006), S/RES/1810 (2008) and S/RES/1977 (2011).

69
international instruments, namely ICSANT, the CPPNM and UN Security Council
Resolutions 1373 and 1540. Three priority areas in particular have been devised under
GICNT: nuclear detection, nuclear forensics, and response and mitigation. GICNT activities,
which include multilateral exercises, workshops and conferences, are aimed at capacity-
building to prevent, detect and respond to acts of nuclear terrorism. Documents containing
guidelines and fundaments in each of the three priority areas are also developed under the
auspices of GICNT.

IV.12 Nuclear Security Summit process

The most recent, and arguably most significant, development in the evolution of the nuclear
security regime has been the initiation of the Nuclear Security Summit process. Much as in
the case of the ‘Atoms for Peace’ speech and the establishment of the IAEA, the origins of the
NSS process are found in a speech that U.S. President Obama gave in Prague in April of 2009
in which he assessed the prospect of nuclear terrorism as ‘is the most immediate and extreme
threat to global security.’ In the spirit of a danger existing in the world being a danger shared
by all, President Obama announced an international effort to secure vulnerable nuclear
materials throughout the world within four years.

We will set new standards, expand our cooperation with Russia, and pursue new
partnerships to lock down these sensitive materials. We must also build on our efforts to
break up black markets, detect and intercept materials in transit, and use financial tools
to disrupt this dangerous trade.55

As formulated in the speech, the effort was to commence with, though not be limited to, a
global summit concerning the vulnerable nuclear material. The Nuclear Security Summits
brought high-level attention – at the level of heads of state/heads of government – to the threat
of nuclear terrorism. Involvement of leaders in the series of four biennial meetings lead to
concrete commitments and progress that would unlikely have been possible otherwise had
nuclear security remained a primarily technical topic.
The first NSS was held in Washington, DC, in 2010.56 The Washington Summit was
focused solely on fissile material, thereby highlighting the responsibility of states to set-up
and maintain effective security of nuclear materials and facilities, including those used in
nuclear weapons programs. The Washington Summit consensus communiqué was
accompanied by a work plan providing guidance for national and international action
supporting the communiqué. The work plan constituted a political commitment by NSS-
participating states to carry out applicable portions, consistent with their national law and
international obligations. The Washington Communiqué and Washington Work Plan set the
tone for the NSS approach to the nuclear security architecture.57 The Washington Work Plan
in particular lays out steps participating states would take to support universality of ICSANT,

55
U.S. President Barack Obama’s speech in Prague, 5 April 2009.
56
47 countries participated in the first Summit: Algeria, Argentina, Armenia, Australia, Belgium, Brazil,
Canada, Chile, China, the Czech Republic, Egypt, Finland, France Georgia, Germany, India, Indonesia, Israel,
Italy, Japan, Jordan, Kazakhstan, Malaysia, Mexico, Morocco, the Netherlands, New Zealand, Nigeria, Norway,
Pakistan, the Philippines, Poland, the Republic of Korea, the Russian Federation, Saudi Arabia, Singapore, South
Africa, Spain, Sweden, Switzerland, Thailand, Turkey, Ukraine, the United Arab Emirates, the United Kingdom,
the United States, and Vietnam. In addition three international organization participated: the IAEA, EU and UN.
57
The term “nuclear security architecture” was used in the Summit context to denote components of the nuclear
security governance model, including elements of the international legal framework for nuclear security. At the
Hague Summit in 2014, the Communiqué defined the nuclear security architecture as: legal instruments,
international organizations and initiatives, internationally accepted guidance and good practices” (par. 8).

70
encouraging invocation of Article 20 to facilitate discussion of effective implementation;58
entry-into-force of the 2005 CPPNM Amendment, calling on states to act in accordance with
the Amendment’s object and purpose in the meantime;59 and full implementation of Security
Council Resolution 1540, including the recognition that ensuring physical protection systems
in line with INFCIRC/225 and other relevant Nuclear Security Series documents assists
adherence to the Resolution’s nuclear security-related provisions. The Work Plan also goes
further in discussing the role of the Nuclear Security Series guidance documents (soft law).
Among other things, participating states will work with the IAEA toward “completion and
implementation” of the guidance and help other states ostensibly even outside the NSS
process in doing so, will participate in the process of developing the guidance, and will
“endeavor to incorporate” the relevant guidance in the design and operation of nuclear
facilities. As the focus of the 2010 NSS was on vulnerable nuclear materials, radioactive
sources receive only a cursory mention in the Work Plan – states will consider how best to
address radioactive source security. The Washington Communiqué recognizes that steps
aimed at nuclear material security can have applications to security of other radioactive
substances but goes no further than encouraging efforts to secure those materials as well.60 A
last law-related aspect of the Work Plan is the commitment to improve national criminal laws
with respect to illicit nuclear trafficking and nuclear terrorism. Certain states went further than
the commitments contained in the communiqué and made additional national commitments,
called in NSS parlance ‘house gifts’. Such commitments ranged from joining GICNT to
removing all highly enriched uranium from the state’s territory. In the end, 32 of the
participating states made more than 70 national commitments on specific actions to strengthen
nuclear security.
At the second Summit in Seoul in 2012, the focus was expanded to also include
radioactive sources and a consideration of synergies between nuclear security and nuclear
safety. The 2012 communiqué identified 11 priority areas61 and reaffirmed the commitment of
participating states to continue using the Washington communiqué and work plan as a basis
for future activities to advance nuclear security objectives. In addition, six new states joined
the process,62 and the concept of ‘gift baskets’ – joint statements or commitments made by
two or more NSS-participating states – was introduced. These gift baskets concerned, inter
alia, security of radioactive sources, information security, transport security and nuclear
smuggling. The Seoul Communiqué, similar to the Washington Communiqué, devotes
attention to achieving universality of ICSANT and the CPPNM as amended, explicitly
mentioning 2014 as the target date for bringing the Amendment into force (in practice it took
until 2016 to achieve entry-into-force). The Seoul Communiqué goes further than the
Washington documents in terms of the soft law instruments. Part of this has to do with the
addition of radioactive sources as one of the priority areas. States are thereby encouraged to
reflect the Code of Conduct and Import/Export Guidance as well as other relevant Nuclear

58
ICSANT Article 20 reads: ‘States Parties shall conduct consultations with one another directly or through the
Secretary-General of the United Nations, with the assistance of international organizations as necessary, to
ensure effective implementation of this Convention.’
59
The language, quite appropriately, is similar to the legal obligation placed on States having signed or
expressed consent to be bound by a treaty pending its entry-into-force as set forth in Article 18 of the Vienna
Convention on the Law of Treaties.
60
Communiqué of the Washington Nuclear Security Summit, paragraph 12.
61
The priority areas were: global nuclear security architecture, role of IAEA, nuclear materials, radioactive
sources, nuclear security and safety, transportation security, combating illicit trafficking, nuclear forensics,
nuclear security culture, information security and international cooperation.
62
Azerbaijan, Denmark, Gabon, Hungary, Lithuania and Romania. Interpol took part as an international
organization.

71
Security Series documents in national practice.63 More generally, though, in discussing the
global architecture, states will “strive to use” INFCIRC/225 and the related guidance
documents and reflect them in national practice. This is a clearer formulation of intent than
that contained in the Washington documents.
The third NSS took place in 2014 in The Hague. It was originally envisioned to be the
final gathering in the process, the culmination of the four-year plan President Obama had put
in motion in his Prague speech, but in the summer before the Summit it was announced that a
fourth would be organized in the U.S. Substantial progress was achieved during the Hague
Summit, particularly with respect to a number of states going further than before in
committing to implementation of fundamentals and guidelines developed under the auspices
of the International Atomic Energy Agency (IAEA) in their domestic systems and to inviting
peer reviews of their nuclear security efforts.64 The focus of the Hague Communiqué with
respect to the legal framework was again placed on increasing the number of states parties to
the two primary treaties – CPPNM as amended and ICSANT. When it comes to the soft law
instruments, the Hague Communiqué is less specifically formulated than its predecessor.
First, recognizing that the Nuclear Security Series guidance documents provide “the basis for
effective nuclear security measures at national level,” states are encouraged to make use of
the guidance as appropriate.65 Gone, for example, is the explicit reference to INFCIRC/225
(or Nuclear Security Series No. 13) as contained in the Seoul Communiqué.
In the lead-up to the 2014 NSS, a lot of attention was paid to the concept of
assurances, or confidence-building measures. Assurances are generally meant as a set of
measures, including the gathering and providing of information, directly or through an
international organization, to build confidence in the effectiveness of national nuclear security
regimes. One of the key new developments in the Hague Communiqué was getting such
measures, to a certain degree, mentioned in the document. As denoted by the title of the
relevant paragraph – paragraph 20 – the emphasis was on the voluntary nature of (most of) the
various proposed measures. Though certainly noteworthy that such a paragraph was included
in the consensus outcome document of the 2014 NSS, it was quite weakly formulated (no
encouragement to take measures but only stating that states “may consider” taking such
measures) and was further qualified by noting that many NSS-participating states were
already taking such measures. To be sure, not all assurance measures are voluntary. Most of
the non-exhaustive list included in paragraph 20 are of a voluntary nature, but one –
“providing information through relevant existing reporting mechanisms and forums” – can be
read as including, for instance, the reporting requirement under Article 14(1) of the CPPNM.
Pursuant to that Article, each State party to the CPPNM is legally obligated to “inform the
[IAEA] of its laws and regulations which give effect to this Convention,” after which the
IAEA will communicate the information to all states parties. In other words, this is a non-
voluntary (for states parties to the CPPNM) assurance mechanism.
In addition, more states committed to giving up weapons-grade nuclear material –
notable here was Japan’s decision to remove stocks of both highly-enriched uranium (HEU)
and plutonium from the Fast Critical Assembly (FCA) at the Japan Atomic Energy Agency.
The material would be transported to the US where it would be converted into less sensitive
forms. Further pledges in the form of gift baskets were also made with regard to the security
of Category 1 radioactive sources, transport security and countering nuclear smuggling,
among others, often formulated in line with relevant elements of the international legal
framework. In this way, the Hague Summit both built upon steps taken at the previous

63
Seoul Communiqué, paragraph 6.
64
The “Strengthening Nuclear Security Implementation” initiative. See J. Herbach, ‘The Nuclear Security
Implementation Initiative: A Catalyst for Needed Action,’ Arms Control Today, June 2014.
65
Hague Communiqué, paragraph 13.

72
gatherings and established new approaches to measures aimed at continuously improving
nuclear security worldwide.
In 2016, the final NSS took place in Washington. The Summit process concluded for a
number of reasons. One was that it was President Obama’s final year in office, and he had
been the initiator and primary driver of the process. A second reason was that ‘Summit
fatigue’ had set in, meaning the leaders had devoted a significant amount of time (biennial
meetings with preparatory diplomatic work is a substantial time commitment) to this single
topic. A third reason was that much of the obvious big-ticket political commitments had been
made. That is not to say that nuclear security would not still benefit from high-level attention.
Continuing high-level political attention is the purpose of regular ministerial conferences
convened by the IAEA (in 2013, 2016, with the next one scheduled for 2020).
The focus at the 2016 Summit was primarily on establishing a legacy to carry on in
following the conclusion of the Summit process. To that end, a main outcome of the 2016
Summit was the consensus adoption of action plans for the five main international
organizations and initiatives involved in nuclear security – the IAEA, UN, Interpol, GICNT
and the Global Partnership. In the action plans, NSS-participating states politically commit to
supporting the nuclear security-related activities and functions of the organizations and
initiatives. The action plan for the IAEA66 advocates for the continued development of the
IAEA’s nuclear security role through, inter alia, establishment and implementation of nuclear
security plans in which proposed activities are laid out and approved by the Board of
Governors, on a quadrennial basis.67 Also in the action plan, the NSS-participating states
commit to advocating for a continued role for the IAEA in international coordination of
nuclear security activities among the other relevant organizations and initiatives. In general,
this support for the statute-based functions of the IAEA related to nuclear security on the part
of several IAEA member states, a number of whom hold de facto permanent seats on the
executive body of the Agency, the Board of Governors, is important for the institutional
element of the legal framework that will be examined in a later chapter. The IAEA action plan
also stresses the need for universalization of the CPPNM as amended, with a role for the
IAEA in assisting states with implementation, reaffirms the obligation to share information on
laws and regulations giving effect to the CPPNM under its Article 14, and commits to pushing
for the convening by the IAEA Director-General of regular CPPNM review conferences.
Important also in terms of the international legal framework is the NSS-participating states’
commitment to advocating for the IAEA to continue developing its non-legally binding
instruments, nuclear security guidance, and to provide assistance to states in implementing the
guidance. The UN action plan similarly has a partially legal focus, containing pledges to
implement and support implementation of, and voluntarily report on implementation of SC
Resolution 1540; and to fully implement ICSANT and conduct consultations among states
parties, implicitly pursuant to ICSANT Article 20, to share information and good practice to
support effective implementation.68
The NSS process has been a strong driver of increased activity to strengthen nuclear
security world-wide. It has brought widespread awareness and attention to the nuclear
security regime by virtue of its taking place at the level of heads of state and heads of

66
Action Plan in Support of the International Atomic Energy Agency, Nuclear Security Summit 2016, available
at http://www.nss2016.org/2016-action-plans/ (accessed on 7 December 2017).
67
The most recent version is the Nuclear Security Plan 2018-2021, GC(61)24, 14 September 2017.
68
Action Plan in Support of the United Nations, Nuclear Security Summit 2016, available at
http://www.nss2016.org/2016-action-plans/ (accessed on 7 December 2017). The ICSANT Article 20
mechanism is not equivalent to a review conference, not having the particular scope of such processes and
lacking a timeline typically found in review conference provisions, but it is still a mandatory process for
interaction among states parties and could have a similar impact as review conferences on, for instance,
interpretation of the treaty.

73
government. It has also addressed nuclear security in a comprehensive fashion, dealing with
both civilian and non-civilian nuclear material, as well as both fissile material and other
radioactive material. Furthermore, a broad cross-section of states have participated, including
not only nuclear-weapon states and non-nuclear weapon states parties to the NPT, but also
non-NPT states with nuclear weapons: India, Pakistan and Israel. The approach of the NSS
process has been two-fold: eliminating to the extent possible dangerous materials and better
securing those materials that remain. Since the beginning of the process, fewer states have
nuclear weapons-usable material and more states have become parties to the relevant treaties,
namely the CPPNM as amended and ICSANT. To be sure, while none of the outcomes of the
NSS process are themselves legally binding,69 a number of the steps taken and commitments
made have their basis in international law.

IV.13 Concluding remarks

Nuclear security reflects the dual-use dilemma of nuclear energy, that the same materials,
processes and technologies that have myriad peaceful application can also be used to cause
harm. This is a fundamental issue with nuclear energy that has guided control efforts since the
dawn of the nuclear age. The international legal framework for nuclear security, as a distinct
set of rules, is a direct outgrowth of the nuclear non-proliferation regime founded on the NPT.
Measures were originally focused primarily on physical protection of nuclear material, with
legally binding obligations limited to physical protection during and incidental to
international transport of nuclear material. Two events had a catalyzing effect on the further
development of the international legal framework for nuclear security – the end of the Cold
War (and the fall of the Soviet Union) and, even more dramatically, the terrorist attacks of 11
September 2001. As the international legal framework has developed, attempts have been
made, both of the legally binding and non-binding variety, to adapt and strengthen the
framework in light of changing circumstances, such as an evolving terrorist threat
environment. The efforts have had a positive impact – for instance the entry into force of the
amendment to the CPPNM that significantly expands the treaty’s scope. The question is how
best to implement, and if necessary further develop, the legal framework in order to meet the
evolving needs of nuclear security governance. The starting point for considering this is to
examine the rules, norms and principles embodied in the component hard law and soft law
instruments that comprise the legal framework. This is the focus of the coming chapters.

69
An interesting article on the need for the U.S. President to focus on legally non-binding political commitments
in order to make progress on issues of international concern due to deadlock with respect to treaty ratification is
D. Kaye, “Stealth Multilateralism: U.S. Foreign Policy without Treaties – Or the Senate,” Foreign Affairs,
September/October 2013, available at http://www.foreignaffairs.com/articles/139649/david-kaye/stealth-
multilateralism. The NSS process is specifically mentioned in the article.

74
Chapter V: Interpreting the Legal Framework for Nuclear Security
Contents
V.1 Introduction
V.2 The Vienna Convention rules on treaty interpretation
V.3 Evolution of treaty regimes: subsequent agreements and subsequent practice
V.3.1 Review conferences
V.3.2 Non-binding instruments
V.4 Concluding Remarks

V.1 Introduction

Chapter II described a governance model for conceptualizing the international legal

framework related to nuclear security, so structured due to the way the individual parts –
substance and organization – interact with one another and function as a whole. This does not
mean to say that the component instruments, namely the relevant treaties, are not to be
interpreted on their own according to the rules of treaty interpretation, but rather that
interpretation of a nuclear security-related treaty could be impacted by related soft law
instruments. Before going into more detail on the rules embodied in the instruments making
up the international legal framework for nuclear security, this chapter considers more
generally some aspects of interpretation when it comes to the legal framework.
Two general features that were introduced earlier influence the way in which one
should interpret the component instruments of the legal framework for nuclear security. The
first is the impact of changing circumstances, such as the evolving threat and advancements in
security practices, on the development and application of the legal framework. This feature is
recognized by the international community and has led to the often ad hoc and fragmented
way in which the framework has developed over time.1 Which leads to the second feature,
that the legal framework consists of a number legally binding instruments of limited scope or
limited detail (treaties, Security Council resolutions adopted under Chapter VII of the UN
Charter) and several non-binding (codes, recommendations, guidelines) instruments, meaning
that interpretive approaches will have to, depending on the situation, contend with
understanding elements of the framework either as standalone instruments or in relation to
one another.
Interpreting the international legal framework for nuclear security is, therefore, not a
simple exercise, though of course with respect to the relevant treaties the formal methods of
treaty interpretation apply just as for any other treaty. The main issue is how to view the soft
law instrument, particularly in their relationship to the legally binding instruments. Legal
interpretation as such is a persistent and complicated issue, in general.2 In the area of nuclear
security, there could be an inclination to read more into the treaties than is there in black
letter, which may stretch what can demonstrably be considered as the intention of the parties,
in the interest of maximizing the perceived strength of the framework. The purpose of this

1
See, for example, the Communiqué of the 2016 Nuclear Security Summit; the Ministerial Declaration adopted
at the International Conference on Nuclear Security: Commitments and Actions, 5-9 December 2016; and the
Nuclear Security Resolution adopted at the 60th IAEA General Conference in 2016, GC(60)/RES/10. See also
the reports of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996
concerning the negotiations of an International Convention of the Suppression of Acts of Nuclear Terrorism
(ICSANT), namely on the topic of whether the Convention should take the form of a Protocol to the Convention
on the Physical Protection of Nuclear Material (CPPNM) in light of the related subject-matter or whether it
should be a standalone treaty, available at http://legal.un.org/committees/terrorism/reports.shtml. The latter
perspective prevailed.
2
Shaw, International Law, pp. 675-6.

75
section is to highlight a couple of aspects3 of interpretation drawn from the Vienna
Convention on the Law of Treaties, which are reflective of customary law, 4 in order to aid in
the understanding of the international legal framework for nuclear security.

V.2 Vienna Convention rules on treaty interpretation

The primary objective of interpretation is to reveal the intentions of the parties.5 The
normative impact of soft law is specifically about the intention of the parties to impart such
value on a soft law instrument. This is the goal underlying the general rule of treaty
interpretation as laid out in Article 31 of the Vienna Convention. The text of a treaty
expresses the intention of the parties through the ordinary meaning of the treaty’s terms,
which emerges in light of the treaty’s object and purpose and through the context of the treaty
taken as a whole.6 The supplementary means of interpretation,7 which include inter alia
recourse to the travaux preparatoires, are meant to confirm the meaning having been gleaned
from applying the general rule, or they can be used in the case that interpretation according to
Article 31 leaves the meaning ambiguous or results in an outcome that is absurd or
unreasonable, thus providing further means of affirming the intentions of the parties.8
The rules as contained in the Vienna Convention leave sufficient room for the
interpreter to take into account changing situations in which the treaty is to be applied,
including possible changes to the ordinary meanings of terms over time,9 as long as the
interpretation remains grounded in the intention of the parties. Certain aspects of the treaty
will have a bearing on the interpretation thereof, such as duration – parties that have
concluded a treaty of unlimited duration would likely have intended or at least would have to
be aware of the effect of changing circumstances on interpretation – and scope – treaties that
are of application to a specific situation, as opposed to treaties of more general scope, with
more detailed provisions would likely narrow the interpretive leeway.
Contending with the intentions of the parties will restrict the latitude interpreters have
to impart meaning to a treaty. In ICJ jurisprudence, this has been qualified by the principle of
effectiveness, which is invoked to give effect to legal provisions in line with the intentions of
the parties and in accordance with the rules of international law.10 When states enter into
legally binding arrangements, in good faith, the expectation is that of fulfilling the obligations
and object and purpose of the treaty by giving effect to the provisions, and the treaty should
be interpreted in this way. This is the essence of the principle of effectiveness, or ensuring

3
For a more complete discussion of the topic of interpretation see, inter alia, Gardiner, Treaty Interpretation.
4
The ICJ has held that Articles 31-33 of the Vienna Convention reflect customary international law on several
occasions such as in the Territorial Dispute case (Libyan Arab Jamahiriya/Chad), Kasikili/Sedudu Island case
(Botswana/Namibia), La Grand Case (Germany/United States of America), and Sovereignty over Pulau Ligitan
and Pulau Sipadan case (Indonesia/Malaysia).
5
See, for instance, Lauterpacht, Restrictive interpretation and the principle of effectiveness, p. 73; Brownlie,
Principles of International Law, p. 632; Navigational Rights case, Costa Rica v. Nicaragua, ICJ Reports, par. 63.
6
Brownlie, p. 634.
7
VCLoT, Article 32.
8
See, for instance, the ICJ advisory opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory in which the Court uses the travaux preparatoires to determine the intentions of
the drafters of the Fourth Geneva Convention, ICJ Reports 2004, par. 95.
9
Such as with respect to the term “comercio” in the Navigational Rights case, supra note 5: “The Court
concludes from the foregoing that the terms by which the extent of Costa Rica’s right of free navigation has been
defined, including in particular the term ‘comercio’, must be understood to have the meaning they bear on each
occasion on which the Treaty is to be applied, and not necessarily their original meaning”, paras. 70-71.
10
Fisheries Jurisdiction case (Spain v Canada), ICJ Reports 1998, par. 52: “this principle [effectiveness] has an
important role in the law of treaties and in the jurisprudence of this court.” See also Shaw, supra note 2, p. 678-
679.

76
that treaties have their proper effect.11 However, it has been put forward that it is not up to the
interpreter (i.e. international tribunal) to read meaning into a treaty based on its own
assumptions of the international interest in order to arrive at an “effective” result; it could be
that the parties intended for the operation and scope of a treaty to be limited and thus perhaps
not fully effective in an interpreter’s conception.12 While this may ostensibly be so, with due
deference to the intentions of the parties, erring on the side of effectiveness13 by interpreting a
treaty text in such a way as to realize the object and purpose, seems both logical and desirable
so as not to deprive entering into binding arrangements, and their scope and objectives, of
meaning. This is not to say, though, that interpreters can or should depart from the standard
application of the rules of treaty interpretation; new meanings cannot simply be imparted to
terms in a treaty. Rather, there could be circumstances in which guidelines for giving effect to
an ambiguous or general treaty provision could impact the interpretation in the interest of
effectiveness even if not the express intention of the parties, or when the intention of the
parties is not clear. This is, of course, an arguable course of action and “effectiveness” is a
rather subjective concept.
The limited scope, albeit with unlimited duration, of the component legal instruments
of the international legal framework for nuclear security is clearly a conscious decision to
leave substantial discretion to states in order to account for what are perceived as national
security concerns, having to do with the sensitivities of the materials, facilities and processes
involved. For this reason, the underlying principle of the framework is that responsibility for
nuclear security rests solely and entirely with the state.14 However, as weaknesses in the
framework have been revealed and circumstances, such as the threat environment, have
changed, states have taken steps to strengthen the regime, impacting the way the legal
components of the regime are considered over time. It is also essential to mention that, except
for the criminalization provisions, the nuclear security-related treaties’ operational provisions
are primarily formulated in terms of general objectives – i.e. establishment, implementation
and maintenance an appropriate physical protection regime applicable to nuclear material and
nuclear facilities under its jurisdiction15 – and principles, leaving substantial room for
(evolutive) interpretation as well as state discretion in how to implement the rules. There is
thus a certain evolutive capacity built in to the relevant treaties. The evolutive aspect can be
helped along over time by changing interpretations.

V.3 Evolution of treaty regimes: subsequent agreements and subsequent practice16

Paragraphs 3(a) and 3(b) of Article 31 of the Vienna Convention, which recognize the role of
subsequent agreement and subsequent practice in interpreting treaties, represent the feature of
treaty interpretation designed to ensure evolving circumstances are accounted for in a way
consistent with the agreement of the parties.17 In fact, subsequent agreement and subsequent
11
See A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, p. 393.
12
Lauterpacht, supra note 5, p. 69.
13
The “effectiveness principle” is often contrasted with the “restrictive interpretation”, an approach that defers to
state sovereignty. The effectiveness principle generally prevails over restrictive interpretation in international
jurisprudence. A famous example is the Acquisition of Polish Nationality case before the Permanent Court of
International Justice, Advisory Opinion of 15 September 1923, PCIJ Series B, No 7, 16-17.
14
See CPPNM as amended, Article 2(2).
15
CPPNM as amended, Article 2A(1).
16
The International Law Commission has conducted extensive work on the topic “Treaties over time”, and has
focused in particular on “Subsequent agreements and subsequent practice in relation to the interpretation of
treaties” under Special Rapporteur Georg Nolte. The purpose of this section is not to rehash the work done by
the ILC but rather to concentrate on a couple of specific aspects of relevance to the international legal framework
for nuclear security.
17
G. Nolte, Treaties and Subsequent Practice, p. 3.

77
practice can help determine whether parties intended for certain terms or provisions to be
capable of evolving over time.18 Fitzmaurice pointed out, referring in particular to the concept
of subsequent practice, that conduct of the parties in carrying out the provisions of a treaty
provides the clearest evidence with regard to its correct interpretation.19 Subsequent
agreement and subsequent practice are generally differentiated by form – the former being an
agreement between states parties reached after conclusion of a treaty regarding interpretation
of the treaty or application of its provisions, and the latter being conduct in the application of
a treaty that establishes agreement of the parties regarding interpretation of the treaty. 20 Each
would have the same effect in practice if the action concerns agreement of the parties
regarding interpretation of a treaty. The key seems to be element of consent, or the agreement
of the parties as to the interpretive value of the act.21 Though agreement often connotes a
formal accord, there is no reason that such agreement must be in treaty form or have the same
formal status as the instrument it concerns; rather, regardless of the form, the test is whether it
establishes unambiguously the understanding among parties of agreed interpretation.22
Subsequent agreement establishing agreed interpretation of a treaty or application of its
provisions is ostensibly easier to identify than subsequent practice. The WTO Appellate Body
has provided some exposition of what constitutes subsequent practice in international law,
namely a “‘concordant, common and consistent’ sequence of acts or pronouncements which is
sufficient to establish a discernable pattern implying the agreement of the parties regarding its
interpretation.”23 It may be difficult to recognize subsequent practice in situations when
explicit pronouncements demonstrating practice might be scarce, when acts giving effect to a
treaty and thereby establishing interpretation are not readily identifiable as such, or when such
acts are conducted in a secretive manner due, for instance, to domestic sensitivities. That said,
there is some room for accounting for various scenarios – for instance, there is no fixed
requirement for the precise number of states parties that need to be engaged in subsequent
practice in order to establish the agreement, only that there is a common understanding
regarding interpretation of the treaty, which could be indicated even when parties remain
silent.24 However, the clearest cut cases would involve demonstrable consent on the part the
parties, as in the taking of decisions related to treaty interpretation by consensus. The ICJ
fairly recently in the Whaling in the Antarctic case gave some credence to consensus being a
requirement for subsequent practice when it determined that certain resolutions of the
International Whaling Commission were not to be regarded as subsequent agreement for the
purposes of interpreting Article VIII of the Whaling Convention because they were adopted
without the support of all states parties.25

18
International Law Commission, ‘Subsequent agreements and subsequent practice in relation to the
interpretation of treaties: Text of the draft conclusions provisionally adopted by the Drafting Committee on first
reading,’ A/CN.4/L.874, 6 June 2016.
19
G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951-54: Treaty Interpretation
and Other Treaty Points,’ British Yearbook of International Law (1957), p. 223.
20
International Law Commission, supra note 113.
21
J. Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International
Organizations, 2013 Yale Journal of International Law, no. 2, pp. 307-316.
22
R. Gardiner, Treaty Interpretation, pp. 208-219.
23
World Trade Organization, Japan - Taxes on Alcoholic Beverages, Report of the Appellate Body, AB-1996-2,
pp. 12-13.
24
Supra note 114.
25
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, par. 83.
This gets, in particular, at the ability of a treaty organization to interpret its constituent instrument. Arato points
out that the ICJ in other situations, namely the advisory opinions in the Certain Expenses of the United Nations
case (1962) and Legal Consequences of the Construction of a Wall case (2004), relied on resolutions of the
General Assembly as indication of subsequent practice in interpreting the UN Charter that on several occasions
had been taken by majority vote with significant dissent; see J. Arato, ‘Subsequent Practice in the Whaling Case,

78
 There seems to be no restriction as to the form subsequent agreement need take to be
regarded as such for the purposes of interpretation, nor as to the type of acts that could
constitute subsequent practice.26 It suffices for the current discussion to focus in on a couple
specific sources that could indicate subsequent agreement/practice, which are common in the
area of international arms control law generally and/or, as mentioned above, integral to the
legal framework of nuclear security. These are, namely, the decisions taken in the course of
treaty review conferences and certain types of non-binding instruments. Each of these is of
particular relevance to a discussion of further strengthening the nuclear security framework.
The CPPNM (as amended), for instance, foresees a process for regular review of the
interpretation and adequacy of the treaty in light of changing circumstances, and several of
the non-binding nuclear security instruments are explicitly related to implementation of the
relevant treaties, namely the CPPNM (as amended) and ICSANT. It can be argued that for a
treaty such as the CPPNM (as amended), whose provisions are formulated in terms of general
objectives and principles, subsequent agreement and practice take on a particular importance
in interpretation, in giving effect to the treaty, and in terms of assessing the effectiveness of
the treaty. In addition, and highly important for international law as a tool of nuclear security
governance, adaptability of a treaty regime through subsequent agreement and/or practice is
key to the regime’s viability, allowing changing circumstances to be taken into account and
duly addressed. Such evolution by means of interpretation, however, is not per se equivalent
to modifying or amending a treaty, though the result of subsequent practice could in effect be
treaty modification.27 Modification is more typically realized through dedicated treaty
processes such as amendment procedures, for which both the CPPNM (as amended) and
ICSANT contain provisions.

V.3.1 Review conferences

Many multilateral treaties foresee a process to review the operation of the instrument to
ensure that the purpose and objectives are being realized, thus strengthening the treaty’s
effectiveness. While variations exist in review conference provisions and rules of procedure,
the basic aims are fairly standard and procedures generally involve aiming for consensus on
matters of substance, voting being ruled out until all efforts at achieving consensus have been
exhausted.28 The value of such processes is clear as they serve at certain intervals, often three
to five years, to take stock of developments affecting the treaty’s application, status of
implementation, adequacy of the treaty’s provisions in light of changing circumstances, as
well as serving to develop common understandings of treaty provisions among states parties.
Review conferences generally provide a forum and process for consideration of treaty
implementation that could serve to establish subsequent agreement in the sense of VCLoT
Article 31. Though subsequent agreement and subsequent practice can take a variety of forms,
whether or not review conference outcomes constitute such subsequent agreement and/or
practice will seem to depend on a variety of aspects: in part on the treaty text and the specifics

and What the ICJ Implies about Treaty Interpretation in International Organizations,’ EJIL: Talk!, 31 March
2014.
26
See I. Buga, The Modification of Treaties by Subsequent Practice: The Implications of Practice Going
Beyond the Limits of Treaty Interpretation, PhD Dissertation (2015), chapter 2; T. Coppen, Preventing the
Spread of Nuclear Weapons, pp. 74-78.
27
See I. Buga, The Modification of Treaties by Subsequent Practice, Oxford: Oxford University Press (2018).
28
See Review Conference of the Parties to the Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (Geneva 3–21
March 1980), BWC/CONF.I/2 (2 January 1980). Nolte points out that the clause on consensus-based substantive
decision making developed under the BWC, with minor variations, has become the standard; Nolte, supra note
15, p. 375.

79
of the review provision, the rules of procedure, and the existence of a manifest intention of the
states parties that agreement in the context of the review conference represents the legally
authentic interpretation of treaty provisions.29 The aspect, for instance, of developing common
understandings of treaty provisions decided on by consensus, would seem prima facie to meet
the requirements for the establishment of subsequent agreement regarding interpretation of
the treaty. In the case of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT),
parties meet every five years to review the treaty article-by-article, thereby formulating
conclusions on the application of the provisions and deciding upon follow-on actions. The
consensus-based outcome documents of the NPT review conferences, while not adopted in
every cycle when consensus remains out of reach, have been considered as representing
subsequent agreement in the sense of Article 31(3)(a) of the Vienna Convention.30 The key
here is consensus, denoting the absence of dissenting opinions and thus demonstrating tacit
agreement by all parties (present). If there is no consensus, but rather outcomes adopted by
groups of parties, this could still have an impact on interpretation, depending for instance on
the specific provision and which states agree to the interpretation (perhaps particularly
affected states), but that is a more complicated determination of interpretive impact as
subsequent agreement/practice is based in principle on agreement of the parties as a whole.
States parties could also share information on implementation practice, as part of
national statements or national reports, which taken together could provide evidence of
concordant, common and consistent acts demonstrating subsequent practice in the meaning of
Article 31(3)(b) of the Vienna Convention, likely depending on the level of detail and ability
to demonstrate agreement on interpretation. These points will be discussed later in the study
in more specific detail when examining the upcoming review conference of the CPPNM as
amended, which will be held in 2021 in accordance with the provisions of the amendment.

V.3.2 Non-binding instruments

It seems a fairly clear case can be made for the possibility of certain outcomes of review
conferences representing subsequent agreement/practice having an effect on treaty
interpretation, but what about non-binding instruments, which play such a significant role in
the legal framework for nuclear security? Above it was mentioned that agreement, as in
“subsequent agreement” under Article 31 or subsequent practice for that matter, can take a
variety of forms and need not take on a formal form, such as that of a treaty. For instance, As
mentioned above, the ICJ has determined that non-legally binding, recommendatory
resolutions of treaty bodies, such as the UN General Assembly or the International Whaling
Commission, can represent subsequent agreement or subsequent practice in interpreting the
constituent instruments.31 The interpretive value would instead be based, inter alia, on the
relationship to the agreement being interpreted and the purpose (indicating agreed
interpretation) for which it is intended.32

29
See Coppen, Preventing the Spread of Nuclear Weapons, pp. 74-78. See also International Law Commission,
supra note…
30
D. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, p. 83. Asada is more hesitant to attribute the role
of subsequent agreement or subsequent practice to the NPT review conference outcome documents, one reason
being that it is almost impossible for all states parties to attend and therefore decisions do not represent the
interpretive intention of all states parties; M. Asada, ‘The Treaty on the Non-Proliferation of Nuclear Weapons
and the Universalization of the Additional Protocol,’ 2011 Journal of Conflict and Security Law, no. 1, pp. 3-34.
31
See, for instance, Whaling in the Antarctic (2014), Certain Expenses of the United Nations (1962) and Legal
Consequences of the Construction of a Wall (2004).
32
L. Crema in Nolte, supra note 15, p. 26. Crema is referring specifically to Memoranda of Understanding
(MoU) as raised in the Iron Rhine Arbitration, but this general argument holds true for all types of non-binding
instruments. In the Iron Rhine Arbitration, the Arbitral Tribunal concluded that principles and procedures set out

80
 In other words, if one can show that a non-binding instrument is 1) directly related to
the treaty being interpreted and 2) reflects the clear intention of the parties to put forth agreed
interpretation of the treaty’s provisions, this could serve as evidence of the non-binding
instrument as subsequent agreement. In some cases there could be an overlap, or link,
between subsequent agreement and subsequent practice to the extent that the interpretive
value of non-binding instruments as subsequent agreement are confirmed by subsequent
practice.33 The difficulty will be in determining if a particular threshold is met indicating that
the non-binding instrument is to be considered as subsequent agreement, absent direct
reference to such an intention of the parties in the treaty itself, perhaps contained in the non-
binding instrument or as part of records of meetings or discussions.

V.4 Concluding remarks

Interpretation of a treaty is not time-bound. That is, an agreement of parties as to

interpretation of a treaty concluded years after a treaty is adopted carries as much interpretive
weight as an agreement on interpretation concluded at the time of and in connection with the
adoption of a treaty. In fact, it stands to reason that in many cases, depending on variables
such as scope, purpose and duration of the treaty, conduct of parties over time in
implementing a treaty could provide stronger evidence of agreed interpretation than
understandings arrived at contemporaneously with the treaty’s conclusion. It all depends on
the intention of the parties, and ensuring that treaties have their effect in line therewith.
Treaty law accounts for evolutive necessity when it comes to interpretation, as well.
Particularly in the case of treaties, often of unlimited duration, covering areas susceptible to
frequently changing circumstances, it is desirable for parties to be able upon so agreeing to
adapt interpretations and thereby possibly adjust application of treaty provisions, if and when
necessary. It is important to point out that interpretive evolution is not the same as
modification of a treaty, done for instance through amendment procedure. Amendment, of
course, could too become prudent in light of changing circumstances, but that would be done
in conformity with procedural requirements under a treaty or, absent a treaty-specific
procedure, in accordance with general treaty law. This was done, for example, in the case of
the CPPNM when the situation, according to parties, necessitated expanding the scope of the
treaty. However, it may not be feasible or prudent to undertake formal modification of a
treaty, especially if circumstances change and require expedited action. The principles of
subsequent agreement and subsequent practice are the built-in feature of treaty interpretation
designed to account for evolving circumstances in line with the agreement of the parties.
These are principles that can be applied to, and can serve a clear role in the means and
methods of strengthening, the international legal framework for nuclear security, as will be
discussed further in subsequent chapters.

in an MoU in 2000 provided useful guidance as to what the parties viewed as “compatible with their rights under
art XII of the 1839 Treaty of Separation and the Iron Rhine Treaty”, Iron Rhine Arbitration, par. 175.
33
Ibid, p. 222.

81
82
Chapter VI: Elements of Legally Binding Instruments Applicable to Nuclear Security
Contents
VI.1 Introduction
VI.2 Overview of international instruments
VI.2.1 Nuclear security as counter-terrorism: criminal justice and collective security
VI.2.2 Effect of amendment on treaty relations when original text remains in force, and the case of new
parties
VI.3 Key treaty provisions and features of the international law applicable to nuclear security
VI.3.1 Security-related provisions of relevant instruments
VI.3.1.1 CPPNM (as amended)
VI.3.1.2 ICSANT
VI.3.1.3 Security Council Resolution 1540
VI.3.1.4 Early Notification Convention and Nuclear Assistance Convention
VI.3.2 Criminalization under the relevant instruments
VI.3.2.1 CPPNM (as amended)
VI.3.2.2 ICSANT
VI.3.2.3 Security Council Resolution 1540
VI.3.2.4 Terrorist Bombing Convention
VI.3.2.5 Maritime conventions
VI.3.2.6 Beijing Convention on International Civil Aviation
VI.4 Treaty-based mechanisms for information exchange
VI.5 Concluding Remarks

VI.1 Introduction

This chapter considers the legally binding instruments applicable to nuclear security at the
international level, namely multilateral treaties and UN Security Council resolutions. Relevant
treaties include, in addition to the CPPNM (as amended) and ICSANT, the International
Convention for the Suppression of Terrorist Bombings, the 2005 Protocol to the Convention
for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, the 2005
Protocol to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of
Fixed Platforms Located on the Continental Shelf, the 2010 Beijing Convention on the
Suppression of Unlawful Acts Relating to International Civil Aviation, the Convention on
Early Notification of a Nuclear Accident, and the Convention on Assistance in the Case of a
Nuclear Accident or Radiological Emergency. These treaties have fairly specific scopes, for
the most part criminalizing certain activities in certain circumstances or responding to
particular incidents, with the CPPNM (as amended) and ICSANT containing security-related
provisions. For the purposes of this study, the instruments have been chosen because of their
specific coverage of nuclear and/or other radioactive materials and/or related facilities and
activities. A number of them relate also to chemical and biological weapons and materials
and, as such, could be considered part of a CBRN security framework more broadly. There
are other instruments that are relevant due, for instance, to dealing with general aspects of
counter-terrorism, but for the sake of being concise, such instruments will remain outside of
the scope of the present study.1 With respect to Security Council resolutions, Resolution 1540
is of primary relevance.
The next chapter, then, will examine more closely the role played by related legally
non-binding instruments, of which the IAEA Nuclear Security Series documents numbers 13-
15 and 20,2 which in the IAEA’s estimation when implemented together in their entirety make

1
See, for example, the International Convention for the Suppression of the Financing of Terrorism (Terrorism
Financing Convention) and the related UN Security Council Resolution 1373.
2
Nuclear Security Recommendations on Physical Protection of Nuclear Material (no. 13, also known as
INFCIRC/225/Rev.5), Nuclear Security Recommendations on Radioactive Material and Associate Facilities (no.
14), Nuclear Security Recommendations on Nuclear and Other Radioactive Material out of Regulatory Control
(No. 15), and Objective and Essential Elements of a State’s Nuclear Security Regime (Fundamentals, No. 20).

83
up a comprehensive national nuclear security regime, and the Code of Conduct on the Safety
and Security of Radioactive Sources are of primary importance.
That the full range of these instruments is integral to the international legal framework
as a whole is made clear, for instance, by their inclusion in the IAEA’s Integrated Nuclear
Security Support Plan (INSSP) guidance document that lists the elements of a comprehensive
nuclear security regime, as well as in the Resolution 1540 matrix that lists instruments states
should implement to meet their obligations under the resolution.3 However, they have not
further been comprehensively dealt with, for instance, in the context of the NSS process. It is
not surprising that this is the case seeing that the CPPNM as amended and ICSANT are the
most directly relevant to the scope of nuclear security. Nevertheless, and certainly in the
absence of universality of the CPPNM as amended and ICSANT, the range of instruments
should be considered as a whole. The primary concern is, of course, the strength of the
international legal framework for nuclear security as a whole, which one can broadly think of
as a function of three components: reach (states agreeing to and implementing obligations at
the national level), compliance (states acting in accordance with their commitments), and
adequacy (the framework being sufficient to achieve the objectives for which it was adopted).
Therefore, going forward in examining the framework and identifying any shortcomings, it is
important to at least take account of the implications of this full range of instruments, what
their relevant provisions are and what implementation would look like.
Before turning to a detailed discussion of the international instruments, it is
worthwhile to acknowledge the added layer that is provided by instruments adopted and
initiatives undertaken at the regional level, though a more detailed analysis is outside the
scope of the present study. While the threat of nuclear terrorism and other malicious acts
involving nuclear and other radioactive material and related facilities is global, regional
actions are being undertaken that allow like-minded neighboring states, states with similar
capacities, security interests and/or threat environments, or states that are part of regional
organizations (with constitutive instruments assigning competencies relevant to nuclear
security) to supplement or go beyond the global framework as deemed necessary. Such
regional initiatives and structures range from political partnerships, such as the Southeast Asia
Radiological Security Partnership (RRSP), to formal legal institutions with the competencies
to make laws binding on member states, as in the case of the European Union (EU). There
may be opportunities for enacting or supporting nuclear security measures, depending on
powers and functions, under the auspices of other regional organizations including the
Association of Southeast Asian Nations and the Organization of African Unity (OAU)/the
African Union (AU). Perhaps the fairly extensive legal regulation within the EU,4 for
example, could provide a benchmark for similar initiatives in other regions. The RRSP, for its
part, has encouraged closer cooperation between EU and RRSP programs. The RRSP, as a
platform, has previously identified a lack of resources to properly carry out regulatory

3
IAEA, ‘Integrated Nuclear Security Support Plan Template,’ DRAFT Version 3, July 2012 (on file with
author). Being a draft, it could still be subject to revision. The list of international instruments is included under
the objective “Adhere to legally binding international instruments relevant to nuclear security.” Application of
non-binding international instruments is also included, where reference is made to the Code of Conduct for the
Safety and Security of Radioactive Sources (Code of Conduct), the Supplementary Guidance to the Code of
Conduct on the Import and Export of Radioactive Sources (Import/Export Guidance) and INFCIRC/225/Rev.5,
recommendations on the Physical Protection of Nuclear Material and Nuclear Facilities. See also ‘Approved
1540 Committee Matrix (2017)’, available at http://www.un.org/en/sc/1540/national-implementation/1540-
matrices/matrix-template.shtml (accessed on 6 November 2017).
4
See, for example, Directive 2003/122/EURATOM on the control of high-activity sealed radioactive sources
and orphan sources. This Directive was recently repealed by the Directive 2013/59/Euratom (new Basic Safety
Standards Directive – BSS), which incorporates its main provisions and is meant to harmonize them with the
IAEA guidance on radioactive sources.

84
activities, such as drafting legislation and implementing licensing measures, as a concern in
the region and has singled out the management of disused radioactive sources, including
legacy sources such as radium needles, as a continuing challenge. It is clear that there is a
disparity in terms of resources and capacity among various regions, which needs to
specifically be addressed in order to sufficiently deal with the trans-boundary threat of nuclear
terrorism. However, the RRSP process has been instrumental in helping states in the region
develop and strengthen law, regulations and physical security at facilities. This demonstrates
the value, importance, and potential of supplementing international measures with regional
cooperation, thereby serving to strengthen the global nuclear security regime in general.

VI.2 Overview of international instruments

The international legal framework is comprised of two main categories of instruments –

legally binding and legally non-binding. As discussed in the chapter on governance, these two
categories of instruments function together, and how the legally binding and non-binding
instruments interact is key to the strength of the legal framework as a whole. Non-binding
instruments work best in conjunction with legally-binding instruments, for instance, because
at least to a certain extent a basis of legal obligation and legal accountability is necessary. In
this model, only legally binding obligations provide guarantees through the form of
commitment, procedures for cooperation, clarification or coordination, and benchmarks aimed
at harmonization. Non-legally binding instruments, on the other hand, provide flexibility (they
can be adopted more rapidly, and amended or replaced relatively quickly if they do not meet
current needs), necessary details to fill in where legal commitment is not achievable or not
appropriate,5 and international standards where states are reluctant to submit to legally
binding obligations while still recognizing the need for a certain level of harmonization.
Table 1: Instruments that make up international legal framework (sources: IAEA, UNODC, IMO, ICAO)
International instrument Substance Organization

Security-related Criminalization Cooperation IO Role

Convention on the
Physical Protection of X X X X (IAEA)
Nuclear Material
(CPPNM)
CPPNM Amendment X X X X (IAEA)
International Convention
for the Suppression of X X X X6 (IAEA)
Acts of Nuclear Terrorism
(ICSANT)
International Convention
for the Suppression of
Terrorist Bombings X
(Terrorist Bombing
Convention)
Protocol to Convention for
the Suppression of
Unlawful Acts Against the X X (IMO)
Safety of Maritime
Navigation (2005 SUA
Protocol)
2005 Protocol to the 1988
Protocol for the
Suppression of Unlawful
Acts against the Safety of X X (IMO)

5
For instance, providing suggestions on specific aspects of national regulation or legislation.
6
UN Secretary-General is the depositary.

85
 Fixed Platforms Located
on the Continental Shelf
(2005 Protocol to the 1988
Fixed Platforms Protocol)
Convention on the
Suppression of Unlawful
Acts Relating to X X (ICAO)
International Civil
Aviation (2010 Beijing
Convention)7
Convention on Early
Notification of a Nuclear X X X (IAEA)
Accident (Early
Notification Convention)
Convention on Assistance
in the Case of a Nuclear
Accident or Radiological X X X (IAEA)
Emergency (Assistance
Convention)
Code of Conduct on the
Safety and Security of X X
Radioactive Sources
(Code of Conduct)

Table 1 lists the relevant instruments to which commitment is directly expressed by

states – through the process of becoming party to a treaty or, in one case, through expression
of political support for the non-legally binding Code of Conduct on the Safety and Security of
Radioactive Sources.8 For each of the instruments, the substance (security-related provisions
and criminal provisions) and the organization (inter-state coordination and cooperation and
the role of international organizations) elements are shown. With respect to reach, none of the
relevant treaties are nearly universal. In addition, it is not necessarily the case that the same
group of states is party to each of the instruments, meaning that legal obligations could differ
among states thus potentially undermining the need for at least basic harmonization of certain
measures.
It is immediately noticeable that only the CPPNM (as amended) and ICSANT check
all the boxes. These are the two treaties that can most appropriately be called nuclear security
treaties, due to the fact that they involve the preventive, security aspect (i.e. physical
protection-related provisions), as well as criminalization and cooperation provisions. The
treaties have both an arms control law and criminal justice character.
The CPPNM (as amended) focuses on the physical protection of nuclear material and
nuclear facilities used for peaceful purposes, as defined in the treaty, and obligates states
parties in general to establish and maintain an appropriate physical protection regime for
those materials and facilities under the state party’s jurisdiction. Certain specific measures are
required, such as establishing a legal and regulatory framework and setting up a competent
authority or authorities responsible for implementing that framework. Further measures are
left up to the state party’s discretion. The CPPNM (as amended) lists a number of physical

7
Not yet in force.
8
See Measures to Strengthen International Cooperation in Nuclear, Radiation and Transport Safety and Waste
Management, GC(47)/RES/7(B). In this resolution a process is laid out for states to express commitment: writing
to the Director General indicating support and endorsement of the IAEA’s efforts to enhance safety and security
of radioactive sources, that it is working toward following the guidance contained in the Code, and that it
encourages other states to do the same), par. 4. It is emphasized that the procedure for expressing commitment
has no legal effect and is exceptional, not to be seen as a precedent for other codes of conduct developed by the
IAEA or other UN bodies (par. 6). The Nuclear Security Series documents are not included in the table due to
the fact that states do not explicitly express consent to be bound by or to otherwise politically commit to them.

86
protection principles that the state party is to apply in so far as reasonable and practicable.9
Under the amended convention, this obligation applies to all material and facilities for
peaceful purposes in use, storage or transport, domestically or internationally. This goes
further than the original text that only concerned physical protection incidental to
international transport. The specific reference to peaceful purposes means that material and
facilities that are part of military programs, not just material for use in weapons but also, for
instance, fuel for naval reactors to power submarines, is outside the scope of the convention.
There is a paragraph in the preamble that refers to physical protection of nuclear material and
nuclear facilities in military use being the responsibility of the states parties that possess such
material and facilities. The preambular paragraph goes on to describe such material and
facilities as already being subject, and will continue to be subject, to strict physical protection
measures. The CPPNM (as amended) goes on to establish a number of criminal offenses
related inter alia to receipt, theft, use and transfer of nuclear material, and the amended
convention adds criminal offenses concerning illicit trafficking and sabotage beyond what
was in the original treaty text.
ICSANT for its part does not contain the restriction to nuclear material, with its scope
encompassing all radioactive material, nor to material and facilities only used for peaceful
purposes. However, ICSANT is primarily focused on establishing criminal offenses. It does
set out an obligation of conduct, which will be considered further below, for states parties to
make every effort to adopt appropriate measures for ensuring the physical protection of
radioactive material (without reference to related facilities). Importantly, again, this is an
obligation related to physical protection of all radioactive material – peaceful and military –
under a state party’s jurisdiction.

VI.2.1 Nuclear security as counter-terrorism: criminal justice and collective

security

For the most part, the international legal instruments applicable to nuclear security are
generally categorized in the body of “international conventions and protocols relating to
terrorism.”10 The security-related element, however, is an anomaly in the typical counter-
terrorism treaty structure. In the case of the CPPNM, which is clearly focused on the security-
related aspects, considering it strictly in the counter-terrorism context is limiting. Rather, due
to the security focus, it could be argued that the CPPNM is an arms control law instrument
with criminalization provisions. The Chemical Weapons Convention, for instance, requires
states parties to prohibit natural and legal persons anywhere on its territory or in any other
place under its jurisdiction from undertaking activities prohibited to a state party under the
Convention, and explicitly states that this prohibition includes enacting penal legislation with
respect to such activity.11 The penal legislation is to extend to activities of natural persons
possessing the state’s nationality anywhere, as well as to acts committed in its territory or in
places under its jurisdiction.12 This example is meant to say that inclusion of criminalization
provisions in itself does not a make an instrument into a counter-terrorism convention, and as
will be discussed further below, criminalization under the CPPNM covers but extends beyond
what would be considered terrorist acts. Nonetheless, as criminalization is a fundamental
element of the international legal framework for nuclear security and as a number of the
relevant instruments fit the counter-terrorism mold, which to a certain extent the CPPNM

9
Article 2A.
10
S/RES/1373 (2001), par. 3(e). The Early Notification Convention and the Assistance Convention are
considered within the nuclear safety sphere.
11
CWC, Article VII, para. 1(a).
12
CWC, Article VII, paras. 1(a) and 1(c).

87
does as well, the counter-terrorism dimension does provide important context to the legal
framework.
The issue of terrorism entered the international agenda in the 1930s, being first
addressed by the League of Nations. Under the League’s auspices, a Convention for the
Prevention and Punishment of Terrorism was adopted, by which states recognized the threat
posed by terrorism to international relations, peace and security, and which required states to
criminalize terrorist offenses. Though the Convention never entered into force, it ascribed to
the issue of international terrorism the classification of delictus juris gentium, and set the
stage for the multinational criminal justice approach13 to counter-terrorism. Since then,
international approaches to international terrorism have been taken up primarily within the
United Nations, though specialized agencies such as the IAEA, the International Maritime
Organization and the International Civil Aviation Organization play a clear role when it
comes to approaches that touch on their respective functions and areas of activity.14
Terrorism is a term that lacks a specific legal meaning at the international level. This
reflects disagreement as to the factors that should characterize terrorism – such as certain
types of actions, prohibited targets, purposes or motives behind the actions, or traits of the
perpetrators.15 When a definition is given, it tends to be circular, with some variation on
terrorism being an act intended to cause a state of terror.16 Nonetheless, terrorism in general,
without a precise definition, has been outlawed in certain circumstances, such as in times of
armed conflict.17 One reason for the definitional impasse is reflected in the adage “one
person’s terrorist is another person’s freedom fighter,” or put another way, that national
liberation movements must be distinguished from terrorist groups. This was the basic
argument of the Group of 77 during the discussions in the Ad Hoc Committee on
International Terrorism established by the UN General Assembly in the 1970s.18 Higgins
argues that terrorism is, in fact, a term lacking legal significance; rather, it is simply a
convenient way of referring to a variety of acts, whether carried out by states or non-state

13
States parties to the various counter-terrorism treaties are required to criminalize and establish certain forms of
jurisdiction over given offenses, while crimes are enforced in national criminal justice systems rather than by an
international judicial body. See N. White, ‘The United Nations and Counter-Terrorism: Multilateral and
Executive Law-Making,’ in A.M. Salinas de Frías, K. Samuel and N. White (eds.), Counter-Terrorism:
International Law and Practice, Oxford: Oxford University Press (2012), pp. 54-82.
14
The Counter-Terrorism Implementation Task Force (CTITF) set up by the UN Secretary-General in 2005 and
endorsed in the General Assembly’s 2006 United Nations Global Counter-Terrorism Strategy in order to
strengthen coordination and coherence of international counter-terrorism efforts, includes 31 entities ranging
from the IAEA, IMO and ICAO to the Organization for the Prohibition of Chemical Weapons (OPCW) to
INTERPOL to the IMF and World Bank. Participation in the CTITF does not change the powers and functions
of the various bodies.
15
R. Higgins, ‘The General International Law of Terrorism,’ in R. Higgins and M. Flory (eds.), Terrorism and
International Law, New York: Routledge (1997), p. 15.
16
See, for instance, A/RES/49/60 (1994), Measures to eliminate international terrorism: “Criminal acts intended
or calculated to provoke a state of terror in the general public, a group of persons or particular persons for
political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical,
ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.”
17
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), 12 August 1949, 75 UNTS 287, Article 33: “Collective penalties and likewise all measures of
intimidation or of terrorism are prohibited”; Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS
3, Article 51(2): “Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited”; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609,
Article 4: “all acts of terrorism” directed against “all persons who do not take a direct part or who have ceased to
take part in hostilities” “are and shall remain prohibited at any time and in any place.”
18
See G. Guillaume, ‘Terrorism and International Law,’ 2004 International and Comparative Law Quarterly,
no. 3, pp. 537-548.

88
actors, that are widely condemned and in which the targets are protected and/or the methods
used are deemed unlawful.19
For these reasons, the establishment of a general normative framework for addressing
international terrorism has not been possible, but it has also not been necessary in practice in
order to take action with respect to certain terrorism-related issues. Even, in the absence of a
general definition, a body of counter-terrorism treaties have been adopted – 16 of them since
1963 – requiring states parties to criminalize certain specifically enumerated acts, ranging
from acts against directed against aircraft and civil aviation to hostage-taking to nuclear
terrorism. For the most part, each of the counter-terrorism conventions contains standard
elements – the listing of certain activities that are to be criminalized in domestic systems of
states parties; the obligation to establish specified grounds for jurisdiction, mostly based on
the active personality, territorial and universality principles,20 though states may often also
establish jurisdiction based on the passive personality and protective principles; and the
obligation aut dedere aut judicare (extradite or prosecute). This latter element is not without
its issues, particularly in the case of state-sponsored terrorism, an example of which was the
bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988. While the U.S. (aircraft)
and the United Kingdom (territory on which act was perpetrated) each had jurisdiction to
prosecute the alleged perpetrators pursuant to the 1971 Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), the alleged
offenders were in Libya, whose state officials were implicated in the act. Libya consequently
breached its legal obligation under the Montreal Convention to either extradite or prosecute
the alleged offenders, prompting the UN Security Council to get involved. First, the Security
Council requested Libya to cooperate in establishing responsibility for the bombing, 21 and
when it failed to do so, the Security Council took action under Chapter VII,22 having
determined that Libya’s failure to demonstrate renunciation of terrorism through concrete
actions and its continued failure to respond to the Security Council’s previous requests for
cooperation as constituting a threat to international peace and security, thereby setting up a
sanctions regime to force Libya to cooperate and hand over the suspects. In the preamble of
Resolution 748, the Security Council invokes Article 2(4) of the UN Charter,23 drawing the
connection between state involvement in terrorist activity and the use of force, and thereby
restates nearly word-for-word the text of the General Assembly’s 1970 Friendly Relations
Declaration24 in fleshing out the link thusly:

Reaffirming that, in accordance with the principle in Article 2, paragraph 4, of the Charter of the United
Nations, every State has the duty to refrain from organizing, instigating, assisting or participating in
terrorist acts in another State or acquiescing in organized activities within its territory directed towards
the commission of such acts, when such acts involve a threat or use of force.

19
Supra note 15 at 28.
20
As codified in the relevant treaties, universality refers to taking measures to establish jurisdiction over the
enumerated offenses in cases where the alleged offender is present in the states territory and it has no claims to
jurisdiction based on personality or territoriality.
21
S/RES/731 (1992).
22
S/RES/748 (1992).
23
“All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.”
24
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States
in accordance with the Charter of the United Nations, A/RES/2625 (XXV), 24 October 1970. The only
difference between the Friendly Relations Declaration text and Security Council Resolution 748 is the former
includes acts of “civil strife” in addition to acts of terrorism.

89
Instead of making a sweeping statement that the phenomenon of international terrorism
constitutes a threat to international peace and security, as it would later do, the Council in
Resolution 748 is convinced that the suppression of acts of terrorism, including when a
state is directly or indirectly involved, is essential to the maintenance of international
peace and security. White cites this event as marking the beginning of the Security
Council’s use of Chapter VII enforcement action – the system of collective security – to
circumvent and occasionally supersede the conventional transnational criminal justice
approach that was prevalent at the time.25 The legal justification for this type of action is
ostensibly Article 103 of the UN Charter, by which obligations states have under the
Charter prevail over all other obligations that states have under any other international
agreement. Such an argument would not hold up, however, if the Security Council were
acting ultra vires.
In the immediate aftermath of the terrorist attacks of 11 September 2001, the Security
Council adopted a resolution declaring the acts “like any act of international terrorism” to
constitute a threat to international peace and security.26 This broad formulation was a step
away from situation-specific determinations of threats to international peace and security, and
provided the basis for the Security Council to use Chapter VII decisions to legislate against
international terrorism.27 The first such example of this was Resolution 1373 requiring
member states, inter alia, to enact laws aimed at preventing and suppressing the financing of
terrorist acts, including the criminalization of the provision or collection of funds by nationals
or on the states’ territories with the intention that such funds be used, or with the knowledge
that they are to be used, to perpetrate terrorist acts.28 This type of criminalization provision
would normally be found in a counter-terrorism convention and, in fact, this Resolution drew
directly from the Terrorism Financing Convention that had already been adopted but had not
yet entered into force. As such, the Security Council circumvented multilateral treaty-making
and created obligations that were immediately and universally binding on all UN member
states. As mentioned in the chapter on governance, the treaty-creation process is cumbersome
and does not allow for quick reaction in the case of evolving threats. The Security Council is
empowered to get results when a traditional law-making process would take too long or end
up with lacunae due to deliberation and consensus-building among hundreds of states. The
Security Council can also step in where lacunae already exist, for example when the nuclear
non-proliferation regime cannot account for the threat of nuclear terrorism by non-state
actors, which was a key reason behind the adoption of Resolution 1540, a similarly legislative
resolution.
This is not to say that invoking the system of collective security has replaced, or
should replace, the conventional counter-terrorism approach. Through participation in treaty
negotiation, rules and norms gain legitimacy and become more acceptable to states, leading to
greater commitment and compliance pull. To reconcile this in fact, it has been suggested that
resort to legislation by the Security Council should in principle aim to fulfill three main
criteria that were raised in the context of debates regarding Resolution 1540: 1) the subject is
of essential, common international interest, 2) urgent action is needed and 3) the decision-
making process and Security Council composition is fair and representative.29 At the moment,

25
White, supra note 22, p. 58.
26
S/RES/1368 (2001), par. 1. This statement was reaffirmed in S/RES/1373 (2001).
27
See S. Talmon, ‘The Security Council as World Legislature,’ 2005 American Journal of International Law,
no. 1, pp. 175-193.
28
S/RES/1373 (2001), par. 1.
29
M. Asada, ‘Security Council Resolution 1540 to Combat WMD Terrorism: Effectiveness and Legitimacy in
International Legislation,’ 2008 Journal of Conflict & Security Law, no. 3, p. 325.

90
these two approaches exist in parallel, with a preference to be given, where possible and
appropriate, to the conventional approach.

VI.2.2 Effect of amendment on treaty relations when original text remains in

force, and the case of new parties

As there has been significant discussion since the entry into force of the CPPNM amendment
regarding whether it is possible for third states, those not yet party to the original treaty, to
accede directly to the amended convention instead of first having to become party to the
original treaty, it is worth briefly touching on the subject here.30 The importance has to do
with the added obstacle involved in having to carry out two processes consenting to be bound
in order to become party to the amended convention. The problem politically is clear: there is
no benefit to states at this point becoming bound by the original CPPNM now that the
amendment has entered into force greatly expanding the scope of the treaties provisions, and
thereby significantly strengthening the foreseen impact on nuclear security.
From the legal perspective, however, things are less clear. Guidance has been sought
from the IAEA as treaty depositary. The Agency follows the depositary practice of the United
Nations, according to which the CPPNM original text and the Amendment will coexist until
such time as all states parties to the CPPNM have ratified the Amendment.31 That much is not
controversial. The IAEA, then, takes the added step of contending that the Amendment,
which does not itself have the nature of a separate treaty, will until such time as all CPPNM
states parties have ratified, accepted or approved it, will only be open to states already party to
the CPPNM. This is a curious argument that does not seem to be in line with general treaty
law as set forth in Article 40 of the Vienna Convention. The reasoning appears to be that the
CPPNM itself, in Article 20,32 governs the process of becoming party to the Amendment,
meaning that the general treaty law does not apply. In addition, because the Amendment is
not in the form of a protocol, with its own final clauses on consent to be bound and entry into
force, its entry into force has not created a new, separate treaty to which “new states” can
directly become party.
The depositary practice of the United Nations is described as follows:

A difference should be drawn between an amending protocol and a supplementary protocol. The
purpose of an amending protocol is to alter the wording of an earlier treaty. Such was the case of the
protocol amending the Single Convention on Narcotic Drugs, 1961, of 25 March 1972. Such protocols
are normally open only to the parties to the treaty that is being amended, since they are purely
subsidiary, dependent agreements, having no other object than to amend the treaties, and hence it

30
This question has been raised during the 2016 Nuclear Security Conference, as well as during 2016 CPPNM
Points of Contact meeting held at the IAEA, among other occasions. Several countries, including the
Netherlands, have argued that the perspective put forth by the IAEA as treaty depositary is neither legally sound
nor politically desirable.
31
Derived from e-mail correspondence and in-person interview with an IAEA legal officer.
32
1. Without prejudice to article 16 a State Party may propose amendments to this Convention. The proposed
amendment shall be submitted to the depositary who shall circulate it immediately to all States Parties. If a
majority of States Parties request the depositary to convene a conference to consider the proposed amendments,
the depositary shall invite all States Parties to attend such a conference to begin not sooner than thirty days after
the invitations are issued. Any amendment adopted at the conference by a two-thirds majority of all States
Parties shall be promptly circulated by the depositary to all States Parties.

2. The amendment shall enter into force for each State Party that deposits its instrument of ratification,
acceptance or approval of the amendment on the thirtieth day after the date on which two thirds of the States
Parties have deposited their instruments of ratification, acceptance or approval with the depositary. Thereafter,
the amendment shall enter into force for any other State Party on the day on which that State Party deposits its
instrument of ratification, acceptance or approval of the amendment.

91
 would be meaningless for any state not already bound by the treaties to become party to such
protocols. Thus, before accepting any instruments, the Secretary-General must verify that the state
concerned is a party to the initial treaty. If it is not, and if participation in the initial treaty is possible,
the Secretary-General will so indicate to the state concerned, in order that it may then also participate
in the amending protocol, and accordingly the amended treaty. Once the amending protocol has
entered into force, however, other states may become parties to the amended treaty in relation to
parties to that treaty not bound by the amending protocol.33

The italicized part in the text above seems to reconfirm Article 40(5) of the VCLoT. The issue
seems to be, what treaty relations apply between states that become party to a treaty only after
entry into force of an amendment and states that remain party only to the original treaty. In
the legal commentary on this Article by the International Law Commission (ILC),34 it is
mentioned that states will frequently express consent to be bound by a treaty that has been
amended without indicating whether they intend to be bound by the original text or the
amended text. In such cases, the UN Secretary-General explained to the ILC that the
instrument of ratification is presumed to cover the treaty with its amendments (which appears
to contradict the IAEA OLA’s interpretation of depositary practice). According to the Vienna
Convention, there are two principles that are of importance. One is that a state has a right to
decide when becoming party to a treaty that has been amended but whose original text is also
still in force, whether to join only the original treaty, the original treaty plus the amendment,
or only the amended treaty. The second is that if no such intention is expressed, a state that
becomes party to a treaty after an amendment is entered into force is to be considered as a
party to the treaty as amended, and a party to the unamended treaty in its relations with other
states that are only party to the original text.35 In other words, in general treaty law, states can
directly become party to a treaty as amended, even when the original text also remains in
force. Such an approach would appear to be in line with UN depositary practice.
When it comes, then, to the argument on applicability the text of the CPPNM, Article
20 does not pertain to states not party to the treaty, but rather only states that are already party
to the CPPNM. Because the treaty does not contain provisions on entry into force of an
amendment for states not party to the CPPNM, general treaty law applies. As such, Article 40
of the VCLoT applies, as described above, which contradicts the approach of the IAEA.

VI.3 Key treaty provisions and features of the international law applicable to nuclear
security

The analysis here breaks the legal instruments down into fundamental features – namely what
will be termed security-related aspects and criminalization. Another fundamental feature of
the instruments are provisions on international cooperation and coordination,36 as well as a
mandated role for international organizations, primarily the IAEA. The most difficult part of
perpetrating an act of nuclear terrorism is obtaining the material – nuclear material or other
radioactive material – needed to create an improvised nuclear device or radiological dispersal
device, or an intact nuclear weapon. For that reason, measures aimed at preventing such an
act are focused in the first instance on establishing and maintaining an effective system for the
physical protection of the materials and related facilities – controlling the materials of nuclear
or radiological weapons. Some of the rules that have been developed for this purpose have a
clear administrative law character – inter alia, providing for the structure and functions of the

33
‘Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties’, prepared by the Treaty
Section of UN OLA (emphasis added).
34
Yearbook of the International Law Commission, 1966, vol. II.
35
VCLoT, Article 40, par. 5.
36
This could include provisions on information exchange, notification, consultation, review mechanisms, etc.

92
regulatory body and other competent authorities involved in rulemaking, licensing, inspection
and enforcement. There is also a clear technical element, which has to do with the actual
physical protection requirements – inter alia, implementing appropriate levels of protection
depending on the classification of materials, setting up border and transshipment controls, and
developing response and mitigation capacity. The security-related aspects contained in a legal
instrument for the most part take the form of obligations of conduct rather than result – using
the formulation “should” instead of “shall” – as domestic systems within which the measures
must be taken inevitably vary. It is also because much of the prescribed measures must be
taken by operators – nuclear industry – which are non-state entities not directly regulated by
international law.37 The result is a legal approach that favors setting benchmarks in the form
of baseline protection levels, recommendations or fundamental principles, such as that a state
should take steps to ensure that there is effective independence between the functions of the
competent authority and the functions of the body in charge of promoting and utilizing
nuclear energy, which states parties are expected to apply insofar as is reasonable and
practicable. 38 The benchmarking is then facilitated by the elaboration of physical protection
systems in the IAEA’s Nuclear Security Series guidelines.39
As such, the security-related approach is the key feature of the international law
applicable to nuclear security, and one whose complexity reflects the dual-use dilemma
presented by nuclear energy. Dual-use refers to materials, technologies and facilities that can
be employed both for beneficial purposes and to cause harm. However, different from, for
instance, pathogens that in the same variation can spread disease as a biological weapon or be
used to help develop vaccines, nuclear material that is “weapons-grade” is not the same as
nuclear material that is needed for peaceful applications. Most types of nuclear reactors, such
as those that produce power, require uranium enriched between 3.5% and 5% uranium-235 in
their fuel, which is the fissile isotope of uranium.40 Research reactors, which are used for,
among other things, production of radioisotopes for medicine or industry, need less fuel but in
a higher enrichment, often up to 20% uranium-235, though international efforts are being
undertaken to convert such reactors to running on fuel at a lower level of enrichment.41
Uranium enriched to 20% or more uranium-235 is referred to as high-enriched uranium
(HEU); uranium enriched below 20% uranium-235 is called low-enriched uranium (LEU).
There are nearly 250 research reactors in operation, of which 89 are in developing countries,
whereas there are more than 430 nuclear power reactors operational in the world.42 Weapons-
grade uranium as used in nuclear weapons, on the other hand, is enriched to a level of 90% or
more uranium-235. HEU, as well as uranium-233, are considered “direct use materials” by the
IAEA, a categorization that means that these materials “can be used for the manufacture of
nuclear explosive devices without transmutation or further enrichment.”43 Put another way,
while HEU typically used for weapons, and considered “weapons-grade” is enriched to a level
of 90% uranium-235, all HEU can be used for a weapon, the difference being the lower the
37
Kellman in Shelton (ed.), pp. 494-495.
38
CPPNM Amendment, Article 2A, par. 3 and Fundamental Principle D.
39
See Chapter VII.
40
Enrichment is the process of isotope separation to concentrate one isotope relative to others. In other words,
3.5% enrichment means that 3.5% is the level of U-235 relative to U-238, which constitutes most of the uranium
found in nature. See, World Nuclear Association (WNA), ‘Uranium Enrichment,’ available at http://www.world-
nuclear.org/info/Nuclear-Fuel-Cycle/Conversion-Enrichment-and-Fabrication/Uranium-Enrichment/, accessed
on 23 August 2015.
41
For instance, the United States launched its Reduced Enrichment for Research and Test Reactors (RERTR)
program in the late 1970s, and IAEA technical cooperation projects have helped conversion from HEU to LEU
in many member states.
42
As of August 2015, these are the most recent numbers from the IAEA’s Research Reactor Database and Power
Reactor Information System, respectively.
43
IAEA Safeguards Glossary, 2001 Edition, International Nuclear Verification Series No. 3.

93
enrichment, the higher the critical mass, which is the amount of fissile material needed to
sustain a chain reaction. This is why all HEU is considered “weapons-usable.”
Plutonium, on the other hand, is a by-product created in a nuclear reactor. Through
reprocessing, plutonium can be recovered and separated out from spent fuel. The separated
plutonium can be mixed with depleted uranium to make mixed oxide, or MOX,44 fuel, it can
serve as the principal fuel in fast neutron reactors, or it can be used as a substitute for
uranium-235 in light water reactors. For plutonium, a distinction can be made between
reactor-grade and weapons-grade. The difference is in the composition of the isotopes, with
reactor-grade plutonium containing 19% or more of plutonium-240, the higher concentration
of which occurs from allowing the fuel to remain in the reactor for a longer time and is
considered a contaminant when it comes to weapons,45 while weapons-grade plutonium is
made up of plutonium-239 with less than 8% plutonium-240. Even so, all plutonium, other
than that with an isotopic concentration exceeding 80% in plutonium-238, is considered direct
use material according to the IAEA.
The foregoing means that there is a lot of fissile material, present in more than 20
states, that can be weaponized, and this says nothing of the other radioactive materials used
globally in medicine, agriculture, industry and education that are not fissile but can be
weaponized in, for instance, a dirty bomb. The vast majority of nuclear material – some
83%46 – is in military or non-civilian use, which encompasses not only weapons, but also
material associated with naval propulsion and other government-owned material in bulk, used
in research, and potentially available for military use.47 The international legal framework,
however, focuses primarily on securing the materials used for peaceful purposes, as well as
criminalization of certain offenses, which will be discussed more in the next section. It is
worth noting that the broader policy approach, while favoring security of (all) materials, also
advocates reduction, replacement and, if possible, elimination of weapons-usable material to
the extent possible as a second prong. This latter point has been the subject of a number of
agreements and initiatives over the years such as the bilateral Plutonium Management and
Disposition Agreement (PMDA) between the U.S. and Russia48 and commitments made in the
context of the Nuclear Security Summit process, such as a pledge by certain states to
collaborate on developing new high-density low-enriched uranium LEU fuels as part of an

44
This is also a process that can help eliminate weapons-grade plutonium. See, WNA, ‘Mixed Oxide Fuel,’
available at http://www.world-nuclear.org/info/Nuclear-Fuel-Cycle/Fuel-Recycling/Mixed-Oxide-Fuel-MOX/,
accessed on 26 August 2015.
45
See WNA, ‘Plutonium,’ available at http://www.world-nuclear.org/info/Nuclear-Fuel-Cycle/Fuel-
Recycling/Plutonium/, accessed on 26 August 2015.
46
The Nuclear Threat Initiative, “Non-Paper: Strengthening the Security of Military Materials,”
https://www.nti.org/media/pdfs/Strengthening_the_Security_of_Military_Nuclear_Materials_1.pdf, accessed on
August 13, 2015.
47
See The Nuclear Threat Initiative, ‘NTI Nuclear Materials Security Index: Building a Framework for
Assurance, Accountability, and Action,’ Second Edition, January 2014.
48
The PMDA was signed in 2000 and committed each side to disposing of no less than 34 metric tons of
weapons-grade plutonium. It was amended by a Protocol in 2010 due primarily to issues with the original
agreement’s compatibility with Russian nuclear energy strategy, thus making it economically unviable. The
PMDA provides each party with the right to conduct and the obligation to accept monitoring and inspection
activities conducted by the other set forth in Article VII and detailed in an Annex on Monitoring and Inspection.
Each party is also required to begin consultations with the IAEA and to take all necessary steps to conclude
appropriate agreements with the Agency to allow it to verify parts of the disposition process. Agreement
between the Government of the United States of America and the Government of the Russian Federation
Concerning the Management and Disposition of Plutonium Designated as no Longer Required for Defense
Purposes and Related Cooperation.

94
effort to convert research reactors from HEU fuel to LEU fuel49 and a pledge by the U.S. and
Japan to remove all HEU and separated plutonium from the Japan Atomic Energy Agency’s
Fast Critical Assembly (FCA).50
The precise sort of materials and facilities that fall within the scope of a given
instrument is demarcated by the specific definitions of these materials, facilities and other
related items to which the instruments apply. Definitions, in other words – of nuclear
material, other radioactive material, radioactive sources, and nuclear facilities, among others –
are highly important in assessing the scope of instruments related to nuclear security.
Therefore, a key aspect of the examination will be exploring the definitions of the terms used
in order to assess the compatibility of the scopes of the various instruments, thus making it
possible to determine where there are overlaps, conflicts or other issues that might undermine
strength of the regime.

VI.3.1 Security-related provisions of existing instruments

Physical protection of nuclear material and other radioactive material and related facilities
remains the centerpiece of the nuclear security regime, the focus on which according to some
has come at the cost of other aspects of nuclear security.51 While not trying to downplay other
facets of nuclear security, in terms of preventing theft, sabotage and unauthorized access to
material and related facilities, physical protection of said material and facilities, in
conjunction with material control and accounting practices, is of the utmost importance. With
respect to nuclear material and facilities, though undoubtedly of pertinence also to other
radioactive material and related facilities, the objectives of physical protection as endorsed by
both the IAEA Board of Governors and the General Conference52 are to:

 “establish and maintain conditions to:

1. protect against unauthorized removal of nuclear material in use and storage, and
during transport;
2. ensure the implementation of rapid and comprehensive measures by the state to
locate and recover missing or stolen nuclear material;
3. protect against sabotage of nuclear facilities and sabotage of nuclear material in
use and storage and during transport; and
4. mitigate or minimize the radiological consequences of sabotage.”53

These objectives show that physical protection goes beyond the guards, gates and guns
paradigm. The following paragraphs will use these objectives as a starting point for
examining physical protection provisions in the relevant international instruments, namely the
CPPNM (as amended), ICSANT, the Code of Conduct, as well as the Early Notification and
Assistance Conventions. Of the instruments listed in Table 1, these are the ones that deal
directly (and explicitly) with physical protection.

49
Joint Statement on Multinational Cooperation on High-Density Low-Enriched Uranium Fuel Development,
signed onto by Belgium, France, Germany, the Republic of Korea and the United States at the 2014 NSS in The
Hague.
50
Joint Statement by the Leaders of Japan and the United States on Contributions to Global Minimization
of Nuclear Material at the 2014 NSS in The Hague.
51
This is the point put forward by Trevor Findlay in ‘Unleashing the Nuclear Watchdog: Strengthening and
Reform of the IAEA,’ CIGI Report (2012).
52
‘Nuclear Verification and Security of Material: Physical Protection – Objective and Fundamental Principles,’
GOV/2001/41, 15 August 2001; GC(45)/INF/14 (14 September 2001).
53
IAEA Board of Governors, ‘Nuclear Verification and Security of Material: Physical Protection Objectives and
Fundamental Principles,’ GOV/2001/41, Attachment p. 2.

95
 V.3.1.1 CPPNM (as amended)

The objectives of physical protection, based on the recommendations, concepts and

terminology in INFCIRC/225/Rev.5, are nearly taken over word-for-word in the aims of “an
appropriate physical protection regime” as listed in Article 2A, paragraph 1, of the CPPNM
Amendment, with a couple differences:

1) in the first subparagraph, protection is required against “theft and other unlawful
taking” of nuclear material in use, storage and transport (making the provision slightly
more specific though theft and unlawful taking both fall within the more general term
unauthorized removal); and
2) in the second subparagraph, recovery is qualified by the term “where appropriate”
having to do with matters of jurisdiction, particularly when the material is located
outside the territory of a state party.

The CPPNM remains the only multilateral legal instrument setting obligated standards
with respect to the physical protection of nuclear material, extended by the CPPNM
Amendment to cover nuclear material not only in international transport but also in domestic
storage, use and transport as well as nuclear facilities. Pursuant to the CPPNM Amendment,
in implementing a physical protection regime with the above-mentioned aims, states Parties
must establish and maintain a legislative and regulatory framework for physical protection,
and they must establish or designate a competent authority or competent authorities
responsible for implementation of this legislative and regulatory framework. In addition, there
is a vague obligation to take other appropriate measures necessary for the physical protection
of nuclear material and nuclear facilities. In implementing the aims and the couple elaborated
elements of the nuclear security regime, states parties are to apply to the extent reasonable and
practicable a set of 12 fundamental principles that partly overlap with the list of essential
elements of a state’s nuclear security regime as contained in Nuclear Security Series No. 20.54
Therefore, in terms of physical protection, the CPPNM Amendment significantly expands
upon the CPPNM by legally committing55 states parties to create and adhere to a domestic
legal and regulatory framework applicable to all nuclear material and nuclear facilities under
their jurisdiction used for peaceful purposes, the implementation of which a competent
authority is to be established or designated for, with particular objectives. Once entered into
force and assuming compliance therewith, this will go a way toward creating a harmonized
standard among states parties with respect to domestic nuclear security regimes. Nevertheless,
a significant hole exists due to the limitation of the scope of the Convention to nuclear
material and nuclear facilities used for peaceful purposes. Thus, both other radioactive
material and the majority of nuclear material (some 85% in military use) remain outside the
purview of the CPPNM, regardless of entry into force of the Amendment.
Pursuant to Article 4 of the CPPNM, states are further obligated to receive assurances that
nuclear material will be protected during international nuclear transport at the levels described
in Annex I prior to exporting/importing or authorizing the export/import of that material.
Assurances are also required for transit across territory of a state party of nuclear material
between states not party to the Convention. The form of such assurances is not elaborated,
thus being left to agreement or arrangement between the relevant state (importing or

54
‘Objective and Essential Elements of a state’s Nuclear Security Regime.’ This document is substantially
broader in scope that the CPPNM (as amended), which explains the differences.
55
This, of course, with the caveat that the Amendment must first enter into force.

96
exporting56) and, in the parlance of the domestic law of the Netherlands, “shippers”.57 The
assurances are only required for physical protection during the international transport. states
parties are not obligated to receive assurances that the material will be appropriately protected
in the receiving state once the international transport has concluded. Although the CPPNM
Amendment expands the Treaty’s scope to domestic use, storage and transport, the provisions
on physical protection related to import and export are left unamended. That said,
Fundamental Principle B of the CPPNM Amendment refers to Responsibilities During
International Transport, giving the state party responsibility for adequate protection of
nuclear material during the international transport up to the point that responsibility is
transferred to another state. More concretely, though, making export (export authorization)
contingent on appropriate physical protection measures taken by the end-user falls in the
scope of, for instance, project and supply agreements,58 and physical protection is listed as a
fundamental principle in guidelines for nuclear transfers under the auspices of the Nuclear
Suppliers Group (NSG).59
The location and recovery of missing or stolen material as one of the aims of a state’s
physical protection regime, namely with respect to location, recovery and related protection of
the material in question outside of the territory of a state party, is to be undertaken pursuant to
Article 5 of the CPPNM. The provisions of Article 5 require states parties to provide
cooperation and assistance, to the maximum feasible extent and in accordance with their
national law, to recover and protect material in the case of theft, robbery or any other
unlawful undertaking or credible threat thereof. The “victim state” – the state on whose
territory or under whose jurisdiction material has been unlawfully taken or where the threat
exists – must request this cooperation and assistance, and there is not the requirement that the
“victim state” be a state party to the Convention as “any state” may make such request.60 In
other words, the CPPNM creates certain obligations for states parties with respect to third
states (or states not party). In terms of physical protection, states Parties are to exchange

56
By mutual agreement, the responsibility for obtaining assurances can be transferred to the state party involved
in the transport as the importing state (paragraph 6).
57
Defined as “houder van een vergunning voor het vervoeren, het voorhanden hebben bij opslag in verband met
het vervoer en het binnen of buiten Nederlands grondgebied brengen of doen brengen van categorie I-, II- of III-
materiaal” in the Regeling beveiliging nucleaire inrichtingen en splijtstoffen.
58
For instance, Agreement between the International Atomic Energy Agency, the Government of Chile and the
Government of the United states of America Concerning the Transfer of Enriched Uranium for Two Research
Reactors (INFCIRC/834, 16 January 2012). Article IX states: “Chile undertakes that adequate physical
protection measures shall be maintained with respect to the supplied material and any special fissionable
material produced through the use of the supplied material, including subsequent generations of produced special
fissionable material.” And goes on: “[Adequate physical protection] measures shall as a minimum provide
protection comparable to that set forth in Agency document INFCIRC/225/Rev.4 (Corrected) as it may be
revised from time to time.”
59
See INFCIRC/254/Rev.11/Part 1:
“3. (a) All nuclear materials and facilities identified by the agreed trigger list should be placed under effective
physical protection to prevent unauthorized use and handling. The levels of physical protection to be ensured in
relation to the type of materials, equipment and facilities, have been agreed by the suppliers, taking account of
international recommendations.

(b) The implementation of measures of physical protection in the recipient country is the responsibility of the
Government of that country. However, in order to implement the terms agreed upon amongst suppliers, the
levels of physical protection on which these measures have to be based should be the subject of an agreement
between supplier and recipient.”

Also noteworthy, INFCIRC/254/Rev.8/Part 2:

“BASIC PRINCIPLE – 2. Suppliers should not authorize transfers of equipment, materials, software, or related
technology identified in the Annex: … when there is unacceptable risk of diversion to acts of nuclear terrorism.”
60
See VCLoT, Article 36.

97
information with each other or international organizations in the interest of protecting nuclear
material, verifying the integrity of the shipping container, or recovering unlawfully taken
nuclear material. As part of this obligation, states parties are to coordinate their efforts, render
assistance (if requested) and/or61 ensure the return or recovered nuclear material stolen or
missing due to the events described.
This particular provision (Article 5, paragraph 2(b)) is changed in the CPPNM
Amendment in that, whereas in the original Treaty states parties are to exchange information
either with each other or with unnamed international organizations, this requirement is
extended in the Amendment to exchange among states parties, with the IAEA (named
explicitly) and with other relevant international organizations (see below the roles of other
international organizations in nuclear security). Interesting in this Article is that the credible
threat of theft, robbery or any other unlawful taking of nuclear material is mentioned.
Obviously, a threat will not require recovery, but assistance, in a manner determined by the
states involved, with physical protection in light of a threat could be requested at which point
states parties will be obliged to provide such assistance.
Similarly, under the CPPNM Amendment, assistance may be requested, this time only by
a state party, in the case of sabotage of nuclear material or a nuclear facility or a credible
threat thereof. The state party so requested must then decide and notify the requesting state
party whether it is in a position to render the assistance that has been requested and the scope
and terms of the assistance that may be rendered. Such assistance could foreseeably involve
helping secure compromised, or threatened, facilities or material.
With respect to the mitigation or minimization, of the radiological consequences of
sabotage, one must look at the CPPNM Amendment, as the unamended CPPNM does not
specifically cover acts of sabotage. Both mitigation and minimization are more or less the
same, both being acts aimed at reducing as much as possible the severity of the radiological
consequences. Under the CPPNM as amended, mitigation/minimization is explicitly
mentioned in Article 5, paragraph 3(b). Pursuant to that paragraph, the state party in which
sabotage of nuclear material or a nuclear facility has taken place must take appropriate steps
to inform as soon as possible to state(s), again regardless of whether or it (they) are party(ies)
to the CPPNM (as amended), which are likely to be radiologically affected. The state party
must also, where appropriate, inform the IAEA and other relevant international organizations,
which would likely be the UN. As in the previous paragraph, if a state party requests
assistance in the context of minimizing or mitigating radiological consequences of an act of
sabotage, the state party so requested determine and notify the requesting state party whether
it can and it what way it will render the assistance. Agreeing to the means of cooperation is
left to the states parties involved (see the discussion of the Early Notification Convention and
Assistance Convention below). No further detail is given, except that the response to the
request for assistance is to be prompt.

VI.3.1.2 ICSANT

The focus of ICSANT is clearly on the establishment of criminal offenses (nuclear terrorism)
and of state party obligations to prevent, detect and respond to such acts. That physical
protection is important to the prevention of nuclear terrorism is acknowledged by terms of the
oft-cited Article 8. Article 8 requires states parties to make every effort to adopt appropriate
measures to ensure the protection of radioactive material, thereby considering the relevant
recommendations and functions of the IAEA. Two specific points are worth mentioning here.
First, the provision refers to measures ensuring the protection of radioactive material, instead
61
These three obligations are not ordered in terms of steps to be taken and are not necessarily to be taken in
conjunction with one another. Therefore, states parties may take one or more of the actions, as appropriate.

98
of only nuclear material. Radioactive material, as per the definition in Article 1, includes
nuclear material62 and other radioactive substances that contain nuclides that undergo
spontaneous disintegration, thereby emitting one or more types of ionizing radiation, and
because of their radiological or fissile properties, may cause death, serious bodily injury or
substantial damage to property or to the environment. This is similar, though not identical, to
the definition of radioactive material in the Nuclear Security Recommendations on
Radioactive Material and Associate Facilities (Nuclear Security Series No. 14),63 which is
meant to assist states in implementing obligations and commitments they might have with
respect to, inter alia, ICSANT. The element of radioactivity is the same, but the definition in
Nuclear Security Series No. 14 is broader, as ICSANT additionally requires that the
radioactive material be capable of causing death, serious bodily injury or substantial damage
to property or the environment. Perhaps one would argue that the effects being due to the
radioactivity are implicit in the Nuclear Security Series No. 14 definition, though the material
could be radioactive, and be designated as such in domestic laws and regulations, without
having the effects as described in the ICSANT definition. The definition in ICSANT is legally
binding for states parties and thus carries more weight than the definition in the non-legally
binding instrument. However, if states are not party to ICSANT, Nuclear Security Series No.
14 provides a more comprehensive definition. It is also worth noting the addition of damage
to property or to the environment64 as effects of the radioactivity of radioactive materials. The
IAEA’s Categorization of Radioactive Sources, which is meant to provide a basis for the
implementation of inter alia regulatory measures and security measures, national register of
sources, and import/export controls, is based on potential harm to human health. Focus is
often placed on category 1 and 2 sources (high-activity sources) only when it comes to
determining international needs for securing radioactive sources, whereas a category 3 source
would not necessarily cause much harm to humans but could result in significant damage to
property and the environment. Therefore, the efforts required under Article 8 of ICSANT
must go beyond category 1 and 2 sources.65
Secondly, the obligation to make every effort to adopt appropriate protective measures
only covers radioactive material and does not extend to any related facilities. This is slightly
strange because use or damage to a nuclear facility is a criminal offense under the convention
(see the next subsection on criminal offenses). The definition of nuclear facility in ICSANT is
different from the one in the CPPNM Amendment, which is logical considering the
differences in scope between the two instruments. This does mean, though, that even after the
CPPNM amendment entered into force, gaps remain in terms of the international legal
obligation to secure certain types of “nuclear facility”.
In essence, Article 8 contains an obligation of conduct, rather than an obligation of
result. Ostensibly, if radioactive material from one state party were used in an act of nuclear
terrorism on the territory of another state party, the latter state could attempt to establish the
former state’s responsibility for an internationally wrongful act. It would have to be shown
that the state party did not make every effort to adopt appropriate measures, which, as in the
case of all matters concerning obligations of conduct, could be quite difficult due to the
element of state discretion (in terms of what “every effort” and “appropriate measures”

62
The definition of nuclear material under ICSANT is identical to that found in the CPPNM.
63
According to Nuclear Security Series No. 14, “radioactive material” means any material designated in
national law, regulation, or by a regulatory body as being subject to regulatory control because of its
radioactivity, including nuclear material, sealed sources, unsealed radioactive material, and radioactive waste.
64
The Code of Conduct recognizes that the Categorization of Radioactive Sources does not fully take account of
the full range of impacts that could result from an act involving radioactive sources, and duly includes within its
scope all radioactive sources that may pose a significant risk to individuals, society and the environment (II,
paragraph 2).
65
IAEA Safety Standards for protecting people and the environment, Safety Guide No. RS-G-1.9 (2005).

99
entails) that is involved. There is an inherent flexibility, or even ambiguity, in what measures
are to be considered to fulfill this obligation.66 The nature of the obligation in this article is
that the state party must endeavor to take certain steps rather than being obligated to achieve a
certain outcome. This is the conduct prior to the result – no-use of the radioactive material in
a terrorist act – that would have to be looked at in order to determine responsibility of the
state. The injured state would need to demonstrate that the required conduct (“every effort”)
had not in fact occurred.67 It should be pointed out that breaching the obligation of conduct is
not necessarily the same as a “‘negative’ obligation of result”,68 or guarantee that an event (an
offence under ICSANT in the present case) will not occur. The obligation of conduct in
Article 8 of ICSANT is clearly linked to the prevention of an act of nuclear terrorism as
defined under the convention, but compliance with the obligation of conduct is not dependent
on the act not occurring. A state party could not have made “every effort to adopt appropriate
measures to ensure the protection of radioactive material” and yet no offence has occurred,
but the inaction itself could represent a breach of the state’s obligations. This is analogous to
what the ICJ found in its judgment on the Diplomatic and Consular Staff case, where it inter
alia determined that Iran’s failure to take “‘appropriate steps’ to protect the premises, staff
and archives of the United States’ mission” and consulates at Tabriz and Shiraz constituted a
clear and serious violation ” of Iran’s obligations to the US.69 Article 8 does somewhat
elaborate on the types of measures states parties are to take as part of their “every effort” by
requiring states parties to take into account recommendations and functions of the IAEA. The
former could be read as a direct reference to the IAEA’s Nuclear Security Series
recommendations, namely Nuclear Security Series No. 14. The primary importance of Article
8 of ICSANT is that it is the only multilateral treaty provision entailing a legal obligation
concerning physical protection of radioactive material, other than only nuclear material, in
peaceful or military use.
The other physical protection-related provision of ICSANT is in Article 18, which
deals with measures to be taken upon seizing or otherwise taking control of material,
devices70 or nuclear facilities, following the commission of an Article 2 offense. The state
party in possession of these materials, devices or facilities must handle them with regard to
IAEA physical protection recommendations and health and safety standards. In referring
generally to physical protection recommendations, the provision takes into account changing
circumstances reflected in updates to the relevant recommendations. In other words, it
incorporates by reference the latest revision of the Nuclear Security Series documents, namely
No. 14. If a state party that takes possession of the material, devices or facilities is not

66
See M. Shaw, International Law, Seventh Edition, at 620-621. Shaw looks in particular at the standard of due
diligence in the area of international environmental law, for instance the UN Convention on the Law of the Sea
(UNCLOS) which obligates states parties to take “all measures that are necessary to prevent, reduce and control
pollution of the marine environment from any source, using for this purpose the best practicable means at their
disposal and in accordance with their capabilities.” Shaw points out that UNCLOS specifies certain specific
measures and refers to other relevant treaties, whereas other legal instruments do not elaborate on the due
diligence obligation (i.e. the 1979 Long-Range Transboudary Air Pollution Convention).
67
See P-M. Dupuy, ‘Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of
Means and Obligations of Result in Relation to State Responsibility,’ 1999 European Journal of International
Law, no. 2, pp. 371-385. Dupuy discusses, in looking at the ILC’s work on state responsibility, the hazards of
strict categorization of obligations between result and conduct (including prevention), as situations may not
always fall into one category or the other.
68
J. Crawford, ‘Second report on State responsibility,’ A/CN.4/498 and Add.1-4 (1999).
69
United States Diplomatic and Consular Staff in Tehran (United States of America v. Tehran), ICJ Reports
1980, p. 3, paras. 61-68.
70
Devices are nuclear explosive devices and radioactive material dispersal or radiation-emitting devices.

100
legally71 allowed to possess them, it is to ensure that they are placed in the possession of a
state (not necessarily party to the Convention) for which possession is lawful. The state to
which possession is given must duly provide assurances prior to receiving possession that the
material, devices or facilities in question will be handled, inter alia, with regard to physical
protection recommendations. However, by restricting application of this provision to the
taking of possession following the commission of an offense under the Convention, this
obligation is made quite narrow and thus has limited implications for the general nuclear
security legal framework. These provisions are in effect mitigation measures in that the
offense has already taken place and the aim is to (re-)secure the material, device or facility
and render it harmless, thereby preventing further harm.
A major development with regard to the contribution of ICSANT to the nuclear
security framework is the inclusion of material not necessarily used for peaceful purposes.
This means that the physical protection provisions, of course pursuant to any specific
circumstances or requirements in the relevant Article, apply to all radioactive material, even
that which is used in military programs. While the drafters of the Convention made clear that
it is to be seen as a strictly counter-terrorism instrument, not meant to modify the existing
regime for physical protection,72 there are nonetheless elements that at the very least
contribute to the acknowledgment of the need for strong physical protection measures to be
applied to all radioactive material in order to prevent acts of nuclear terrorism. It should be
pointed out, though, that the provisions on physical protection are directly linked to the
specific crimes (related to nuclear terrorism) contained in Article 2.

VI.3.1.3 Security Council Resolution 1540

Resolution 1540 is the only universal legally binding instrument, by virtue of its having been
adopted under Chapter VII of the UN Charter, setting forth obligations to enhance security of
materials (including nuclear materials), equipment and technology that can be used for the
design, development, production or use of nuclear weapons and their means of delivery,
which for the purposes of 1540 are termed “related materials.”73 The Resolution exemplifies
the common thread between nuclear non-proliferation and nuclear security by supporting the
goals of each, including non-diversion of weapons and materials, as well as acquisition and
transfer of such items by non-state actors. Nuclear security-related elements of Resolution
1540 are primarily set forth in operative paragraph 3, and include the requirements to develop
and maintain: appropriate effective measures to account for and secure nuclear materials in
production, use, storage or transport; appropriate effective physical protection measures over
nuclear materials; appropriate effective border controls and law enforcement efforts to
address illicit trafficking; and appropriate effective export and transshipment controls, with
appropriate legal penalties for violations, over nuclear material. The Resolution further

71
The reference is made here to both national and international law. The international law referred to is the
Treaty on the Non-Proliferation of Nuclear Weapons (NPT), under which non-nuclear-weapon state (NNWS)
may not acquire a nuclear explosive device. Therefore, if a nuclear explosive device is taken possession of
following the commission of an offense under ICSANT, an ICSANT state party that is a NNWS under the NPT
must place the device in the possession of an NPT nuclear weapon state (NWS), even if the NWS is not party to
ICSANT.
72
See Report of Ad Hoc Committee established by GA Res 51/210, Dec. 17, 1996.
73
See the definition of “related materials” in Resolution 1540. Interestingly, no specific list of the “related
materials” to which the provisions of the Resolution apply is provided, but instead the Resolution defers to the
body of relevant multilateral treaties and arrangements, as well as national control lists, incorporating these by
reference. See also Asada, supra note 39, p. 312. Asada goes on to point out that “no treaties can obligate states
to establish such a national export control system so extensively, so quickly and so effectively,” p. 318.
Resolution 1540 also concerns chemical and biological weapons, means of delivery and related materials.

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requires appropriate and effective domestic legal action to, among other things, prevent
transfers of nuclear weapons and their means of delivery by non-state actors.
Resolution 1540 is broadly formulated and quite general, but many of the nuclear
security-related obligations have synergies with the other legally binding and non-binding
instruments that make up the international legal framework for nuclear security – both the
CPPNM and the Code of Conduct are mentioned in the Resolution’s preamble – as well as the
activities and approaches of the IAEA. That means that improving implementation of
Resolution 1540 will have a ripple effect, helping to increase adherence to other relevant
instruments.74 For instance, the requirement to develop and maintain appropriate effective
physical protection measures, with respect to nuclear materials, clearly invokes the CPPNM
and INFCIRC/225, without explicitly requiring states that have not done so to become party
to the CPPNM and without naming INFCIRC/225. However, “appropriate effective” physical
protection measures would lack meaning without reference to existing international
guidance.75 The Nuclear Security Fundamentals76 document even adopts the phrase
“appropriate and effective nuclear security regime” as the aim in applying the document’s
objectives and essential elements.
As alluded to above, the adoption of Resolution 1540 was certainly not without
substantial criticism. Perhaps most fundamentally, concern was and continues to be expressed
that elements of the Resolution are drawn from treaties to which states are not necessarily
parties, or conversely are entirely new elements, meaning the Resolution is inconsistent with
basic principles of treaty law and general international law requiring consent to be bound.77
Another criticism has to do with legitimacy of international law-making by a small group of
states that then is of application to the rest of the international community. Questions were
also raised as to whether such action falls within the competencies of the Security Council.
There is a widely held view that Security Council action is meant to apply military or non-
military measures in response to a specific situation in order to influence behavior and assure
peace and security, which would not extend to such a general legislative approach of
unlimited duration. Essentially, criticism has centered around whether the Security Council
has the power to establish a regulatory framework that would typically be the purview of one
or more multilateral treaties.

VI.3.1.4 Early Notification Convention and Nuclear Assistance Convention

Though considered nuclear safety treaties, these two instruments are mentioned here due to
the fact that they deal with mitigation of radiological consequences, which is an objective of
physical protection. Both of these instruments are also included in the IAEA’s INSSPs, listed
as legally binding international instruments relevant to nuclear security.
The Early Notification Convention applies, pursuant to Article I, in the case of
accident where a release of radioactive material occurs or is likely to occur resulting or likely
to result in a transboundary release of radiological safety significance for another state. The

74
Many of the measures required by Resolution 1540 closely fit with the structure and activities laid out in
IAEA Nuclear Security Plans, the most recent being the plan for 2014-2017. This includes the activities having
to do with legal and regulatory infrastructure, physical protection, illicit trafficking, regulatory aspects of
safeguards, accounting and control systems, and export/import controls. See IAEA, “The International Legal
Framework for Nuclear Security,” International Law Series No. 4. 2011.
75
The 1540 Matrix that was developed to help organize information about the implementation of the Resolution
confirms this approach. The Matrix asks, for example, for national information on whether the CPPNM and the
2005 Amendment have been ratified or acceded to.
76
IAEA, “Objective and Essential Elements of a State’s Nuclear Security Regime,” IAEA Nuclear Security
Series, No. 20 (February 2013).
77
This concern was raised by India already during drafting of the Resolution.

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specific reference to nuclear accident denotes that the event of the radiological release is
unintended and unexpected. However, the term “accident” is not further defined in the
Convention,78 and while the ordinary meaning of the term could potentially limit the scope of
application, there is room for interpretation by states parties as to the nature of the events to
which the Convention applies. One could argue, for instance, that sabotage of a nuclear
facility resulting in such radiological release would be, on the part of operators and the state,
unintentional79 and could thus fall in the somewhat broad specification of accidents in Article
I. Even if Article I is read narrowly, Article 3 gives states parties the option to take the steps
foreseen in the Convention in the event of “nuclear accidents other than those specified in
Article I” in order to minimize radiological consequences, though notification in this case is
not required but rather voluntary. It should be noted here that accidents under the Convention
only involve facilities and activities, not the material itself, so sabotage of material would
seem not to be covered.80 An issue that could arise in applying the Convention to nuclear
security incidents is that some of the information that is required to be provided81 may be
sensitive and states parties might be unwilling to share it, thus in effect putting them in non-
compliance with the Convention.
Regardless, also of the fact that the Convention was adopted in the direct wake of the
Chernobyl accident, the scope of application appears to deliberately have been kept broad.
Therefore, if states parties interpret it in such a way, the terms of the Convention complement
the notification requirements found under the CPPNM (unamended) which pertain only to
providing information to states of the (threat of) theft, robbery or other unlawful taking of
nuclear material, though again only with respect to material in international transport. The
CPPNM Amendment, however, contains its own obligations for states parties to notify other
states that are likely to be affected by radiological release in the event of sabotage of nuclear
material or nuclear facilities. With the entry into force of the CPPNM Amendment, for states
parties thereof, that treaty comprises the primary obligation in such cases. The Early
Notification Convention will continue to play a role due to the fact that the scope of facilities
goes beyond the definition of nuclear facility found in the CPPNM Amendment. It is also of
particular interest because more NSS participating states are party to the Early Notification
Convention than are party to the CPPNM, and more states in total are party to the Early
Notification Convention that are party to the CPPNM Amendment.
The Nuclear Assistance Convention, though adopted concurrently with the Early
Notification Convention, refers not only to nuclear accidents but also to radiological
emergencies.82 For this reason, the scope is already broader, and the category “radiological

78
However, it is defined in the IAEA Safety Glossary (2007 edition) as: “any unintended event, including
operating errors, equipment failures and other mishaps, the consequences or potential consequences of which are
not negligible from the point of view of protection or safety.” “Any other mishaps” is a sort of catch-all phrase.
79
Whether it was unexpected is another matter, as there could have been intelligence pointing to an increased
likelihood of such a malicious act.
80
One could argue that sabotage of radioisotopes would fall under the term “accidents” according to the
Convention, as an accident can involve the activity of manufacture, use, storage, disposal and transport. An
accident in which an entity – i.e. company – taking part in (one of) these activities could be the target of act of
sabotage.
81
See Article 5.
82
The IAEA Safety Glossary (2007 edition) contains a definition of nuclear or radiological emergency: “[A
non-routine situation that necessitates prompt action, primarily to mitigate a hazard or adverse consequences for
human health and safety, quality of life, property or the environment] in which there is, or is perceived to be, a
hazard due to:
(a) The energy resulting from a nuclear chain reaction or from the decay of the products of a chain reaction; or
(b) Radiation exposure.”
Point (a) represents a nuclear emergency and point (b) represents a radiological emergency, though this is not an
exact distinction.

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emergencies” would quite clearly cover the misuse or sabotage of radioactive material or a
related facility by non-state actors. As was described above, the CPPNM Amendment
contains a provision for rendering assistance in the context of a case of sabotage. In fact, this
provision (Article 5, paragraph 3(c)) is worded identically to Article 2, paragraph 3, of the
Nuclear Assistance Convention. Clearly, the Nuclear Assistance Convention served as a
model for this particular provision in the CPPNM Amendment. Under the CPPNM
Amendment, such assistance may be requested also in the case of a credible threat of
sabotage of nuclear material or a nuclear facility, which falls outside the scope of application
of the Nuclear Assistance Convention.
The Nuclear Assistance Convention was adopted in order to facilitate prompt
assistance in the event of a nuclear accident or radiological emergency and to minimize the
consequences thereof. The process put in place under the Convention deals with the direction
and control of assistance (unless otherwise agreed, the responsibility of the requesting state
within its territory – Article 3), the role of the IAEA83 (which includes assisting a state party
or IAEA member state84 with the preparation of emergency plans and the appropriate
legislation and making resources available to conduct initial assessment of the accident or
emergency – Article 5), confidentiality of information exchanged between the requesting state
and the assisting party (the assisting party being a state party, the IAEA or another
international organization – Article 6), and the accordance of privileges and immunities,
among other procedural and administrative aspects. Due to the comprehensiveness of the
Nuclear Assistance Convention’s scope, it is of high importance when it comes to mitigating
consequences of criminal offenses that are covered by the other instruments, including the
maritime and aviation instruments, in the international legal framework for nuclear security.
As such, it also complements the relevant provisions of the CPPNM Amendment.

VI.3.2 Criminalization under the relevant instruments

The nuclear security regime as a whole has to do with preventing, detecting and responding to
certain criminal or other intentional unauthorized acts. For that reason, the designation of
criminal offenses forms an essential part of the instruments that make up the international
legal framework. The criminalization aspects of the international instruments can be viewed
as falling within the prevention (as a deterrent) and response areas of the nuclear security
spectrum. Each of the legally binding instruments, with the exception of the two mitigation
treaties, obligates states parties to criminalize certain acts in their domestic legal systems.
Because of differences in scope of application of the respective conventions and in particular
elements of the various offenses, it is sometimes difficult to place nuclear security-related
criminal offenses in an overarching context. In other words, to what extent, if at all, would a
state already party to, for instance, the Terrorist Bombing Convention have in place in its
criminal code, as part of the implementing legislation, offenses that are also covered in
ICSANT? A certain amount of overlap could lower obstacles to, or make easier, adhering to
other instruments that make up the legal framework. Also, it is important when assessing the
strength of the international legal framework to determine whether or not the acts that are
criminalized in the range of instruments cover insofar as is possible the full scope of criminal
or other intentional unauthorized acts that can be anticipated, such as nuclear smuggling/illicit
trafficking. The purpose of this subsection is to analyze the criminalization elements –

83
The IAEA acts in accordance with its Statute. Interestingly, in responding to a request for assistance by a state
party or member state, the IAEA is to transmit the request to other states (even if not a state party nor an IAEA
member state) and international organizations which, to the best of the IAEA’s knowledge, may possess the
necessary resources.
84
Member states of the IAEA, even if not states parties to the Convention, may request assistance via the IAEA.

104
particularly the requirements of the offenses and jurisdiction – of the various instruments to
describe how they fit together, overlap or leave gaps.

VI.3.2.1 CPPNM (as amended)

While the criminal offense provisions in Article 7 of the CPPNM do not contain the limitation
of being applicable only to nuclear material while in international transport – applying also to
nuclear material while in domestic use, storage and transport – they are still restricted to
material used for peaceful purposes. This means, again, that criminal or other intentional
unauthorized acts involving military-use nuclear material, the majority of nuclear material in
the world, are not covered.85 The CPPNM Amendment adds certain acts to be criminalized
pursuant to the same restrictive qualification of peaceful use.
The criminal offenses laid down in the CPPNM cover a broad range of activities
including receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear
material, without lawful authority and with intent to commit such an act. Such acts must also
cause or must be likely to cause death or serious injury to any person or substantial damage to
property. This latter element is extended under the CPPNM Amendment to also cover
substantial damage to the environment. Furthermore, theft or robbery of, embezzlement or
fraudulent obtaining of and a demand by threat or use of force or through intimidation for
nuclear material are also to be criminalized under national jurisdictions.
The CPPNM Amendment expands on the list of criminal offenses under the
Convention in two important ways. First, it adds new criminal offenses relating to illicit
trafficking of nuclear material/nuclear smuggling.86 The amended Article 7, paragraph 1,
obligates the criminalization of the intentional commission of “an act which constitutes the
carrying, sending, or moving of nuclear material into or out of a state without lawful
authority.” This is admittedly not a terribly detailed provision and does not explicitly use nor
fully cover the term illicit trafficking.87 For example, all three of these acts refer to the actor
instigating or carrying out a transfer, but do not address the role of the receiver, who would
also be a participant in illicit trafficking, gaining possession of the material. Receipt and
possession of nuclear material are mentioned in paragraph 1(a), but there the intentional act of
possessing or receiving must cause or be likely to cause damage, injury or death. It would not
be sufficient for the receiver, having obtained control of the nuclear material to have the intent
of further transfer. For that reason, this provision could be considered more related to nuclear
85
The Netherlands, during treaty negotiations, contended that the criminal provisions (perhaps even placed in an
instrument separate from the physical protection provisions) could have a wider scope than the provisions related
to physical protection measures and could even cover such situations as theft of materials used for military
purposes. See Statement of the Netherlands Delegation, CPNM/44 (1978).
86
There is no universal definition of illicit trafficking. Nuclear Security Series No. 6 (Combatting Illicit
Trafficking in Nuclear and other Radioactive Material) refers to a “common understanding” of the term as
dealing with trafficking across borders, and the manual uses “criminal or unauthorized acts” instead to broaden
the scope. Illicit trafficking generally has to do with illegally trading, selling or otherwise dealing in, for
instance, radioactive material. There would seem then to be some sort of financial or material gain involved in
illicit trafficking. Nuclear smuggling only refers to the act of moving nuclear material into or out of a country.
Nuclear smugglers, for instance, would most likely be involved in illicit trafficking of nuclear material. Nuclear
smuggling and illicit trafficking (illicit trafficking potentially being broader, involving all radioactive material)
are often used together, or sometimes even interchangeably.
87
Compare, for instance, the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational
Organized Crime, under which for the purposes of this Protocol “illicit trafficking” is defined as such: “the
import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts and components and
ammunition from or across the territory of one state party to that of another state party if any one of the states
parties concerned does not authorize it in accordance with the terms of this Protocol or if the firearms are not
marked in accordance with article 8 of this Protocol.”

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smuggling than to illicit trafficking. Nonetheless, it represents an additional element that
makes the scope of the offenses more comprehensive, and thus is a positive development. It is
also worth pointing out that implementation of this provision will support the commitments
made with respect to combating illicit trafficking/nuclear smuggling in the context of the NSS
process.
The second expansion has to do with the addition of offenses related to sabotage of
nuclear material or a nuclear facility. Sabotage as a criminal offense under the CPPNM
Amendment entails the intentional commission of acts against a nuclear facility, or acts
interfering with the operation of nuclear facilities where the offender intentionally causes, or
where the offender knows that the act is likely to cause, death or harm to people, property or
the environment.88 The death or harm must be caused by exposure to radiation or release of
radioactive substances. The “intent to cause” in this subparagraph is separate from the “intent
to commit,” thereby adding an additional dimension to the offense not included in the other
offenses listed. It is this added intent to cause death or harm that creates an overlap with one
of the offenses laid down in ICSANT. ICSANT, as will be discussed further below,
systematically includes the intent to cause death or harm in its list of offenses.
In general, the CPPNM does not distinguish acts of nuclear terrorism from other
criminal acts, whereas ICSANT has the distinctive attribute of defining acts of nuclear
terrorism through reference to the purpose (“intent to cause”) of such acts, thus setting them
apart from other criminal acts.89 So, in this one way, the CPPNM Amendment treads on the
territory of ICSANT. However, this overlap is minimized due to the differences between the
two instruments in terms of definition of nuclear facilities.90 Built in to the definition of
“nuclear facility” in the CPPNM Amendment is the qualification that damage thereto or
interference therewith could lead to the release of significant amounts of radiation or
radioactive material. The definition of “nuclear facility” in ICSANT does not contain that
qualification, nor does ICSANT refer only to facilities used for peaceful purposes. Pursuant to
ICSANT, it would be a criminal offense to damage a nuclear facility in such a way as to cause
or risk the release of any amount of radioactive material. More generally, though, while
ICSANT contains a broader definition of the term “nuclear facility” without the added
threshold of potential significant release of radiation or radioactive material, the CPPNM
Amendment lays out a broader scope of the offense related to sabotage, including any act
directed against or interfering with the operation of nuclear facility. Such an act could involve
cyber-attacks. One more word about intent under the CPPNM Amendment offense related to
sabotage: the act against the nuclear facility would also be an offense if the offender “knows
that the act is likely to cause” death or harm. Whether or not this knowledge is synonymous
with intent can be debated, depending in the end on domestic criminal law under which such
act was prosecuted. This author would argue that, although it is quite nuanced, knowing that
an act is likely to cause harm is not the same as intent to cause the harm. Such an
interpretation slightly broadens the scope of requirements for this particular offense.
The CPPNM, according to the Committee established pursuant to Security Council
Resolution 1373, is one of the 16 international counter-terrorism instruments. It is considered
as such due to the inclusion of criminalization and jurisdiction provisions that are part and
parcel of the body of multilateral counter-terrorism instruments.91 Although there is at present

88
Article 7, paragraph 1(e) (paragraph 9 of GOV/INF/2005/10-GC(49)/INF/6, Attachment p. 9).
89
See Report of Ad Hoc Committee established by GA Res 51/210, Dec. 17, 1996.
90
This issue was discussed at length during the CPPNM Amendment Conference. See: Committee of the Whole,
3rd Meeting Summary, CPPNM/AC/CoW/SR.3 (5 July 2005).
91
It is perhaps more of a theoretical debate, but due to the primary focus on physical protection as opposed to a
primary focus on suppression of certain criminal acts, the present author would argue that the CPPNM should
not be considered a counter-terrorism convention.

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no global definition of terrorism, it would seem clear that a terrorist act would be a distinct
form of criminal act. As has already been mentioned, the criminal provisions of the CPPNM
are at least formulated in a broad enough fashion to include certain terrorist acts. However,
only under Article 7(e)(ii) (or Article 7(g)(ii) of the Amendment) is the additional element of
intent “to compel a natural or legal person, international organization or state to do or to
refrain from doing any act” part of the provision. This element is included with respect to a
threat to commit theft or robbery of nuclear material (in the Amendment a threat to commit
an offense related to sabotage of a nuclear facility is added) and not the actual commission of
such offense. This reflects the subjective element of the crime of terrorism – the “terrorism
objective” – as laid down, for instance, in Article 83a of the Netherlands’ Wetboek van
Strafrecht (Criminal Code),92 and is also contained in ICSANT. That the CPPNM does not
include this terrorism element, except in the case of threat, means that the offenses contained
cover a number of criminal acts more generally. This reflects the broader scope of the
CPPNM as not just a counter-terrorism convention.
With respect to jurisdiction, the CPPNM requires states parties to establish jurisdiction
over the respective offenses when the offense is committed on the territory of that state,
aboard a ship or aircraft registered to the state,93 when the alleged offender is a national of the
state and when the alleged offender is present in the state’s territory but the state does not
extradite the alleged offender to any states having one of the aforementioned bases for
jurisdiction.94 There is also a provision allowing states parties to establish jurisdiction over the
offenses when it is involved in international nuclear transport as the exporting or importing
state. The provisions on establishing jurisdiction based on active nationality and territoriality
are standard for counter-terrorism conventions, as well as other instruments relating to
international crimes.95 These bases of jurisdiction in addition to the scope of the offenses will
result in certain overlap among the various relevant instruments, such as the 2010 Beijing
Convention or the 2005 SUA Protocol.

VI.3.2.2 ICSANT

As mentioned above, the criminal offenses under ICSANT are characterized by the specific
element of intent: to cause death or serious bodily injury, or substantial damage to property or
to the environment, or to compel a natural or legal person, an international organization or a
state to do or refrain from doing any act. The criminalization provisions also apply to all
radioactive material (nuclear and other radioactive material) not only nuclear material and not
only material used for peaceful purposes. The intent and the material scope are the main ways
in which the criminalization provisions of ICSANT differ from those under the CPPNM (as
amended).
The first of the listed offenses is unlawful and intentional possession of radioactive
material or the making or possession of a device, which within the meaning of the Convention

92
“Onder terroristisch oogmerk wordt verstaan het oogmerk om de bevolking of een deel der bevolking van een
land ernstige vrees aan te jagen, dan wel een overheid of internationale organisatie wederrechtelijk te dwingen
iets te doen, niet te doen of te dulden, dan wel de fundamentele politieke, constitutionele, economische of sociale
structuren van een land of een internationale organisatie ernstig te ontwrichten of te vernietigen.”
93
With respect to a ship, the state would then be considered the flag state” (emphasis added).
94
Article 8.
95
See, for instance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

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refers to a nuclear explosive device96 or a radioactive dispersal (RDD97) or emitting device
(RED). Interesting is that the definition requires an RDD or RED which may cause death,
serious bodily injury, or substantial damage to the environment or to property due to its
radiological properties.98 This would seem to mean that, for instance, an explosive that is
intended to be used for dispersing radioactive material or an aerial vehicle that will spray
radioactive material, which by themselves do not have radiological properties, will only
become a “device” under the terms of ICSANT once the radioactive material itself has been
introduced. In other words, a device is inseparable from the radioactivity it is used to release.
So, there is a question as to what the offense of “making a device” actually entails.
Nonetheless, under the CPPNM (both original and amended), the act of using or dispersing
nuclear material is to be criminalized, but no reference is made to the means to do so.
Therefore, by criminalizing the making of or possession of the device, or means, ICSANT
adds a new dimension to the criminalization aspect of the nuclear security legal framework.
However, under ICSANT, as opposed to under the CPPNM (as amended), possession is
outlawed but not how the alleged offender has come to possess the material. The CPPNM has
a separate offense for theft or robbery, receipt and transfer, and embezzlement and fraudulent
obtaining. The offenses related to illicit trafficking/nuclear smuggling under the CPPNM are
also not mirrored in ICSANT. The narrower range of offenses under ICSANT could be
related to the fact that the Convention concerns nuclear terrorism, whereas the CPPNM more
broadly deals with criminal acts.
When it comes to the criminal acts of using the radioactive material or a device, or
using or damaging a nuclear facility, the element of intent is expanded to include as a
possibility the “terrorism objective,” in addition to the intent to cause death or damage to
human health, property or the environment. As in the case of the crime of sabotage under the
CPPNM as amended, the formulation in ICSANT is broad enough to cover certain cyber-
attacks on a nuclear facility – those undertaken with requisite intent and in a manner that
releases or risks the release of radioactive material through damage. An attempt to commit
one of these aforementioned offenses is also itself an offense, which is a standard mode of
commission in criminal law. Also as with the CPPNM, the threat to commit one of these
offenses is to be made a punishable offense in domestic criminal codes. However, whereas
under the CPPNM a threat in general is sufficient, ICSANT has the added qualification that
threat to commit an Article 2(1)(b) offense must be made under circumstances which indicate
credibility of the threat. In other words, a “credible threat” is required, which concerns the
added aspect of how a threat is perceived by those against whom it is made and instead of
being based on the intent with which it is made. This implies that some sort of credibility
evaluation must be conducted in order to prosecute successfully under this provision, for
instance an evaluation that looks at the resolve of the potential perpetrator, the operational
practicability of the attack, and the technical feasibility of the attack.99
96
The term nuclear explosive device is problematic in that there is no international definition. The NPT refers to
nuclear explosive devices a number of times without offering a definition. See NPT, Articles I, II, III and IX. A
few of the nuclear-weapon-free-zone treaties (NWFZs) provide a definition, though it is in each case limited in
application to the scopes of those treaties. See of Treaty of Pelindaba (Africa) and the Treaty of Rarotonga
(South Pacific): “‘Nuclear explosive device’ means any nuclear weapon or other explosive device capable of
releasing nuclear energy, irrespective of the purpose for which it could be used. The term includes such a
weapon or device in unassembled and partly assembled forms, but does not include the means of transport or
delivery of such a weapon or device if separable from and not an indivisible part of it.” The Central Asian
Nuclear-Weapon-Free Zone Treaty gives a joint definition of “nuclear weapon or other nuclear explosive
device.”
97
RDDs are commonly referred to as “dirty bombs” though these are just one type of RDD.
98
Article 1, paragraph 4.
99
These three elements are used to by the U.S. Federal Bureau of Investigation to establish the credibility of a
WMD threat. See, U.S. Department of Justice, Criminal and Epidemiological Investigation Handbook, 2011

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 The same credibility element applies to the offense of demanding unlawfully and
intentionally radioactive material, a device or a nuclear facility by threat. Such demands by
use of force are also outlawed. There is a parallel provision in the CPPNM – Article 7(1)(d) in
the original text, 7(1)(f) in the amended text – though the formulation differs substantially.
The CPPNM refers to “threat or use of force,” which means that both threat and use are
directly linked to force (“threat of force” or “use of force”). ICSANT only makes reference to
a “use of force” and, separately, to a credible threat, which could be a threat to use force or
any other credible threat. Then, where ICSANT is limited to credible threats and use of force,
the CPPNM includes the catch-all phrase “or by any other form of intimidation.” Intimidation
is found in most criminal codes, often referring to a range of acts from coercion to harassment
to threats. For this reason, the CPPNM again gives a broader scope for this type of offense,
though only in relation to the demand for nuclear material.
The other forms of commission of a criminal offense under ICSANT include attempt
to participation as an accomplice in one of the foregoing offenses, organization or direction of
others to commit one of the foregoing offenses, or intentional contribution in any other way to
the commission of one or more of the foregoing offenses by a group of persons acting with a
common purpose. The latter offense must also either be made with the aim of furthering the
general criminal activity or purpose of the group or be made knowing the intention of the
group to commit the offense or offenses concerned. These are all fairly standard modes of
criminal liability in domestic criminal codes and, as an extension, for establishing individual
criminal responsibility under international law. They are nearly identical to those found in the
CPPNM (as amended). A couple of things should be pointed out. Participation typically
includes various grounds, such as soliciting, inducing or facilitating the commission of a
crime. The CPPNM only mentions participation, in a broad sense. ICSANT, on the other
hand, narrows the offense to participation “as an accomplice.”100 The accomplice is often
treated in the same way as the principal perpetrator, for instance using the same penalty range.
Accomplice liability denotes a higher degree of participation than other possible grounds.
This means that under ICSANT the grounds for participation are narrowed, reflecting a higher
threshold for criminal liability related to terrorism.101 Organization and direction of an offense
is a standard form of criminal liability, identical to that found in the CPPNM Amendment
(Article 7(1)(j)).102
The last ground for criminal liability under ICSANT presents a broad scope – ‘any
other way’ of contributing to the commission of an offense – nearly identical to the
formulation in the CPPNM Amendment (Article 7(1)(k)) as well as, for instance, under the
Rome Statute of the International Criminal Court (ICC).103 There is a requirement that the
contribution either be 1) “intentional and made with the aim of furthering the general criminal
activity or purpose of the group [acting with a common purpose];” or 2) “made in the
knowledge of the intention of the group to commit the offense or offenses concerned.” These
qualifications notwithstanding, the notion of contribution requires elaboration under domestic
criminal codes or in jurisprudence. The ICC Pre-trial Chamber, for example, laid out specific
requirements for contribution to a crime committed by a group of persons thusly:

Objective Elements: (i) a crime within the jurisdiction of the Court is attempted or

Edition, pp. 29-31, available at: http://www.fbi.gov/about-us/investigate/terrorism/wmd/criminal-and-

epidemiological-investigation-handbook.
100
Compare Article 7(1)(i) of the CPPNM Amendment to Article 2(4)(a) of ICSANT.
101
The Terrorist Bombing Convention also only covers participation as an accomplice.
102
This is not found, however, in the original CPPNM.
103
See Article 25(3)(d) of the Rome Statute.

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 committed; (ii) the commission or attempted commission of such a crime was carried
out
by a group of persons acting with a common purpose; (iii) the individual contributed
to
the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute;

Subjective Elements: (i) the contribution shall be intentional; and (ii) shall either (a) be
made with the aim of furthering the criminal activity or criminal purpose of the group;
or
(b) in the knowledge of the intention of the group to commit the crime.104

ICSANT conforms to the principle aut dedere aut judicare, or either extradite or prosecute.
Sates parties are required to establish jurisdiction over the Article 2 offenses when the offense
is committed on its territory, by one of its nationals, or when the offense is committed aboard
a vessel for which it is the flag state or on an aircraft that is registered under its laws.

VI.3.2.3 Security Council Resolution 1540

Criminalization is only explicitly mentioned in Resolution 1540 with respect to the

establishment and enforcement of penalties, criminal and civil, for violations of the requisite
export control laws and regulations.105 This obligation being linked specifically to export
controls is a new element in the legal framework, though it bears a certain relation to
provisions of the relevant treaties dealing with nuclear smuggling and illicit trafficking.
In addition, operative paragraph 2 – which requires states to adopt and enforce
appropriate effective laws which prohibit any non-state actor to manufacture, acquire,
possess, develop, transport, transfer or use, inter alia, nuclear weapons and their means of
delivery, in particular for terrorist purposes, as well as attempts to engage in any of the
foregoing activities, participate in them as an accomplice, assist or finance them – in the way
it establishes certain offenses resembles criminalization provisions of the counter-terrorism
treaties. The paragraph only has to do with nuclear weapons and their means of delivery and
not the “related materials” as described above, meaning that the acts of acquiring, possessing,
transporting, transferring or using nuclear material as a separate component part of a weapon
is not covered. These types of acts are instead covered under the CPPNM, subject to the
aforementioned limitations of the CPPNM, and partially under ICSANT. The added value of
this clause in Resolution 1540 is that such acts related to nuclear weapons and their means of
delivery have been proscribed primarily in the context of state-to-state interactions, but
Resolution 1540 expands this to non-state actors, something that is not necessarily reflected in
other instruments. The 1540 Committee has attested to this fact and has pointed out that this
paragraph necessitates criminal penal legislation, which several states have already enacted.106

VI.3.2.4 Terrorist Bombing Convention

The Terrorist Bombing Convention adheres to the common structure of counter-terrorism

conventions – criminalization, jurisdiction and aut dedere aut judicare. In this case, the
offenses that are to be criminalized under the domestic law of the states parties are defined by
the type of target against which an act is carried out, as well as by the means and methods

104
Prosecutor v. Mbarushimana, Decision on the Prosecutor's Application for a Warrant of Arrest against
Callixte Mbarushimana, 11 October 2010, paragraph 39.
105
Par. 3(d).
106
2008 Report of the Committee established pursuant to resolution 1540 (2004), S/2008/493.

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used to carry out said act.107 The offenses set forth in the Terrorist Bombing Convention must
be directed against:

 a place of public use, which is fairly comprehensive as long as the location is accessible or
open to members of the public continuously, periodically or occasionally;
 a state or government facility, whether it is a permanent or temporary facility or
conveyance, used or occupied in connection with official duties, which includes not only
national governmental offices but also those facilities occupied or used by employees or
officials of an intergovernmental organization; such facilities could, for instance, comprise
government-run research facilities where nuclear or other radioactive material is
produced, processed, used, handled, stored or disposed of,108 and military facilities where
nuclear or other radioactive material is present;
 a public transportation system; or
 an infrastructure facility, which is of particular importance for nuclear security as this
term encompasses privately or publicly owned energy facilities, such as nuclear power
plants.

In other words, in the context of the broader legal framework for nuclear security, this
Convention outlaws the unlawful and intentional delivery, placement, discharge or detonation
of an explosive or other lethal device, or attempt to do so, against government-run, officially
operated nuclear facilities, not necessarily limited to facilities used for peaceful, non-military
purposes, and public or private nuclear power plants. Such acts must be accompanied by
specifically determine mens rea, in this case the intent to cause death or serious bodily injury
or, interestingly, the intent to cause destruction of such a place, facility or system where the
destruction results in or is likely to result in major economic loss. This latter form of intent is
likely linked to acts against infrastructure facilities.
Pursuant to the Convention “an explosive or other lethal device,” which when used or
attempted to be used unlawfully and intentionally against one of the aforementioned targets
constitutes a criminal offense, includes a nuclear or radiological weapon, and not necessarily
only explosive or incendiary radiological weapons, but also other types of RDDs or REDs.109
When read in its entirety, then, the Terrorist Bombing Convention covers nearly all uses of
nuclear or radiological weapons by non-state actors. The Convention like other counter-
terrorism instruments also establishes fairly standard supplementary forms of commission –
participation as an accomplice in an offense, organization or direction of others to commit an
offense, or any other intentional contribution to the commission of enumerated offenses either
with the aim of furthering a general criminal activity or purpose of the group or in the
knowledge of the intention of the group to commit the offenses.
From the nuclear security perspective, when a state is party to ICSANT, the Terrorist
Bombing Convention is of little utility. ICSANT concerns the full spectrum of criminal acts
involving radioactive material or nuclear facilities, from possession of material to use of the
material to use or sabotage of a nuclear facility to unlawfully demanding material, albeit as

107
Article 2.
108
See definition of “nuclear facility” in Article 1 of the 2005 Amendment to the CPPNM. As long as the
nuclear facility is under state authority and control and is used for official purposes, it would be covered by this
Convention. However, that is more restrictive than it seems at first glance, as for instance the employees at the
national laboratories run by the U.S. Department of Energy are neither employees nor officials of the state or
government.
109
“Explosive or other lethal device” is defined, inter alia, as “a weapon or device that is designed, or has the
capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination
or impact of … radiation or radioactive material.” See Chapter 4 for a description of the other types of
radiological weapons.

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long as the acts are accompanied by the requisite intent. In contrast, the Terrorist Bombing
Convention only deals with use of, or the attempt to use, a nuclear or radiological device and
also only when directed at certain targets. In other words, the Terrorist Bombing Convention
is severely limited in terms of scope when it comes to nuclear security. Only when states are
party to the Terrorist Bombing Convention and not ICSANT does the former contribute to the
strength of the legal framework, but universality of ICSANT should nonetheless be the goal
in the interest of establishing an appropriate and effective regime.

VI.3.2.5 Maritime conventions

The Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (SUA Convention) was adopted in the late 1980s to address concerns regarding
the safety of ships and of their crew and passengers in the wake of kidnappings, hijackings,
bombings and other deliberate malicious acts that had been occurring. The 2005 SUA
Protocol, among other things, adds to the list of criminal offenses contained in the original
treaty text, including acts involving nuclear weapons, radioactive material and other items
related thereto.110 The use of radioactive material or a nuclear weapon or other nuclear
explosive device against a ship or discharge of these things from a ship constitutes a criminal
offense pursuant to the 2005 SUA Protocol if carried for the purpose of intimidating a
population, or compelling a government or international organization to do or abstain from
doing an act. This version of the subjective element – “terrorism objective” is similar, though
not identical, to the “terrorism objective” described above as contained in the CPPNM as
amended and ICSANT; the differences will have implications for domestic laws of the states
parties. Whereas in both the CPPNM as amended and ICSANT the terrorism objective is
restricted to compelling certain actors to do or not do certain acts, the 2005 SUA Protocol
includes intimidation of a population111 as part of the terrorism objective, which is a
significantly broader and more general effect without any specific result other than instilling
fear in an, undefined, population.112 This version of the subjective element though different
from other nuclear security-related instruments, is in line with most definitions of terrorism
found in national laws.113 Further, the purpose of the acts described in Article 3bis of the 2005
SUA Protocol, again mirroring the Terrorism Financing Convention, is to be identified by
“nature or context” of the act. In other words, either there will be something inherent about
the act that it leads to the intended effect or result, or the circumstances surrounding the act
will create the setting for the intended effect or result as described in the Article. The nature
or context of an act are not objective criteria for determining an act is in fact terrorism, but
rather they are indicators for establishing the purpose or motive of the act. Where the 2005
SUA Protocol diverges from, for instance, ICSANT is again in this element of intent, as the

110
These items include equipment, materials or software or related technology (Article 3bis).
111
The terrorism objective here uses the same formulation as in the Terrorism Financing Convention (Article 2,
par. 1(a)), which refers to acts which constitute an offense under specified counter-terrorism treaties, including
the CPPNM, and then in general to “any other act intended to cause death or serious bodily … when the purpose
of such act, by its nature or context, is to intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act.” This formulation was also endorsed as an element of the
definition of terrorism in ‘A More Security World: Our Shared Responsibility,’ Report of the Secretary-
General’s High-Level Panel on Threats, Challenges and Change, 2004.
112
Population could generally be thought of to mean a group of people living in a particular place, though this is
no more enlightening, which is why it is interesting that no further description is given in the Protocol’s text.
113
See C. Walter, ‘Defining Terrorism in National and International Law,’ in C. Walter et al. (eds.), Terrorism
as a Challenge for National and International Law: Security versus Liberty, Heidelberg: Max Planck Institute
(2004), pp. 28-30. Examples include the terroristische oogmerk in Article 83(a) of the Dutch Criminal Code and
the definition of terrorism in the criminal law of the United States, 18 U.S. Code § 2331.

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acts – use of the material or devices aboard a ship or discharged from a ship – are already
covered under ICSANT.
However, the potentially more significant contribution of the 2005 SUA Protocol to
the overall legal framework for nuclear security is the establishment of detailed offenses
related to illicit trafficking.114 As described above, the Amendment to the CPPNM similarly
adds certain acts of illicit trafficking to the range of offenses laid down in the treaty, which
are quite broad, including smuggling aboard a ship, but involve only nuclear material. The
2005 SUA Protocol, for its part, goes substantially further and criminalizes the unlawful and
intentional transportation aboard a ship not only of nuclear and other radioactive material but
also of related sensitive materials and items. Pursuant to paragraph 1(b) of the Protocol,
criminal offenses include transportation on board a ship of: radioactive material, which is a
more extensive category than nuclear material, knowing that it is intended to be used to cause
or in a threat to cause death or serious injury or damage for the aforementioned “terrorism
objective”; a nuclear weapon; source material or special fissionable material,115 or equipment
or material especially designed or prepared for the processing, use or production of special
fissionable material, with the knowledge that it is intended to be used in a nuclear explosive
activity or in any other nuclear activity not under IAEA safeguards; or any equipment,
materials or software or related technology that significantly contributes to the design,
manufacture or delivery of a nuclear weapon, which ostensibly also means an improvised
nuclear device, with the intention that it will be used for this purpose.116 In this way, the 2005
SUA Protocol complements the export control regime, namely that established by the NSG,
which aims to control both nuclear transfers and the transfer of nuclear-related dual-use
equipment, materials, software, and related technology that could make a major contribution
to a nuclear explosive activity, an unsafeguarded nuclear fuel-cycle activity or acts of nuclear
terrorism.117 Enforcement and penalties against the unlawful transfer of sensitive materials
and items are essential parts of a state’s export control system, and the 2005 SUA Protocol
provides an international legal basis to prosecute maritime trafficking in such materials and
items thereby strengthening nuclear security. The Protocol, besides setting forth the modes of
criminal liability discussed before and common to the counter-terrorism conventions,
moreover makes it unlawful to transport aboard a ship the perpetrator of one of the
enumerated acts.
The 2005 Protocol to the 1988 Fixed Platforms Protocol contains nearly identical
criminalization provisions, other than the illicit trafficking-related offenses and substituting
fixed platforms for ships, as the 2005 SUA Protocol. Accompanied by the requisite “terrorism
objective,” a person commits an offense in the meaning of the 2005 Protocol to the 1988
Fixed Platforms Protocol if that person unlawfully and intentionally uses radioactive material
or a nuclear weapon or other nuclear explosive device against a fixed platform or discharges

114
Article 3bis, par. 1(b).
115
The terms “source material” and “special fissionable material” are defined in Article XX of the IAEA Statute.
116
Article 3bis, par. 2: with respect to the latter two sets of materials and items – source material or special
fissionable material, or equipment or material especially designed or prepared for the processing, use or
production of special fissionable material, with the knowledge that it is intended to be used in a nuclear
explosive activity or in any other nuclear activity not under IAEA safeguards; or any equipment, materials or
software or related technology that significantly contributes to the design, manufacture or delivery of a nuclear
weapon – the 2005 SUA Protocol makes exceptions to the criminalization based on actions in accordance with
the NPT.
117
The so-called trigger list for nuclear transfers includes nuclear reactors and equipment therefor; non-nuclear
material for reactors; plants and equipment for reprocessing; plants and equipment for fabrication of nuclear fuel
elements; plants and equipment for separation of isotopes; plants for heavy water production; and plants and
equipment for conversion; see NSG Part I Guidelines, INFCIRC/254/Rev.11/Part 1, 13 November 2013. The
guidelines and trigger list for related materials and items are contained in NSG Part II Guidelines,
INFCIRC/254/Rev.9/Part 2, 13 November 2013.

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any of these things from a fixed platform.118 The other standard modes of criminal liability are
also set forth here - participation as an accomplice in one of the offenses, organization or
direction of others to commit one of the offenses, or intentional contribution in any other way
to the commission of one or more of the offenses by a group of persons acting with a common
purpose either with the aim of furthering the criminal activity of criminal purpose of the
group or in the knowledge of the intention of the group to commit one of the listed
offenses.119 States parties are to establish jurisdiction over offenses committed against or on
board of a fixed platform that is located on the continental shelf of that state,120 or by a
national of that state. Pursuant to the law of the sea, a fixed platform on the continental shelf
is considered an artificial island, installation or structure, which is under the exclusive
jurisdiction of the coastal state.121 The 2005 Protocol to the 1988 Fixed Platforms Protocol is
of very specific application and thus pertains to a quite limited threat scenario from the
nuclear security perspective, though one not already covered by ICSANT as ICSANT
requires establishment of jurisdiction over offenses committed in a state party’s territory of
which a fixed platform on the continental shelf is not part. Therefore, while limited in scope,
the 2005 Protocol to the 1988 Fixed Platforms Protocol offers yet another international legal
basis for criminal prosecution.

VI.3.2.6 Beijing Convention on International Civil Aviation

In accordance with Article 22, the 2010 Beijing Convention requires 22 states to deposit
instruments of ratification, acceptance, approval or accession before it enters into force. Thus
far, this threshold has not been met, though a number of states have deposited such
instruments thus expressing their consent to be bound, and more states are signatories to the
treaty, meaning that they are under a legal obligation to refrain from acts prior to its entry into
force that would defeat the treaty’s object and purpose.122 The Beijing Convention follows the
model of the 2005 SUA Protocol, criminalizing not only the use against or on board of an
aircraft in service, or discharge from such aircraft, of any nuclear weapon or explosive or of
radioactive substances, but also acts related to illicit trafficking in nearly identical wording to
the 2005 SUA Protocol. However, there are a couple of differences. First, the offenses related
to illicit trafficking include the act of transporting the materials or items, but also include the
acts of causing the materials or items to be transported and facilitating the materials or items
to be transported, as additional modes of criminal liability.123 The act of causing to be
transported is not further explained in the treaty text, but it would seem to entail some level of
coercion, while the act of facilitating transport could denote complicity, for instance, of
airport security officials. In addition, the acts of using any nuclear weapon or explosive or
radioactive substances against or on board of an aircraft in service, or discharging such items
from an aircraft in service need not be accompanied by the “terrorism objective”; rather, these
acts must only be carried out in a manner that causes or is likely to cause death, serious bodily
injury or serious damage to property or the environment.

118
Article 2bis.
119
Article 2ter.
120
For the definition of what constitutes a continental shelf, see the United Nations Convention on the Law of
the Sea (UNCLOS), 1833 UNTS 3; 21 ILM 1261 (1982), Article 76: “The continental shelf of a coastal State
comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200
nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge
of the continental margin does not extend up to that distance.”
121
See UNCLOS, Article 80 in conjunction with Article 60.
122
VCLoT, Article 18.
123
Article 1, para. 1(i).

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 The Beijing Convention also sets forth offenses directed at airports serving
international civil aviation as well as persons present at these airports. It is a criminal offense
for any person using a radioactive substance or nuclear weapon or device to unlawfully and
intentionally perform an act of violence against a person at an airport serving international
civil aviation which causes or is likely to cause serious injury or death, or destroy or seriously
damage the facility of such airport or aircraft not in service or disrupt the services of the
airport, thereby endangering or being likely to endanger safety at the airport.
With respect to the international legal framework for nuclear security, the Beijing
Convention, upon its entry into force, would contribute to the framework’s strength in a
couple of ways. First, and most importantly, as in the case of the 2005 SUA Protocol, the
provisions related to illicit trafficking support the export control regime and provide the
international legal foundation to prosecute aviatic trafficking of nuclear and other radioactive
materials and related sensitive items. Second, the Beijing Convention establishes criminal
offenses based on effect (causing or likely to cause death or damage) rather than the intent to
give rise to such effect, thereby setting a lower threshold to prosecution of certain acts than
ICSANT.

VI.4 Treaty-based mechanisms for interaction and information exchange

Aside from the security-related and criminalization provisions of the legally binding
instruments making up the international legal framework for nuclear security there are also
provisions on information production/exchange and mechanisms for sustained interaction and
coordination. This is an example of where substance meets organization, in the parlance of the
governance model, specifically when it comes to review and consultation mechanisms. The
rules establish procedures and process for iterative interaction, sometimes obligated (as in
when a review conference is mandated after a certain period of time) and sometimes based on
requests of states parties. States parties interact pursuant to these mechanisms, potentially
leading to modifications in interpretation and application of the rules, depending on how the
outcomes of such interaction are manifested. As discussed in the previous chapter, a review
conference that takes decisions by consensus, in such a way that expresses agreement of the
states parties regarding interpretation of the treaty’s provisions thereby being indicative of
subsequent agreement/practice, could establish definitive interpretations or perhaps even
modify how the treaty is interpreted and implemented.
Article 14 of the CPPNM requires information to be provided by each state party on
national laws and regulations that give effect to the Convention. The IAEA is to receive this
information and then communicate it to all other states parties. Article 14 is an obligation of
notification, leaving the amount of detail to be provided up to the discretion of the state party.
The way in which the provision is formulated means that sharing information regarding
national implementation measures is not necessarily meant to be a one-time action. Laws and
regulations giving effect to the CPPNM will clearly need to be updated in light of changing
circumstances, such as becoming party to the CPPNM Amendment, and that information
should be provided accordingly.
There is also review process foreseen under the CPPNM. Review conferences are
explicitly meant to assess the implementation of the Convention and its adequacy in light of
the prevailing circumstances. Only one review conference has thus far been convened, in
1992, but with the entry into force of the CPPNM amendment, as another review conference
will be convened in 2021 and thereafter a majority of parties can obtain further conferences at
five-year intervals. Initiating a regular review conference process every five years would
serve a number of functions. A Conference of the Parties could, among other actions, decide
to encourage periodic submissions of the Article 14 reports, agree to share additional

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information, or even decide to request the IAEA not only to collect the information on
national laws and regulations, but to make some sort of analysis in an effort better determine
compliance.
ICSANT, for its part, does not set forth a review process equivalent to that under the
CPPNM. Instead, in Article 20 it mandates that consultations be conducted in order to ensure
the effective implementation of the Convention. No timeframe for such consultations, or
routine repetition, is included, which means that the states parties themselves will have to
initiate the mechanism. The open wording of the provision – ensuring effective
implementation – gives the states parties substantial room for defining the scope of such
consultations. Consultations could be invoked, for instance, to clarify or agree to particular
interpretations of the Convention’s other provisions. They could also be invoked to share
information with respect to treaty implementation.

VI.5 Concluding remarks

By analyzing the key security-related and criminalization provisions of the legally binding
instruments, this chapter demonstrates how the instruments fit together, where there are
overlaps, and when applicable, where potential gaps exist. The main argument is that while
the criminalization provisions of the legal framework are clearly constructed and together
cover a wide range of possible offenses, the security-related provisions are limited in scope,
indeterminately formulated or formulated as obligations of effort, and/or set forth general
objectives that leave the precise measures to be taken to give effect to the legal obligations
almost fully up to the discretion of states. These characteristics, though leaving some room for
adaptive interpretation, with for instance a seemingly clear role for subsequent practice to
show how effect is given to treaty provisions, raise certain difficulties. The limited scope and
indeterminacy necessarily impacts effectiveness by potentially raising questions as to the
treaty’s adequacy to meet the objectives for which it was devised and by impacting
implementation and, with that, confidence in compliance. This latter point relates to the lack
of supervision when it comes to the legal framework for nuclear security. The same
characteristics – indeterminacy and limited precision in the security-related provisions – could
complicate efforts to devise supervisory mechanisms for the legal framework. That is not to
say that designing means and methods of supervision for nuclear security is impossible, but
for a supervisory body, the conduct to be supervised would have to be defined, which one
would expect to be based on clearly delineated compliant or non-compliant behavior.
In light of the foregoing, a few more specific observations can be made as to the
nature of the binding nuclear security-related obligations. First, from the security-related
perspective in particular, the treaty law is inadequate. Obligations to protect materials as set
forth in the original CPPNM only apply to nuclear material, not other radioactive material,
used for peaceful purposes while in international transport. Entry into force of the CPPNM
Amendment has significantly expanded the scope of the treaty for states parties that have
acceded to the amended text – among other things, to cover domestic use, storage and
transport of nuclear material and the security of nuclear facilities used for peaceful purposes.
However, the protection requirements still do not cover the vast majority of material, which is
used in military programs and for other non-civilian purposes. ICSANT contains a provision
on physical protection that is more comprehensive, applying to all radioactive material used
for both peaceful and non-peaceful purposes, but that entails only an obligation of conduct
(“make every effort to adopt appropriate measures”) rather than result.
Second, even where states are obligated to establish and maintain physical protection
systems for nuclear material, the requirements have to account for differences among states in
terms of status of the nuclear program, related policies and strategies, and domestic regulatory

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structures. This is done by relying on baseline levels of physical protection and by
enumerating fundamental principles that should be applied as far as is reasonable and
practicable, thus leaving much room to state discretion in devising implementation measures.
However, nuclear security is highly technical, also from a legal and regulatory point-of-view,
meaning that harmonization, allowing states to have confidence that the necessary actions are
being taken in other states, requires substantial detail that seems not to be possible in treaty
form.
Third, fitting the set of relevant binding instruments into a single framework is
necessary but difficult due to sometimes subtle differences, for instance in terms of definitions
of essential terms, and overlaps. This is further complicated by the fact that none of the
treaties are universal; so states are often party to some but not all of them. Security Council
Resolution 1540, being legally binding on all UN member states and thus universal, sets
broad requirements, but they are formulated vaguely, thereby impeding execution through
indeterminacy and making additional guidance necessary. All of this certainly impacts the
effectiveness of the overall framework.
Fourth, and related to the previous point, the multitude of relevant instruments of
varying, but sometimes overlapping, scopes will complicate national implementation of
necessary measures. States with nascent nuclear energy programs, states that are in the
process of establishing nuclear energy programs, or states that are beginning or expanding the
use of nuclear and/or other radioactive materials and therefore require additions to their
domestic legal frameworks, or that need a more comprehensive domestic legal framework to
account for all relevant activities, may lack the legal and/or technical expertise to draft and
implement necessary national legislation and regulations. Legislative assistance programs –
the IAEA with respect to security-related aspects, the UNODC with regard to criminalization
– aim to consolidate the disparate obligations to support domestic implementation, but more
work remains to be done.
Lastly, though the legal framework for nuclear security can logically be seen as part of
the broader context of arms control law applicable to nuclear weapons and of peaceful use of
nuclear energy, there is a significant criminal justice component to the relevant instruments.
This has to do with the fact that nuclear security is about preventing and responding to acts of
nuclear terrorism by non-state actors. Therefore, the legal instruments take a criminal justice
approach in obligating states parties to criminalize and establish jurisdiction over certain
offenses in their domestic legal systems. This criminal justice element is what links the
primary nuclear security treaties – the CPPNM and ICSANT – to the body of counter-
terrorism conventions, a number of which as shown above are of relevance to the nuclear
security framework. When it comes to nuclear security, though, preventing non-state actors
from obtaining or gaining access to nuclear or other radioactive material and/or related
facilities is the central objective, which explains why inter alia non-proliferation and physical
protection obligations are an integral part of the main international legal instruments related to
nuclear security. Robust nuclear security is necessary from the moment a peaceful nuclear
energy program is developed. Strong nuclear security measures are essential when it comes to
transfers of nuclear materials, sensitive technology and equipment – there must be provisions
in place for security during transport and a national nuclear security regime in the recipient
state.124 Prevention and detection of the diversion of nuclear material, related technology and
equipment to non-peaceful purposes, which is the ambit of Article III of the NPT, is needed
both at the state level as well as with respect to non-state actors. Nuclear security that
comprises measures aimed at combatting theft and illicit trafficking of nuclear material is
therefore clearly of relevance to the broader non-proliferation regime. As such, the

124
This latter element is required under Article 4 of the CPPNM.

117
international law applicable to nuclear security should not be approached in isolation but
rather ultimately considered in the broader arms control context.

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Chapter VII: Legally Non-Binding Instruments

Contents
VII.1 Non-binding instruments in context
VII.2 The IAEA Nuclear Security Series
VII.2.1 Objective and Essential Elements of a State’s Nuclear Security Regime (Nuclear Security
Fundamentals, Nuclear Security Series No. 20)
VII.2.2 Recommendations on physical protection of nuclear material and nuclear facilities (Nuclear
Security Series No. 13, INFCIRC/225/Rev.5)
VII.2.3 Recommendations on radioactive material and associated facilities (Nuclear Security Series No.
14)
VII.2.4 Material out of regulatory control (Nuclear Security Series Nos. 15)
VII.2.5 Initiative on strengthening nuclear security implementation (INFCIRC/869)
VII.3 Code of Conduct on the Safety and Security of Radioactive Sources
VII.3.1 Security-related provisions of the Code of Conduct
VII.3.2 Process of expressing commitment to the Code of Conduct
VII.3.3 NSS initiatives on enhancing radioactive source security
VII.4 Concluding remarks

VII.1 Non-binding instruments in context

Chapter II discussed the role of non-binding instruments, to the extent they can be considered
soft law, as an integral part of the governance model for nuclear security. As pointed out in
that chapter, the relevant legally non-binding instruments for nuclear security serve a number
of important functions in the broader legal framework. They serve as complements, providing
detailed guidance to assist states with implementing their legal obligations, in a related sense
perhaps being indicative of subsequent agreement/practice for the sake of interpreting the
respective treaties, and, as will be described below, going beyond the scope of the binding
instruments to provide more comprehensive guidance for developing and maintaining a
national nuclear security regime. In this latter sense, the non-binding instruments, namely in
the IAEA Nuclear Security Series, not only complement but also supplement the legally
binding elements of the legal framework.
Non-binding instruments in the legal framework for nuclear security also function as
substitutes. In this sense, they can serve to fill in gaps in the framework when, for instance, at
least some states consider a binding instrument covering a certain area undesirable, unrealistic
or even unnecessary to achieve certain ends. This is the case with respect to the security of
radioactive sources. The international approach to the security of radioactive sources remains
founded primarily on the non-binding Code of Conduct for the Safety and Security of
Radioactive Sources (Code of Conduct).
The discussion of whether or not a binding instrument on radioactive source security
is needed has been ongoing since the Code of Conduct was first developed.1 States have
tended to recognize advantages that would come along with adopting a convention on security
(and safety) of radioactive sources, which would include provision of resources by
governments.2 In addition, a treaty on the security of radioactive sources could inter alia

1
See ‘Proceedings of an international conference on the safety of radiation sources and the security of
radioactive materials jointly organized by the European Commission, the International Atomic Energy Agency,
the International Criminal Police Organization-Interpol and the World Customs Institute,’ Dijon, France, 14-18
September 1998, IAEA (1999). This issue was raised again in the discussion following the attacks of 9/11 at
which point the Code of Conduct was updated to strengthen the provisions on security, see ‘Security of
radioactive sources: Proceedings of an international conference held in Vienna, Austria, 10-13 March 2003,’
IAEA (2003).
2
International Conference on the Safety and Security of Radioactive Source: Maintaining Continuous Control of
Sources throughout Their Life Cycle, 27-31 October 2013 – Abu Dhabi, Findings of the President of the
Conference, p. 7.

119
stimulate broader adherence to certain principles and norms by demonstrating increased and
more credible commitment on the part of states that become parties; it could establish
arrangements for information sharing and consultation to help demonstrate and build
confidence in compliance; and it could establish consequences for and means of dealing with
non-compliance.3 At the same time, however, several states have noted progress that has been
made in improving the security of radioactive sources by those states that have expressed
political commitment to the Code of Conduct. Furthermore, concern has been expressed that a
convention would lack the detailed technical provisions that are contained in the Code of
Conduct, and that there would be no guarantee that a convention would attract the same
number of states as have committed to the Code of Conduct.4 While states have recommended
that the IAEA establish a working group to examine the merits of developing a convention on
the safety and security of radioactive sources, it is unlikely that negotiations will commence
any time soon, particularly if states do not see a convention leading to significant gains
beyond what is already in place and therefore prefer to encourage broader adherence to the
Code of Conduct.5 In other words, the Code of Conduct, along with supplementary guidance
as will be further explained below, will continue to function as a substitute for a binding
instrument on security of radioactive sources for the foreseeable future.
It is also important to point out that a number of the so-called gift baskets developed in
the context of the Nuclear Security Summit process, which are political commitments made
by two or more states rather than consensus documents, include commitments incorporating
these non-binding instruments. With the process having concluded, several states have chosen
to take NSS gift baskets out of their original, exclusive NSS context and open them up to the
broader membership of the IAEA. The way this has been done is through the use of
information circulars, or INFCIRCs.6 An INFCIRC is a type of document distributed by the
IAEA meant to bring matters of general interest to the attention of member states. Any
member state, or group of member states, can request the Agency to publish an information
circular. A couple of the gift basket-derived INFCIRCs are of direct relevance to the role of
the legally non-binding instruments in the legal framework for nuclear security and are
therefore discussed in more detail below. The question can be asked whether such
commitments by states in the course of the NSS process or thereafter could have the effect of
creating legal obligations. The gift baskets are not treaties, but expressions of commitment
could be more analogous to unilateral declarations creating legal obligation. They key,
though, would be the intention of the state to be bound according to the terms of its
declaration of commitment, the specific form the declarations take being of little
consequence.7 There is, however, no indication that the states in committing to the various

3
See J. Herbach, ‘Nuclear Security Summit preview: Promises alone won't keep radioactive sources safe’,
Bulletin of the Atomic Scientists, 6 March 2014. With respect to measures to redress non-compliance,
conventions often include provisions to facilitate cooperation on technological and scientific development and to
ensure access to technologies and materials. Implementing the convention’s baseline of security measures, for
instance, could be made a prerequisite for receiving radioactive sources or getting access to markets for source
producers. Not complying with the binding obligations, then, could mean loss of access to technologies,
materials and markets.
4
Supra note 2.
5
Herbach, supra note 3.
6
The gift baskets thus far opened up as INFCIRCs are the following: Strengthening Nuclear Security
Implementation (INFCIRC/869); Certified Training for Nuclear Security Management (INFCIRC/901);
Supporting Nuclear and Radiological Terrorism Preparedness and Response Capabilities (INFCIRC/904);
National Nuclear Detection Architectures (INFCIRC/905); Mitigating Insider Threats (INFCIRC/908);
Transport Security of Nuclear Material (INFCIRC/909); Strengthening the Security of High-Activity Sealed
Radioactive Sources (INFCIRC/910); and Minimizing and Eliminating the Use of Highly Enriched Uranium in
Civilian Applications (INFCIRC/912).
7
See Nuclear Tests Case (Australia & New Zealand v. France), 1974 ICJ Reports, par. 43, 45.

120
gift baskets intended them to assume international legal effect. This interpretation is
reinforced by the formulation of the gift basket texts, though some use the language of
binding agreement.8
The relationship between the binding and non-binding instruments, that together form
the legal framework for nuclear security, is key to the framework’s strength, or effectiveness.
In this chapter, the focus is on how the main legally non-binding instruments – the
fundamentals and recommendations of the IAEA Nuclear Security Series and the Code of
Conduct – contribute to the broader framework and what role they play vis-à-vis the treaties
described in the previous chapter.

VII.2 The IAEA Nuclear Security Series

Inaugurated in 2006,9 the Nuclear Security Series, developed under the auspices of the IAEA,
comprises a hierarchy of documents addressing a range of issues related to nuclear security,
from laying out general goals of a state’s nuclear security regime to specifying, inter alia,
technical aspects of border monitoring equipment or identifying vital areas at a nuclear
facility.

Fundamentals

Recommendations

Implementing
guides/Technical guidance

As in the case of the IAEA’s safety guidance, the top-level document in the Nuclear Security
Series10 contains fundamentals – Objective and Essential Elements of a State’s Nuclear
Security Regime. It lays out objectives, concepts and principles of nuclear security and
provides the basis for the security recommendations. The next level of documents, the
recommendations, presents measures that should be taken by states to achieve and maintain
effective national nuclear security regimes consistent with the fundamentals. The set of
implementing guides, then, provide guidance to assist states with implementing the measures
contained in the recommendations. Lastly, the technical guidance documents supplement the
implementing guides by providing additional guidance on specific technical issues.
The Nuclear Security Series instruments, by virtue of their development and adoption
process, reflect broad international agreement, with the fundamentals and recommendations
being considered as “the closest thing we have to international standards for nuclear

8
See, for instance, the Joint Statement on Insider Threat Mitigation from the NSS 2016, available at
http://www.nss2016.org/document-center-docs/2016/4/1/joint-statement-on-insider-threat-mitigation-gb
(accessed on 5 March 2017). This joint statement contains statements of commitment using the term ‘will’ – i.e.
“States will implement measures to mitigate insider risks using a risk-informed graded approach.”
9
IAEA recommendations and technical documents related to nuclear security predate the development of the
Nuclear Security Series structure.
10
This general description of the Nuclear Security Series set of instruments is derived from the website of the
IAEA, see http://www-ns.iaea.org/security/nuclear_security_series.asp?s=5&l=35, accessed on 30 March 2017.

121
security.”11 The IAEA secretariat first drafts the instruments, assisted in this task by experts
from the IAEA member states. The drafts are then reviewed and approved by the Nuclear
Security Guidance Committee (NSGC), which is a body established by the IAEA Director
General in 2012 and made up of senior nuclear security representatives. The NSGC is open to
all IAEA member states with the aim to “significantly contribute to the greater transparency,
consensus, quality, coherence and consistency” regarding the development of nuclear security
guidance.12 The process culminates in a 120-day period during which states have the
opportunity to formally review and comment on the instruments. The 120-day period having
passed, the instruments are considered as accepted by the IAEA membership. In other words,
the documents, once agreed upon, reflect consensus among the IAEA member states. The
process is part of the organization aspect of nuclear security governance. By following this
process, institutionalized in the IAEA, there is an added legitimacy to the instruments as
reflective of the views of the full range of IAEA member states, which carries with it a certain
amount of normative weight. In this way, process/organization serve to strengthen substance
in the governance model, demonstrating the relationship between these two aspects of nuclear
security governance. This does not, of course, give the instruments international legal effect;
they remain legally non-binding. However, as discussed more completely below, to the extent
that the instruments encompass provisions explicitly meant to guide implementation of
relevant treaties, a case can be made for those provisions being reflective of subsequent
agreement/practice impacting interpretation of those treaties. This case is made stronger by
virtue of the process of developing and adopting these guidance instruments.
The three recommendation-level instruments, Nuclear Security Series numbers 13-15
described in more detail below, as a whole are explicitly meant to help states develop
comprehensive national nuclear security regimes,13 consistent with and helping to implement
the relevant legally binding instruments. Being legally non-binding, these instruments
themselves are not subject to the law-making (treaty negotiation) process and procedures for
expressing consent to be bound (i.e. ratification, accession, acceptance or approval). Though
where used by states parties to the CPPNM (as amended) or ICSANT as guides for
implementation, it is possible that they take on legally binding character in domestic
legislation and regulations. In addition, from a political perspective, they provide a means for
action when security interests lead to recognition of the need for multilateral approaches,
though for various reasons (such as technical detail, domestic sensitivities) treaties may not be
possible or desirable.

VII.2.1 Objective and Essential Elements of a State’s Nuclear Security Regime

(Nuclear Security Fundamentals, Nuclear Security Series No. 20)

The document Objective and Essential Elements of a State’s Nuclear Security Regime,
otherwise known as the Nuclear Security Fundamentals (Fundamentals), is the primary
document in the nuclear security hierarchy and the product of a five-year process of extensive

11
Statement by then U.S. Secretary of Energy Ernest Moniz at a joint press conference during the 2014 Nuclear
Security Summit in The Hague at which he, together with South Korean Foreign Minister Yun Byung-se and
Dutch Foreign Minister Frans Timmermans, announced the initiative on “Strengthening Nuclear Security
Implementation” (25 March 2014). The author was present at this press conference.
12
Supra note 6.
13
See par. 1.6. in Nuclear security recommendations on physical protection of nuclear material and nuclear
facilities (INFCIRC/225/Rev.5, Nuclear Security Series no. 13), 2011; par. 1.6 in Nuclear security
recommendations on radioactive material and associated faculties (Nuclear Security Series no. 14), 2011; and

122
consultations and consensus building.14 The document was also the first, and thus far only,
nuclear security publication submitted to the IAEA Board of Governors for endorsement,
which was given.15 This primarily political step helped underline the Fundamentals as the
foundation of a state’s nuclear security framework, helped strengthen the profile nuclear
security within the Agency, and set the Fundamentals as the basis for the Agency’s work in
assisting states with developing national nuclear security regimes.
The Fundamentals document defines nuclear security (the definition in Chapter 1 of
this study) and its scope covers the full range of a state’s civil nuclear security regime. It is
applicable to nuclear and other radioactive material, whether in or out of regulatory control,
associated facilities and associated activities under a state’s jurisdiction.16 The “civil” element
is important, and it aligns with the scope of, for instance, the CPPNM (as amended), which is
applicable to nuclear material and facilities in peaceful use. Though states may of course
choose to apply the provisions of the Fundamentals to other purposes, namely to military use
materials, facilities and activities, this is not generally within the purview of the Fundamentals
or other Nuclear Security Series instruments. This seems to be due to the fact that the
functions of the IAEA explicitly concern “peaceful uses of atomic energy.”17 The
development of nuclear security guidance relates to the role of the IAEA to facilitate the use
of atomic energy for peaceful purposes, meant to help protect people, property, the
environment and society.18 Security of military-use material19 has been considered the sole
the responsibility of nuclear weapons possessor states, not subject to international rules or
guidelines.20
The Fundamentals document sets out the primary objective of a state’s national
nuclear security regime, which is “to protect persons, property, society, and the environment
from harmful consequences of a nuclear security event.”21 To achieve this objective, the
document, being non-binding, recommends the establishment, implementation, maintenance
and sustainment of an effective and appropriate nuclear security regime to prevent, detect and
respond to these types of nuclear security events.22 It is worth noting that the terms
‘appropriate’ and ‘effective’ to describe necessary nuclear security measures recur in the
binding and non-binding instruments, thus establishing a link among various relevant
instruments. In particular, Security Council Resolution 1540 obligates all UN member states
to adopt ‘appropriate effective’ physical protection measures, without further defining what
such measures precisely entail. In interpreting the measures to be taken with respect to
nuclear material,23 it would be logical to take account of appropriate and effective measures
14
See statement by former IAEA Deputy Director General for Nuclear Safety and Security Denis Flory to the
Board of Governors, Record of the 1333rd Meeting of the IAEA Board of Governors, GOV/OR.1333, October
2012.
15
Ibid.
16
Fundamentals, par. 1.12. The guidance concerning material out of regulatory control is not limited to civil-use
material; see discussion of Nuclear Security Series no. 15 below.
17
IAEA Statute, Article III.
18
Fundamentals, par. 1.13.
19
As discussed previously, this category is quite diverse and can be seen to include material in active warheads,
material in retired warheads that are to be dismantled, material in naval reactors or designated for naval reserves,
material declared excess to military needs that is going to be downblended and disposed of, and material
designated for other non-civilian purposes, such as bulk storage. ‘Bridging the Military Nuclear Materials Gap,’
NTI Military Materials Security Study Group, November 2015.
20
See, for instance, the preamble to the CPPNM: ‘Recognizing the importance of effective physical protection of
nuclear material used for military purposes, and understanding that such material is and will continue to be
accorded stringent physical protection’ (emphasis added).
21
Fundamentals, par. 2.1.
22
Ibid., par. 2.2.
23
1540 concerns chemical and biological materials as well, which of course fall outside the purview of the
nuclear security instruments.

123
pertaining to physical protection of nuclear material elaborated in the Fundamentals and more
specifically in the relevant recommendations documents (namely Nuclear Security Series No.
13).
The document goes on to describe a set of twelve essential elements for an appropriate
and effective nuclear security regime. These are adapted from the fundamental principles of
physical protection of nuclear material extracted from the fourth revision of the
recommendations on the physical protection of nuclear material and nuclear facilities
(INFCIRC/225/Rev.4), which in turn formed the basis for the fundamental principles
contained in the amendment to the CPPNM.24 Among the essential elements are, inter alia:

 general role of the state: the state is responsible25 for meeting the objective of a
national nuclear security regime as laid out in the document;
 a legislative and regulatory framework, including associated administrative
measures, which inter alia establishes necessary competent authorities with sufficient
legal authority to carry out assigned nuclear security responsibilities, ensures proper
independence for regulatory bodies, provides for the establishment of nuclear security
regulations and procedures for granting licenses, establishes relevant law enforcement
systems and measures related to export/import controls and border controls, foresees
steps to combat illicit trafficking, and establishes verification and enforcement
measures to ensure compliance with applicable laws, regulations and requirements;
 offences and penalties including criminalization: defining relevant offences or
violations, establishing appropriate penalties and jurisdiction;
 international cooperation and assistance: providing for cooperation and assistance
between and among states, directly or through the IAEA or other international
organizations, which includes identifying and making known points of contact,
providing information to states affected or likely to be affected by or concerned about
criminal or intentional nuclear security-related unauthorized acts, providing response
to request for assistance on nuclear security-related matters (including with respect to
recovery and protection of nuclear and other radioactive material), cooperating and
exchanging experiences and information including on establishing, maintaining and
sustaining nuclear security systems, and ensuring confidentiality of sensitive
information.

The broad scope of the Fundamentals establishes the comprehensive approach of the Nuclear
Security Series, though again in essence pertaining only to civil use material, facilities and
activities. This means that the Series’ scope is to a certain extent broader than that of the body
of legally binding instruments, the limitations of which were examined in the previous
chapter. Not only does the Series cover elements such as physical protection of facilities
related to radioactive material other than nuclear material, which is not covered by the nuclear
security-related treaties, but the Series also goes into significantly more detail on topics such
as computer security, information security and transport security for radioactive material. As
such, the Fundamentals document positions the Series as both a supplement to the hard law
instruments, filling in for certain, though not all, gaps (see military material), as well as a
complement to the hard law instruments, providing guidance on implementation.

24
See ‘Nuclear Verification and Security of Material: Physical Protection – Objective and Fundamental
Principles,’ GOV/2001/41, 15 August 2001.
25
This is not to be confused with state responsibility under international law. It is the intention that the state
meets the objective of the nuclear security regime, but being a non-binding instrument, the state cannot be held
legally responsible for not doing so.

124
 VII.2.2 Recommendations on physical protection of nuclear material and
nuclear facilities (Nuclear Security Series No. 13, INFCIRC/225/Rev.5)

For decades, INFCIRC/225, having gone through various revisions, has been the
internationally recognized basis for the physical protection of nuclear material.26 In fact, the
INFCIRC/225 recommendations predate and have informed the development of the binding
legal instruments discussed in the previous chapter. The catalyst for the development of these
recommendations was: 1) the recognition of the need to protect nuclear material against theft
and unauthorized diversion and nuclear facilities against sabotage and 2) the
acknowledgement that, while the responsibility for establishing and maintaining a system to
protect nuclear material and facilities within a state rests entirely on that state, other states
have an interest in the fulfillment of this responsibility.27 The connection was, thereby,
explicitly drawn with the content of comprehensive safeguards agreements (INFCIRC/153
(corrected)) developed to fulfill Article III of the NPT, namely that a state’s physical
protection measures should take into account the relevant aspects of system of accounting and
control of nuclear material as part of the safeguards framework.28 The IAEA General
Conference in 1975 noted the publication of INFCIRC/225, reaffirming the need to take
action to protect nuclear material and facilities in light of the growth of peaceful uses of
nuclear energy, and welcoming the Director Generals intention to regularly review and revise
the recommendations “to reflect advances made in the state of the art or the introduction of
new types of facilities.”29
INFCIRC/225 is now on its fifth revision, which has been incorporated into the
Nuclear Security Series as document number 13. The document’s objective is to provide
guidance to states on developing or enhancing, implementing and maintaining a physical
protection regime for nuclear material and nuclear facilities, inter alia through legislation and
regulatory measures, with the aim of reducing the risk of malicious acts involving these
materials and facilities.30 It lays out recommended requirements to realize the four physical
protection objectives and to apply the set of 12 fundamental principles, endorsed by the Board
of Governors and General Conference in 2001 and made legally binding in the operative text
of the amended CPPNM.31 Interestingly, as alluded to above, the physical protection
objectives and the fundamental principles are derived from an analysis of the fourth revision
of INFCIRC/225 and were formulated based on the recommendations, concepts and
terminology in that document.32
In other words, there is a clearly defined link between (the development of)
INFCIRC/225 and (the development of) the CPPNM (as amended). INFCIRC/225 in its
fourth revision served as a precursor to the CPPNM as amended, and in its fifth revision is
meant to assist states with implementing obligations under the CPPNM as amended.33 That
these two instruments – CPPNM (as amended) and INFCIRC/225 – work in tandem, and
26
See B. Dal, J. Herbach and K. Luongo, ‘The Strengthening Nuclear Security Implementation Initiative:
Evolution, Status and Next Steps,’ Nuclear Security Governance Experts Group, October 2015.
27
See preface by then Director General of the IAEA, Sigvard Eklund, to the first revision of INFCIRC/225, June
1977.
28
Ibid., p. 1.
29
GC(XIX)/RES/328, The Agency’s Budget for 1976: Physical Protection of Nuclear Material, 9 October 1975.
30
INFCIRC/225/Rev.5, par. 1.10.
31
See supra note 19 and GC(45)/INF/14 (14 September 2001); also CPPNM as amended, Articles 2A(1) and
2A(3).
32
GC(45)/INF/14, paras. 101 and 102. The suggestion to extract the objectives and fundamental principles from
INFCIRC/225/Rev.4 was made by the Working Group of the Informal Open-Ended Expert Meeting to Discuss
Whether There is a Need to Revise the Convention on the Physical Protection of Nuclear Material, and the task
was later carried out by the IAEA secretariat in collaboration with experts from member states.
33
INFCIRC/225/Rev.5, par. 1.8.

125
therefore need to be harmonized, was a point raised by the states parties to the CPPNM that
participated in the single review conference of the CPPNM to date in 1992. The states parties
recognized that the, at that point, second revision of INFCIRC/225 provided useful guidance
on physical protection measures for nuclear material in use, storage and transport,34
importantly leaving out the limitation to international transport, which is the scope of the
original CPPNM as it was in force at the time. Furthermore, the parties requested the IAEA to
convene a meeting to examine INFCIRC/225, both to ensure consistency between the
Convention’s categorization of material and the categorization table in INFCIRC/225, as well
as to consider revision of INFCIRC/225 to include further guidance on certain issues such as
irradiated fuel and waste.35 The IAEA subsequently convened such a meeting of a technical
committee, which led to the third revision of INFCIRC/225 in September 1993. Efforts have
clearly been directed at ensuring harmonization between the CPPNM and the INFCIRC/225
recommendations, which is critical in ensuring consistency in legal obligation and related
guidance.
With respect to the amended CPPNM, not only are the treaty’s central obligations
related to establishing, implementing and maintaining an appropriate physical protection
regime derived from the fourth revision of INFCIRC/225, but the amendment also explicitly
recognizes the importance of international guidance. In the preamble of the amendment it is
stated that parties recognize “that there are internationally formulated physical protection
recommendations that are updated from time to time which can provide guidance on
contemporary means of achieving effective levels of physical protection.”36 This is a new
element of the amendment as compared to the original treaty text. Admittedly, this does not
go as far as the Joint Convention on the Safety of Spent Fuel Management and on the Safety
of Radioactive Waste Management, which obligates states parties to apply suitable protective
methods having “due regard to internationally endorsed criteria and standards.”37 This
difference in approach has to do with national security sensitivities associated with nuclear
security and the resistance on the part of some states to even giving the appearance of making
the guidance legally binding.38
Clearly, though, the value of the INFCIRC/225 guidance in relation to the amended
CPPNM is in providing detail on how to achieve an appropriate physical protection regime
applicable to nuclear material and facilities under a state’s jurisdiction, which the convention
does not entirely do. The convention, for instance, requires states parties to establish and
maintain a legislative and regulatory framework to govern physical protection and to establish
a competent authority charged with implementing the legal and regulatory framework.39
INFCIRC/225/Rev.5 describes the measures to be taken to give form to the legal and
regulatory framework in line with these legal obligations including, inter alia, a system of
evaluation and licensing, the need for inspections to verify compliance, and the role of the
competent authority in conducting the inspections and ensuring corrective action if necessary.
In other words, INFCIRC/225/Rev.5 lays out what can be seen as a set of standards for giving
effect to the amended CPPNM. Evidence for this interpretation has been provided, for
instance, by the number of NSS participating states that included reference to national

34
See Final Statement of the Review Conference of Parties to the Convention on the Physical Protection of
Nuclear Material. Only 35 states participated in the review conference.
35
Ibid.
36
2005 Amendment to the CPPNM, preambular para. 14.
37
Joint Convention, Article 4(iv) and Article 11(iv).
38
See conclusions of the Final Report of the Open-Ended Expert Meeting to Discuss Whether There is a Need to
Revise the Convention on the Physical Protection of Nuclear Material (May 2001), reproduced in GOV/2001/41:
“such an amendment [to the CPPNM] should exclude … [a] mandatory application of INFCIRC/225, e.g.
through direct reference and also through ‘due consideration’…”
39
CPPNM as amended, Article 2A(2)(a) and (b).

126
systems being developed and implemented in accordance with the CPPNM (as amended) and
INFCIRC/225/Rev.5 in their national progress reports.40
Still, while there is a link between the CPPNM as amended and INFCIRC/225 it does
not yet appear possible clearly to establish the INFCIRC/225 guidance as indicative of
subsequent agreement or practice in interpreting the amended CPPNM obligations. There has
been no expression of agreement on the part of the states parties to the amended CPPNM that
INFCIRC/225 provides interpretation of CPPNM treaty obligations. Nonetheless, certain
indications seem to point toward developments in that direction – inter alia, the process by
which INFCIRC/225 was adopted and developed reflecting consensus among IAEA member
states (not necessarily the same as states parties to the amended CPPNM, though), the
reference in INFCIRC/225/Rev.5 that the guidance serves to help states implement their
CPPNM-derived obligations, and the fundamental principles from revision four of
INFCIRC/225 being in effect made legally binding through incorporation in the amended
CPPNM. The review conference for the amended CPPNM that will take place in 2021 could
by decision of the states parties establish that the guidance contained in INFCIRC/225, and
subsequent revisions, to the extent that it relates to implementation of provisions of the
amended CPPNM represents agreed interpretation. It would be beneficial for the states parties
to include subsequent revisions of the INFCIRC/225 guidance, as this would support
adaptation of the framework in light of changing circumstances, since adapting the non-
legally binding guidance is less cumbersome than, for instance, once again amending the
CPPNM.

VII.2.3 Recommendations on radioactive material and associated facilities

(Nuclear Security Series No. 14)

Nuclear Security Series No. 14 sets forth recommendations on the security of radioactive
material41 throughout its lifecycle, from manufacture to recycling or disposal. It is designed to
assist states with implementing, inter alia, obligations and commitments with respect to
relevant international instruments such as ICSANT and the Code of Conduct, as well as the
supplementary Import/Export Guidance.42 The scope, in part, could overlap with provisions of
INFCIRC/225/Rev.5 as, for instance this instrument concerns the elements of a nuclear
security regime to protect against unauthorized removal of radioactive material including
nuclear material, the latter of which falls under INFCIRC/225. Whereas No. 14 applies to
security of nuclear material against unauthorized removal for potential off-site exposure or
dispersal, INFCIRC/225/Rev.5 applies to unauthorized removal of for use in a nuclear
explosive device.43 The provisions of No. 14 regarding protection against sabotage apply to
other radioactive material (not nuclear material), associated facilities and associated activities;
protection of nuclear facilities against sabotage falls under INFCIRC/225/Rev.5.44
40
At the 2016 NSS, the following states made explicit reference to INFCIRC/225 in their national progress
reports: Argentina, Brazil, Czech Republic, Germany, India, Italy, Japan, Lithuania, Mexico, the Netherlands,
Philippines, Republic of Korea, Switzerland, Thailand, Turkey and the UAE. This is in addition to states that
described adherence to INFCIRC/869, discussed below, in their progress reports. At the 2014 NSS, the US even
pointedly stated in its national progress report that it takes INFCIRC/225/Rev.5 into account in military security
provisions. The Russian Federation, which did not take part in the 2016 Summit, referred in its 2014 national
progress report to all nuclear material, storage sites and associated facilities being secured “at least” to the level
prescribed in INFCIRC/225/Rev.5.
41
Defined in the document as: any material designated in national law, regulation, or by a regulatory body as
being subject to regulatory control because of its radioactivity (includes nuclear material, sealed sources,
unsealed radioactive material and radioactive waste).
42
Nuclear Security Series No. 14, par. 1.9.
43
Ibid., par. 1.15.
44
Ibid.

127
 As with the Fundamentals and INFCIRC/225/Rev.5, it is stated explicitly in No. 14
that the document is intended for use in the security of material, facilities and activities in
civilian use, though again states can decide to apply the provisions to military material and
facilities.45 In fact, as discussed in the previous chapter, ICSANT applies to all radioactive
material, in both military and civilian use, which means that states possessing such material
could be expected to apply the relevant provisions of No. 14, as appropriate, to their military
programs in implementing their obligations under ICSANT.
No.14 walks through and provides guidance on the elements of a national nuclear
security regime applicable to radioactive material, associated facilities and activities. This
includes guidance on developing, implementing and maintaining a legal and regulatory
framework, establishing domestic institutions tasked with implementing the framework, as
well as practices and systems for detection of and response to criminal or unauthorized acts
involving the materials and/or facilities. No. 14 describes the role of the state in assigning
responsibilities for security, including designating a regulatory body and empowering it with
the necessary authority; assessing the threat; and providing cooperation and assistance in
locating and recovering radioactive material; among other responsibilities.

VII.2.4 Material out of regulatory control (Nuclear Security Series No. 15)

The focus of Nuclear Security Series No. 15 is security measures related to nuclear and other
radioactive material out of regulatory control, either having been reported as such, having
been lost, missing or stolen but not having been reported, or having been in some other way
discovered.46 This differs from the other two recommendations documents discussed above
concern nuclear and other radioactive material that is under regulatory control. No. 15 is
directed at the state, rather than operators of facilities, as dealing with material out of
regulatory control is no longer about facility security, but about national security.
This recommendation document provides 1) guidance to states and their competent
authorities on deterring, detecting and responding to a criminal or unauthorized act involving
material out of regulatory control, as well as 2) guidance directed at facilitating international
cooperation to ensure that regulatory control is regained over such material and the
appropriate action – prosecute or extradite – is taken with respect to the alleged offenders.47
Detection measures in the sense used here include, for instance, using intelligence gathering,
medical surveillance and portable detection technologies, among other methods to be able to
confirm a credible threat, as well as assess and interdict an attempted act.48 Response, then,
has to do with, inter alia, forensics capabilities, recovering and securing material (locating,
identifying, categorizing), and ensuring preparedness of systems and personnel.
A number of provisions in No. 15 are directly related to elements of the relevant
international treaties. The recommendations on response measures describe notifying
international organizations and other potentially affected states, which relates to the CPPNM
(original and amended text) and ICSANT, as well as the Early Notification Convention.49
Criminalization of related offenses is clearly linked to the criminalization provisions of
ICSANT and the CPPNM.50 The same goes for recommendations related to recovery and
control, which link to the provisions of ICSANT and the CPPNM on, inter alia, rendering
material, devices and facilities harmless, as well as having regard to physical protection

45
Par. 1.21.
46
Nuclear Security Series No. 15, par. 1.11.
47
Ibid., par. 1.10.
48
Ibid., par. 1.12.
49
No. 15, par. 6.12, CPPNM Art. 5, ICSANT Art. 7, Early Notification Convention Art. 2.
50
No. 15, par. 4.1 and 4.2, CPPNM Art. 7, ICSANT Art. 2.

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recommendations (see previous two sub-sections) and health and safety standards.51 Lastly,
guidance describing requesting and providing assistance, both as part of a national response
plan and with respect to legal proceedings (mutual legal assistance) is contained in No. 15,
which relates again to ICSANT, the CPPNM and the Assistance Convention.52 This
recommendation document will help states implement and invoke these relevant obligations
deriving from the legally binding instruments, including Security Council Resolution 1540,
namely operative paragraph 2 on prohibiting certain activities and operative paragraph 3 on
establishing domestic controls, or it can serve as supplementary form of guidance for states
that are not party to one or more of the relevant binding instruments.

VII.2.5 Initiative on strengthening nuclear security implementation

(INFCIRC/869)

The Nuclear Security Series Fundamentals and recommendation level documents form the
basis of the initiative on “Strengthening Nuclear Security Implementation,”53 which the
Netherlands, South Korea and the U.S. announced at the 2014 Nuclear Security Summit in
The Hague. At the press conference presenting the initiative, then Dutch Foreign Minister
Frans Timmermans described its objectives as being two-fold: 1) to eliminate weak links in
worldwide nuclear security, and 2) to build confidence in each government’s nuclear security
measures. The initiative was an important step in that it looks toward laying the groundwork
for a more robust international system based on national commitments to the domestic
application of the international principles and guidance and on actions to continuously
improve nuclear security, in general, as well as the effectiveness of domestic nuclear security
regimes and operators’ systems, more specifically. The initiative holds potentially far-
reaching consequences for the future strength of international nuclear security, but the
consequences will largely depend on how subscribing states choose to carry out their
commitments. It has since been taken out of the NSS context and opened up to the entirety of
the IAEA membership as INFCIRC/869. Notably, both India and China have subsequently
indicated commitment to this initiative, joining the US, UK and France as subscribing states
that possess nuclear weapons.
States that have signed on to the initiative pledge to “subscribe to the fundamental
principles” as laid down in Nuclear Security Series No. 20 and to “meet the intent of the
recommendations” in Nuclear Security Series documents Nos. 13-15. With regard to the latter
point, subscribing states have committed to realizing or exceeding the objectives of the
recommendation documents through “the implementation and enhancement of national
regulations and other government measures.” Therefore, while it is clear that the initiative
does not change the legally non-binding status of these instruments, some adaptation of
domestic laws, regulations, administrative systems, organizations or other measures in
accordance with the instruments is to be expected in carrying out the initiative. The extent of
these changes, however, is left entirely up to subscribing state discretion, reflecting the
voluntary nature of gift basket commitments. In order to maximize the utility of the initiative
in terms of improving nuclear security worldwide, states should take an approach in
exercising this discretion that goes as far as possible in giving effect to the fundamentals and
recommendations in domestic regimes. In accordance with the Nuclear Security
Fundamentals document (No. 20), states seem to be committing to putting in place an
appropriate and effective nuclear security regime based on the document’s list of essential

51
No. 15, paras. 7.12 and 7.13, CPPNM Art. 5, ICSANT Art. 18.
52
No. 15, paras. 7.6-7.16, CPPNM (as amended) Art. 11A and 11B, ICSANT Art. 14.
53
See J. Herbach, ‘The Nuclear Security Implementation Initiative: A Catalyst for Needed Action,’ Arms
Control Today, no. 5, June 2014.

129
elements being applied to the extent practicable. In other words, “subscribe,” thus interpreted,
means more than acknowledgment of the importance of these principles, but rather an
acceptance of the principles as an integral part of the national regime.
What it means to meet the intent of the Nuclear Security Series recommendation
documents, and thereby to realize or exceed the objectives, requires some interpretation.
Generally, as discussed above, each of the three sets of recommendations is meant to provide
guidance to states in setting up or strengthening, implementing and maintaining their nuclear
security regimes through the establishment or improvement of particular capabilities in order
to reduce risks of malicious activities, depending on the document’s particular scope – nuclear
material and facilities, radioactive material, nuclear and other radioactive material out of
regulatory control. One could identify the intent of the recommendations put together as to
help states establish a comprehensive appropriate and effective nuclear security regime,
thereby fleshing out the principles outlined in the Nuclear Security Fundamentals document.
In that way, the initiative commitment to a certain extent actually goes beyond what is
required of states parties to the relevant legally binding instruments, which each have a fairly
limited scope. For instance, the part of the international legal framework for nuclear security
covering radioactive material other than nuclear material remains relatively underdeveloped,
being founded primarily on the Code of Conduct described further below. This initiative
incorporates guidance on other radioactive material, thereby taking a step toward a more
comprehensive regime. Another issue remains security of military material and facilities,
which by and large remain outside the scope of the international legal framework. Although,
again, these documents explicitly apply only to civil-use material and facilities, states may
naturally extend the relevant provisions as they so choose.
A further key development of the initiative is the commitment by subscribing states to
“continue to improve the effectiveness of their nuclear security regimes and operators’
systems” through international peer reviews and self-assessments. The peer review services
are designed to assess a state’s nuclear security regime, including the legal and regulatory
framework and physical protection systems for nuclear and other radioactive material, in line
with international instruments and recognized best practices. As an example, the International
Physical Protection Advisory Service (IPPAS) is mentioned, but the language leaves open the
option for hosting other types of peer reviews, such as International Nuclear Security Service
(INSServ). IPPAS missions review a state’s physical protection system in light of
INFCIRC/225/Rev.5 and international best practices and provide recommendations on
improvements, as well as offering follow-up missions and assistance.54 INSServ missions
more generally review a state’s nuclear security measures including the legal and regulatory
systems and, as with IPPAS missions, contribute to the development of state-specific
Integrated Nuclear Security Support Plans (INSSPs) for improving national regimes
holistically and providing assistance. These voluntary arrangements, though not verification
mechanisms in the arms control law mold as such, remain the only international measure of
whether states are acting in accordance with nuclear security guidelines, making them
essential to building confidence in states’ nuclear security regimes. Requests for such reviews
have been increasing over time. Noteworthy is that subscribing states are making a general
pledge not only to host peer reviews, but also to host them “periodically.” Read together with
the commitment to act upon recommendations resulting from the reviews, hosting reviews
periodically would seem to mean that subscribing states intend to request regular follow-up
missions to review implementation of the suggested improvements.
The last element of the initiative has to do with ensuring demonstrable competence of
personnel with nuclear security-related responsibilities. This is highly important considering

54
See International Physical Protection Advisory Service, available at http://www-ns.iaea.org/security/ippas.asp.

130
that operators (licensees) hold prime responsibility for implementing physical protection
measures and maintaining security at facilities. Education and/or certification of relevant
personnel is included in a learning module that is part of the IAEA’s nuclear security
education program55 and is the focus of the WINS Academy, initiated by the World Institute
for Nuclear Security (WINS).56
INFCIRC/869, while not legally binding, is an important indication of state’s
commitment to continuing to strengthen nuclear security. Because it is centered on the
Nuclear Security Series instruments described above, it will serve to help strengthen
implementation of the relevant legally binding instruments. In addition, by expressing
political commitment, it can be expected that the subscribing states will adhere to the
commitment in good faith, meaning that it should have an impact on state behavior.

VII.3 Code of Conduct on the Safety and Security of Radioactive Sources

The Code of Conduct on the Safety and Security of Radioactive Sources is similarly not
legally binding, but is a different type of instrument from the documents in the Nuclear
Security Series described above. It entails an explicit (political) commitment by states to inter
alia norms on preventing unauthorized access or damage57 to, and loss, theft or unauthorized
transfer of, radioactive sources, as well as on mitigating or minimizing the radiological
consequences of accidents or malicious acts involving a radioactive source. International
codes of conduct are a common type of regulatory instrument used in relation to a range of
issues from corporate responsibility of transnational corporations (e.g. OECD Guidelines for
Multilateral Enterprises) to the environment (Code of Conduct for Responsible Fisheries) to
food and health (International Code of Conduct on the Distribution and Use of Pesticides).58
Codes of conduct are also employed in the area of arms control, for instance related to
weapons exports (European Code of Conduct on Arms Exports) or in the case of the Hague
Code of Conduct against Ballistic Missile Proliferation (HCoC). Under the HCoC,
participating states commit themselves inter alia to providing prelaunch notifications on
ballistic missiles and space-launch vehicles and test flights, as well as to submitting an annual
declaration of their policies on ballistic missiles and space-launch vehicles.59 International
codes of conduct set certain parameters of behavior for the actors at which they are directed.
They are developed by and/or aimed at guiding conduct of a range of actors, not only states
and international organizations but also non-state actors, such as corporations and research
institutes/researchers.60 One can imagine the attractiveness of a code of conduct as an
international governance instrument, as a type of regulatory act for international organizations
lacking legislative powers,61 or as a multilateral agreement among states when, for example,
addressing a transboundary issue results in a recognized need for establishing standards of

55
IAEA, ‘Educational Programme in Nuclear Security,’ Nuclear Security Series No. 12, March 2010.
56
World Institute for Nuclear Security, ‘The WINS Academy Security Certification Programme: Support to
Demonstrable Competence,’ January 2014.
57
Sabotage would fall under ‘unauthorized damage’.
58
See J. Friedrich, ‘Codes of Conduct,’ Max Planck Encyclopedia of Public International Law (2010).
59
Text of the Hague Code of Conduct against Ballistic Missile Proliferation is available at
https://www.hcoc.at/?tab=what_is_hcoc&page=text_of_the_hcoc (accessed on 25 April 2018).
60
See, for example, the ‘Code of Conduct for Biosecurity’ developed by the Royal Netherlands Academy of
Arts and Sciences to prevent life sciences research from contributing to misuse of biological agents, available at
https://www.bureaubiosecurity.nl/en/Policy/Dual_use_research/Code_of_Conduct_for_Biosecurity (accessed on
10 may 2018).
61
Supra note 58.

131
behavior, but achieving political consensus for ‘hard law’ is not possible.62 Such is the case
with respect to the Code of Conduct on radioactive sources. The Code of Conduct on
radioactive sources is directed at regulating behavior of states that have made a political
commitment, in line with the process outlined below, to follow the guidance contained
therein. There will, therefore, be an expectation of conduct and behavior by the relevant states
conforming to the terms of the Code of Conduct. A radioactive source under the Code of
Conduct is a subset of radioactive material that excludes unsealed radioactive material,
sources outside regulatory control (orphan sources), material encapsulated for disposal, and
nuclear material as defined by the CPPNM, except for sources incorporating plutonium-239.63
The scope of the Code of Conduct in terms of the material covered is narrower than ICSANT,
as it also excludes sources in military and defense programs. However, the Code of Conduct
is aimed generally at ensuring adequate security throughout the lifecycle of radioactive
sources, from the production of radioisotopes to disposal or recycling of disused sources, and
is, therefore, of more general application than ICSANT. The Guidance on the Import and
Export of Radioactive Sources (Import/Export Guidance) elaborates on the provisions of
paragraphs 23-29 of the Code of Conduct, applying to Category 1 and 2 sources.

VII.3.1 Security-related provisions of the Code of Conduct

While it covers both safety and security of radioactive sources, the Code of Conduct sets forth
the following (primary) security-related concepts in the form of basic principles:

 Every state should create confidential, national registries of high risk (including, at a
minimum, Category 1 and 2) sources to track them during their use by licensees
(paragraph 11), with considerable progress having been made to this end and with many
states having described using IAEA’s Regulatory Authority Information System (RAIS)
as the basis to develop national registers;64
 States should define domestic threats, and assess vulnerabilities with respect to this threat
for the variety of sources used within its territory, based on the potential for loss of control
and malicious acts involving one or more radioactive sources (paragraph 16);
 States should have in place effective national legislation and regulations containing
security measures to deter, detect and delay the unauthorized access to, or the theft, loss or
unauthorized use or removal of radioactive sources during all stages of management
(paragraph 19), and to reduce the likelihood of malicious acts, including sabotage,
consistent with the threat defined by the state (paragraph 8);
 Such legislation and regulations should provide for the establishment of a regulatory
body, whose functions are effectively independent of other functions with respect to
radioactive sources (paragraph 19);
 States should ensure that that the regulatory body established by its legislation has the
authority to attach clear and unambiguous conditions to the authorizations issued by it
(paragraph 20) - requiring possessors of sources to be authorized and licensed by
competent regulatory authorities;

62
See H. Keller, ‘Codes of Conduct and their Implementation: the Question of Legitimacy,’ in R. Wolfrum and
V. Röben (eds.), Legitimacy in International Law, Springer: Beiträge zum ausländischen Recht und Völkerrecht
(2008), pp. 219-298.
63
See Nuclear Security Series No. 14.
64
See Report of the Open-ended Meeting of Technical and Legal Experts for Sharing of Information on States'
Implementation of the Code of Conduct on the Safety and Security of Radioactive Sources and its supplementary
Guidance on the Import and Export of Radioactive Sources (17-21 May 2010).

132
 States should ensure that its regulatory body has the authority to require a security plan or
assessment, as appropriate, and to promote the establishment of a security culture among
all individuals and in all bodies involved in the management of radioactive sources
(paragraphs 20 and 22);
 States should emphasize to designers, manufacturers (both manufacturers of radioactive
sources and manufacturers of devices in which radioactive sources are incorporated),
suppliers and users and those managing disused sources their responsibilities for the safety
and security of radioactive sources (paragraph 15); and
 States should have national strategies for gaining or regaining control over orphan sources
(paragraph 8) and should ensure that the regulatory body is prepared to recover and
restore control over stolen or otherwise misplaced radioactive sources (paragraph 22).

The specific applicable physical protection measures are elaborated in Nuclear Security Series
No. 11 (Security of Radioactive Sources), which is an ‘implementing guide’ in the hierarchy
of the nuclear security series of documents. This document describes the assignment of
security levels for all five categories of radioactive sources, based on the general principle
that security measures should be applied on a graded basis that takes account of the current
evaluation of the threat, the relative attractiveness of the source, and the potential
consequences resulting from malicious use. The document further outlines specific security
measures, describes how to make a vulnerability assessment and illustrates the practical
implementation of security measures for a variety of facilities and activities.
With respect to mitigation, through ‘development, harmonization and implementation of
national policies, laws and regulations, and through the fostering of international co-
operation,’ the Code of Conduct aims to mitigate and minimize radiological consequences of
both accidents and malicious acts involving radioactive sources. The principles in the Code of
Conduct that are relevant to mitigation of radiological consequences include: states should
promptly provide information to potentially affected states, through the IAEA or other
mechanism, concerning loss of control over radioactive sources, or any incidents, with
potential transboundary consequences (paragraph 12); the regulatory body should have the
authority to establish criteria for intervention in emergency situations (paragraph 20(o)); the
state should ensure that the regulatory body establishes systems for identifying and tracing
radioactive sources (paragraph 22 (g)); and the state should ensure that the regulatory body
requires prompt reporting by authorized persons of loss of control over, and incidents in
connection with, radioactive sources (paragraph 22 (i)).
Because the Code of Conduct is formulated as a non-legally binding instrument, it does
not set forth ‘hard’ legal rules with which states, even having expressed political commitment,
are obligated to comply and for which they can be held accountable. Yet, it does provide
guidance for domestic laws and regulations that, in light of these political commitments,
creates a certain expectation of conduct/behavior and level of confidence.
Considering the elements of the Code of Conduct that have been mentioned here and
comparing them to the objectives of physical protection as mentioned in the previous chapter,
it is clear that while physical protection as such is not explicitly mentioned, the functions of
the system laid down in the Code of Conduct match closely with these objectives.65

VII.3.2 Process of expressing commitment to the Code of Conduct

65
The objectives laid down in the Code of Conduct, in fact, partially overlap with the language of
aforementioned objectives of physical protection (See Chapter 5).

133
Although the Code of Conduct is not legally binding, a process is foreseen by which states
express political commitment. This is a function of organization as defined under the
governance model. Process, which is a form of governance organization, gives the substance
of the non-binding instrument, in this case the Code of Conduct, normative weight and
legitimacy and adds to the expectation of behavior in line with the commitment. States are
urged to write to the Director General of the IAEA indicating support and endorsement of the
Agency’s efforts in the area of radioactive source security and safety, and indicating that they
are working toward following the guidance set forth in the Code of Conduct.66 The Director
General has been requested to compile, maintain and publish a list of those states having
made such a political commitment.67 This clearly demonstrates the relationship of
organization (process for expressing commitment developed under the auspices of the IAEA)
and substance (the norms set forth in the Code of Conduct) as it pertains to nuclear security
governance.
In setting out this process, the IAEA General Conference made clear that it is meant as
“exceptional”, with no legal effect and being for informational purposes only,68 though in
practice this process can have normative effect. Interestingly, this process is explicitly
declared as not constituting a precedent, for either other codes of conduct adopted under the
auspices of the IAEA or for other UN organizations, apparently reflecting a concern of this
becoming a standard procedure for making commitments short of legal obligation.69
Nevertheless, by expressing a form of commitment to act in accordance with the code of
conduct, states can be expected to comply on the principle of good faith, and even perhaps be
held accountable if they fail to do so.70 Though one may point to the relatively high number of
states having expressed political commitment – 136 as of the time of writing – this has
apparently not translated into high level of compliance. The findings of an external auditor
showed that the implementation of the Code of Conduct is “patchy.”71
A similar process of expressing commitment has been devised for the NSS gift baskets
that have been published as INFCIRCs, though these processes do not have the political
endorsement of the IAEA Board and General Conference. Indicating commitment in this way
at the least is a way to build confidence among states, though this is undermined if there is no
way to determine compliance.

VII.3.3 NSS initiatives on enhancing radioactive source security

At the Seoul Summit in 2012, where security of radioactive sources was added to the Summit
process agenda, Germany presented a gift basket on the security of radioactive sources. The
gift basket considered the wide use of radioactive sources throughout the world in industry,
medicine, agriculture and research, and thereby recognized that ensuring some level of
radioactive source security was necessary. It recognized the pertinent international
66
‘Measures to Strengthen International Cooperation in Nuclear, Radiation and Transport Safety and Waste
Management,’ ‘B. Code of Conduct on the Safety and Security of Radioactive Sources,’ GC(47)/RES/7,
September 2003, par. 4.
67
Ibid., par. 5.
68
Ibid., par. 6.
69
Ibid.
70
See Schachter, International Law in Theory and Practice, Dordrecht: Martinus Nijhoff (1991), p. 100.
71
Interview with official from the IAEA Division of Nuclear Security, conducted on 10 December 2012. The
outcome of the audit is interesting, particularly because in a separate interview conducted with a representative
of the IAEA Office of Legal Affairs, he indicated that implementation of the Code of Conduct was ‘strong’. One
possible explanation for this discrepancy is that States have adopted domestic legislation and regulations, or have
at least requested the IAEA’s assistance in doing so, but yet do not comply the terms of the Code of Conduct in
practice. Another explanation could be that, for instance, the safety aspects of the Code of Conduct are being
followed but not necessary also the security provisions.

134
instruments – including ICSANT, the Code of Conduct and Import/Export Guidance, and
Nuclear Security Series No. 14, among others. It then listed a series of steps to reach the goals
identified by the Seoul Summit with respect to radioactive sources, with suggestions for
related action. Among them were:

 Becoming a party to (universalizing) ICSANT

 Putting the relevant Nuclear Security Series documents and the Code of Conduct into
practice at the national level
 Establishing a national register of high-activity radioactive sources

Acknowledging that states would have different ways of meeting the challenges related to
radioactive source security, the gift basket included some examples of national approaches in
appendices.
Where the 2012 radioactive source security gift basket took a quite broad and general
approach to the issue, the 2014 gift basket on enhancing radiological security was more
specific. It commits subscribing states to securing Category 1 radioactive sources within their
territories by 2016,72 Category 1 sources being those that pose the highest risk to human
health.73 A number of actions are listed through which the subscribing states will secure the
Category 1 sources. Subscribing states pledge to secure the sources consistent with the Code
of Conduct and “with consideration” of Nuclear Security Series Nos. 14 and 15. The gift
basket goes on to list specific activities that the states will give particular attention to, which
seem to be drawn from or based on elements of the relevant soft law instruments, but are not
always direct copies of the soft law provisions. In addition, subscribing states “may consider”
applying additional best practices, a few examples of which the gift basket goes on to list.
One of the additional best practices is “a robust and holistic regulatory framework that
governs secure source transportation, possession and disposition.” Such a framework would
ostensibly also be based on relevant international guidance, namely that contained in Nuclear
Security Series No. 14.
Though not specifically mentioned, Nuclear Security Series No. 11 would be of
relevance, for instance in providing guidance on implementing site-level security measures.
Nuclear Security Series No. 11 assigns “security level A” to Category 1 sources and goes on
to describe measures related to detection, delay, response and security management for the
security of Category 1 sources, along with a table of illustrative measures that could be
applied at facilities.
At the 2016 NSS, a group of 28 participating states74 and one international
organization75 adopted a gift basket on “Strengthening the Security of High Activity Sealed
Radioactive Sources.” High-activity sealed sources are not specifically defined in the gift
72
NTI conducted a study of progress among the 23 countries that signed on to this gift basket in meeting the
relevant commitments. By March 2016, NTI found that 22 of the 23 met the commitment to secure all Category
2 sources, and most met the additional commitments and additional best practices. A. Bieniawski et al.,
‘Radiological Security Progress Report,’ Nuclear Threat Initiative, March 2016.
73
See IAEA, “Categorization of See IAEA, “Categorization of radioactive sources,” IAEA-TECDOC-1344, July
2003. In the list of sources covered by the Code of Conduct, Category 1 sources are further described in Annex I
to the Code of Conduct as: “sources, if not safely managed or securely protected would be likely to cause
permanent injury to a person who handled them, or were otherwise in contact with them, for more than a few
minutes. It would probably be fatal to be close to this amount of unshielded material for a period of a few
minutes to an hour. These sources are typically used in practices such as radiothermal generators, irradiators and
radiation teletherapy.”
74
Australia, Belgium, Canada, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, Israel,
Italy, Kazakhstan, Lithuania, Morocco, the Netherlands, Norway, Philippines, Poland, Republic of Korea,
Romania, Singapore, Spain, Sweden, Switzerland, Thailand, United Kingdom, and the United States.
75
INTERPOL.

135
basket, rather reference is made to the fact that subscribing states will consider the definition
as applied in the forum in which the gift basket is being used and in light of the topics being
discussed.76 This would seem to be a reference to potential differences in defining such
sources in domestic regulations. The EU, for instance, has established a definition of high-
activity sealed sources in a Council Directive, defining such sources as those “for which the
activity of the contained radionuclide is equal to or exceeds [a particular] relevant activity
value” as set forth in an annex.77 However, there is not an international definition of general
application for such sources. High-activity sealed sources are mentioned once, but not
defined, in the Code of Conduct in relation to industrial gauges. This is similar to the Basic
Safety Standards, which in describing categories for sealed sources used in common practices
places industrial gauges “incorporating high activity sources” in Category 3.78
In the gift basket, the subscribing states recognize the importance of continuing to
strengthen security of these sources and commit to encouraging and supporting this goal
through steps in three areas: strengthening the international framework applicable to
radioactive sources, supporting the development of alternative technologies and promoting
these where technically and economically acceptable, and deepening international cooperation
to manage high-activity sealed sources at the end of the life cycle. For each of these areas, a
few actions are laid out. For instance, with respect to the international framework, subscribing
states are to encourage states to become party to ICSANT and make a political commitment
to the Code of Conduct, to encourage the IAEA to identify gaps in the existing framework
and develop guidance and recommendations to fill the gaps, and to encourage the IAEA to
work on guidance and recommendations related to the management of disused sources.
Further research and development of alternative technologies to replace high-activity sources
is something that has been proposed by states, for instance, for inclusion in the yearly nuclear
security resolution adopted by the IAEA General Conference, but has not yet gained enough
traction. In addition, alternatives for, for instance, cesium chloride in blood irradiators, which
is a source in powder form and thus easily dispersible, is something that has been proposed by
NGOs.79 The issue of disused sources is also important as vulnerabilities arise when sources
are not properly and securely disposed of. The gift basket mentions the Ad Hoc Group of
Supplier States as an appropriate forum to develop good practices on the import and export of
sources, including with respect to returning the source to the supplier for recycling or disposal
at the end of life.
As with the initiative on strengthening nuclear security implementation
(INFCIRC/869) discussed above, the NSS 2016 gift basket on strengthening security of high-
activity sealed radioactive sources has been opened up to the IAEA membership as an
information circular. States wishing to join this gift basket are similarly asked to express this
in writing to the IAEA, which is then requested to circulate this to the member states. Again,
while not changing the non-binding nature of the gift basket, an expression of political
commitment will at least draw more attention to the need to strengthen the relevant

76
See footnote 2 of the Joint Statement on Strengthening the Security of High-Activity Sealed Sources (HASS).
77
Council Directive 2013/59/EURATOM of 5 December 2013 laying down basic safety standards for protection
against the dangers arising from exposure to ionizing radiation, and repealing Directives 89/618/EURATOM,
90/641/EURATOM, 96/29/EURATOM, 97/43/EURATOM and 2003/122/EURATOM, Article IV(41) and
Annex III.
78
IAEA Safety Standards for Protecting People and the Environment, Radiation Protection and Safety of
Radiation Sources: International Basic Safety Standards, General Safety Requirements Part 3, No. GSR Part 3,
2014.
79
See M. Pomper et al., ‘Promoting Alternatives to High-Risk Radiological Sources: The Case of Cesium
Chloride in Blood Irradiators,’ Occasional Paper No. 19, James Martin Center for Non-Proliferation Studies,
March 2014.

136
framework, and may perhaps result in additional states becoming party to ICSANT and
politically committing to the Code of Conduct.

VII.4 Concluding remarks

The legally non-binding instruments related to nuclear security comprise an integral part of
the international legal framework. The individual non-binding instruments complement the
legally binding instruments by providing guidance to help states parties to the CPPNM as
amended and ICSANT, as well as the nuclear security-related elements of Resolution 1540,
implement their obligations. As a whole, the set of non-binding instruments supplement the
binding instruments by forming a comprehensive set of guidance, covering aspects of a state’s
national nuclear security regime beyond the scope of the treaties. Additionally, the non-
binding instruments have occasionally served as precursors to a treaty, which was the case as
described above of INFCIRC/225/Rev.4 and the amendment to the CPPNM, the objectives
and fundamental principles in the convention having been derived from the recommendations
document. In essence, then, those elements drawn from the non-binding instrument were
made legally binding in the convention. The lines between binding and non-binding can thus
be somewhat blurred depending on the circumstances.80
INFCIRC/869 elevated to a certain extent the role of the Nuclear Security Series
documents in the broader framework. Though not changing the non-binding nature of the
Fundamentals and recommendations documents, states having made a political commitment
to reflecting the Fundamentals and recommendations in domestic regimes have, based on the
principle of good faith, created an expectation of conduct, which in turn can help serve to
build international confidence. Other states have taken the same approach in opening up NSS-
derived gift baskets for political commitment by the IAEA member states, thus mimicking the
process for expressing commitment foreseen for the Code of Conduct. This commitment
being legally non-binding, however, does not entail legal recourse in the case of non-
compliance.
Non-binding instruments should not be seen as substitutes for treaties, rather the
strength of the overall international legal framework for nuclear security depends on the
interaction of the non-binding instruments with the relevant treaties. This includes the role as
implementing guidance to ostensibly strengthen compliance and the related possibility of
being indicative of subsequent practice/agreement impacting the interpretation of the relevant
treaty provisions. This is the aspect that holds significant potential to help further strengthen
the international legal framework in the (relatively) short term. As will be discussed in a later
chapter on the way forward, the relative flexibility and adaptability to take account of
developments, including evolving threats such as cyber-attacks, that the non-binding
instruments present offer opportunities for evolutive interpretation and implementation of the
legal framework. Therefore, non-binding instruments will remain central to efforts to continue
improving global nuclear security.

80
This is not to mention cases in which the guidance is made binding by being incorporated directly into, for
instance, project and supply agreements between IAEA member states and the Agency.

137
138
Part III: The Legal Framework for Nuclear Security:
Organization

139
140
Chapter VIII: The Role of International Organizations and Informal Groupings of
States in Nuclear Security

VIII.1 Introduction
VIII.2 The relevance of an institutional role in the area of nuclear security
VIII.3 Nuclear security and the powers and functions of the IAEA
VIII.3.1 The institutional framework of the IAEA
VIII.3.2 Supervisory functions of the IAEA under arms control law
VIII.3.3 IAEA supervision of nuclear security commitments?
VIII.4 Arms control law and the UN system of collective security
VIII.4.1 Security Council as part of the correction function under arms control treaties
VIII.4.2 Non-state actors and the legislative approach
VIII.5 The supportive function of multilateral initiatives in nuclear security
VIII.6 Concluding remarks

VIII.1 Introduction

This chapter examines the role of international organizations with respect to the international
legal framework for nuclear security, namely as part of the institutional law of arms control,
as well as informal groupings of states, as part of the broader governance model. International
organizations play a crucial role in the field of arms control law, namely as a fundamental part
of the supervisory process to monitor and control compliance with multilateral arms control
treaties.1 Having an independent, neutral third party involved in supervising compliance,
empowered by and with the consent of states parties, is inherently valuable due to, inter alia,
the importance of uniform application of the rules, the often specialized technical nature of
rules, and the need for facilitating cooperation and transparency (though subject to
confidentiality) in order to build confidence among the parties.2 While no organization is
directly tasked with supervising compliance with the legal instruments that comprise the
international legal framework for nuclear security, a number of organizations play roles to
varying degrees involving monitoring and assisting with implementation of certain
obligations, supporting cooperation and facilitating development of the rules, among other
functions. Though the institutional role of supervision is important, it is not the only function
of international organizations in the area of nuclear security. They also serve, for instance, as
a forum for iterative interaction among states, convening meetings for information exchange
or review of treaties (in the case of being a treaty depositary).
Under the governance model, organization is not limited to international organizations
in the strict legal sense. Other, more informal groupings of states are also part of the nuclear
security governance structure, with the related flexibility to address issues and challenges as
they arise, unencumbered by statutory limitations. The threshold to participation in such
groupings is also often lower (GICNT requires only political commitment to a set of
principles), more easily allowing participation by states.
As discussed earlier in the study, organization in the governance model also includes
process. As applicable, process was discussed earlier in the study in relation to the
development of and expression of commitment to soft law instruments. Mechanisms for

1
See G. den Dekker, ‘The Effectiveness of International Supervision in Arms Control Law,’ 2004 Journal of
Conflict and Security Law, no. 3, pp. 315-330.
2
See E.P.J. Myjer and G. Den Dekker, ‘Wapenbeheersingsrecht,’ in N. Horbach et al. (eds.), Handboek
Internationaal Recht, The Hague: TMC Asser Press (2007), p. 591-626; T. Marauhn, ‘Dispute resolution,
compliance control and enforcement of international arms control law,’ in G. Ulfstein (ed.), Making Treaties
Work: Human Rights, Environment and Arms Control, Cambridge: Cambridge University Press (2007), pp. 243-
272; B. Kellman, ‘Protection of Nuclear Materials,’ in D. Shelton (ed.), Commitment and Compliance: The Role
of Non-binding Norms in the International Legal System, Oxford: Oxford University Press (2000), pp. 486-505.

141
iterative interaction among states was also previously discussed in the context of the soft law
instruments to which they related, namely the process for information exchange with regard to
the Code of Conduct on the Safety and Security of Radioactive Sources. This demonstrates
the close interrelationship between substance and organization as part of the governance
model for nuclear security. Substance and organization are often closely linked. Substance
provides the normative basis for state behavior. Organization represents the means and
mechanisms by which the norms are developed, interpreted, and modified; provides a forum
for cooperation and interaction among states, and perhaps other relevant actors;3 and can play
a role in overseeing compliance with rules and norms.
For the purposes of this chapter, then, the focus is primarily on the institutional role
played by the IAEA and the UN when it comes to nuclear security. The importance of
supervision of compliance with the relevant instruments is specifically highlighted, not only
because that is a key aspect of international arms control law more broadly, but also because
assurances that states are living up to their commitments are needed in the area of nuclear
security, considering the transboundary effects of potential acts of nuclear terrorism.

VIII.2 The relevance of an institutional role in the area of nuclear security

Limitations on the institutional role in the area of nuclear security, namely lack of explicit
supervisory mechanisms to monitor, verify and enforce compliance with the rules, is a
weakness of the international legal framework. Part of the problem has to do with the
framework being comprised to a large extent of soft law, which does not lend itself to legally
mandated supervision, though even the legally binding instruments do not entail supervisory
mechanisms. Nonetheless, facilitating cooperation, information sharing, and confidence
building, as well as monitoring and verification of compliance with the rules and norms in
nuclear security can be taken up by or tasked to an institutional arrangement/international
organization with a view to fulfilling each state’s interest in the necessary measures being
taken in other states. This relates to the fact that nuclear security is fundamentally about
(inter-) national security (the security dimension), which is negatively impacted by potential
non-compliance with and weak enforcement of the rules. As such, there is a strong argument
to be made that states should empower an international organization, most likely the IAEA,
with a supervisory role for the international legal framework for nuclear security.4 The
resultant strengthening of the framework would serve as an incentive for more states to
commit to and implement the relevant instruments, as doing so would more clearly enhance
national security.5

VIII.3 The main organizations involved in nuclear security

The International Atomic Energy Agency (IAEA), established to accelerate and enlarge the
contribution of atomic energy to peace, health and prosperity worldwide,6 is the primary
international body involved in the international legal framework for nuclear security, referred
to in the outcome documents of the Nuclear Security Summits as the IAEA’s “essential

3
This refers inter alia to participation of relevant industry and/or civil society.
4
See C. Joyner and A.I. Parkhouse, ‘Nuclear Terrorism in a Globalizing World: Assessing the Threat and the
Emerging Management Regime,’ 2009 Stanford Journal of International Law, no. 2, pp. 203-241. Joyner and
Parkhouse focus on enforcement of current treaty law in the area of nuclear security and argue that robust
enforcement by the IAEA and cooperation among states to strengthen nuclear safeguards and police illicit
trafficking may serve to diminish the threat of nuclear terrorism, at 207.
5
See Marauhn, supra note 2, in which he states that states perceive arms control treaties as “tools to enhance
national security”, at 250.
6
Statute of the International Atomic Energy Agency (IAEA Statute), Article II.

142
responsibility and central role”7 in nuclear security. The question is what does this central role
precisely entail. Though the term nuclear security does not appear anywhere in the IAEA
Statute, it has been read over time as being part of the organization’s aforementioned primary
objective, an integral aspect of its functions and further developed by decisions of the
Agency’s executive body, the Board of Governors. Where, then, does the mandate with
respect to nuclear security stem from if not explicitly mentioned in the constituent
instrument? The IAEA’s functions in this area are clearly and inextricably linked to its work
on non-proliferation of nuclear weapons and facilitating the peaceful uses of nuclear energy.
As will be described in more detail below, the IAEA inter alia contributes to the development
of rules and guidelines concerning nuclear security, as well as assists states with and, to a
certain extent, assesses implementation of the rules and guidelines.
While the IAEA is the primary organization dealing with nuclear security issues, it is
not the only one.8 The United Nations, through both the Security Council and the General
Assembly, is also involved in the international nuclear security framework. The UN’s role is
founded in its fundamental purpose of maintaining international peace and security. It is the
security dimension of nuclear security as well as the threat posed to international peace and
security, in this case by potential acts of nuclear terrorism, that lead to the UN’s direct
involvement in this area. On a couple of occasions, the Security Council has notably invoked
Chapter VII of the UN Charter and thereby taken legally binding measures on matters related
to nuclear security, labeling international terrorism (Resolution 1373, 2001) and proliferation
of ‘nuclear, chemical and biological weapons, as well as their means of delivery’ (Resolution
1540, 2004) as threats to international peace and security. For its part, the General Assembly
has been involved in addressing matters related to international terrorism. It has maintained
7
With slight variations, this phrase was used in each of the consensus documents (communiqués) at consecutive
Nuclear Security Summits in 2012, 2014 and 2016 (the 2010 NSS Communiqué only referred to the essential
role of the Agency in the international nuclear security framework). Compare that to the formulation in the 2016
Ministerial Declaration from the International Conference on Nuclear Security: Commitments and Actions
convened by the IAEA: “the central role of the IAEA in facilitating and coordinating international cooperation
and in organizing Information Exchange Meetings with other organizations and initiatives on nuclear security.”
The focus here is on one aspect, namely the Agency’s work on international cooperation, as opposed to the
broader and more general role of strengthening global nuclear security. The IAEA’s role in nuclear security has
also been emphasized in other fora, see for instance volume one of the final document of the 2010 review
conference for the Treaty on the Non-Proliferation of Nuclear Weapons wherein emphasis is placed on the
“important role of the IAEA in fostering international cooperation in nuclear security, in establishing a
comprehensive set of nuclear security guidelines, and in assisting member states, upon request, in their effort to
enhance nuclear security,” NPT/CONF.2010/50 (Vol. I), par. 28.
8
INTERPOL is involved on the law enforcement side. It has a special Radiological and Nuclear Terrorism
Prevention Unit, established in 2011, that among other things provides training in radiological and nuclear
investigations, assists international coordination in nuclear smuggling investigations (at airports and seaports),
and raises awareness and conducts training on detecting and interdicting nuclear and radiological materials to
combat illicit trafficking. INTERPOL also created a ‘notice program’ that provides warning to police, relevant
public entities and other international organizations about potential threats from dangerous materials.
Furthermore, it runs Project Geiger, which is a program that gathers and analyzes data on illicit use of
radiological and nuclear material. Other relevant organizations include the International Maritime Organization
(IMO), which for the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation as amended by the 2005 Protocol in involved in facilitating information sharing among states parties
to other relevant international organizations related to treaty-specific offenses, convening conferences for the
revision or amendment of the protocol, and circulating texts of proposed amendments to the annexes. The IMO
serves the same role inter alia related to revision or amendment under the 2005 Protocol to the Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. The
International Civil Aviation Organization (ICAO) serves a similar function pursuant to the 2010 Convention on
the Suppression of Unlawful Acts Relating to International Civil Aviation. In the broader scope of the
international legal framework for nuclear security, these organizations play a much more limited role, which is
why, for the purposes of this study, it is important to mention them here, but it is not necessary to go into further
detail.

143
‘measures to eliminate international terrorism’ as an agenda item since its 27th session in
1972, pursuant to which the General Assembly has, inter alia, established an ad hoc
committee in 1996 to elaborate a convention for the suppression of acts of nuclear terrorism
(ICSANT), exercising a “‘legislative’ function.”9 States-parties celebrated in 2017 the tenth
anniversary of this convention’s entry into force. Relevant measures taken by the UN have
been preventive in nature, focused in part on strengthening member states’ legal and
regulatory framework. This approach has not been without controversy, namely in the case of
the aforementioned Security Council resolutions, by which the Council acted as a ‘legislator’,
obligating member states to adopt legislation in domestic systems.
In addition to international organizations, states have established multilateral
initiatives that contribute to certain aspects of the nuclear security framework. For the
purposes of this legal study, it suffices10 to examine the Global Initiative to Combat Nuclear
Terrorism (GICNT) which, though it is not involved in the development of or supervision of
compliance with the nuclear security rules, focuses in part on strengthening implementation
of the relevant treaties through national capacity building.11 To join the GICNT, a state must
commit to a set of eight principles, which are prefaced with the objective to develop
participating states’ capabilities to combat nuclear terrorism consistent with obligations under
relevant legal instruments – the CPPNM (as amended), ICSANT and Security Council
Resolutions 1373 and 1540. A number of the principles allude or relate to elements of the
international legal framework, and thus reinforce and support the related objectives and
functions of the IAEA and UN in this area.

VIII.4 Nuclear security and the powers and functions of the IAEA

The IAEA was founded in 1957 by constituent treaty (the Statute) with an objective, powers
and functions reflecting the inherent dual-use nature of atomic energy.12 On the one hand, the
IAEA is entrusted with facilitating the peaceful use of atomic energy to benefit mankind,
which it has done by inter alia promoting nuclear techniques and applications to realize
sustainable development and health goals. On the other hand, it serves a control function,

9
See P. Sands and P. Klein, Bowett’s Law of International Institutions (Fifth Edition), London: Sweet &
Maxwell, pp. 261-296. The term ‘legislative’ is put in quotation marks by the authors because not all
organizations are endowed with the powers to adopt rules binding on their member states and because of a false
equivalency that should not be drawn between the acts of an international organization and national law-making.
In the sense used here, the “legislative” role has more to do with serving as a forum for elaboration and adoption
of a multilateral convention.
10
While an important player in CBRN security more broadly, the Global Partnership Against the Spread of
Weapons and Materials of Mass Destruction and the Global Initiative to Combat Nuclear Terrorism (GP)
focuses on developing, implementing and facilitating projects to prevent non-state actors from acquiring WMD
primarily through resource allocation (connecting donors and recipients); see for instance the ‘Statement by the
Global Partnership Against the Spread of Weapons and Materials of Mass Destruction’ for the 2016 Nuclear
Security Summit. Thus, for a legal study on nuclear security, the GP plays only a tangential role, though a
number of projects supported by the GP are aimed at strengthening implementation of the legal framework, such
as Resolution 1540.
11
At the 2017 plenary meeting of the GICNT, the co-chairs (Russian Federation and the US) endorsed the
recommendation to adopt “legal frameworks” as a thematic focus area for GICNT’s activities; see ‘Joint Co-
Chair Statement’, 2017 Plenary Meeting, available at http://www.gicnt.org (accessed on 1 November 2017). In
GICNT procedure, endorsement in a co-chair statement is equivalent to adoption by the GICNT membership.
The Netherlands has been tasked as the first special advisor to the international coordinator, inter alia, with
respect to legal frameworks.
12
See J. Stoessinger, ‘The International Atomic Energy Agency: The First Phase,’ 1959 International
Organization, no. 3, pp. 394-411; R.J.S. Harry, ‘IAEA Safeguards and Non-Proliferation,’ in M. van Leeuwen
(ed.), The Future of the International Nuclear Non-Proliferation Regime, Dordrecht: Martinus Nijhoff (1995),
167-203.

144
seeking to ensure through safeguards that no nuclear material is diverted from peaceful
purposes to military use.13 This dual-use crossroads is important to understanding the place of
nuclear security, and why it fits squarely within the purview of the IAEA. It facilitates the
peaceful use of atomic energy by ensuring that material and related facilities are not exploited
for nefarious purposes.
Up front, it is worth pointing out that the IAEA is an organization that has taken on a
supervisory role in the area of arms control law pursuant to certain legal instruments, rather
than one having been established by an arms control treaty for which it functions to realize a
specific treaty’s object and purpose and to ensure its implementation.14 This is in contrast to,
for instance, the Organization for the Prohibition of Chemical Weapons (OPCW) established
under the Chemical Weapons Convention and the Comprehensive Nuclear-Test-Ban Treaty
Organization.15 Only with the entry into force of the Treaty for the Prohibition of Nuclear
Weapons in Latin America (Tlatelolco Treaty) in 1969 and of the Treaty on the Non-
Proliferation of Nuclear Weapons (NPT) in 1970 did the IAEA become, in the words of Jozef
Goldblat, the “first specialized international organization to be directly involved in checking
observance of multilateral arms control obligations.”16

VIII.3.1 The institutional framework of the IAEA

The IAEA has, like the OPCW and the CTBTO, a tripartite structure: a plenary body, the
General Conference, made up of the full membership of the Agency; an executive body, the
Board of Governors, of limited membership (35 members) partially designated by the Board
itself and partly elected by the General Conference; and a secretariat (or ‘the staff’) led by the
13
IAEA Statute, Article II: “It shall ensure, so far as it is able, that assistance provided by it or at its request or
under its supervision or control is not used in such a way as to further any military purpose.” To this end, the
IAEA is authorized to “establish and administer safeguards designed to ensure that special fissionable and other
materials, services, equipment, facilities, and information made available by the Agency or at its request or under
its supervision or control are not used in such a way as to further any military purpose; and to apply safeguards,
at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that
State's activities in the field of atomic energy,” Article III.5 IAEA Statute. See also Article XII on IAEA
safeguards, laying out means and methods of safeguards, including the establishment of an inspectorate, as part
of the Agency’s rights and responsibilities.
14
In other words, the IAEA is not a ‘single-purpose’ organization. See E.P.J. Myjer, ‘The Organization for the
Prohibition of Chemical Weapons,’ in E.P.J. Myjer (ed.), Issues of Arms Control Law and the Chemical
Weapons Convention, The Hague: Martinus Nijhoff (2001), pp. 88.
15
CWC, Article VIII(1): The OPCW is established by the states parties “to achieve the object and purpose of
this Convention, to ensure the implementation of its provisions, including those for international verification of
compliance with it, and to provide a forum for consultation and cooperation among states parties.” Because the
CTBT has not yet entered into force, the treaty organization, the CTBTO, has been activated in provisional form
by resolution of signatory states. The Preparatory Commission, which has legal standing as an international
organization (able to negotiate and enter into agreements) is primarily tasked with advancing efforts toward
entry into force and building up the verification measures so they are operational upon entry into force. See
CTBT/MSS/RES/1, ‘Resolution Establishing the Preparatory Commission for the Comprehensive Nuclear-Test-
Ban Treaty Organization,’ (1996); R. Johnson, ‘Unfinished Business: The Negotiation of the CTBT and the End
of Nuclear Testing,’ United Nations Institute for Disarmament Research (2009), pp. 145-174; G. den Dekker,
The Law of Arms Control: International Supervision and Enforcement, The Hague: Martinus Nijhoff Publishers
(2001), pp. 306-332; E.P.J. Myjer and J. Herbach, ‘Violation of non-proliferation treaties and related verification
treaties,’ in D. Joyner and M. Roscini (eds.), Non-proliferation Law as a Special Regime, Cambridge:
Cambridge University Press (2012), pp. 137-144; M. Asada, ‘CTBT: Legal Questions Arising from Its Non-
Entry-Into-Force,’ 2002 Journal of Conflict and Security Law, no. 1, pp. 85-122. Asada points out that although
the CTBT contains far reaching verification measures, such as an International Monitoring System comprised of
more than 300 seismic, hydroacoustic, infrasound and radionuclide monitoring stations worldwide and on-site
inspections, that treaty-based measures will not become fully available until the treaty enters into force.
16
J. Goldblat, Arms Control: The New Guide to Negotiations and Agreements, 2nd Edition, London: Sage
Publications, p. 227.

145
Director-General. The Statute of the IAEA vests broad and powerful authority in the Board. It
is broadly tasked with “carry[ing] out the functions of the Agency” in accordance with the
Statute, subject to the responsibilities it has to the General Conference.17 In practice, and
specifically when it comes to the supervisory role of the IAEA as will be discussed further
below, the Board’s authority extends to making decisions for the Agency to assume additional
supervisory tasks, such as under the NPT. The Board also is largely responsible for regulating
the functioning and activities of the Director-General, who heads the Agency’s secretariat,
and the secretariat staff. It possesses a far-reaching mandate under the scope of the Statute,
making the Board the central (decision-making) body of the Agency. In practice, these
responsibilities extend to interpretation of the Statute itself, a role it shares, to a certain extent,
with the General Conference.18
The General Conference, on the other hand, while being the most representative body,
has a fairly limited set of functions, particularly when it comes to statutorily mandated
decision-making. Its tasks specifically outlined in the Statute concern inter alia approving
budgets, approving states for membership, approving reports to the UN as required by the
relationship agreement, approving agreements between the IAEA and the UN or other
organizations, and approving the appointment of the Director General.19 In each of these
cases, and more in general, the General Conference has quite restrictive decision-making
power largely based upon recommendation of the Board, and the action envisioned if the
General Conference is not in agreement, is to return the reports or agreements to the Board
with its recommendations.20 As Szasz has pointed out, only in limited instances does the
General Conference have independent authority, primarily on election of members to the
Board and adopting amendments to the Statute, pursuant still to fairly restrictive statutory
requirements.21
Aside from the specifically elaborated functions, the General Conference is also given
more general tasks under the Statute. It is allowed to take up any questions or matters within
the scope of the Statute or relating to the powers and functions of the other Agency organs,
regarding which it can make recommendations to the IAEA membership or the Board.22 The
Conference is also given the authority to take decisions on matters referred to it for that
purpose by the Board.23 Again, the Board in referring a matter to the Conference takes the
initiative here, and the Board effectively assigns the decision-making role to the Conference

17
See IAEA Statute, Article VI.F. The General Conference is, for instance, given the authority to take decisions
on any matter specifically referred to it for this purpose by the Board, and to propose matters for consideration
by the Board and request from the Board reports on any matter relating to the functions of the Agency (Statute
Art. V.F).
18
P.C. Szasz, The Law and Practices of the International Atomic Energy Agency, Legal Series No. 7, Vienna:
International Atomic Energy Agency (1970), at 4. Under the comprehensive safeguards agreements
(INFCIRC/153 (corrected)), the Board is tasked with addressing questions that arise out of the interpretation or
application of the agreement, interesting as the Agency itself is party to the agreement; see Myjer and Herbach,
supra note 17, at 128, and Den Dekker, supra note 17, at 271. This is an example of the ‘creative’ function of
supervision.
19
IAEA Statute, Art. V(E).
20
The General Conference does set rules and limitations on borrowing power of the Agency as exercised by the
Board, which give the Conference slightly more authority in that case. See IAEA Statute, Art. XIV(G).
21
Szasz, Law and Practices of the International Atomic Energy Agency, at 109-110. The General Conference’s
powers are often directed at very specific circumstances. For instance, it can take enforcement action against
IAEA member states in the case that they are in arrears in payments of financial contributions (IAEA Statute
Art. XIX(A)). Szasz points out that the limitations on the General Conferences powers and functions was a
source of substantial criticism during drafting of the Statute (pp. 107-108).
22
IAEA Statute, Art. V(D). The reference to recommendations being made to the “membership of the Agency”,
rather than individual members, as one would expect a recommendation to the collective membership would
imply a recommendation to itself as the plenary organ.
23
IAEA Statute, Art. V(F).

146
in such instances. The Conference is also generally mandated to propose matters for the
Board’s consideration and to request reports from the Board on any matter regarding the
Agency’s functioning.24 In this case, the power of initiative lies with the Conference, but only
in bringing an issue to the Board’s attention, upon which the Board could take action. The
ability to request reports from the Board on the functioning of the Agency is one of the
limited range of independent actions the Conference can take.
One can contrast the statutory roles of the Board of Governors and General
Conference with the powers and functions of the equivalent OPCW organs, the Executive
Council and Conference of States Parties (CSP), pursuant to the OPCW’s constituent
instrument, the Chemical Weapons Convention.25 Though similar in structure, there are key
differences. In general, where the General Conference is positioned as a secondary organ, the
CSP is explicitly labeled the ‘principal organ’ of the OPCW, endowed with generally
responsibility for the implementation of the convention and overseeing the other treaty
organs.26 This translates into differences between the two bodies’ relative powers and
functions. For instance, whereas with the IAEA General Conference that may take up any
matter within the scope of the Statute, the CSP is obligated (‘shall’) to consider such matters
under the CWC, including related to the powers and functions of the other treaty organs, the
Executive Council and the Technical Secretariat.27 The CSP is also tasked with taking up
questions, matters or issues raised by a state party or brought to its attention by the Executive
Council, regarding which it can make recommendations or take decisions on its own accord
rather than such decision having to be specifically sought by the Executive Council as in the
case of the General Conference. The CSP is further generally mandated to oversee the
implementation of the CWC and to review compliance with the treaty.28 The Executive
Council, then, plays a subsidiary role, as opposed to the central role of the IAEA Board, its
main function being the promotion of effective implementation and compliance with the
CWC, through inter alia supervising the activities of the Technical Secretariat in carrying out
the CWC’s verification regime.29 The Executive Council is responsible to the CSP, is
mandated to carry out the functions both assigned to it under the CWC and further delegated
to it by the CSP, and must act in conformity with and carry out the recommendations,
decisions and guidelines of the CSP.30
Explicit reference is not often made to the precise legal basis in the IAEA Statute for
particular action by the Agency organs. Rather, ostensibly founded on the general powers and
functions mentioned above that entail consideration of matters within the scope of the Statute,
the interpretation of the mandate as evidenced by institutional acts is quite broad and flexible.
The primary instrument through which the political organs of the IAEA act is resolutions that
do not bind member states but rather detail, direct and give effect to the work of the
organization.31 The General Conference for its part, since 2001, adopts an annual resolution

24
Ibid.
25
The general powers and function of the organs – Conference of States Parties and Executive Council – under
the CTBT are nearly identical to those of the OPCW. See CTBT, Art. II.
26
CWC, Art. VIII(19). See, W. Krutzsch, E. Myjer and R. Trapp (ed.), The Chemical Weapons Convention: A
Commentary, Oxford: Oxford University Press (2014), pp. 244-263.
27
Ibid.
28
CWC, Art. VIII(20).
29
Krutzsch, Myjer and Trapp, pp. 272-285.
30
CWC, Art. VIII(30); Krutzsch, Myjer and Trapp, pp. 276-277.
31
White refers to these types of resolutions adopted by international organizations and that do not bind member
states as recommendations, differentiating them from binding decisions, directives, determinations and
conventions in the range of decision-making acts; N. White, The Law of International Organizations,
Manchester: Manchester University Press (1996), pp. 92-97. Sands and Klein note that the primary objective of a
large portion of such institutional acts adopted by international organizations is meant to ensure the functioning
of the organization; at 279-296.

147
on nuclear security under which the Agency and the Technical Secretariat is called upon,
requested or encouraged to fulfill a certain role or take some action in the area of nuclear
security.32 These resolutions, adopted by the full membership of the IAEA as represented in
the plenary body, serve to support the legal basis for the Agency’s work in the area of nuclear
security. The fact that the Secretariat acts in accordance with and fulfills the requests
contained in the annual Conference resolutions demonstrates the legal effect of these acts.
That the Board retains the main responsibility for directing the work of the agency is
demonstrated by the approval of the four-yearly nuclear security plans that provide the
primary legal basis for the Agency’s work in this area. The point to be made here, though, is
that even without direct reference to nuclear security as part of the statutory functions of the
IAEA, the Agency’s organs have clearly interpreted nuclear security as falling within the
scope of the Agency’s mandate and have developed the institutional acts accordingly.

VIII.3.2 Supervisory functions of the IAEA under arms control law

The supervisory role of the IAEA further demonstrates the flexible nature of the institutional
framework of the Agency. The Statute sets forth the tools through which the supervision and
control function of the Agency is carried out – safeguards and standards – without
exhaustively defining them. The objective of safeguards, the framework through which the
Agency conducts supervision of arms control obligations, is “to ensure that special fissionable
and other materials, services, equipment, facilities, and information made available by the
Agency or at its request or under its supervision or control are not used in such a way as to
further any military purpose.”33 What precisely safeguards will entail is not further elaborated.
Only certain rights and responsibilities of the Agency in dispensing its safeguards are listed,
though these are only applicable to the “extent relevant to the project or arrangement.”34 A
staff of inspectors is to be established to carry out the tasks of safeguards.35 The precise terms
of safeguards, though, are defined and worked out is separate subsidiary arrangements
between the Agency and states and approved by the Board of Governors. Whereas with
respect to the CWC all states parties have the same obligations to get rid of all chemical
weapons, in the nuclear sphere pursuant to various treaties and arrangements centered around
the NPT, states have different obligations, primarily when it comes to whether a state is a
nuclear weapon state or a non-nuclear weapon state, or those states not party to the NPT.36 By
having the supervisory model based for the most part on bilateral agreements, rather than an
integral part of a treaty text, the safeguards as an instrument is flexible and can be applied as
necessary to various situations.
Under the NPT, each non-nuclear-weapon state,37 having undertaken not to receive in
any way the transfer of nuclear weapons or other nuclear explosive devices or of control over

32
See for instance GC(61)/RES/9 (September 2017).
33
IAEA Statute, Art. III.A.5.
34
IAEA Statute, Art. XII.A.
35
IAEA Statute, Art. XII.B. This inspectorate has been set up within the Department of Safeguards, though for
the Iraq Action Team model described below and bases on Security Council Resolution 687, a separate group of
inspectors was established outside of the Department of Safeguards.
36
Various types of safeguards arrangements include inter alia comprehensive safeguards, voluntary offer
agreements (used by nuclear weapon states under the NPT that have no obligation to conclude comprehensive
safeguards), and item-specific safeguards (applied for the most part to non-NPT states).
37
Those states parties not having manufactured and exploded a nuclear weapon or other nuclear explosive
device prior to 1 January 1967. This is derived from NPT Article IX, par. 3, which defines nuclear weapon states
as the converse, namely those states parties having manufactured and exploded a nuclear weapon or other
nuclear explosive device prior to 1 January 1967. That definition encompasses the five permanent members of
the UN Security Council (China, France, Russia, the United Kingdom and the United States), and creates the
treaty-based stratification of the nuclear weapon haves and have-nots.

148
such items, nor to manufacture or otherwise acquire nuclear weapons or other nuclear
explosive devices, and not to seek or receive assistance in the manufacture of such items, is
obligated to accept IAEA safeguards.38 The required safeguards, meant for the “ exclusive
purpose” of verifying compliance with NPT obligations and aimed at preventing diversion of
nuclear energy from peaceful applications to nuclear weapons or other nuclear explosive
devices, are not part of the treaty text but rather are to be concluded in bilateral agreements
between the non-nuclear weapon state party and the IAEA (or in some cases with more
parties at once, such as the IAEA-Euratom tripartite safeguards agreements).39 This again
differs from treaty-contained verification regimes, such as found under the Chemical
Weapons Convention (CWC) and the Comprehensive Nuclear Test-Ban-Treaty (CTBT).
Importantly for a discussion of a potential enhanced role for the IAEA in the area of
nuclear security, the NPT case provides a precedent in which the Agency took on additional
supervisory tasks in the area of arms control, namely as mandated by a treaty. In order to
fulfill the task assigned to it under Article III of the NPT, the IAEA Board of Governors
established the Safeguards Committee to develop ways for the Agency to meet its
responsibilities under the treaty.40 The result of the Committee’s work was the document ‘The
Structure and Content of Agreements Between the Agency and States Required in Connection
with the Treaty on the Non-Proliferation of Nuclear Weapons’, otherwise known as the full-
scope or comprehensive safeguards agreement.41 Taking on a new safeguards role in this way
– the application of safeguards in the context of a treaty by request of the parties – is
consistent with the Agency’s authority under the Statute.42
The safeguards system, composed of safeguards agreements in conjunction with the
IAEA Statute, is centered on material accountancy.43 When nuclear material, as defined in the
Statute, has reached a certain stage of the fuel cycle in a non-nuclear weapon state (NNWS) –
suitable for fuel fabrication or isotopic enrichment having left the plant or process stage where
it has been produced, or having been imported into a state – it must be placed under
safeguards.44 States are required to provide detailed information on the material as well as

38
See NPT Articles II and III.
39
The European Atomic Energy Community (Euratom) was created by treaty in 1957. Its general objective is to
pool the nuclear industries of member states to allow them to benefit from the peaceful uses of atomic energy
and ensure security of supply. The Euratom treaty also guarantees the application of a high level of safety
standards and seeks to prevent diversion of nuclear material to military purposes. For this latter purpose, the
Euratom treaty establishes a strict system of safeguards, enforced by EU inspectors. Euratom comprehensive
safeguards predate IAEA comprehensive safeguards pursuant to the NPT by more than a decade. Following
entry into force of the NPT, Euratom safeguards are applied in conjunction with IAEA safeguards pursuant to
tripartite agreements concluded among member states, Euratom and the IAEA. See ‘Treaty establishing the
European Atomic Energy Community (Euratom),’ available at http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=LEGISSUM:xy0024 (accessed on 15 November 2017).
40
GOV/INF/222, 6 April 1970.
41
INFCIRC/153 (corrected).
42
IAEA Statute, Article III.A.5: ‘The Agency is authorized … to apply safeguards, at the request of the parties,
to any bilateral or multilateral arrangement, or at the request of a state, to any of that state’s activities in the field
of atomic energy’ (emphasis added). The Statute contains a nearly identical formulation with respect to
application of safety standards ‘to operations under’ any bilateral or multilateral arrangements at the request of
the parties or to any activities of a state, upon request of that state, in the field of nuclear energy (Article III.A.6).
No such formulation exists for nuclear security.
43
Von Baeckmann points out that this is complemented by other measures, namely containment and
surveillance; see A. von Baeckmann, ‘The Treaty on the Non-Proliferation of Nuclear Weapons (NPT)(1968), in
S. Sur (ed.), Verification of Current Disarmament and Arms Limitation Agreements: Ways, Means and
Practices, Aldershot: United Nations Institute for Disarmament Reseach (1991), p. 174.
44
INFCIRC/153 (corrected), para. 34(c). Den Dekker, supra note 17, splits this into three elements upon which
the starting point of safeguards is determined: 1) nuclear material, 2) which has reached the stage in the fuel
cycle making it suitable for fuel fabrication or for isotopic enrichment or which is produced at a later stage of the

149
relevant facilities to the IAEA, as well as changes to the inventory. The Additional Protocol,
which sought to strengthen the safeguards system in the wake of revelations about clandestine
weapons activities in Iraq in the 1990s, is an agreement supplementary to an existing
safeguards agreement and includes additional measures with respect, inter alia, to reporting
such as requiring provision of information on all aspects of a state’s nuclear fuel cycle.45 The
information collected (collection function46) by the IAEA is used to create a unified
inventory, modified and updated thereafter by inventory change reports and material balance
reports. Additional information can be gathered through open sources or provided by third
parties.
The information is reviewed and analyzed (review function),47 most importantly
through on-site inspections. Review by the agency is not limited to verifying the accuracy of
the information on material and facilities provided by the state, but also applies to the material
and facilities that were to have been declared; in other words not only correctness of the
information, but also completeness.48 Is the information provided by the state consistent with
other information gathered by the IAEA? There is a constant cycle of information generated
and provided, collected and reviewed by the IAEA, and where discrepancies exist or concerns
arise as to possible non-compliance, the state is afforded the opportunity to clarify or provide
reassurance.49 If information received is not deemed adequate, the Agency under the
comprehensive safeguards agreements (INFCIRC/153) may carry out special inspections,
which require consultation with the state in question if inspections entail separate locations.50
Under the Additional Protocol, the IAEA can employ complementary access, which refers to
the mandate for short-notice access to all buildings on a nuclear site, inter alia to ensure the
absence of undeclared material or facilities or resolve issues or inconsistencies with respect to
correctness or completeness of the information a state has provided.51
There are a couple of scenarios for potential non-compliance that can be foreseen. The
IAEA might be unable to verify that no material has been diverted from peaceful to military
purposes. Perhaps this is because the state concerned is impeding the ability of the IAEA to
carry out its verification function. This could mean non-compliance with the state’s
safeguards agreement, triggering the corrective measures laid down in the IAEA Statute.52
Such measures include fairly standard internal sanctions – e.g. suspending the rights and
privileges of membership, cutting back assistance being provided by the Agency, or calling
for the return of materials and equipment made available to the recipient member or group of
members.53 Non-compliance could also mean that material has been diverted to military use,

fuel cycle, 3) which leaves the plant or process stage in which it has been produced or which is imported into the
state; at 277-278.
45
INFCIRC/540 (corrected), adopted by the Board of Governors in 1997. Asada argues that the Additional
Protocol (AP) provides effective verification going beyond declaration-based verification under comprehensive
safeguards agreements, for example giving the IAEA the right to collect environmental samples at locations
beyond declaration if deemed necessary; see M. Asada, ‘The Treaty on the Non-Proliferation of Nuclear
Weapons and the Universalization of the Additional Protocol,’ 2011 Journal of Conflict and Security Law, no. 1,
pp. 3-34.
46
See Myjer, supra note 18, at 104-107. Den Dekker refers to the activity as monitoring (and part of the
verification process), supra note 17, at 102-104. Coppen delineates supervisory ‘processes’. The one described
here would equate to ‘information gathering’; see T. Coppen, The Law of Arms Control and the International
Non-Proliferation Regime, Leiden: Brill Nijhoff (2016), pp. 54-47. See also Goldblat, supra note 13, at 212-213.
47
Den Dekker refers to this as verification.
48
See L. Rockwood, ‘The IAEA’s Strengthened Safeguards System,’ 2002 Journal of Conflict and Security
Law, no. 1, pp. 123-136.
49
See, for instance, INFCIRC/153 (corrected), para. 19.
50
See Harry, supra note 11, at 191.
51
See ‘IAEA Safeguards Serving Nuclear Non-Proliferation’, International Atomic Energy Agency, 2015.
52
Article XII(C).
53
Ibid.

150
which would contravene the obligations under the NPT for a NNWS. The finding of a
violation of the NPT is not something that falls to the IAEA – as it is an organization assigned
a particular supervisory role, one that is further established in legal instruments outside of the
treaty text, and not a treaty organization of the NPT – but rather something for the states
parties. The finding of the Agency will still be that it is unable to verify non-diversion. A
determination of non-compliance by the IAEA shall further be reported to the Security
Council and the General Assembly (see discussion of the role of the Security Council below).

VIII.3.2 IAEA supervision of nuclear security commitments?

To the question of whether the IAEA plays a similar supervisory role with respect to (aspects
of) the international legal framework for nuclear security, the short answer is no. The ‘central
role’ of the Agency in this area is for the most part a technical one, assisting states with
establishing, developing and maintaining a national nuclear security system rather than
overseeing compliance with international obligations. That is not to say that the IAEA has no
legally mandated role under the relevant nuclear security treaties. It functions as the
depositary of the CPPNM (as amended), a role in which it serves primarily as a repository and
conduit of information made available by states parties and, where applicable, to be circulated
to states parties, as well as convener of meetings pursuant to the treaty. This includes, inter
alia: receiving information from states parties on the laws and regulations giving effect to the
treaty provisions and outcomes of judicial proceedings – a purely collection function without
the added step of reviewing the information for conformity with legal rules;54 receiving
instruments of ratification, acceptance, approval or accession;55 receiving notifications of
denunciation;56 convening review conferences five years after entry into force of the original
treaty, five years after entry into force of the amendment to the convention, and at intervals
thereafter of not less than five years upon request by the majority of states parties;57 and
circulating proposed amendments and convening amendment conferences upon request by a
majority of member states.58 Aside from depositary functions, the Agency also receives
information on the commission of a criminal offense or threat to commit a criminal offense
under the treaty and is part of the process of information exchange with a view to protecting
threatened nuclear material, verifying the integrity of a shipping container or recovering
nuclear material unlawfully taken by a person in the course of committing an offense;
receiving information on a credible threat of sabotage of nuclear material or a nuclear facility
(and when a case of sabotage has occurred, including requests for assistance); and taking part
in cooperation and consultation undertaken with a view to obtaining guidance on systems of
physical protection, such as by means of conducting peer review advisory missions or
assisting states with applying nuclear security fundamentals and recommendations from the
IAEA Nuclear Security Series.59
Under ICSANT, the IAEA has a smaller, more limited role, in part having to do with
the fact the it is not depositary (UN Secretary-General is the depositary). The treaty further
foresees, inter alia, requests for assistance and cooperation being made by states parties to the
IAEA upon seizing material, devices or facilities following the commission of an offense
under the treaty; and the provision of information by states parties to the IAEA on disposition

54
CPPNM (as amended), Article 14.
55
CPPNM (as amended), Article 18.
56
CPPNM (as amended), Article 21.
57
CPPNM (as amended), Article 16. The first review conference under the amended convention is to take place
in 2021.
58
CPPNM (as amended), Article 20.
59
CPPNM (as amended), Article 5.

151
or retention of radioactive material, device or nuclear facility following the commission of an
offense, information which the Director General of the IAEA is then required to transmit to
other states parties.60 Interestingly, in Article 8, pursuant to which states are to make every
effort to adopt appropriate measures to ensure protection of radioactive material, reference is
made to taking into account relevant recommendations and functions of the IAEA. What
precisely the reference to functions of the IAEA is meant to entail is not further elaborated. It
could be, for instance, a reference to physical protection assistance offered by the Agency.
This is in any case not an obligation for a state to subject itself to relevant functions of the
Agency (such as advisory missions, as described below), but is more likely a reference to the
safeguards system that is to be applied to the respective material.
Though the term ‘security’ is not explicitly mentioned in the IAEA Statute, the Office
of Legal Affairs further points to particular statutory functions of the IAEA to which the
Agency’s role in nuclear security is attributable. These include provisions concerning the
provision of training and technical advice, or of equipment or supplies, as well as the
facilitation of information exchange and related services.61 In other words, nuclear security
measures, based in most cases on the latest revision of the Nuclear Security Series
recommendations, are applied to activities in which the Agency is involved, often codified in
relevant project-related agreements with the member states involved.62 By applying nuclear
security guidance as contained in the recommendations in this way to activities of the IAEA,
by incorporating them in legal agreements with member states, the non-legally binding
recommendations are made legally binding with respect to the particular project under the
scope of the agreement.
When it comes more broadly to the functions of the Agency in the area of nuclear
security, and looking forward to a potentially strengthened role, one must turn again to the
more general mandate of the IAEA in line with the scope of the Statute. These nuclear
security functions of the Agency are based primarily on decisions of the Board of Governors,
as well as on the annual nuclear security resolutions adopted by the General Assembly. By
approving the quadrennial nuclear security plans developed by the secretariat in consultation
with the member states, the Board provides the primary legal basis to the nuclear security
functions of the Agency, as necessary for instance under Security Council resolution 1540.
The yearly General Conference resolutions, in addition, direct the Agency and recommend to
the member states to take certain actions in the area of nuclear security, being able to discuss
any questions or any matter within the scope of the Statute.63 These legal mandates apply to
the work of the Agency, but do not necessarily entail legal obligations for states.
That has an effect on the character of some of the activities of the Agency in the area
of nuclear security. As noted above, Agency projects conducted with member states often
formalize nuclear security obligations in legal agreements. However, the closest thing to a
verification mechanism – the so-called peer review services, inter alia, International Physical
Protection and Advisory Service (IPPAS) and International Nuclear Security Advisory
Service (INSServ) missions – is completely voluntary, undertaken upon request of the
receiving state, and results/recommendations are not mandatory. These services are set up to

60
ICSANT, Article 18.
61
Article III.A.4, Articles III.A.1 and III.A.2, and Articles III.A.3 and VIII, respectively. See ‘The International
Legal Framework for Nuclear Security,’ IAEA International Law Series, No. 4, 2011, pp. 1-3.
62
See, for example, ‘Project and Supply Agreement: The Text of the Agreement of 29 August 1996 among the
International Atomic Energy Agency and the Governments of the Republic of Nigeria and the People’s Republic
of China Concerning the Transfer of a Miniature Neutron Research Reactor and Enriched Uranium,’
INFCIRC/526, October 1996.
63
IAEA Statute, Article V. Note the difference in authority between the General Conference and the Board: the
general conference can discuss and make recommendations on any matters under the Statute, while the Board
has the authority to carry out the functions of the Agency (as executive body).

152
assess a state’s nuclear security system, including the legal and regulatory framework, in line
with applicable international instruments (legally binding and non-binding). IPPAS missions
focus on the state’s physical protection system and INSServ more generally examines a
state’s nuclear security measures. To a certain extent, these can be seen as encompassing
collection and review functions – information is collected and inspections are carried out –
but they are not obligatory and do not entail any form of correction if potential compliance
issues are discovered. In fact, the groups that carry out these missions are not empowered to
make determinations of non-compliance with any international instruments. These types of
missions do, however, provide a form of confidence-building, especially when states choose
to share non-confidential results and provide information on enactment of
recommendations.64
There would theoretically be nothing to prevent states parties to a particular treaty, for
instance the CPPNM (as amended), from further amending the treaty and thereby establish a
supervisory role for the IAEA. A future treaty in the area of nuclear security could do the
same. As in the case of the NPT, the Board of Governors would have the ability to approve
such additional functions. It would be more a matter of political will (as well as a related
question of human and financial resources), as states continue to insist on nuclear security
being a sole responsibility of the state,65 and the modalities would have to be developed,
though the peer review missions could provide a model. As it stands now, though, there is no
formal supervisory system for nuclear security.

VIII.4 Arms control law and UN system of collective security

The UN Charter gives the Security Council primary responsibility for the maintenance of
international peace and security, which has meant advances into arms control law generally
and nuclear security more in particular. In 1992, in the wake of the Cold War, the Security
Council made a general statement (1992 Statement) that proliferation of weapons of weapons
of mass destruction (WMD) is a threat to international peace and security,66 thereby bringing
the issue of WMD proliferation into the purview of the system of collective security. The
Security Council is able to make a determination of a threat to the peace, breach of the peace
or act of aggression. As one can imagine, of these three scenarios, a threat to the peace is the
broadest, allowing for a significant range of envisionable scenarios that could meet this
threshold. It is, therefore, a finding of a threat to the peace that is most often used to trigger
the collective security system. Upon making such a determination, the Security Council can
decide on measures, that are then binding on all UN member states, it deems necessary in
order to maintain or restore international peace and security.67 The legally binding nature of
the decisions stems from Article 25 of the Charter under which member states agree to
“accept and carry out” Security Council decisions in accordance with the Charter.
Measures that the Security Council can mandate in order to maintain or restore peace
and security can either involve the use of military force or involve actions short of the use of
force.68 The options for the latter types of enforcement measures have been interpreted by the
Council as expansive, from establishing the International Criminal Tribunal for the former
Yugoslavia to obligating member states to adopt laws to prevent non-state actors from

64
The Netherlands has done shared such information in the interest of transparency and confidence building, but
this is not standard practice. See, for instance, International Atomic Energy Agency, ‘Follow-up Mission Report:
The Netherlands,’ 23 January-3 February 2012.
65
See, for instance, preambular paragraph (d) of the 2017 Nuclear Security Resolution, GC(61)/RES/9.
66
Note by the President of the Security Council, UN Doc. S/23500, 31 January 1992.
67
UN Charter, Chapter VII.
68
UN Charter, Articles 41 and 42.

153
obtaining weapons of mass destruction and their means of delivery. Between the ability to
determine a threat to the peace and subsequently to take a wide range of actions, the Security
Council has a substantial amount of discretion when it comes to such decisions that have legal
effects for the rest of the international community.
The adoption of Resolution 687 in 1991 in light of the threat to the peace posed by
clandestine WMD activities in Iraq, in particular, demonstrates a far-reaching course of action
taken by the Security Council with respect to proliferation concerns, namely imposing arms
control obligations on a particular state.69 As part of the operational provisions of Resolution
687, the IAEA was mandated by the Council to take on additional supervisory tasks. The
resolution took far-reaching legally binding measures that included deciding that Iraq must: 1)
unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable
material, 2) submit to the IAEA a declaration of the locations, amounts and types of all
relevant items, 3) place all of its nuclear-weapons-usable materials under the exclusive
control of the IAEA, 4) accept on-site inspection and the destruction, removal or rendering
harmless of relevant items, and 5) accept a plan for ongoing monitoring and verification of its
compliance with the said requirements.70 The IAEA Director General established the Iraq
Action Team as a separate entity to fulfill the mandate given by the UN Security Council
under Resolution 687. Under this resolution, the Agency was given the responsibility to
uncover and dismantle any clandestine nuclear program found in Iraq and to set up a system
of ongoing monitoring and verification. There are a couple of interesting aspects of this case.
First, the IAEA Board gave the Director General the approval needed to take measures to give
effect to Security Council resolutions related to the Iraq situation, while requesting the DG to
“consult and inform the Board as appropriate” so as not to relinquish all control.71 This is
different, though, from having decision-making power with respect to the measures. Second,
the role of the Iraq Action Team was designed to deal with a specific situation, not falling
under the standard safeguards rules, procedures and techniques.72 In other words, the Agency
took on an additional role, essentially outside of the common institutional structure of the
IAEA (working directly with the UN Secretary General and a Special Commission
established as a subsidiary body of the Security Council, UNSCOM) and different from the
scope of its existing verification system. This was admittedly a unique situation. First, the Iraq
Action Team was based on a mandate from the UN Security Council acting under Chapter
VII of the UN Charter, which stems from the Council’s primary responsibility for the
maintenance of international peace and security. Second, enforcement actions under Chapter
VII are both binding on all member states of the UN and of a limited duration (Resolution
1540, inter alia, notwithstanding).
Under Resolution 687, the Security Council also directed the establishment of
UNSCOM to serve the purpose of inspecting Iraq’s biological, chemical and missile
capabilities and supervising the destruction, removal or rendering harmless of all of Iraq’s
chemical and biological weapons and ballistic missiles with a range over 150 kilometers, and
related materials and facilities. In addition, UNSCOM was tasked with assisting and
cooperating with the IAEA in fulfilling its supervisory role under the resolution, namely with
respect to designating non-declared locations for inspection, which was considered highly
sensitive and therefore not delegated to the IAEA.73
69
Thus going against the basic tenet of arms control law, namely that states are free to possess weapons unless
they have made the decision to commit otherwise; see Nicaragua v. United States, ICJ Reports 1986 135, para.
269.
70
S/RES/687 (1991).
71
GOV/2480.
72
See Record of GOV/OR Meeting 748, 6 May 1991.
73
See R. Ekeus, ‘The Iraq Action Team: a model for monitoring and verification of WMD non-proliferation,’
Stockholm International Peace Research Institute, 26 September 2012.

154
 Resolution 687 was far-reaching and showed a possible range of Security Council
measures in relation to instances of non-compliance with non-proliferation obligations,
including establishing its own subsidiary bodies for the purposes of supervision and tasking
existing organizations with additional, specific supervisory tasks. It also led to the
acknowledgement of the need for a strengthened system of supervision for nuclear non-
proliferation to better detect non-compliance.74 One could envision such options for
supervision with respect to nuclear security. The Security Council could for instance expand
the mandate, and scope, of the 1540 committee described further below to encompass a
broader supervisory role, it could adopt another nuclear security-related (or WMD-related)
resolution establishing a different subsidiary body tasked with a supervisory role, or it could
mandate the IAEA with supervisory tasks, perhaps in conjunction with a Security Council
subsidiary body. For this latter possibility, the IAEA Board would be required to approve the
additional role. Admittedly, this is not a highly likely scenario. While theoretically possible,
and more likely should a nuclear terrorist attack be carried out leading to Chapter VII
enforcement action, it is difficult to envision this happening. Tasking the IAEA with a
supervisory role related to nuclear security by way of treaty, with approval of the Board,
would provide a stronger legal foundation.
The Security Council took a different approach following the nuclear weapons tests
carried out by India and Pakistan in 1998. The Council adopted Resolution 1172, which
condemned the tests and expressed grave concern for the peace and stability of the region, but
further only ‘called upon’ the two states to stop their nuclear weapons development programs
and ‘urged’ them to become parties to the NPT and CTBT. Though reference is made to the
1992 Statement’s recognition of proliferation as a threat to international peace and security, it
is not clear whether Resolution 1172 has even been adopted under Chapter VII of the UN
Charter. The question could be asked whether the tread lightly approach in this case follows
from the fact that the tests were not a violation of applicable treaty law (neither India nor
Pakistan is party to the NPT or CTBT), and whether the Security Council therefore chose not
to override the consent element by deciding on outright cessation of nuclear weapon
development and requiring disarmament. This latter aspect appears suspect, considering that
with respect to Iraq, the Security Council required the state to take actions obligated by the
Biological Weapons Convention (BWC) even though Iraq was not yet party to the BWC. It
still, though, seems slightly odd that the Security Council would not adopt stronger measures
in light of this clear case of proliferation. Most likely, the terms of the Resolution reflect
political considerations, reinforcing that one should not lose sight of the fact that the Security
Council is a political body.

VIII.4.1 Security Council as part of the correction function under arms control
treaties

The safeguards system to supervise compliance with the NPT, as generally described above
and similar to other arms control law treaties, provides for a relatively weak enforcement
mechanism, entailing mainly internal sanctions such as loss of rights and privileges as an
member state of the supervisory organization. Because of this weakness, the Security Council
plays a clear role.75 Under the safeguards system, non-compliance detected by Agency

74
K. Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future,’ 2003 Journal of
Conflict & Security Law, no. 1, pp. 15-70. Wellens refers here specifically to the Model Additional Protocol.
75
This is similar, though not identical, to other arms control treaties dealing with WMD, in which bringing
matters of non-compliance to the attention of the Security Council may not be obligated, or the matters are to be
brought to both the General Assembly and the Security Council. Compare CWC, Article XII (The Conference
shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the

155
inspectors and reported to the Director General is brought to the attention of the Board of
Governors. The Board must call upon the state to remedy the non-compliance and must report
a case of non-compliance to the Security Council, which can then take enforcement measures
if, and as, it deems necessary. The CWC foresees a similar process by which compliance
related cases of ‘particular gravity’ are to be brought to the attention of the UN General
Assembly and the Security Council.76 The Security Council, however, is not given any
additional competencies under the nuclear non-proliferation treaty regime, nor with respect to
the chemical weapons regime, beyond its UN Charter-mandated powers and functions and is
not formally part of the correction mechanism aside from receiving reports. In other words,
the role of the Security Council as part of arms control law supervision has to do with the
clear link between potential breaches of obligations involving WMD and threats to (or
breaches of) international peace and security, but it is not dependent on a supervisory role
being specifically given to the Security Council under arms control law treaties. It should be
pointed out that, pursuant to the UN Charter, the Security Council may also undertake its own
investigation even absent a referral from the IAEA, come to its own conclusions on matters of
compliance and take action it deems necessary.77
In addition, the Security Council has taken action to deal with specific NPT-related
cases having to do with non-compliance with safeguards, and likely the NPT, in the case of
Iran, and withdrawal from the NPT, by invoking Article X, as well as testing nuclear weapons
on the part of North Korea. In Iran’s case, the Security Council measures were prompted by
reports submitted by the IAEA noting issues and concerns related to Iran’s nuclear program,
and by Iran’s lack of cooperation with the IAEA efforts to clarify aspects of the state’s
nuclear activities. The Agency found that Iran’s actions over a period of time constituted non-
compliance with its safeguards agreement and thereby invoked Article XII.C of the Statute,78
and as foreseen in that article, referred the matter to the Security Council.79 The Security
Council subsequently took a number of measures including deciding that Iran must suspend
all enrichment-related and reprocessing activities, including research and development, and
work on all heavy-water projects.80 Most recently, a deal was reached between the permanent
five members of the security council plus Germany, and Iran under which Iran accepts a range
of restrictions on its nuclear program to ensure it is strictly for peaceful purposes and is put
under far-reaching verification measures carried out by the IAEA in exchange for a lifting of
nuclear-related sanctions. The Security Council endorsed the deal, called the Joint
Comprehensive Plan of Action (JCPOA), in Resolution 2231. However, on 8 May 2018, the
U.S. announced its withdrawal from the JCPOA even though the IAEA continues to verify
that Iran is in compliance with its nuclear-related obligations under the agreement.81
The case of North Korea is quite different. North Korea submitted its notice of

attention of the United Nations General Assembly and the United Nations Security Council); CTBT, Article V
(if the matter is urgent he Conference, or alternatively, if the case is urgent, the Executive Council, may bring the
issue, including relevant information and conclusions to the attention of the United Nations); BWC, Article VI
(Any State Party to this Convention which finds that any other State Party is acting in breach of obligations
deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United
Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its
consideration by the Security Council).
76
CWC, Art. XII(4).
77
See Den Dekker, supra note, 17, at 115-116.
78
Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, GOV/2005/77 (24
September 2005).
79
Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, GOV/2006/14 (4 February
2006).
80
See S/RES/1737 (2006), S/RES/1747 (2007), S/RES/1803 (2008), S/RES/1929 (2010).
81
The 12th report on Verification and monitoring in the Islamic Republic of Iran in light of the United Nations
Security Council resolution 2231 (2015), GOV/2018/33, was made publicly available on 12 September 2018.

156
withdrawal from the NPT pursuant to Article X in 1993, upon which the Security Council
adopted a resolution calling on North Korea to reconsider and reaffirm its commitment to the
NPT.82 North Korea chose to ‘suspend’ its withdrawal after entering into subsequent
negotiations with the U.S.83 However, in 2003 North Korea, citing Article X of the NPT again
stated that it was withdrawing from the Treaty due to its supreme interests having been
compromised. Though not immediately after the 2003 withdrawal announcement but
following its nuclear weapons tests in 2006, 2009, 2013 and 2016, the Security Council has
on a number of occasions demanded that North Korea retract its announcement of withdrawal
from the NPT. It has also decided that North Korea shall abandon all nuclear weapons and
existing nuclear programs, shall act in accordance with the obligations applicable to parties
under the NPT and the terms of its safeguards agreement with the IAEA and shall take
transparency measures existing beyond those requirements as deemed necessary by the
IAEA.84 There are two aspects to these enforcement measures taken by the Security Council
that should be pointed out. First, a state is able to withdraw from the NPT as long as the
requirements of Article X are met, one of which is to notify the Security Council even though
the Council is not mandated to approve or deny the withdrawal notice. Although the supreme
interests of a state are not further elaborated upon in the NPT, it is clear that this is a high
threshold. Otherwise, if states could easily leave a treaty regime if for instance they do not
agree with enforcement measures taken against them, it would undermine trust in the regime
and the effectiveness of treaty mechanisms. However, the justification of extraordinary events
is prerogative of the withdrawing party.85 If states were not allowed to exercise the possibility
to withdraw in a legitimate manner, it would impact the willingness of states to become party
to the treaty. States would be unlikely to favorably view a move that negates their sovereign
ability to determine their own supreme interests. The second aspect is that the Security
Council has separately decided that North Korea will nonetheless adhere to the NPT and its
safeguards agreement, which in principle is directly linked to North Korea being party to the
NPT.86 This means that even if North Korea has withdrawn from the NPT thus nullifying its
safeguards agreement, it must still act in accordance with the treaty regime based on a
Security Council mandate. As is shown by this brief description, there is still significant
amount of ambiguity surrounding the situation with respect to the status of North Korea under
the NPT, with the states seemingly straddling the line between party and non-party.87

VIII.4.2 Non-state actors and the legislative approach

The adoption of Resolution 1540 was a major milestone in what Talmon termed the Council’s
‘legislative phase’.88 It represented a recognition of both the gaps in the existing relevant

82
See S/RES/825 (1993). See also G. Den Dekker and T. Coppen, ‘Termination and Suspension of, and
Withdrawal from, WMD Arms Control Agreements in Light of the General Law of Treaties,’ 2012 Journal of
Conflict and Security Law, no. 1, pp. 25-47.
83
Asada has pointed out that the NPT does not provide for a system to suspend a withdrawal once triggered
under Article X, but special cases of political importance may be reason for special treatment; M. Asada, ‘Arms
Control Law in Crisis? A Study of the North Korean Nuclear Issue,’ 2004 Journal of Conflict and Security Law,
no. 3, pp. at 344.
84
See S/RES/1718 (2006), S/RES/1874 (2009), S/RES/2094 (2013), S/RES/2270 (2016), S/RES/2321 (2016),
S/RES/2371 (2017), S/RES/2375 (2017).
85
See Asada, Arms Control Law in Crisis, at 349.
86
See INFCIRC/403 (May 1992) as reproduced in A/48/133-S/25556 (12 April 1993) according to which the
safeguards agreement “shall remain in force as long as the Democratic People’s Republic of Korea is party” to
the NPT.
87
See Asada, ‘Arms Control Law in Crisis?’, at 353-355; Den Dekker and Coppen, at 44-46.
88
S. Talmon, ‘The Security Council as World Legislature,’ 2005 The American Journal of International Law,
no. 1, pp. 175-193.

157
treaty regimes – for nuclear weapons, the one founded on the NPT – impeding the ability to
deal with contemporary issues such as the terrorist acquisition, development or use of WMD,
as well as the time-consuming nature of multilateral law-making that makes it difficult to
respond appropriately to emerging threats. In contrast to international treaties, to which states
must directly consent, Security Council resolutions “adopted under Chapter VII of the UN
Charter legally bind all member states immediately and automatically without exception and
are equivalent to the treaties instantly ratified by all UN member states”.89 Resolution 1540 is
of general application, not confined to a particular situation (with restricted temporal or
geographical scope), encompassing certain aspects of existing international law while
expanding to certain areas beyond the coverage of current treaty regimes. It also lies at the
crossroads of CBRN security and non-proliferation, requiring UN member states both to
prevent the spread of WMD and their means of delivery to non-state actors (non-
proliferation), as well as to take appropriate and effective measures to protect related
materials90 from falling in to non-state actor hands, establishing border controls and law
enforcement efforts to combat illicit trafficking (CBRN security) and to develop and maintain
appropriate and effective export and trans-shipment controls (non-proliferation and CBRN
security).91
Resolution 1540 has its own supervisory body, the 1540 Committee, which is a
subsidiary body of the Security Council whose mandate has been renewed a number of times,
now extending to 2021.92 It is tasked with generally overseeing the implementation of the
Resolution and reporting to the Security Council.93 It does this through collecting reports from
member states, drawing from the model of treaties that contain such reporting requirements,94
for which it has developed a matrix to collate and analyze the information provided. In other
words, there is collection and review of information to assess implementation of the
resolution. In areas where no further supervisory activities take place, for instance with
respect to the nuclear security-related provisions of Resolution 1540, the work of the 1540
Committee does not fill in this gap. Though, it must be said that by collecting information on
national implementation of measures related inter alia to physical protection, export,
transshipment and border controls the picture of compliance becomes more complete. Such
lacuna could theoretically be remedied by an additional mandate by the Security Council
expanding the supervision activities under the auspices of the 1540 Committee, but the broad
scope of the resolution would make this a daunting, if not impossible task.
The adoption of Resolution 1540, and the legislative role taken on by the Security
Council, was certainly not without criticism.95 Perhaps most fundamentally, concern was and
continues to be expressed that elements of the Resolution are drawn from treaties to which

89
M. Asada, ‘Security Council Resolution 1540 to Combat WMD Terrorism: Effectiveness and Legitimacy in
International Legislation,’ 2008 Journal of Conflict & Security Law, no. 3, p. 312. Member states of the UN have
consented to carry out the decisions of the Security Council pursuant to Article 25 of the UN Charter.
90
Defined in the resolution as: “materials, equipment and technology covered by relevant multilateral treaties
and arrangements, or included on national control lists, which could be used for the design, development,
production or use of nuclear, chemical and biological weapons and their means of delivery.”
91
Asada, supra note 40, points out that “no treaties can obligate states to establish such a national export control
system so extensively, so quickly and so effectively,” at 318.
92
S/RES/1673 (2006), S/RES/1810 (2008), S/RES/1977 (2011).
93
S/RES/1540 (2004), para. 4.
94
See Simma et al. (eds.), ‘Article 29,’ The Charter of the United Nations: A Commentary, Second Edition,
Oxford: Oxford University Press (2002), at 553. The author is describing the Counter-Terrorism Committee
established under another ‘legislative resolution’, Resolution 1373, but this holds true for Resolution 1540, as
well. The CPPNM contains such a reporting requirement.
95
However, generally under Chapter VII of the Charter the Security Council is authorized to create new law in
taking enforcement measures and therefore, in practice, acts as legislator; see Simma, The Charter of the United
Nations, at. 708.

158
states are not necessarily parties, or conversely are entirely new elements, meaning the
Resolution is inconsistent with basic principles of treaty law and general international law
requiring consent to be bound.96 Another criticism has to do with legitimacy of international
law-making by a small group of states – the 15 members of the Security Council – that then is
of application to the rest of the international community.97 Questions were also raised as to
whether such action falls within the competencies of the Security Council.98 One could argue
that Security Council action is meant to apply military or non-military measures in response
to a specific situation in order to influence behavior and assure peace and security, which ends
when the threat to the peace which prompted the enforcement action no longer exists and
would thus not extend to such a general legislative approach of unlimited duration.99
Essentially, the basic question is whether the Security Council has the power to establish a
regulatory framework that would typically be the purview of one or more multilateral treaties.
It could conversely be held, though, that terrorist acquisition, development or use of
WMD is clearly a matter that threatens international peace and security – since lack of
enforcement could lead inter alia to highly destructive terrorist acts – such that it falls
squarely under the responsibility of the Security Council. The Security Council, one could
argument, with streamlined decision-making that avoids the pitfalls of the normal treaty
negotiation process, is best positioned to most expeditiously deal with this urgent security
issue.100 The 1540 Committee in its 2016 comprehensive review of implementation of the
resolution noted that, while progress had been made since the previous comprehensive review
in 2009, achieving full implementation of the resolution would need to be seen as a long-term
objective.101 Interestingly, the Committee noted that the bulk of the measures that had been
taken to implement the resolution involved measures to prohibit the activities of non-state
actors with respect to nuclear, chemical and biological weapons and their means of delivery;
the Committee emphasized that ‘significant efforts’ are needed to address gaps with respect to
accounting, security and export control measures foreseen in the resolution.102 The 1540
Committee is mandated by the relevant Security Council resolutions103 to provide regular
reports to the Council on compliance with Resolution 1540. In principle, if non-compliance
were found that was determined to constitute a threat to international peace and security, the
Security Council could take corrective action, including under Chapter VII of the Charter. To
this point, such action has not been taken, with the Council rather reiterating the obligations
of UN member states under Resolution 1540 and emphasizing the need for full
implementation of the Resolution.104

VII.5 The supportive function of multilateral initiatives in nuclear security

96
This concern was raised in particular by India already during drafting of the Resolution.
97
This was an issue raised specifically by Namibia and Iran (see S/PV.4950), cited by Asada, ‘Security Council
Resolution 1540 to Combat WMD Terrorism,’ at 323. The discussion of legality and legitimacy of Security
Council enforcement actions pursuant to Chapter VII of the UN Charter dates back further than the discussion
surrounding Resolution 1540; see, for instance, T. Gill, ‘Legal and Some Political Limitations to the Power of
the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter,’ 1995
Netherlands Yearbook of International Law, vol. 26, pp. 33-138.
98
Ibid.
99
Simma, The Charter of the United Nations, at 708-709.
100
See B. Kellman, ‘Criminalization and Control of WMD Proliferation: The Security Council Acts,’ 2004 The
Nonproliferation Review, no. 2, pp. 142-161.
101
S/2016/1038 (9 December 2016), p. 8.
102
Ibid., at 9.
103
S/RES/1673 (2006), par. 6; S/RES/1810 (2008), par. 14; S/RES/1977 (2011), par. 3; S/RES/2325 (2016), par.
3.
104
See, for example, par. 1 of S/RES/1810 (2008) and par. 1 of S/RES/2325 (2016).

159
As alluded to above, multilateral initiatives, or international partnerships, have been devised
to fill in perceived gaps in the institutional framework for nuclear security. These are not
international organizations with international legal personality, but rather are informal
groupings that often focus on particular issues. The GICNT, for instance, though founded on
political commitment to fairly broad set of nuclear security principles,105 has in practice
mostly focused on areas determined to have received less attention by the international
community – namely detection, nuclear forensics and response and mitigation. Part of this
work has been focused on reinforcing, among the 88 participating states, the importance of
complying with international legal obligations through national implementation.106 The
approach taken has been to help states build national capacity to better understand their
obligations under international legal instruments through workshops and table-top exercises.
These types of multinational activities complement legislative outreach carried out by, for
instance, the IAEA and UNODC, and helps build confidence among states in compliance with
international obligations. Being an informal partnership, there is no formal mandate for the
GICNT as a group and participation entails no additional legally binding obligations, but it
does serve an important supportive function in the broader institutional framework for nuclear
security.

VIII. 6 Concluding remarks

Previous chapters described the hard and soft law of nuclear security, demonstrating that gaps
exist in the rules and norms regulating nuclear security at the international level. Similarly,
this chapter has looked at the institutional framework related to nuclear security, identifying
and examining the absence of or weaknesses in, in particular, any elements/functions of
supervision of compliance with existing rules and norms. These two issues – shortcomings in
the legal rules and absence of supervision of compliance – compound each other.
Supervision is a key aspect of arms control law. The IAEA has developed and adapted
its supervisory role under the NPT, which remains the foundation of the law of arms control
related to nuclear weapons. While related to the NPT, the legal framework for nuclear
security foresees no such supervisory function. However, being fundamentally concerned
with international and national security, in addition to the fact that non-compliance with
obligations in one state can negatively affect security of another state, the importance of
international supervision for the nuclear security legal framework seems self-evident. The role
of the IAEA in the area of nuclear security has expanded in other ways. The IAEA has
progressively taken on additional activities in the area of nuclear security, pursuant to the
Statute and authorized by the Board of Governors, as well as further structured by annual
General Conference resolutions. This has consisted primarily of assistance to states, upon
request, in assessing and further developing national nuclear security regimes, as well as
coordinating among organizations and initiatives involved in nuclear security to avoid
overlaps in activities. In addition, from a more general ‘organization’ perspective with respect
to nuclear security governance the IAEA has served as a forum for developing soft law
instruments, as well as establishing and convening the process of information exchange
namely with respect to the Code of Conduct on radioactive sources. The foregoing has
demonstrated that not only is further empowering the IAEA with a supervisory role for the
nuclear security legal framework desirable, but taking on such a role is legally possible.

105
See GICNT, ‘Statement of Principles’, available at http://gicnt.org/documents/Statement_of_Principles.pdf
(last accessed 1 December 2017).
106
This corresponds to principles 1, 2 and 6 of the Statement of Principles.

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Part IV: The Path Forward and Conclusions

161
162
Chapter IX: Strengthening the International Legal Framework for Nuclear Security

IX.1 Introduction
IX.2 Nuclear security: at the crossroads of (collective) security and criminal justice
IX.3 On governance and international law related to nuclear security
IX.4 Synthesis of themes and arguments put forward in the study
IX.5 The way forward
IX.5.1 CPPNM (as amended) review conference(s)
IX.5.2 Addressing new threats and challenges, such as cyber-attacks
IX.5.3 ‘New law’: A treaty on the security of radioactive sources
IX.6 General concluding remarks

IX.1 Introduction

In this final chapter of the study, the focus will be two-fold. First, there will be an analysis of
the legal framework, based on the foregoing description of the elements of the framework, as
an essential part of nuclear security governance. This will, in addition, entail a synthesis of the
themes and arguments put forward in this study, bringing the components described in
previous chapters together.
Second, the analysis and synthesis will lay the groundwork for examining the way
forward. The chapter will consider, in particular, the CPPNM review conference mechanism
that mandates a conference in 2021 (five years after entry into force of the CPPNM
Amendment); a possible approach to ensuring that emerging threats are covered under the
legal framework; and the potential for a legally binding instrument on the security of
radioactive sources, drawing from the non-legally binding Code of Conduct on the Safety and
Security of Radioactive Sources.
In the end, some general concluding remarks will be made on the international legal
framework for nuclear security.

IX.2 Nuclear security: at the crossroads of (collective) security and criminal

justice

One of the key features of the international legal framework for nuclear security is that it is
made up of agreements among, and guidelines and initiatives directed at and comprised of,
states but focused on addressing actions of non-state actors. For this reason, the law is
directed both at controlling weapons and materials as well as at elaborating criminal offenses,
establishing jurisdiction, and prosecuting or extraditing. The true ‘nuclear security treaties’,
the CPPNM (as amended) and ICSANT, do both of these things. These treaties aim at
prevention – preventing non-state actors (terrorists or other criminals) from obtaining or
accessing the materials or facilities – and response – criminalizing actions with appropriate
penalties.1 That is the clear difference between these two treaties and other ‘counter-
terrorism’ treaties with the more or less common structure of criminalizing certain acts in
domestic law, establishing specified grounds of jurisdiction, and the aut judicare aut dedere
principle. A number of these treaties deal in part with using nuclear, chemical, and biological
weapons in various circumstances as a separate offense, and are therefore part of the extended
legal framework for nuclear security, but they miss the other element of controlling the
relevant materials.
That element of controlling the weapons and component materials as well as
criminalizing certain related acts is what puts the nuclear security treaties in the area of arms
control law. The strictly criminal justice approach to counter-terrorism places the focus on the

1
Criminalization can be described also as a prevention method in the sense of deterring commission of crimes.

163
acts, offenses to be criminalized. The ‘arms control’ approach to counter-terrorism, which
really could be applied to the full range of CBRN, places the focus on the means, or the
weapons used in the criminal or terrorist acts. As discussed earlier, the CWC is not a counter-
terrorism instrument, but does contain the obligation to penalize acts carried out by natural
persons. This has to do with the nature of the weapons, being weapons of mass destruction,
and therefore having the potential to cause particularly grave harm. As technologies and
knowledge advance, capabilities and motivations of terrorist actors evolve, and materials and
facilities spread, the threat of nuclear terrorism (and CBRN terrorism more broadly) increases.
It is the nature of the weapons that brings this issue also firmly into the realm of
collective security under Chapter VII of the UN Charter. Security Council Resolution 1540 is
an example of this. The proliferation and acquisition/use by terrorists of nuclear, chemical or
biological weapons has been deemed to constitute a threat to international peace and security.
Again, 1540 is directed at states and actions that states must take to ensure that terrorists do
not get their hands on weapons of mass destruction, delivery systems and/or related materials.
By focusing specifically on the threat of CBN terrorism,2 both from a non-proliferation of
weapons and security of relevant materials perspective, Resolution 1540 complements the
state-centric, military focus of the main arms control treaties – the NPT, CWC and BWC –
and it supports the nuclear security treaties by obligating all UN member states to establish
appropriate effective physical protection measures as well as border and export controls,
which are essential to combatting illicit trafficking.
In other words, these instruments are all related, and part of the broader international
law related to international peace and security.3 There is a set of obligations and norms of
conduct regarding weapons of mass destruction and related materials, from non-use to non-
proliferation to disarmament to security. The instruments focused specifically on preventing
non-state actors, or terrorists in particular, from acquiring and using WMD or weaponizing
CBRN materials derive from, and are primarily aimed at filling gaps in, the ‘traditional’ arms
control law instruments. This is where the legal framework for nuclear security as examined
in this study fits in.

IX.3 On governance and international law related to nuclear security

International law contributes both substance and organization to nuclear security governance.
Substance concerns the rules and standards laid down in normative instruments, both legally
binding and non-binding, that shape the conduct of states. These instruments – the CPPNM
(as amended), ICSANT, the Code of Conduct for radioactive sources, the Nuclear Security
Series – address inter alia the establishment and maintenance of systems for protecting
nuclear and other radioactive material and facilities, the criminalization of offenses related to
misuse of such material and facilities, and function as a platform for international
cooperation. Organization is integrally linked to substance in a variety of ways. It entails the
process by which normative instruments are developed, for instance the role of the IAEA in
developing and facilitating the adoption of the Nuclear Security Series recommendations. It
also encompasses institutional arrangements established under treaty frameworks, such as the
review conference mechanism for the CPPNM, which can in turn serve to strengthen
2
S/RES/1540 (2004) does not deal with radiological terrorism, likely because radiological weapons are not
traditionally placed in the category of weapons of mass destruction, though the security of radioactive sources is
mentioned in the preamble in conjunction with reference to the Code of Conduct on the Safety and Security of
Radioactive Sources.
3
If one takes this logic a step further, these instruments can be placed in the broader normative system of
international law, as described by Rosalyn Higgins. She describes the role of law as providing an “operational
system for securing values that we all desire.” R. Higgins, Problems and Process: International Law and How
We Use It, Oxford: Clarendon Press (1994), pp. 1-16.

164
implementation and further development of specific instruments of the legal framework. By
reviewing implementation of the Convention, such review conferences can be seen as a form
of supervision. Organization refers also to international organizations, the most important of
which for the area of nuclear security is the IAEA, which has taken a central role in
facilitating the development of member states’ domestic nuclear security regimes (through,
for instance, assistance in assessing needs based on international instruments) and serving as a
convener of processes by which states can interact and discuss issues related to nuclear
security, as well as functioning to coordinate activities of multilateral organizations and
initiatives active in the area of nuclear security. In other words, both the substance and
organization are vital to nuclear security governance, and the dynamic interrelationship
between them is a defining factor of nuclear security governance. As it has been described in
this study, the international legal framework provides the basis for nuclear security
governance.

IX.4 Synthesis of the themes and arguments put forward in the study

The legal framework for nuclear security has a unique structure where state conduct is
regulated to a quite limited extent by binding legal rules, which are supplemented by a fairly
extensive body of non-binding instruments developed to further guide state behavior. There
seems clearly to be a recognition of the need for certain harmonized standards of state
conduct when it comes to preventing potentially dangerous nuclear and other radioactive
material from falling into the hands of malicious non-state actors. One would then expect that
security interests – to prevent acts of nuclear terrorism or other criminal acts involving
nuclear or other radioactive material that could have far-reaching transboundary effects on
human health, the environment and the economy – would militate in favor of developing
legally-binding rules for which states could be held accountable and would, therefore,
ostensibly lead to a stronger compliance pull. This could involve applicable supervision
mechanisms, as states have a clear interest in assurance that other states are complying with
their obligations.
However, for reasons primarily political – alleged sensitivities related to the materials,
technologies, processes and knowledge leading to the oft-repeated claim that responsibility (in
the non-legal sense) for nuclear security rests entirely with the state concerned – further
development of the international (hard) law in this area has been difficult. Sensitivities only
increase for nuclear materials and facilities used for military purposes. The primary theme of
this study, therefore, is the essential role of non-binding normative instruments (soft law) in
the international legal framework. Legitimacy is key to the effect of these instruments on state
behavior, whether gained through explicit expression of (political) commitment in the case of
the Code of Conduct for radioactive sources, or gained by virtue of a process of development
and adoption (part of ‘organization’ in the parlance of governance) in the case of the IAEA’s
nuclear security guidance.
Soft law provides a form of cooperation among states that allows for flexibility. While
establishing standards and expectations of conduct, the development of such non-binding
instruments is relatively less cumbersome than international law-making and thus more
adaptable to changing circumstances, and perhaps more palatable to certain states.
Cooperation through soft law fits with the characteristics of nuclear security, including in
particular the aforementioned sensitivities, technical complexities (which in the case of
nuclear security concern aspects of the relevant materials and facilities), and the evolving
threat of nuclear terrorism. The role of soft law in the area of nuclear security is multi-faceted,
to a certain extent supporting the effectiveness of the legally binding instruments through

165
providing implementation guidance, but also covering issues beyond the scope of the binding
instruments.
It bears repeating that legitimacy is key, giving the soft law instruments normative
impact (establishing norms and expectations of state behavior). The legitimacy, as described
above, is crucial to building confidence that states will act in a certain way, in accordance
with the non-binding instruments. Organization that is part of nuclear security governance
contributes to legitimacy. This includes inter alia the process of developing and adopting the
non-binding instruments, institutional arrangements for interaction among states to, for
instance, discuss implementation, and (voluntary) assessment of state conduct for adherence
to soft law instruments (as with IAEA advisory missions). The element of organization serves
to enhance compliance pull and build confidence among states in compliance with non-
binding instruments. There is, in other words, strength in the structure of the legal framework
for nuclear security being comprised largely of non-binding soft law. The soft law is a way to
cooperate in light of shared interest but absent the possibility (for whatever reason) of
establishing binding law.
This is certainly not to say that the legal framework for nuclear security would not
benefit from establishment of further binding rules. On the contrary, there is room for
expanding the scope of legally binding instruments, for instance to better address nuclear
material used for military purposes or the security of radioactive sources. In addition,
supervision, most logically through the tasking of the IAEA with a supervisory role under a
binding instrument, would provide assurances of compliance with obligations, and thus serve
the purpose of enhancing confidence in the strength of the legal framework. Supervision
would help determine and address potential cases of non-compliance, establishing state
responsibility and including mechanisms for redress.
The following sections of this chapter look at ways to apply certain elements of the
legal framework – both in the categories of substance and of organization – to strengthen
nuclear security governance.

IX.5 The way forward

A big step was taken when the 2005 Amendment to the CPPNM entered into force, expanding
this key nuclear security treaty’s scope. Along with additional legal obligations related to
establishing additional controls or strengthening the domestic nuclear security regime, its
entry into force triggered a process whereby in 2021 a meeting will be held to review the
treaty, thus offering an opportunity for the states parties to assess implementation and
consider the continued adequacy of the treaty in light of the current circumstances.4 As part of
the review process, a number of treaty-related issues could be put on the table, including the
security of nuclear material and nuclear facilities in military programs and the role of the non-
binding instruments (namely the IAEA recommendations on security of nuclear material and
facilities, Nuclear Security Series No. 13) under the treaty framework. Further
institutionalizing the review process for this key nuclear security treaty, by having the
majority of states parties request regular review on a five-yearly basis as foreseen under
Article 16.2, would establish an important organizational framework for iterative interaction
based on a set of binding obligations set out in the treaty.5 The further (political) benefit of
this process, and particularly in a regularized form, is that India, Pakistan, and Israel are all
party to the amended CPPNM and are therefore legally bound by its provisions. This is the
only such treaty related to the nuclear non-proliferation (and nuclear security) regime to

4
CPPNM (as amended), Article 16.
5
Such review conferences are held at regular intervals for the NPT, CWC and BWC.

166
which these states, that possess nuclear weapons and are not party to the NPT, have legally
committed themselves.6
What will not be discussed at the review conference for the amended CPPNM is the
strength of radioactive source security. This topic does not fall under the scope of the
amended CPPNM, and remains based primarily on the non-legally binding Code of Conduct
for the Safety and Security of Radioactive Sources.7 Radioactive source security could benefit
from further development of legal rules, building upon commitment to the Code of Conduct,
for the measures states should take to secure radioactive sources under their jurisdiction and
address potential criminal misuse of the materials, security of radioactive sources impacts
nearly all states.
The following subsections will look in more detail at specific possibilities in both the
substance (rules related to radioactive source security and cyber security) and organization
(CPPNM review conferences as institutional arrangement) realms with a view towards
strengthening nuclear security governance. It is the intention in laying out these thoughts on
the way forward that they can help inform discussions among lawyers and policy-makers,
particularly in preparation for the 2021 review conference for the amended CPPNM and, as
perhaps a more long-term goal, with respect to strengthen the legal framework when it comes
to radioactive source security. This is not an exhaustive list, but is meant to address some of
the clearest lacunae/shortcomings in the current framework – lack of rules applicable to
nuclear material and facilities in military use, how to approach emerging threats under the
current legal framework structure, and how to strengthen radioactive source security.

IX.5.1 CPPNM (as amended) review conference(s)

The 2005 Amendment to the CPPNM, which as described in Chapter VI expands the scope of
the Convention by obligating states parties to enact security measures related not only to
nuclear material in international transport but also to material in domestic use and storage as
well as to nuclear facilities, to establish additional acts as criminal offenses in domestic law,
and by providing mechanisms for strengthened international cooperation, entered into force in
May 2016. Pursuant to the amended article 16, which mirrors the same article in the original
text, a conference “to review the implementation of this Convention and its adequacy as
concerns the preamble, the whole of the operative part and the annexes in the light of the then
prevailing situation” is to be convened by the depositary (IAEA) five years after entry into
force. The preparations are underway for such a review conference in 2021.
Treaty review is an integral part of many treaty regimes, explicit provisions for which
are a common feature of most multilateral arms control law treaties.8 Reviewing the operation
of a treaty at certain intervals is an important way to ensure continued viability of a treaty by
regularly undergoing an assessment of the realization of the treaty’s object and purpose
6
India is also party to ICSANT; Israel has signed ICSANT but has not ratified or acceded to it; Pakistan has not
signed it. For further discussion of how having these three states involved in the legal framework for nuclear
security, and thus involved in the upcoming review conference process for the amended CPPNM, can further
contribute to the strength of the nuclear non-proliferation regime pursuant to the NPT, see J. Herbach,
‘Reinforcing the Three Pillars: How Nuclear Security Efforts Underwrite the Strength of the Non-Proliferation
Regime,’ Paper presented at Fresh Ideas for the Future: Symposium on the NPT Nuclear Disarmament, Non-
proliferation, and Energy (2015), available at https://www.belfercenter.org/publication/fresh-ideas-future-
symposium-npt-nuclear-disarmament-non-proliferation-and-energy (accessed on 15 May 2018).
7
However, as discussed in a previous chapter, ICSANT Article 8 obligates states to make every effort to security
all radioactive material (including radioactive sources), as an obligation of conduct. As of the time of writing,
more states have expressed political commitment to the Code of Conduct than have become party to ICSANT.
8
See K. Ipsen, ‘Explicit Methods of Arms Control Treaty Evolution,’ in J. Dahlitz and D. Dicke (eds.), The
international law of arms control and disarmament : proceedings of the symposium, Geneva, 28 February - 2
March 1991, New York: United Nations (1991), pp. 75-93.

167
against the backdrop of changing circumstances. Such a process could be particularly useful
in the area of nuclear security, as states must contend with evolving threat environments, the
spread of nuclear technology, as well as changing knowledge and standards of security
practices. Review is not entirely a backward-looking process, though stocktaking and
examining the current state of implementation is an essential aspect of review. It also provides
opportunities for reinforcing, through for instance establishing common understandings of
key provisions, as well as strengthening a regime, by setting specific goals to support full
implementation and realization of a treaty’s object and purpose. To give an example of this
latter approach, the NPT review conference in 2010 adopted a 64-point action plan under
which states parties committed to take specific actions aimed at full and effective
implementation of the NPT’s provisions disarmament, non-proliferation and the peaceful uses
of nuclear energy.9 With regard to disarmament, the actions contained in the 2010 action plan
built upon agreement on the so-called 13 “practical steps for the systematic and progressive
efforts to implement article VI of the Treaty on the Non-Proliferation of Nuclear Weapons
and paragraphs 3 and 4(c) of the 1995 Decision on ‘Principles and Objectives for Nuclear
Non-Proliferation and Disarmament’” from the 2000 NPT review conference.10 This
demonstrates the value of regular review as a way to sustain progress, depending of course to
a large extent to the existence of the political willingness needed to come to agreement.
The review process for the BWC has resulted in the development of a number of
confidence-building measures to help provide assurance of compliance with the treaty in the
absence of a verification regime.11 Established during the Second Review Conference of the
BWC, and expanded following the Third Review Conference, these measures include, but are
not limited to: exchanges of information on research centers and laboratories, national
biodefense research and development programs and on outbreaks of infectious diseases and
similar occurrences caused by toxins; encouragement of publication of results of biological
research related to the BWC and promotion of the use of knowledge; active promotion of
contacts between scientists, other experts and facilities engaged in biological research directly
related to the BWC; and declarations of legislation, regulations and other measures including
exports and/or imports of pathogenic micro-organisms, as well as of past activities in
offensive and/or defensive biological research and development programs.12 This is another
example of the use of review mechanisms under arms control treaties.
The 2021 CPPNM (as amended) review conference will be the first for the amended
Convention.13 It, therefore, presents an opportunity to lay the groundwork for a process that
helps facilitate full and effective implementation of the treaty and provides a forum for the
states parties to discuss needs for eventual evolution of the treaty regime. Admittedly, this

9
NPT/CONF.2010/50 (Vol. I), pp. 19-29.
10
NPT/CONF.2000/28 (Parts I and II), pp. 14-15.
11
A verification protocol was drafted for the BWC, which would have established inter alia a supervisory
organization, the Organization for the Prohibition of Bacteriological (Biological) and Toxin Weapons (OPBW).
The draft protocol, an extensive and complicated instrument but one that would have helped strengthen
compliance, was ultimately rejected for various reasons, including lack of support from relevant industry. For a
good description of the protocol and the situation leading to its rejection, see O. Kervers, ‘Strengthening
Compliance with the Biological Weapons Convention: The Draft Protocol,’ 2003 Journal of Conflict and
Security Law, no. 1, pp. 161-200; J. Littlewood, The Biological Weapons Convention: A Failed Revolution,
Hampshire: Ashgate Publishing (2005); and R. Guthrie, ‘Technological Aspects of Verification: Declarations,
Managed Access and Confidential Proprietary Information,’ in M. Dando et al. (eds.), Verification of the
Biological and Toxin Weapons Convention, Springer (2000).
12
Third Review Conference of the Parties to the Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Document,
BWC/CONF.III/23, Part II, Annex to Final Declaration on Confidence-building measures.
13
The original CPPNM also contains a provision for a review conference to be held five years after entry into
force. That conference took place in 1992.

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would require a sustained process, rather than a single review conference. Article 16, similar
to the language of article VIII of the NPT, foresees the convening of further review
conferences at five-year intervals upon request of the majority of states parties. In the case of
the NPT, at each of the review conferences the states parties requested the convening of a
subsequent conference in five years’ time, until the 1995 Review and Extension Conference,
at which states parties’ took a decision to continue holding review conferences on a regular
basis without the need to continue making such requests.14 The majority of states parties at the
CPPNM review conference in 2021 could make a similar request, either for the convening of
a subsequent conference or more generally to convene regular review conferences on a five-
yearly basis indefinitely.15
Of course, more important than the procedural issues are the substantive aspects of the
review conference mechanism that will determine the impact of review conferences on the
effectiveness of the treaty. Interestingly, review conferences under the CPPNM (as amended)
have a dual function, to look both at the implementation of the treaty as well as its adequacy.
This is different from the aims of the review conference mechanisms under the NPT, CWC
and BWC that are meant to review the “operation” of the conventions.16 The reference in the
review provision of the CPPNM to “adequacy” means that the very suitability of the treaty to
realize the aims that led to its adoption is part of the review discussion, in addition to
operation of the treaty. It is an added element, going beyond article-by-article analysis, that
leads one to believe that the process under the CPPNM is designed to involve broader
consideration and debate of nuclear security requirements and how the CPPNM contributes to
nuclear security governance. If the treaty is determined to be inadequate by the states parties
in the course of review, one could expect a decision to be made that modification is necessary,
which could lead to further amendment. The inclusion of an examination of adequacy of the
treaty seems to have to do with concerns related to scope. During negotiations of the CPPNM
from 1977 through 1979, two basic approaches to scope were considered, one related solely to
international transport and one covering material and facilities wherever located. Views
differed, but in the end the decision was made to limit the scope of the original CPPNM to
physical security of material in international transport, which was considered as the most
pressing issue at the time.17 Acknowledging the differences of opinion on scope and that it
may be necessary to revisit the issue, the review mechanism was devised to both review
implementation and consider “extension of [the treaty’s] scope,”18 something that would
typically be in the purview of an amendment process. For the CPPNM, therefore, review and
modification are closely linked, and there is a certain built-in overlap between the review and
amendment (Article 20) processes. The formulation of the review provision was not modified
in the 2005 Amendment, which could indicate the understanding that the issue of scope may
again need to be revisited depending on the situation.
Another interesting aspect of the review mechanisms is the way that the preamble is
incorporated as an integral part of the review, on equal footing to the operative text and the
annexes. This differs from the formulation of the NPT and BWC review mechanisms that

14
1995 NPT Review and Extension Conference, Decision 1.
15
In fact, this is precisely what the states participating in the 2016 Nuclear Security Summit agreed to in the
IAEA Action Plan: “For states parties to the CPPNM, advocate for the Director General of the IAEA, in his or
her role as depositary, to convene regular review conferences, as provided for in Article 16.2 of the Convention,
further to the conference to be convened by states parties after entry into force of the 2005 Amendment”
(emphasis added); available at www.nss2016.org/2016-action-plans/ (accessed on 30 May 2018).
16
The NPT and BWC specify that such review of the operation of the treaties is to be carried out with a view to
assuring that the purposes of the preamble and the provisions of the respective treaties are being realized; NPT
Article VIII(3) and BWC Article XII.
17
See Memorandum to the Meeting of 5-16 February 1979, CPNM/53.
18
Ibid.

169
make reference to assuring that the “purposes of the preamble … are being realized.” This is
an important point because the operative text of the CPPNM (as amended) deals with material
and facilities used for peaceful purposes, whereas the majority of the material that is just as, if
not more, attractive to terrorists is used in military programs and thus outside of the operative
text’s scope. However, security of military material and facilities is discussed in the preamble,
with the amended treaty stating that effective physical protection of such material and
facilities is the responsibility of the state possessing such material and facilities. By
incorporating the preamble in the substantive scope of the review process, not just in terms of
“purposes”, the CPPNM (as amended) allows for a discussion of the issue of military material
security as part of the review process perhaps leading to a consideration of modifying the
treaty to include military material and facilities in its operative scope. This will, of course,
depend on political will, and the actual modification of the treaty would be carried out
through an amendment procedure. The possibility of a consideration of military material
security could, though, be on the table in preparing for the 2021 review conference, and
eventual modification of the treaty to address military material security would certainly
represent a strengthening of the legal framework for nuclear security.
Another point, along the same lines, is the inclusion of the “internationally formulated
physical protection recommendations that are updated from time to time which can provide
guidance on contemporary means of achieving effective levels of physical protection” in the
amended CPPNM preamble. This clearly invokes the Nuclear Security Recommendations on
Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Rev.5),19
which as described in Chapter VII are explicitly meant to help states implement their
obligations under the amended CPPNM. These recommendations are thus incorporated by
reference, bringing them within the CPPNM treaty framework and also within the scope of
the review conference mechanism. In addition to the issue of adequacy, there is also the point
in the review provision on considering implementation of the Convention. As implementation
guidance, INFCIRC/225/Rev.5 should be part of the review discussion. Going a step further,
the states parties could agree, unanimously or by consensus depending on the rules of
procedure adopted for the review conference, that the provisions of INFCIRC/225/Rev.5 (or
Nuclear Security Series No. 13) are the appropriate measures necessary for establishing,
implementing and maintaining an appropriate physical protection regime applicable to nuclear
material and nuclear facilities under a state party’s jurisdiction.20 By taking such action
explicitly, it could be indicative of INFCIRC/225/Rev.5, one of the key non-binding
instruments in the legal framework for nuclear security, as subsequent agreement impacting
treaty interpretation and demonstrating evolution of treaty’s implementation.
Another step that could be taken by the states parties during a review conference is to
strengthen the provision, Article 14, on providing information on the laws and regulations
giving effect to the treaty. According to the nuclear security information portal,21 only 27 of
the 157 (as of the time of writing) states parties to the CPPNM have provided information in
accordance with the Article 14 obligation. Article 14(1) is an obligation of notification,
leaving the amount of detail to be provided up to the discretion of the state party concerned.
Nevertheless, the process can serve to build trust and confidence in compliance with the terms
of the Convention, and the information provided by states parties can form the basis for
discussing issues related to implementation and adequacy during review conferences. The
way in which the provision is formulated means that sharing information regarding national
implementation measures is not necessarily meant to be a one-time action. Laws and
regulations giving effect to the CPPNM will clearly need to be updated in light of changing

19
Also known as Nuclear Security Series No. 13 (2011).
20
As set out in Article 2A of the amended CPPNM.
21
https://nusec.iaea.org (registration is necessary).

170
circumstances, such as a state party to the original Convention becoming party to the 2005
Amendment, and that information should be provided accordingly. Under the CPPNM, the
IAEA is tasked with collecting and distributing the information on national laws and
regulations giving effect to the Treaty, but it has no mandate to review and evaluate the
information. A CPPNM review conference could also decide to request the IAEA to review
and evaluate the information provided pursuant to Article 14 in accordance with Agency
(confidentiality) procedures. This could be politically controversial and would not be
equivalent to establishing a semblance of a verification mechanism, but it would be a way to
give the IAEA a role in treaty oversight and would help clarify the state of implementation for
the purposes of review.

IX.4.2 Addressing new threats and challenges, such as cyber-attacks

The need for evolutive capacity within the international legal framework for nuclear security
has much to do with changing and emerging threats to nuclear infrastructures. One such threat
is that of cyber-attacks. With facilities relying more and more on computer systems to carry
out a range of tasks – from business networks to monitoring and control of operations – and
adversaries becoming more sophisticated, vulnerabilities to cyber-attacks in the nuclear sector
are increasing. National borders do not confine the origins and effects of cyber-attacks on
nuclear facilities, potentially resulting in theft of material or sabotage of the facility.
Particular aspects of cyber threats in the nuclear sector impact possible international
legal approaches to the issue. First, cyber threats are a relatively recent phenomenon, and the
means and methods of carrying out cyber-attacks are still evolving. The technology is such
that non-state actors, as well as states, are capable of doing significant damage. At the same
time, the treaties that make up the international legal framework were developed at a time22
when such threats were not yet considered. Second, and related to this, modern computer
networks and systems are complex, and complexity often breeds vulnerabilities. Third,
vulnerabilities when it comes to nuclear facilities can lead to the release of radiation. This
would be the most extreme scenario, but several other possibilities exist, such as theft or
compromise of sensitive information, compromise of systems for physical security allowing
for access to and/or theft of material, among other scenarios. Fourth, there are sophisticated
adversaries with the will and determination to cause damage, harm and panic on a massive
scale, making nuclear facilities attractive targets. Adding this up, it is clear that international
action is needed to prevent, detect and respond to cyber-attacks as part of the broader nuclear
security regime.
INFCIRC/225/Rev.5 contains references to computer security, and then in a very
limited manner. It recommends that states secure computer-based systems used for physical
protection, nuclear safety and material accountancy and control against compromise in
implementing a physical protection system against both sabotage and unauthorized removal,
as well as secure systems used for access control. In total, there are only three specific
recommendations that deal with cyber issues. A subsequent revision of INFCIRC/225 could
include specific recommendations on legislative considerations pertaining to cyber security
and recommendations on regulatory requirements, such as making computer security part of
the facility security plan, or more specific requirements on review and enforcement processes

22
Both the CPPNM Amendment and the ICSANT were discussed and/or negotiated starting in the late 1990s,
and both were adopted in 2005. ICSANT entered into force in 2007, a year that saw cyber-attacks on Oak Ridge
National Laboratory in the U.S., Estonian banks, ministries and parliament, and U.S. government agencies,
among others.

171
when it comes to computer security policy.23 From an organizational perspective, among
other things, bringing cyber security more integrally into INFCIRC/225 will put the issue
more squarely in the realm of IAEA International Physical Protection Advisory Service
(IPPAS) missions. IPPAS missions look at a state’s physical protection system in light of
international guidelines, i.e. currently INFCIRC/225/Rev.5, and recognized best practices.
These voluntary reviews (a category which also includes, for instance, International Nuclear
Security Service missions) represent the only international assessment of the establishment
and implementation of a state’s nuclear security regime. Though IPPAS missions to date have
already made suggestions to states regarding cyber security, cyber security is not at a
sufficiently high level in the Nuclear Security Series hierarchy for detailed assessment as part
of IPPAS missions. Cyber security at the recommendation level will give IPPAS missions
more authority to assess and make recommendations on national measures in this area.
Cyber threats are likely to remain part of the prevailing situation for the foreseeable
future, which means the issue should be taken up in the CPPNM review conference process.
Having cyber security guidance in place in the non-legally binding Nuclear Security Series
recommendation-level documents will allow the states parties to the CPPNM, for instance, to
adopt a common understanding or establish agreement on the “protection against theft of
nuclear material and sabotage of nuclear material and nuclear facilities” that includes cyber
security along with a common approach to addressing cyber threats that involves the
implementation of the IAEA guidance. While the specific example here has to do with the
emerging threat of cyber-attacks, this process of incorporating new measures into the binding
framework of the amended CPPNM by establishing subsequent agreement/practice through,
for instance, the review conference mechanism, could be employed for a range of emerging
and evolving challenges that fall within the scope of the treaty’s provisions. This is part of
ensuring the adequacy of the treaty going forward.

IX.4.3 ‘New law’: A treaty on the security of radioactive sources

The legal framework for radioactive source security remains underdeveloped, being primarily
founded on the Code of Conduct, and as such pursuing a legally binding instrument aimed at
the security of high-activity radioactive sources would be a clear means for significantly
strengthening the legal framework.
Radioactive sources are used in some capacity in every country,24 meaning in essence
that every state has a responsibility to secure sources against unauthorized activities. It is
essential, however, to highlight the fact that not all radioactive sources pose significant risks
in terms of damage to human health or the environment, hence the distinction of high-activity
sources which are deemed as such due to their particular levels of radioactivity. The
prevalence of sources in use throughout the world makes it necessary to differentiate among
the sources and formulate security rules and regulations based on certain identifying factors.
For instance, the primary threat is posed by sources that contain radioisotopes with
intermediate length half-lives, from days to thousands of years, as radioisotopes with short
half-lives would diminish too quickly to pose a real danger and those with long half-lives
would decay too slowly.25 To this end, the IAEA’s Categorization of radioactive sources
(Categorization) creates a system for addressing various sources based primarily on the
potential of sources to cause deterministic health effects. High-activity sources, according to

23
These measures are derived from the technical guidance document Computer Security at Nuclear Facilities,
Nuclear Security Series 17.
24
See C. Ferguson, Ensuring the Security of Radioactive Sources: National and Global Responsibilities, US-
Korea Institute at SAIS Working Paper Series, March 2012.
25
Ibid.

172
the Categorization, are those that can cause severe effects in a short period of time, as
opposed to low-activity radioactive sources that are unlikely to cause these effects.26 Of the
categories from 1 to 5, then, consensus seems to be that Category 1 and 2 sources are the ones
that are actually high-risk. For that reason, any strengthening of the international legal
framework with respect to radioactive sources should concentrate on the Category 1 and 2
sources.
A basic issue that must be confronted that, aside from identifying which sources
should be the focus of international legal obligations, working toward strengthening the
international legal framework requires convincing states that such a process and additional
binding commitments are necessary and will serve national (security) interests. States with
nuclear power plants (NPP) tend to think that they have no problem with security of
radioactive sources.27 Developing states are often concerned primarily with ensuring access to
needed material, and radioactive source security either takes a back seat or is not even
considered. Due to the sheer number of sources that exist and the wide range of peaceful uses
for radioactive sources, the issue, perhaps even to a greater extent than for other dual-use
materials, is striking the balance between security arrangements and guaranteeing the
continued beneficial use of radioactive sources.28 At a very fundamental level, the major
obstacles to initiating negotiation of a legally binding instrument regarding radioactive source
security will be creating the motivation and harnessing (perceived) state interests by defining
incentives for committing to a legal instrument.
It is perhaps hard to imagine states being eager to enter into negotiations for a new
convention in light of the difficulties and time it took to garner sufficient ratifications for
entry into force of the 2005 amendment to the CPPNM, which entered into force 11 years
following its adoption. States have, however, previously indicated an interest in working
toward a legally binding instrument for radioactive source security. Paraguay put forward a
proposal during the 2005 CPPNM Amendment Conference to further enlarge the scope of the
CPPNM to cover all radioactive materials and facilities, though the proposal was later
withdrawn after making a determination that the particular Amendment conference was not
the proper forum for such a discussion as it would too fundamentally alter the scope of the
CPPNM. Regardless, Paraguay, along with Azerbaijan, the Philippines and Argentina
continued to express their readiness to cooperate in the development of a legally binding
instrument on the safety and security of radioactive sources.29 The French delegation
conveyed a hope that the question of such a legally binding instrument would be taken up in
due course.30 More recently, at the 2010 international meeting that was part of the formalized
process for information exchange with respect to the Code of Conduct and Import/Export
Guidance it was acknowledged that, regardless of satisfaction with the non-legally binding

26
Categorization of radioactive sources, IAEA-TECDOC-1344, 2003, part 2.
27
Interview with employee of the IAEA Office of Nuclear Security and member of the Radioactive Sources
Working Group (RSWG). The RSWG, according to its Draft Working Procedure, aims to promote improved
cooperation and coordination between the IAEA, major donor states, recipient states and other international
organizations and initiatives, as well as to serve as a forum for discussion and exchange of information on plans
and programs, including experience and feedback on the success of relevant initiatives, etc., in order to optimize
the use of resources and coordinate specific projects. The RSWG is open to all member states of the IAEA.
28
See, for example, the published proceedings of the International Conference on Security of Radioactive
Sources, Vienna, Austria, 10-13 March, 2003. ‘Dual-use’ materials are those materials that can be used for both
peaceful and harmful functions.
29
CPPNM/AC/CoW/SR.2, par. 8-9.
30
Ibid., par. 14.

173
status of the Code of Conduct, states may eventually wish to consider developing a legal
instrument covering radioactive sources.31
It is also worth noting that general support for the principles and norms as contained in
the Code of Conduct has been expressed in a number of different forums. The G8 Global
Partnership Against the Spread of Weapons and Materials of Mass Destruction has
encouraged as many states as possible to observe the principles of the Code of Conduct and
has undertaken to collectively or individually promote its application, including by identifying
elements of the Code of Conduct of most relevance to preventing terrorists from gaining
access to radioactive sources and developing recommendations in collaboration with the
IAEA on national implementation of those elements.32 Similarly, a number of individual
states and groups of states mentioned, expressed support for or urged implementation of the
Code of Conduct or the principles thereof during the 2010 Review Conference of the NPT,
and the Conference as a whole endorsed the principles and urged implementation of the Code
of Conduct.33 Under the auspices of the Global Initiative to Combat Nuclear Terrorism,
workshops and other activities have been held that focus on the implementation of the Code
of Conduct in support of the Statement of Principles.34 These examples are mentioned here
because, when considering the development of a new convention, the more it maps on to
existing practice, the higher compliance is likely to be,35 and states will tend to be more
willing to enter into binding agreements the higher prospects for compliance are. In addition,
these examples denote the existence of a substantial level of agreement on essential principles
and norms related to the security of radioactive sources. Therefore, a strong basis already
exists in terms of the elements to be discussed for inclusion in a legally binding instrument,
and if states are already committed to and implementing the security elements of the Code of
Conduct, the threshold to adherence with a legally binding instrument should be significantly
reduced. Furthermore, the already widespread use of the source categorization method as
developed under the auspices of the IAEA in domestic legal and regulatory systems means
that designating Category 1 and 2 sources in the scope of an international legal instrument
would not necessitate drastic changes when it comes to national implementation.
In any case, it is clear that well-considered incentives meant to motivate or induce
states to work toward a new legally binding instrument will be necessary if any push for
negotiation and conclusion of such an agreement is to gain traction. For the states that
acknowledge the issues that remain with respect to radioactive source security but are
resistant to the idea of a new legally binding instrument, work needs to be done to convince
them that a real, serious threat of terrorist or criminal use of radioactive sources that are
present in their territory or under their jurisdiction or control exists and that the current legal
and regulatory framework is inadequate. Vulnerabilities are not confined to states that lack
resources and capacity to implement security measures; they also exist in developed countries
with seemingly strong security systems in place.36 Furthermore, all states have an incentive in
31
Report of the Chairman, Open-ended Meeting of Technical and Legal Experts for Sharing Information on
States’ Implementation of the Code of Conduct on the Safety and Security of Radioactive Sources and its
supplementary Guidance on the Import and Export of Radioactive Sources, Vienna, 17-21 May 2010, par. 40.
32
See Securing Radioactive Sources: A G8 Action Plan, Evian Summit 2003.
33
See generally NPT/CONF.2010/50 (Vol. II), and in particular Working paper of the Chair of Main Committee
II (NPT/CONF.2010/MC.II/WP.1) and the Chairman’s working paper: Main Committee III
(NPT/CONF.2010/MC.III/WP.1)
34
In Germany in December 2007 and in Canada in June 2008.
35
See A. Chayes and A. H. Chayes, “On Compliance,” International. Organization 47:2 (Spring 1993), pp.175-
205.
36
Jansson and Ferguson, for instance, make reference to the U.S. Government Accountability Office report from
2012 (Additional Actions Needed to Improve Security of Radiological Sources at U.S. Medical Facilities) which
identifies shortcomings in radiological security at hospitals and other medical facilities in the U.S. ‘Revisiting
radioactive source security,’ Bulletin of the Atomic Scientists, 2 November 2012.

174
being confident that other states have implemented the necessary security measures with
respect to radioactive sources, as the risk is not border sensitive, as well as in not having
radioactive sources from their territory or under their jurisdiction be used to harm human
health, the economy or the environment of another state. As alluded to above, by virtue of the
form of an agreement that is legally binding and the process of developing a legally binding
instrument, the sense of obligation is enhanced.37 In addition, for many states economic and
technological cooperation, including (increased) access to needed material or to markets
(from the perspective of supplier states), would provide the strongest incentive. International
legal instruments that address material that can be both weaponized and used for peaceful
purposes often include provisions for facilitating cooperation on technological and scientific
development and for ensuring access to technologies and materials.38 With respect to
radioactive sources, a legally binding instrument could formalize access to those sources that
a state needs inter alia for medical applications based on the required implementation of
security standards. In other words, a baseline of physical protection would be a prerequisite
for receiving radioactive sources, while access to radioactive sources and assistance in
relevant technological and scientific matters would be facilitated in the form of a binding
obligation, thus easing the concerns of several developing states that access could be
interrupted. Remaining on the outside, by not becoming party to such a convention, would on
the contrary be undesirable as it would reduce access to technologies, materials and markets.
It would be important here, though, to ensure that states are not hindered in implementing and
complying with legal security obligations simply by lacking the necessary capacity and
resources so as not to arbitrarily deny access to beneficial uses of radioactive sources.
Negotiations should take place under the auspices of the IAEA and include as many
participating states as possible. As all states make use of radioactive sources in some capacity,
universality of a legally binding instrument would of course ultimately be essential.
Increasing motivation and perceived interest can be helped by means of open and transparent
engagement in institutional arrangements such as the above-described formalized process for
information exchange with respect to the Code of Conduct and Import/Export Guidance.
Using the formalized process as a forum, information exchange and discussion of lessons
learned on implementation can serve to highlight shortcomings and focus attention on the
possibilities presented by a legally binding instrument.
Based on perspectives voiced by a number of states, arousing interest and motivating
states to negotiate and conclude a legally binding instrument on radioactive sources will not
be easy. However, a number of factors as described in the previous sub-section point toward it
being achievable. Being achievable is not necessarily equivalent to being desirable, and to get
states on board the question must be addressed as to what the added value of a new legally
binding instrument for radioactive sources would be. Already alluded to above, due to the
existence of norms and principles already applicable to radioactive sources in soft law form, a
treaty concluded subsequent to and based in part on this soft law could generally lead to a
stronger compliance pull with respect to the security requirements, both when it comes to the
treaty and the related instruments that preceded it.39 Additionally, a treaty could stimulate
broader adherence to important principles and norms, depending in part on the incentives
foreseen by potential states parties, codify institutionalized procedures for information sharing
and cooperation, establish consequences for non-compliance, and generally give added weight
to and strengthen the framework for radiological security that has lagged behind that for
nuclear material and facility security. A new legally binding instrument will create rights and
obligations for states parties which will become part of national law upon ratification in some

37
See supra note 12, referring to the normative pull of a legally binding agreement.
38
See, for example, Article X of the BWC, Article IV of the NPT and Article XI of the CWC.
39
See L. Henkin, How Nations Behave, Second Edition, Council on Foreign Relations (1979).

175
cases and upon taking the required national implementing measures in other cases, and will
reflect the increased level of commitment that that entails. As such, perhaps the most
important role played by a new legally binding instrument would be that of an assurance
mechanism in and of itself. Ratification of the legally binding instrument would demonstrate
the commitment of states parties to the terms of the agreement and would provide a certain
level of confidence in and transparency related to the domestic security of radioactive sources.
The added value of a new legally binding instrument on the security of radioactive
sources would be obliging (eventual) states parties to act in accordance with international
benchmarks for radioactive source security, thereby strengthening the framework through
enhanced consistency and, where applicable, quality. In legally obligating states parties to
implement standardized levels of radiological security, a new instrument can codify the
essential existing elements while recognizing, through reference, documents ‘that are updated
from time to time which can provide guidance on contemporary means of achieving’
radiological security, similar to the format of the CNS and CPPNM Amendment. Said
documents in this case would include, for instance, Nuclear Security Series No. 11: Security
of Radioactive Sources. The result of a legally binding instrument operating in conjunction
with the other soft law standards and guidance would be, paraphrasing Boyle and Chinkin, a
more convincing framework for the international regulation of radiological risks.40 In order to
be effective, an eventual legally binding instrument should aim for the broadest possible
adherence and at least would require the support of the major radioisotope producing states.
If a new legally binding instrument is both achievable and has added value for the
strength of the legal framework, the modality and specific elements to be contained in the
treaty remain to be determined. In order to ensure sustainability of the instrument, the form
will have to be adaptable to economic, technological and scientific changes. This can be done
by providing for a regular review process that reviews implementation as well as the
adequacy of the instrument taking into account current circumstances.41 Another way to
provide for treaty evolution would be to include an amendment procedure. Even if an
amendment procedure is not explicitly covered in the instrument itself, being a multilateral
treaty, the amendment thereof will be governed by the terms of the Vienna Convention on the
Law of Treaties. The perhaps easiest way to incorporate the flexibility needed to adapt the
treaty according to prevailing circumstances is to lay out the basic rules or standards with
respect to legal and regulatory measures for radioactive source security and include by
reference the relevant Nuclear Security Series documents and the Code of Conduct and
Import/Export Guidance. The soft law instruments will not be an integral part of the legally
binding instrument but will provide specific guidance on, for instance, defining a domestic
threat, determining source security levels or establishing site security plans. Due to the form,
the soft law instruments will be able to be more quickly changed or replaced in light of new
challenges. It must also be determined whether the scope of a new legally binding instrument
should include both safety and security or security alone. From an operational standpoint, it
can be argued that there is a substantial overlap between safety and security, providing that
safety and security measures do not interfere with one another.42 In terms of licensing and
enforcement or accounting and tracking of the sources themselves (i.e. through a national
register), it may be useful, particularly considering resource and capacity issues, to combine
safety and security. However, when considering for instance the relative lack of detail for
security measures in comparison with those for safety in the Code of Conduct, it would

40
See A. Boyle and C. Chinkin, The Making of International Law, Oxford: Oxford University Press (2007), pp.
216-220.
41
See formulation of CPPNM Article 16.
42
Interview with employee of the IAEA Office of Nuclear Security and member of the Radioactive Sources
Working Group (RSWG).

176
appear necessary to elaborate the security rules and standards on their own to strengthen
clarity and elicit commitment specifically to security.
The process of identifying the specific elements to be included in the legally binding
instrument would best be carried out by the IAEA (as the probable and most practical
depositary) and would eventually be subject to negotiation and agreement among
participating states. That does not mean, however, that certain aspects cannot already be
distinguished as they are foundational to radiological security. Again, the scope of the legally
binding instrument should be Cat. 1 and 2 sources as these are considered the truly high-risk
materials. The primary concern is to develop rules that guide a state’s protection of
radioactive sources throughout the lifecycle,43 or in other words to describe responsibilities,
standards and measures to enhance management of radioactive sources from cradle-to-grave.
This means that a system of proper authorization needs to be in place with respect to the key
actors and processes during each phase of the lifecycle. Relevant actors include
producers/manufacturers of sources, suppliers/distributors and users (or operators) that must
provide for protection of sources while in use and take appropriate action when sources reach
the end of their useful lives. Not only is it necessary for each of these relevant actors to have
proper authorization, most likely in the form of licenses, but they are primarily responsible for
maintaining continuity of control over the sources at the respective stages of the lifecycle for
which they have been granted authorization by the state’s regulatory body.44 The biggest
problem has to do with the end of the lifecycle. Facilities often cannot afford to return the
source to the producers, and most small countries have no long-term storage facilities.
Perhaps a legally binding instrument could encourage and provide for cooperation to
facilitate, financially and logistically, the return of disused sources to the producer for reuse,
recycling or disposal.
Another element that should be part of a legally binding instrument is the requirement
to implement harmonized benchmarks for physical protection of radioactive sources. It is
possible to glean the relevant security levels out of the document Nuclear Security Series No.
11: Security of Radioactive Sources. Without going too far into the details provided in the
document’s tables, the goals of the security levels should be as follows: for Category 1
sources the security system should be capable of preventing unauthorized removal of a
source, and for Category 2 the security system should be capable of minimizing the likelihood
of unauthorized removal of a source. Such benchmarks should also provide the basis for
assurances provided prior to export authorization. Export controls should be in place to ensure
that only authorized users receive sources, meaning also that the baseline security levels are
adhered to, particularly as all states are potentially source exporters, if only in returning
disused sources to the producer.45 Because portability plays a role in the attractiveness of
radioactive sources to terrorist or criminal actors, security benchmarks should be implemented
at all times during transport (and responsibility for sources, including security, during
transport should be clearly defined). Regulatory control will also necessitate that a state’s

43
It would be possible to focus on narrower aspects, such as export controls or cooperation in combating illicit
trafficking, for which legally binding obligations would be created. However, the challenges and delays faced in
trying to broaden the scope of the CPPNM through the amendment procedure when it was recognized that
physical protection during international transport was not sufficient should encourage this full lifecycle approach
from the beginning.
44
This statement stems from a recommendation, due to recognition that states were having difficulties in
establishing fully effective systems for the regulatory control, made at the International Conference of National
Regulatory Authorities with Competence in the Safety of Radiation Sources and the Security of Radioactive
Materials, held in 2000 in Buenos Aires.
45
Open-ended Meeting of Technical and Legal Experts for Sharing of Information as to States’ Implementation
of the Code of Conduct on the Safety and Security of Radioactive Sources and its supplementary guidance on the
Import and Export of Radioactive Sources, Report of the Chairman, Vienna, 25 to 29 June 2007.

177
regulatory body has the sufficient mandate to verify and enforce the standards, and that
infractions are covered appropriately in domestic law. To a certain extent, relevant
unauthorized activities are covered under ICSANT, but only in so far as they are accompanied
by the requisite intent to cause death or serious bodily injury or substantial damage to
property or to the environment.
An important role that a legally binding instrument could play would be to facilitate
international cooperation and information sharing. The instrument could provide the platform
for commitments, among others, to share information on potential threats that impact other
states, cooperate on locating and regaining regulatory control over orphan sources, and
develop disposal, reuse or recycling pathways for disused sources. As in the CPPNM, there
could also be a provision for providing information on the national laws and regulations
giving effect to the requirements of the treaty, as well as a formalized process for resolving
disputes concerning interpretation or application, providing a mechanism for considering
issues with respect to facts or events directly resulting from implementation of the provisions
of the treaty (application) as well as for clarifying a norm contained therein (interpretation).
Aside from the last few elements mentioned, the majority of these provisions would be
directly taken from or be otherwise based on existing recommendations, standards and
guidance already laid down primarily in the soft law instruments produced under the auspices
of the IAEA, or in the other treaties with similar objects and purposes. It can be expected,
therefore, that to a certain extent a number of these elements have already been implemented
in domestic law and regulations. It can also support the motivation to conclude a legally
binding instrument that would ostensibly comprise relatively uncontroversial and more
general rules, standards and norms while the precise, but which could also encompass detailed
measures for implementation. Additional technical detail, if necessary, could remain in non-
legally binding form as implementation guidance. In other words, codification of the
foundational elements of radioactive source security into a legally binding instrument would
seem to present an attractive way to eliminate one of the most obvious gaps in, and thereby
strengthen relatively expeditiously, the overall legal framework for nuclear security.

IX.5 General concluding remarks

International law plays a fundamental role in broader nuclear security governance. It is

fundamental because states are the primary actors, both due to the military dimensions of a
number of states’ nuclear programs and to their regulatory role when it comes to peaceful
uses of nuclear energy. The potentially devastating transboundary impact – on human health,
the environment, the economy – of criminal or terrorist activities involving nuclear or other
radioactive material and related facilities, puts efforts to address these threats squarely in the
security interest of states. In other words, there is a need for harmonized measures, whether
that be establishing and maintaining effective levels of protection of materials and facilities or
criminalizing and establishing jurisdiction of certain offenses, to prevent and respond to
misuse of nuclear energy. The international legal framework lays a foundation of obligation
and for holding states accountable for violations. This foundation is crucial even when much
of the normative structure is in the form of non-binding instruments and the statutorily
mandated activities of the IAEA, and supported by other informal initiatives and processes.
Each of these elements is interrelated, as this study has shown, and these elements provide
means and methods for further strengthening global nuclear security. This is the contribution
of both substance and organization contributed by the international legal framework as part of
the governance model for nuclear security.
The legal framework for nuclear security is not static. As it is designed to address a
particular problem, namely the threat of nuclear terrorism, it must evolve as the threat

178
evolves. Treaty modification through amendment, as in the case of the CPPNM, is one option.
Evolution, of interpretation or application of treaty provisions, is another option, one that may
lead to the acknowledgment that further amendment is needed. The 2021 CPPNM (as
amended) review conference is thus an important opportunity to take stock of the treaty’s
implementation and whether its scope is still sufficient in light of the current circumstances.
There are a number of shortcomings that should be resolved in the legal framework.
One is the security of military material, the security of which is only covered by the
obligation of conduct under ICSANT. It makes up the vast majority of material, and as such,
states have just as much of an interest in it being properly secured as material in peaceful
uses. Also, because military material can possibly be already in more weapons-usable form, it
is just as, if not more, attractive to would-be terrorists. Another shortcoming is the lack of
supervision of compliance with the binding obligations. The need for the implementation of
effective measures to secure nuclear programs from misuse by non-state actors (terrorists) as
laid out in binding obligations, and the interest of states in effective measures being enacted in
all other states (as the threat of nuclear terrorism is global in scope), leads to the conclusion
that the framework would benefit from oversight of compliance. States parties to the CPPNM
(as amended), for instance, could task the IAEA with some form of verification of compliance
with the treaty’s obligations. This would build confidence by establishing a system to detect
and deter non-compliance, and it would make it easier to make a determination of state
responsibility for breaches of obligations. There is still a long way to go in terms of both
substance and organization to strengthen nuclear security governance. However, taking the
necessary steps is necessary to protect humanity from the likely devastating consequences –
for human health and the environment, but also for international cooperation in harnessing the
benefits of nuclear energy for peaceful use – of an act of nuclear terrorism.

179
180
Appendix 1: List of Abbreviations

AU African Union
BWC Biological Weapons Convention
CBM Confidence-building measure
CBRN Chemical, Biological, Radiological and Nuclear
CD Conference on Disarmament
CNS Convention on Nuclear Safety
CPPNM Convention on the Physical Protection of Nuclear Material
CTBT Comprehensive Nuclear-Test-Ban Treaty
CWC Chemical Weapons Convention
DBT Design Basis Threat
EU European Union
Euratom European Atomic Energy Community
GICNT Global Initiative to Combat Nuclear Terrorism
GP Global Partnership against the Spread of Weapons and Materials of Mass
Destruction
HCoC Hague Code of Conduct against Ballistic Missile Proliferation
HEU High Enriched Uranium
IAEA International Atomic Energy Agency
ICAO International Civil Aviation Organization
ICC International Criminal Court
ICJ International Court of Justice
ICSANT International Convention for the Suppression of Acts of Nuclear Terrorism
ILC International Law Commission
IMO International Maritime Organization
IND Improvised nuclear device
INFCIRC Information circular (document distributed by the IAEA upon request of
member states)
INSServ International Nuclear Security Advisory Service
INSSP Integrated Nuclear Security Support Plan
IPPAS International Physical Protection Advisory Service
IRRS Integrated Regulatory Review Service
ITDB Incident and Trafficking Database
LEU Low enriched uranium
NNWS Non-nuclear weapon states (pursuant to the NPT)
NPT Nuclear Non-Proliferation Treaty
NSG Nuclear Suppliers Group
NSGC Nuclear Security Guidance Committee
NSS Nuclear Security Summit
NTM National technical means
NUSIMS Nuclear security information management system
NWFZ Nuclear-weapon-free-zone
NWS Nuclear weapon states (pursuant to the NPT)
OAU Organization of African Unity
OECD Organization for Economic Cooperation and Development
OPCW Organization for the Prohibition of Chemical Weapons
OSCE Organization for Security and Cooperation in Europe
PMDA Plutonium Management and Disposition Agreement
RDD Radiological dispersion device

181
RED Radiological emission device
RID Radiological incendiary device
RRSP Southeast Asia Regional Radiological Security Partnership
SSAC State systems of accounting and control
SSOD Special session of the General Assembly devoted to disarmament
SUA Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation
UN United Nations
UNAEC United Nations Atomic Energy Commission
UNCLOS United Nations Convention on the Law of the Sea
UNIDIR United Nations Institute for Disarmament Research
UNODC United Nations Office on Drugs and Crime
VCLoT Vienna Convention on the Law of Treaties
WINS World Institute for Nuclear Security
WMD Weapon(s) of mass destruction

182
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198
Preventing Nuclear Terrorism: International Law and Nuclear Security Governance

Summary

The threat of nuclear terrorism is widely considered to be one of the most pressing threats facing the
international community. This is due in great part to two inter-related issues: firstly, the acknowledged
vulnerability of a significant amount of nuclear and other radioactive material throughout the world,
both as part of and outside of weapons programs, and, secondly, the demonstrated desire to obtain and
expected willingness to use such materials by terrorists. In order to address this threat, the governance
structure for nuclear security has been established and developed over several decades. This study uses
the framing device of “governance” to denote the multifaceted approach – in terms of tools and
stakeholders, whether they be states, international organizations, corporations, civil society or
individuals – involved in addressing the threat of nuclear terrorism. International law is an important
tool of nuclear security governance, providing where necessary a strong level of obligation and
accountability, but so are softer forms of legalization, such as recommendations, guidelines and codes
of conduct. These latter tools are, in principle, more easily adaptable and can potentially provide
greater precision, but can still serve to shape behavior of those involved, primarily states in the case of
nuclear security. This leads to the main question of this study:

 What is the role of international law in nuclear security governance and how can and should the
law be developed, implemented and enforced to further strengthen the global nuclear security
regime?

International law contributes both substance and organization to nuclear security governance.
Substance concerns the rules and standards laid down in normative instruments, both legally binding
and non-binding, that shape the conduct of states. Organization is integrally linked to substance in a
variety of ways. It entails the process by which normative instruments are developed. It also
encompasses institutional arrangements established under treaty frameworks, such as review
conference mechanisms, which can in turn serve to strengthen implementation and further
development of specific instruments of the legal framework. Organization refers also to international
organizations, the most important of which for the area of nuclear security is the International Atomic
Energy Agency (IAEA), which has taken a central role in facilitating the development of member
states’ domestic nuclear security regimes (through, for instance, assistance in assessing needs based on
international instruments) and serving as a convener of processes by which states can interact and
discuss issues related to nuclear security, as well as functioning to coordinate activities of multilateral
organizations and initiatives active in the area of nuclear security. In other words, both the substance
and organization are vital to nuclear security governance, and the dynamic interrelationship between
them is a defining factor of nuclear security governance.
This study seeks to provide a comprehensive overview of the international law applicable to
nuclear security. In so doing, it establishes a framework for better understanding how the international
law of nuclear security is structured and why it is structured in this way, provides a critical analysis of
possible shortcomings as pertains to the component instruments themselves or the legal framework as
a whole, and gives a prescriptive assessment looking at how relevant legal mechanisms, processes and
institutional arrangements (including, for instance, review, amendment and/or supervision) can be
invoked or employed to facilitate efforts to enhance the regime’s effectiveness. Nuclear security is a
broad area, defined by a substantial body of rules, norms, principles and guidelines at the international,
regional and national levels, separate from, but certainly related to, the non-proliferation of nuclear
weapons (and the safeguards system) and nuclear safety.
This study argues that nuclear security falls within the broader context of the international law
of arms control, due to certain characteristics including the focus on armaments and the security
dimension. The legal regime relating to nuclear weapons from which the nuclear security framework
derives is founded on the Non-Proliferation Treaty (NPT). Two weaknesses of the NPT regime persist
– the lack of universality, leaving four states possessing nuclear weapons outside of the treaty regime,
and the fact that the NPT does not adequately address the threat of nuclear-terrorism perpetrated by
non-state actors, which is the primary purview of the nuclear security framework. It is the element of

199
controlling the weapons and component materials in addition to criminalizing certain related acts is
what puts the nuclear security treaties in the area of arms control law. Arms control law is directly
related both to the rules governing the use of force in that limitation of armaments and certain military
capabilities can limit the possibility and effect of resorting to force, as well as to the conduct of armed
conflict in restricting the means and methods of warfare through regulation of state arsenals. The
‘arms control’ approach to counter-terrorism, which really could be applied to the full range of
chemical, biological, radiological and nuclear (CBRN) threats, places the focus on the means, or the
weapons used in the criminal or terrorist acts. As technologies and knowledge advance, capabilities
and motivations of terrorist actors evolve, and materials and facilities spread, the threat of nuclear
terrorism (and CBRN terrorism more broadly) increases. In other words, nuclear security does not
necessarily deal with weapons as such, that for instance must be limited or destroyed, but rather more
comprehensively covers the ‘building blocks’ of weapons, or in other words the materials, and
associated facilities, that have numerous peaceful uses but could also be weaponized, thereby securing
them from illegal use. The legal framework for nuclear security foresees commitment by states to
address acts of non-state actors. In terms of the scope of the legal instruments, then, nuclear security
diverges from, for instance, nuclear non-proliferation in that the latter concerns preventing states from
diverting nuclear energy from peaceful uses to nuclear weapons (military use), whereas the former
concerns preventing misuse of nuclear and other radioactive material by persons or entities rather than
states.
There has been a shift in thinking about security threats, predating but gaining steam following
the attacks on September 11, 2001, which has focused on the possibility of non-state actors, namely
terrorists, producing or acquiring and using weapons of mass destruction. This still concerns
armaments, but instead of those possessed by state militaries, the focus here is on possession of
weapons by non-state actors. Arms control is thus no longer confined to states, but also concerns
denying capabilities to non-state actors in order to prevent WMD terrorism. In other words, the
relevant laws and regulations are aimed at controlling potential “military” capabilities of non-state
actors, material and technology that could be used in weapons, as opposed to limiting or reducing
existing military capabilities of states. In addition, the instruments that make up the law related to
nuclear security are concluded between states but are not focused on setting limits on weaponry and
forces (types, quantities), but rather on agreeing to and setting standards of protection to prevent items
that can be used to produce weapons from falling into non-state actor hands. For this reason, this study
amends the “traditional” notion of arms control law to: the part of public international law that deals
both with the restraints internationally exercised upon the use of military force (in general) and on the
use, development, transfer and/or the possession of armaments (in particular), including their
component parts and related technologies, whether in respect of the level of armaments, their
character or deployment and with the applicable supervisory mechanisms. Examining nuclear security
in the context of the international law of arms control further has to do with specific characteristics of
this area of the law, namely the centrality of notions of security and the focus on preventive measures.
The element of security has a clearly political dimension, based for instance on calculations of
strategic stability. It also means that states will enter into agreements and make commitments if they
feel that doing so will not be detrimental to their security, by for example giving a strategic military
advantage to a potential adversary.
The international legal framework for nuclear security is comprised of two main categories of
instruments – legally binding and legally non-binding. In the context of nuclear security governance,
these two categories of instruments function together, and how the legally binding and non-binding
instruments interact is key to the strength of the legal framework as a whole. In this model, only
legally binding obligations provide guarantees through the form of commitment, procedures for
cooperation, clarification or coordination, and benchmarks aimed at harmonization. Non-legally
binding instruments, on the other hand, provide flexibility (they can be adopted more rapidly, and
amended or replaced relatively quickly if they do not meet current needs), necessary details to fill in
where legal commitment is not achievable or not appropriate, and international standards where states
are reluctant to submit to legally binding obligations while still recognizing the need for a certain level
of harmonization.
The most difficult part of perpetrating an act of nuclear terrorism is obtaining the material –
nuclear material or other radioactive material – needed to create an improvised nuclear device or

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radiological dispersal device, or an intact nuclear weapon. For that reason, measures aimed at
preventing nuclear terrorism are focused in the first instance on establishing and maintaining an
effective system for the physical protection of the materials and related facilities – controlling the
materials of nuclear or radiological weapons. The vast majority of nuclear material – some 83% – is in
military or non-civilian use, which encompasses not only weapons, but also material associated with
naval propulsion and other government-owned material in bulk, used in research, and potentially
available for military use. The international legal framework, however, focuses primarily on securing
the materials used for peaceful purposes. There are two main nuclear security treaties: the Convention
on Physical Protection of Nuclear Material (CPPNM), and its 2005 Amendment, and the International
Convention on the Suppression of Acts of Nuclear Terrorism (ICSANT). The CPPNM (as amended)
focuses on the physical protection of nuclear material and nuclear facilities used for peaceful purposes,
as defined in the treaty, and obligates states parties in general to establish and maintain an appropriate
physical protection regime for those materials and facilities under the state party’s jurisdiction.
ICSANT is primarily focused on establishing criminal offenses. It does set out an obligation of
conduct, however, for states parties to make every effort to adopt appropriate measures for ensuring
the physical protection of all radioactive material, for peaceful and non-peaceful purposes. The nature
of the weapons involved, brings this issue also firmly into the realm of collective security under
Chapter VII of the UN Charter. Security Council Resolution 1540 is the only universal legally binding
instrument, by virtue of its having been adopted under Chapter VII, setting forth obligations to
enhance security of materials (including nuclear materials), equipment and technology that can be
used for the design, development, production or use of nuclear weapons and their means of delivery,
which for the purposes of 1540 are termed “related materials.” The Resolution exemplifies the
common thread between nuclear non-proliferation and nuclear security by supporting the goals of
each, including non-diversion of weapons and materials, as well as acquisition and transfer of such
items by non-state actors.
Though the legal framework for nuclear security can logically be seen as part of the broader
context of arms control law applicable to nuclear weapons and of peaceful use of nuclear energy, there
is a significant criminal justice component to the relevant instruments. This has to do with the fact that
nuclear security is about preventing and responding to acts of nuclear terrorism by non-state actors.
Therefore, the legal instruments take a criminal justice approach in obligating states parties to
criminalize and establish jurisdiction over certain offenses in their domestic legal systems. This
criminal justice element is what links the primary nuclear security treaties – the CPPNM and ICSANT
– to the broader body of counter-terrorism conventions.
This study argues that while the criminalization provisions central to the relevant nuclear
security treaties are clearly constructed and together cover a wide range of possible offenses, the
security-related provisions are limited in scope, indeterminately formulated or formulated as
obligations of effort, and/or set forth general objectives that leave the precise measures to be taken to
give effect to the legal obligations almost fully up to the discretion of states. The limited scope and
indeterminacy necessarily impacts effectiveness by potentially raising questions as to the treaty’s
adequacy to meet the objectives for which it was devised and by impacting implementation and, with
that, confidence in compliance. This latter point relates to the lack of supervision when it comes to
verifying compliance with the legal framework for nuclear security.
Considering the limitations of the legally binding instruments that make up the legal
framework for nuclear security, this study demonstrates that legally non-binding instruments related to
nuclear security comprise an integral part of the international legal framework. The individual non-
binding instruments complement the legally binding instruments by providing guidance to help states
parties to the CPPNM as amended and ICSANT, as well as the nuclear security-related elements of
Resolution 1540, implement their obligations. As a whole, the set of non-binding instruments
supplement the binding instruments by forming a comprehensive set of guidance, covering aspects of
a state’s national nuclear security regime beyond the scope of the treaties. Non-binding instruments in
the legal framework for nuclear security also function as substitutes. In this sense, they can serve to fill
in gaps in the framework when, for instance, at least some states consider a binding instrument
covering a certain area undesirable, unrealistic or even unnecessary to achieve certain ends. This is the
case with respect to the security of radioactive sources. The international approach to the security of
radioactive sources remains founded primarily on the non-binding Code of Conduct for the Safety and

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Security of Radioactive Sources (Code of Conduct). The strength of the overall international legal
framework for nuclear security depends on the interaction of the non-binding instruments with the
relevant treaties. This includes the role as implementing guidance to ostensibly strengthen compliance
and the related possibility of being indicative of subsequent practice/agreement impacting the
interpretation of the relevant treaty provisions.
Supervision is a further key aspect of arms control law. The IAEA has developed and adapted
its supervisory role under the NPT. While related to the NPT, the legal framework for nuclear security
foresees no such supervisory function. Limitations on the institutional role in the area of nuclear
security, namely lack of explicit supervisory mechanisms to monitor, verify and enforce compliance
with the rules, is a weakness of the international legal framework. Part of the problem has to do with
the framework being comprised to a large extent of soft law, which does not lend itself to legally
mandated supervision, though even the legally binding instruments do not entail supervisory
mechanisms. Nonetheless, facilitating cooperation, information sharing, and confidence building, as
well as monitoring and verification of compliance with the rules and norms in nuclear security can be
taken up by or tasked to an institutional arrangement/international organization with a view to
fulfilling each state’s interest in the necessary measures being taken in other states. This relates to the
fact that nuclear security is fundamentally about (inter-) national security (the security dimension),
which is negatively impacted by potential non-compliance with and weak enforcement of the rules. As
such, there is a strong argument to be made that states should empower an international organization,
most likely the IAEA, with a supervisory role for the international legal framework for nuclear
security. The current role of the IAEA in this area is for the most part a technical one, assisting states
with establishing, developing and maintaining a national nuclear security system rather than
overseeing compliance with international obligations. That is not to say that the IAEA has no legally
mandated role under the relevant nuclear security treaties. It functions as the depositary of the CPPNM
(as amended), a role in which it serves primarily as a repository and conduit of information made
available by states parties and, where applicable, to be circulated to states parties, as well as convener
of meetings pursuant to the treaty. This includes, inter alia: receiving information from states parties
on the laws and regulations giving effect to the treaty provisions and outcomes of judicial proceedings
– a purely collection function without the added step of reviewing the information for conformity with
legal rules; receiving instruments of ratification, acceptance, approval or accession; receiving
notifications of denunciation; convening review conferences five years after entry into force of the
original treaty, five years after entry into force of the amendment to the convention, and at intervals
thereafter of not less than five years upon request by the majority of states parties; and circulating
proposed amendments and convening amendment conferences upon request by a majority of member
states. Under ICSANT, the IAEA has a smaller, more limited role, in part having to do with the fact
the it is not depositary (UN Secretary-General is the depositary). The treaty further foresees, inter alia,
requests for assistance and cooperation being made by states parties to the IAEA upon seizing
material, devices or facilities following the commission of an offense under the treaty; and the
provision of information by states parties to the IAEA on disposition or retention of radioactive
material, device or nuclear facility following the commission of an offense, information which the
Director General of the IAEA is then required to transmit to other states parties. Being fundamentally
concerned with international and national security, in addition to the fact that non-compliance with
obligations in one state can negatively affect security of another state, the importance of international
supervision for the nuclear security legal framework seems self-evident.
In light of the foregoing, one can conclude that international law plays a fundamental role in
broader nuclear security governance. The potentially devastating transboundary impact – on human
health, the environment, the economy – of criminal or terrorist activities involving nuclear or other
radioactive material and related facilities, puts efforts to address these threats squarely in the security
interest of states. In other words, there is a need for harmonized measures, whether that be establishing
and maintaining effective levels of protection of materials and facilities or criminalizing and
establishing jurisdiction of certain offenses, to prevent and respond to misuse of nuclear energy. The
international legal framework lays a foundation of obligation and for holding states accountable for
violations. This foundation is crucial even when much of the normative structure is in the form of non-
binding instruments and the statutorily mandated activities of the IAEA, and supported by other
informal initiatives and processes. The primary theme of this study is the essential role of non-binding

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normative instruments (soft law) in the international legal framework. The legal framework for nuclear
security has a unique structure where state conduct is regulated to a quite limited extent by binding
legal rules, which are supplemented by a fairly extensive body of non-binding instruments developed
to further guide state behavior. One would then expect that security interests – to prevent acts of
nuclear terrorism or other criminal acts involving nuclear or other radioactive material that could have
far-reaching transboundary effects on human health, the environment and the economy – would
militate in favor of developing legally-binding rules for which states could be held accountable and
would, therefore, ostensibly lead to a stronger compliance pull. This could involve applicable
supervision mechanisms, as states have a clear interest in assurance that other states are complying
with their obligations. However, for reasons primarily political – alleged sensitivities related to the
materials, technologies, processes and knowledge leading to the oft-repeated claim that responsibility
(in the non-legal sense) for nuclear security rests entirely with the state concerned – further
development of the international (hard) law in this area has been difficult. Sensitivities only increase
for nuclear materials and facilities used for military purposes. Soft law provides a form of cooperation
among states that allows for flexibility. While establishing standards and expectations of conduct, the
development of such non-binding instruments is relatively less cumbersome than international law-
making and thus more adaptable to changing circumstances, and perhaps more palatable to certain
states. Cooperation through soft law fits with the characteristics of nuclear security, including in
particular the aforementioned sensitivities, technical complexities (which in the case of nuclear
security concern aspects of the relevant materials and facilities), and the evolving threat of nuclear
terrorism. The role of soft law in the area of nuclear security is multi-faceted, to a certain extent
supporting the effectiveness of the legally binding instruments through providing implementation
guidance, but also covering issues beyond the scope of the binding instruments. Legitimacy is key,
giving the soft law instruments normative impact (establishing norms and expectations of state
behavior). The legitimacy is crucial to building confidence that states will act in a certain way, in
accordance with the non-binding instruments. Organization that is part of nuclear security governance
contributes to legitimacy. This includes inter alia the process of developing and adopting the non-
binding instruments, institutional arrangements for interaction among states to, for instance, discuss
implementation, and (voluntary) assessment of state conduct for adherence to soft law instruments.
The element of organization serves to enhance compliance pull and build confidence among states in
compliance with non-binding instruments. There is, in other words, a certain strength in the structure
of the legal framework for nuclear security being comprised largely of non-binding soft law. The soft
law is a way to cooperate in light of shared interest but absent the possibility (for whatever reason) of
establishing binding law. This is certainly not to say that the legal framework for nuclear security
would not benefit from establishment of further binding rules. On the contrary, there is room for
expanding the scope of legally binding instruments, for instance to better address nuclear material
used for military purposes or the security of radioactive sources. In addition, supervision, most
logically through the tasking of the IAEA with a supervisory role under a binding instrument, would
provide assurances of compliance with obligations, and thus serve the purpose of enhancing
confidence in the strength of the legal framework. Supervision would help determine and address
potential cases of non-compliance, establishing state responsibility and including mechanisms for
redress.
The study concludes by looking at some ways forward to strengthen the legal framework for
nuclear security. It looks at specific possibilities both in terms of the substance (establishing binding
rules related to radioactive source security and incorporating emerging threats such as cyber security
more integrally in the framework) and organization (CPPNM review conferences as institutional
arrangement). It is the intention in laying out these thoughts on the way forward that they can help
inform discussions among lawyers and policy-makers, particularly in preparation for the 2021 review
conference for the amended CPPNM and, as perhaps a more long-term goal, with respect to strengthen
the legal framework when it comes to radioactive source security. In so doing, the study addresses
some of the clearest lacunae/shortcomings in the current framework – lack of rules applicable to
nuclear material and facilities in military use, how to approach emerging threats under the current
legal framework structure, and how to strengthen radioactive source security.
The legal framework for nuclear security is not static. As it is designed to address a particular
problem, namely the threat of nuclear terrorism, it must evolve as the threat evolves. There is still a

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long way to go in terms of both substance and organization to strengthen nuclear security governance.
However, taking the necessary steps is necessary to protect humanity from the likely devastating
consequences – for human health and the environment, but also for international cooperation in
harnessing the benefits of nuclear energy for peaceful use – of an act of nuclear terrorism.

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Het voorkomen van nucleair terrorisme: internationaal recht en nucleair veiligheidsbeheer

Samenvatting

De dreiging van nucleair terrorisme wordt algemeen beschouwd als een van de meest nijpende
bedreigingen waarmee de internationale gemeenschap wordt geconfronteerd. Dit is voor een groot
deel het gevolg van twee gerelateerde kwesties: ten eerste de erkende risico’s die de wereldwijde
aanzienlijke hoeveelheid nucleair en ander radioactief materiaal met zich mee brengt, zowel als
onderdeel van kerwapenwapenprogramma's als daarbuiten, en ten tweede de aangetoonde bereidheid
van terroristen om dergelijk materiaal te gebruiken. Om deze dreiging het hoofd te bieden, is de
governancestructuur voor nucleaire beveiliging in de afgelopen decennia vastgesteld en ontwikkeld.
Deze studie gebruikt het raamwerk van "governance" om de veelzijdige benadering aan te duiden - in
termen van hulpmiddelen en belanghebbenden, of het nu staten, internationale organisaties, bedrijven,
het maatschappelijk middenveld of individuen zijn - die betrokken zijn bij het bestrijden van de
dreiging van nucleair terrorisme. Internationaal recht is een belangrijk instrument voor nucleair
veiligheidsbeheer, en biedt waar nodig een hoog niveau van plicht en verantwoordelijkheid, maar dat
geldt ook voor zachtere vormen van legalisering, zoals aanbevelingen, richtlijnen en gedragscodes.
Deze laatste hulpmiddelen zijn in principe gemakkelijker aanpasbaar en kunnen mogelijk een grotere
nauwkeurigheid bieden, maar kunnen nog steeds dienen om het gedrag van de betrokkenen vorm te
geven, met name staten in het geval van nucleaire beveiliging. Dit leidt tot de hoofdvraag van deze
studie:

 Wat is de rol van internationaal recht bij nucleair veiligheidsbeheer en hoe kan en moet de wet
worden ontwikkeld, geïmplementeerd en gehandhaafd om het wereldwijde nucleaire
beveiligingsstelsel verder te versterken?

Het internationaal recht draagt bij aan het beheer van nucleaire beveiliging, zowel qua regels als qua
organisatie. Inhoudelijk betreft het regels en normen die in normatieve instrumenten zijn vastgelegd,
zowel juridisch bindend als niet-bindend, die het gedrag van staten bepalen. Organisatie omvat het
proces waarmee normatieve instrumenten worden ontwikkeld. Het omvat ook institutionele regelingen
die zijn vastgelegd in verdragskaders, zoals mechanismen voor toetsingsconferenties, die op hun beurt
kunnen dienen ter versterking van de uitvoering en verdere ontwikkeling van specifieke instrumenten
van het rechtskader. Organisatie betekent ook internationale organisaties, waarvan de belangrijkste op
het gebied van nucleaire beveiliging het Internationaal Atoomenergie Agentschap (IAEA) is. Het
IAEA speelt een centrale rol bij het faciliteren van de ontwikkeling van nationale nucleaire
beveiligingsregimes van de IAEA lidstaten, en als een convener van processen waarmee staten met
elkaar kunnen samenwerken en kwesties in verband met nucleaire beveiliging kunnen bespreken. Met
andere woorden, zowel inhoudelijke als organisatorische elementen zijn van vitaal belang voor het
beheer van nucleaire beveiliging.
Deze studie beoogt een uitgebreid overzicht te bieden van het internationale recht dat van
toepassing is op nucleaire beveiliging. Aldus wordt een kader geschept voor een beter begrip van de
structuur van het internationaal recht inzake nucleaire beveiliging, en de structuur daarvan, en de
mogelijke tekortkomingen met betrekking tot de relevante instrumenten worden geanalyseerd.
Daarnaast kijkt deze studie naar hoe relevante juridische mechanismen, processen en institutionele
regelingen (waaronder bijvoorbeeld beoordeling, amendering en/of toezicht) kunnen worden
ingeroepen of gebruikt om inspanningen te vergemakkelijken om de effectiviteit van het regime te
verbeteren. Nucleaire beveiliging is een breed gebied, gedefinieerd door een substantieel geheel van
regels, normen, principes en richtlijnen op internationaal, regionaal en nationaal niveau Het is los te
zien van van non-proliferatie van kernwapens (en het safeguards systeem) en nucleaire veiligheid.
Deze studie stelt dat nucleaire beveiliging binnen de bredere context van internationaal
wapenbeheersingsrecht valt, vanwege bepaalde kenmerken zoals de focus op bewapening en de
veiligheidsdimensie. Het juridische regime met betrekking tot kernwapens waaronder het juridische
raamwerk van nucleaire beveiliging valt, is gebaseerd op het Nucleaire Non-proliferatieverdrag
(NPV). Twee tekortkomingen van het NPV-regime blijven bestaan - het gebrek aan universaliteit,
waardoor vier staten die kernwapens bezitten buiten het verdragsregime vallen, en het feit dat het NPV

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niet adequaat ingaat op de dreiging van nucleair terrorisme door niet-statelijke actoren. Het is vooral
het element van het controleren van de wapens en componentmaterialen, naast het criminaliseren van
bepaalde acties, dat de nucleaire beveiligingsinstrumenten in het kader van
wapenbeheersingswetgeving plaatst. Wapenbeheersingsrecht heeft te maken met de regels van
toepassing op het gebruik van geweld, de beperking van wapens en bepaalde militaire vermogens om
het effect van het gebruik van geweld te beperken, evenals het voeren van gewapende conflicten met
betrekking tot de middelen en methoden van oorlogsvoering. De 'arms control'-benadering van
terrorismebestrijding, die in principe zou kunnen worden toegepast op het volledige scala van
chemische, biologische, radiologische en nucleaire (CBRN) dreigingen, legt de nadruk op de middelen
of de wapens die worden gebruikt in de criminele of terroristische daden. Naarmate technologieën en
kennis vorderen, de mogelijkheden en motivaties van terroristische actoren evolueren, en materialen
en faciliteiten zich verspreiden, neemt de dreiging van nucleair terrorisme (en CBRN-terrorisme in
bredere zin) toe. Met andere woorden, nucleaire beveiliging heeft niet noodzakelijk betrekking op
wapens als zodanig, die bijvoorbeeld beperkt of vernietigd moeten worden, maar omvat eerder
uitvoerig de 'bouwstenen' van wapens, oftewel de materialen en bijbehorende faciliteiten. Het
juridische raamwerk voor nucleaire beveiliging voorziet in de toezegging van staten om daden van
niet-statelijke actoren aan te pakken. Wat de reikwijdte van de juridische instrumenten betreft, wijkt
nucleaire beveiliging af van bijvoorbeeld nucleaire non-proliferatie, aangezien deze laatste betrekking
heeft op het voorkomen dat staten nucleaire energie voor vreedzaam gebruik naar nucleaire wapens
afleiden (militair gebruik), terwijl de voormalige misbruik van nucleair en ander radioactief materiaal
door personen of entiteiten in plaats van staten voorkomen.
Er is een verschuiving gaande in opvattingen over veiligheidsdreigingen, van vóór de dag van
de de aanslagen van 11 september 2001maar vooral erna, dat zich heeft gericht op de mogelijkheid
dat niet-statelijke actoren, namelijk terroristen, massavernietigingswapens kunnen ontwikkelen en
gebruiken. Dit heeft nog steeds betrekking op bewapening, maar in plaats van op die van arsenalen
van staten, ligt de nadruk hier op het bezit van wapens door niet-statelijke actoren.
Wapenbeheersingsrecht is dus niet langer beperkt tot staten, maar betreft ook het voorkomen van het
gebruik van massavernietigingswapens (WMD) door niet-statelijke actoren. Met andere woorden, de
relevante wet- en regelgeving is gericht op het beheersen van potentiële "militaire" capaciteiten van
niet-statelijke actoren, materiaal en technologie die kunnen worden gebruikt in wapens, in
tegenstelling tot het beperken of verminderen van bestaande militaire vermogens van staten.
Bovendien zijn de instrumenten die deel uitmaken van het juridische raamwerk inzake nucleaire
beveiliging tussen staten opgesteld maar ze zijn niet gericht op het beperken van wapens en krachten
(soorten, hoeveelheden), maar op het stellen van beveiligingsnormen om te voorkomen dat gevaarlijk
materiaal dat kan worden gebruikt om wapens te produceren in handen valt van terroristen. Om deze
reden past deze studie de "traditionele" opvatting van wapenbeheersingsrecht aan: het deel van het
internationaal publiekrecht dat zowel betrekking heeft op de beperkingen die internationaal worden
uitgeoefend op het gebruik van militair geweld (in het algemeen) en op het gebruik, de ontwikkeling,
overdracht en / of het bezit van wapens (in het bijzonder), inclusief hun samenstellende delen en
gerelateerde technologieën, ongeacht of het gaat om het bewapeningsniveau, hun karakter of inzet en
de toepasselijke toezichtmechanismen. Het onderzoeken van nucleaire veiligheid in de context van het
internationaal recht inzake wapenbeheersing heeft verder te maken met specifieke kenmerken van dit
rechtsgebied, namelijk de centrale plaats van opvattingen over veiligheid en de focus op preventieve
maatregelen. Het veiligheidselement heeft een duidelijk politieke dimensie, bijvoorbeeld gebaseerd op
strategische stabiliteit. Het betekent ook dat staten overeenkomsten sluiten en verbintenissen aangaan
als zij van mening zijn dat dit niet schadelijk is voor hun veiligheid, door bijvoorbeeld een strategisch
militair voordeel aan een potentiële tegenstander te geven.
Het internationale juridische kader voor nucleaire beveiliging bestaat uit twee
hoofdcategorieën instrumenten: juridisch bindend en juridisch niet bindend. In het kader van nucleaire
beveiliging functioneren deze twee categorieën van instrumenten gezamenlijk, en de wijze waarop de
juridisch bindende en niet-bindende instrumenten aan elkaar zijn gebonden is essentieel voor de kracht
van het juridische raamwerk als geheel. In dit model bieden alleen juridisch bindende verplichtingen
garanties via de vorm van verbintenissen, procedures voor samenwerking, verduidelijking of
coördinatie, en benchmarks gericht op harmonisatie. Niet-juridisch bindende instrumenten bieden
daarentegen flexibiliteit (ze kunnen sneller worden gesloten en relatief snel worden aangepast of

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vervangen als ze niet aan de huidige behoeften voldoen), noodzakelijke technische details, alsmede
internationale normen in het geval staten terughoudend zijn om zich aan juridisch bindende
verplichtingen te onderwerpen, terwijl ze nog wel erkennen dat er behoefte is aan een bepaald niveau
van harmonisatie.
Het moeilijkste onderdeel van het plegen van een daad van nucleair terrorisme is het
verkrijgen van materiaal - nucleair materiaal of ander radioactief materiaal - dat nodig is om een
geïmproviseerd nucleair apparaat of apparaat voor radiologische verspreiding, of een intact nucleair
wapen te creëren. Daarom zijn de maatregelen gericht op het voorkomen van nucleair terrorisme in de
eerste plaats gericht op het opzetten en onderhouden van een effectief systeem voor de fysieke
beveiliging van de materialen en aanverwante faciliteiten - het beheersen van de materialen van
nucleaire of radiologische wapens. De overgrote meerderheid van nucleair materiaal - ongeveer 83% -
is voor militair of niet-civiel gebruik, dat niet alleen wapens omvat, maar ook materiaal dat verband
houdt met de voortstuwing van de onderzeers en ander materiaal in bulk, dat in onderzoek wordt
gebruikt en mogelijk beschikbaar is voor militair gebruik. Het internationale juridische raamwerk is
echter vooral gericht op beveiliging van de materialen die voor vreedzame doeleinden worden
gebruikt. Er zijn twee belangrijke verdragen inzake nucleaire beveiliging: het Verdrag inzake de
fysieke beveiliging van kernmateriaal (CPPNM) en de 2005 amendering daarvan, en het Internationaal
Verdrag inzake de bestrijding van daden van nucleair terrorisme (ICSANT). Het CPPNM (zoals
geamendeerd) richt zich op de fysieke beveiliging van nucleair materiaal en nucleaire faciliteiten die
worden gebruikt voor vreedzame doeleinden, zoals gedefinieerd in het verdrag, en verplicht de
verdragsluitende partijen in het algemeen een passend regime voor fysieke bescherming in te stellen
en te handhaven voor die materialen en faciliteiten onder de jurisdictie van de staat. ICSANT is
primair gericht op het vaststellen van strafbare feiten. Het bevat echter wel een
inspanningsverplichting voor staten partijen om alles in het werk te stellen om passende maatregelen
te nemen voor het waarborgen van de fysieke beveiliging van alle radioactieve materialen, voor zowel
vreedzame als niet-vreedzame doeleinden. De aard van de relevante wapens brengt deze kwestie ook
duidelijk in het domein van collectieve veiligheid onder hoofdstuk VII van het Handvest van de VN.
Resolutie 1540 van de Veiligheidsraad is het enige universele juridisch bindende instrument, omdat
het krachtens hoofdstuk VII is aangenomen, waarin verplichtingen zijn vastgelegd ter verbetering van
de beveiliging van materialen (inclusief nucleair materiaal), apparatuur en technologie die kunnen
worden gebruikt voor het ontwerp, de ontwikkeling, productie of gebruik van nucleaire wapens en hun
overbrengingsmiddelen, die onder 1540 "relevante materialen" worden genoemd. De resolutie is een
voorbeeld van de rode draad tussen nucleaire non-proliferatie en nucleaire beveiliging.
Hoewel het juridische raamwerk voor nucleaire beveiliging logischerwijze kan worden gezien
als onderdeel van de bredere context van het wapenbeheersingsrecht die van toepassing is op nucleaire
wapens en van vreedzaam gebruik van kernenergie, is er een aanzienlijk strafrechtelijk component aan
de relevante instrumenten. Dit heeft te maken met het feit dat nucleaire beveiliging ziet op het
voorkomen en reageren op nucleair terrorisme. Daarom hebben de juridische instrumenten een
duidelijk strafrechtelijke benadering door staten partijen te plichten om bepaalde handelingen strafbaar
te stellen en jurisdictie over bepaalde strafbare feiten in hun nationale rechtssystemen vast te leggen.
Dit strafrechtelijke element verbindt de primaire nucleaire veiligheidsverdragen - het CPPNM en
ICSANT - met het bredere geheel van antiterrorismeverdragen.
Gezien de beperkingen van de juridisch bindende instrumenten die het wettelijk kader voor
nucleaire beveiliging vormen, toont deze studie aan dat juridisch niet-bindende instrumenten met
betrekking tot nucleaire beveiliging een integraal onderdeel van het internationale juridische raamwerk
vormen. De afzonderlijke niet-bindende instrumenten vormen een aanvulling op de juridisch bindende
instrumenten implementatierichtlijnen aan te geven. Daarnaast vormen niet-bindende instrumenten een
aanvulling op de bindende instrumenten door regels vast te leggen die buiten de reikwijdte van de
verdragen staan. Niet-bindende instrumenten in het juridische raamwerk voor nucleaire beveiliging
fungeren ook als substituten. In die zin kunnen ze dienen om lacunes in het raamwerk op te vullen,
wanneer bijvoorbeeld ten minste enkele staten een bindend instrument beschouwen dat een bepaald
gebied bestrijkt dat ongewenst, onrealistisch of zelfs onnodig is om bepaalde doelen te bereiken. Dit is
het geval met betrekking tot de beveiliging van radioactieve bronnen. De internationale aanpak van de
beveiliging van radioactieve bronnen blijft primair gebaseerd op de niet-bindende Gedragscode voor
de veiligheid en beveiliging van radioactieve bronnen (Gedragscode). De effectiviteit van het

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algemene internationale juridische raamwerk voor nucleaire beveiliging hangt af van de interactie van
de niet-bindende instrumenten met de relevante verdragen. Dit omvat de rol als implementatierichtlijn
om ogenschijnlijk de naleving te versterken en de daaraan verbonden mogelijkheid om indicatief te
zijn voor latere praktijken / overeenkomsten die van invloed zijn op de interpretatie van de relevante
verdragsbepalingen.
Toezicht is een ander belangrijk aspect van wapenbeheersingsrecht. Het IAEA heeft haar
toezichthoudende rol in het kader van het NPV verder ontwikkeld. Hoewel het rechtskader voor
nucleaire beveiliging verband houdt met het NPV, is een dergelijke toezichtfunctie niet voorzien.
Beperkingen op de institutionele rol op het gebied van nucleaire beveiliging, namelijk het ontbreken
van expliciete toezichtmechanismen om de naleving van de regels te controleren, en af te dwingen, is
een zwakte van het internationale juridische raamwerk. Een deel van het probleem heeft te maken met
het feit dat het kader voor een groot deel bestaat uit ‘soft law’, wat zich niet leent voor wettelijk
verplicht toezicht, hoewel zelfs de juridisch bindende instrumenten geen toezichtmechanismen
bevatten. Niettemin kan het vergemakkelijken van samenwerking, het delen van informatie en het
opbouwen van vertrouwen, alsmede toezicht op en verificatie van de naleving van de regels en normen
op het gebied van nucleaire beveiliging, worden opgepakt door een institutionele regeling /
internationale organisatie met een supervisie functie te bemachtigen Dit heeft te maken met het feit dat
nucleaire beveiliging in wezen draait om (inter) nationale veiligheid (de veiligheidsdimensie), die
negatief wordt beïnvloed door potentiële niet-naleving van en zwakke handhaving van de regels. Als
zodanig is er een sterk argument dat staten een internationale organisatie, hoogstwaarschijnlijk het
IAEA, met een toezichthoudende rol voor het internationale juridische kader voor nucleaire
beveiliging, de macht moeten geven. De huidige rol van het IAEA op dit gebied is grotendeels een
technische, waarbij staten worden geholpen een nationaal nucleair beveiligingssysteem op te zetten, te
ontwikkelen en te onderhouden in plaats van toe te zien op de naleving van internationale
verplichtingen. Dat wil niet zeggen dat het IAEA geen rol heeft onder de relevante nucleaire
beveiligingsverdragen, maar het is niet equivalent aan supervisie. Echter, omdat het fundamenteel
betrokken is bij internationale en nationale veiligheid, lijkt het belang van supervisie met betrekking
tot het juridische raamwerk voor nucleaire beveiliging vanzelfsprekend, naast het feit dat het niet
naleven van verplichtingen in de ene staat de veiligheid van een andere staat negatief kan beïnvloeden.
In het licht van het voorgaande kan worden geconcludeerd dat internationaal recht een
fundamentele rol speelt in breder nucleair beveiligingsbeheer. De mogelijk verwoestende
grensoverschrijdende gevolgen - voor de gezondheid van de mens, het milieu, de economie - van
criminele of terroristische activiteiten waarbij nucleair of ander radioactief materiaal en aanverwante
faciliteiten zijn betrokken, leveren inspanningen om deze bedreigingen rechtstreeks in het
veiligheidsbelang van staten aan te pakken. Met andere woorden, er zijn geharmoniseerde maatregelen
nodig, of het nu gaat om het vaststellen en handhaven van effectieve niveaus van beveiliging van
materialen en faciliteiten of het strafbaar stellen en vaststellen van de rechtsmacht van bepaalde
strafbare feiten, om misbruik van kernenergie te voorkomen en erop te reageren. Het internationale
juridische raamwerk legt een basis van verplichting en voor het aansprakelijk stellen van staten voor
schendingen. Deze basis is cruciaal, zelfs wanneer een groot deel van de normatieve structuur de vorm
heeft van niet-bindende instrumenten. Het primaire thema van deze studie is de essentiële rol van niet-
bindende instrumenten (soft law) in het internationale juridische raamwerk voor nucleaire beveiliging.
Het wettelijke kader voor nucleaire beveiliging heeft een unieke structuur waarbij staatsgedrag in vrij
beperkte mate wordt gereguleerd door bindende wettelijke regels, die worden aangevuld door een vrij
uitgebreid geheel van niet-bindende instrumenten die zijn ontwikkeld om het gedrag van staten verder
te begeleiden. Men zou dan verwachten dat veiligheidsbelangen - ter voorkoming van nucleair
terrorisme of andere criminele handelingen met nucleair of ander radioactief materiaal die verreikende
grensoverschrijdende effecten op de menselijke gezondheid, het milieu en de economie zouden
hebben - pleiten voor de ontwikkeling van juridische bindende regels waarvoor staten
verantwoordelijk zouden kunnen worden gehouden en zouden daarom ogenschijnlijk leiden tot een
sterkere volgzaamheid. Dit kan te maken hebben met toepasselijke toezichtmechanismen, aangezien
staten er duidelijk belang bij hebben te garanderen dat andere staten hun verplichtingen nakomen. Om
redenen die voornamelijk te maken hebben met politieke redenen - vermoedelijke gevoeligheden
gerelateerd aan de materialen, technologieën, processen en kennis die tot de vaak herhaalde bewering
leiden, berust de verantwoordelijkheid (in niet-juridische zin) voor nucleaire veiligheid volledig bij de

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betrokken staat - verdere ontwikkeling van de de internationale (hard law) wetgeving op dit gebied is
moeilijk geweest. De risico’s nemen alleen toe voor nucleair materiaal en faciliteiten die voor militaire
doeleinden worden gebruikt. Soft law biedt een vorm van samenwerking tussen staten die flexibiliteit
mogelijk maakt. Bij het vaststellen van normen en verwachtingen ten aanzien van gedrag, is de
ontwikkeling van dergelijke niet-bindende instrumenten relatief minder omslachtig dan de
internationale wetgeving en dus beter aanpasbaar aan veranderende omstandigheden, en misschien
meer aanvaardbaar voor bepaalde staten. De rol van soft law op het gebied van nucleaire veiligheid is
veelzijdig, en ondersteunt in zekere mate de doeltreffendheid van de juridisch bindende instrumenten
door middel van richtsnoeren voor de tenuitvoerlegging, maar ook kwesties die buiten het bereik van
de bindende instrumenten vallen. Legitimiteit is de sleutel, die de soft law-instrumenten normatieve
impact geeft (vaststelling van normen en verwachtingen van staatsgedrag). De legitimiteit is cruciaal
voor het opbouwen van vertrouwen dat staten op een bepaalde manier zullen handelen, in
overeenstemming met de niet-bindende instrumenten. Organisatie die deel uitmaakt van nucleair
beveiligingsbeheer draagt bij aan legitimiteit. Dit omvat onder meer het proces van het ontwikkelen en
aannemen van de niet-bindende instrumenten, institutionele regelingen voor interactie tussen staten
om bijvoorbeeld de implementatie te bespreken, en (vrijwillige) beoordeling van overheidsgedrag voor
de naleving van soft law-instrumenten. Het element van de organisatie dient om de naleving te
verbeteren en het vertrouwen tussen de staten te vergroten in overeenstemming met niet-bindende
instrumenten. Er is met andere woorden een zekere kracht in de structuur van het wettelijk kader voor
nucleaire beveiliging, die grotendeels bestaat uit niet-bindende zachte wetgeving. De soft law is een
manier om samen te werken in het licht van gedeeld belang, maar zonder de mogelijkheid (om welke
reden dan ook) om bindende wetgeving vast te stellen. Dit wil zeker niet zeggen dat het juridisch
kader voor nucleaire beveiliging niet zou profiteren van de vaststelling van verdere bindende regels.
Integendeel, er is ruimte voor uitbreiding van de reikwijdte van juridisch bindende instrumenten,
bijvoorbeeld om nucleair materiaal dat voor militaire doeleinden wordt gebruikt of de veiligheid van
radioactieve bronnen beter aan te pakken. Bovendien zou toezicht, het meest logisch gezien door de
taak van het IAEA met een toezichthoudende rol onder een bindend instrument, garanties bieden voor
de naleving van verplichtingen, en daarmee het vertrouwen vergroten in de kracht van het wettelijk
kader. Toezicht zou helpen bij het vaststellen en aanpakken van mogelijke gevallen van niet-naleving,
het vaststellen van overheidsverantwoordelijkheid en het opnemen van verhaalsmechanismen.
De studie wordt afgesloten met een aantal benadeirngen om het wettelijk kader voor nucleaire
beveiliging te versterken. Er wordt gekeken naar specifieke mogelijkheden, zowel wat betreft de
substantie (het vaststellen van bindende regels met betrekking tot radioactieve bronbeveiliging en het
opnemen van opkomende dreigingen zoals cyberbeveiliging, meer integraal in het kader) en
organisatie (CPPNM-beoordelingsconferenties als institutionele regeling). Het is de bedoeling om
deze gedachten uit te werken over de te volgen weg die zij kunnen gebruiken om discussies tussen
advocaten en beleidsmakers te informeren, met name ter voorbereiding van de 2021
herzieningsconferentie voor het gewijzigde CPPNM en, als misschien een langetermijndoel, met het
juridisch kader te versterken als het gaat om de beveiliging van radioactieve bronnen. Daarbij wordt in
de studie ingegaan op een aantal van de duidelijkste lacunes / tekortkomingen in het huidige kader -
het ontbreken van regels die van toepassing zijn op nucleair materiaal en militaire voorzieningen, hoe
nieuwe dreigingen onder de huidige wettelijke kaderstructuur kunnen worden aangepakt en hoe de
radioactieve bron kan worden versterkt veiligheid.
Het wettelijke kader voor nucleaire beveiliging is niet statisch. Omdat het is ontworpen om
een bepaald probleem aan te pakken, namelijk de dreiging van nucleair terrorisme, moet het evolueren
naarmate de dreiging evolueert. Er is nog een lange weg te gaan, zowel qua inhoud als qua organisatie,
om het beheer van nucleaire veiligheid te versterken. Het nemen van de vereiste stappen is echter
nodig om de mensheid te beschermen tegen de vermoedelijke verwoestende gevolgen - voor de
menselijke gezondheid en het milieu, maar ook voor internationale samenwerking bij het benutten van
de voordelen van kernenergie voor vreedzaam gebruik - van een nucleair terrorisme.

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