Ebook: Legal Framework for Strengthening Nuclear Security and Combating Nuclear Terrorism

The first decade of the 21st century has seen the development of new international approaches to strengthening nuclear security and combating the threat of nuclear terrorism. These approaches include the adoption of new and revised international legal instruments that mandate countries to take certain measures in this critical area. In parallel, a number of initiatives have proceeded on the basis of non-binding principles and other voluntary mechanisms to address nuclear terrorism. Notwithstanding the recent enhancement of international legal approaches to addressing the threat to nuclear security, substantive and procedural arrangements must be significantly strengthened.

For two days, on January 28 and 29, 2010, over 100 international experts from more than 20 countries and international organizations discussed ways to deal with this range of critical issues. Organized by the University of Georgia's Center for International Trade and Security (CITS), Dean Rusk Center for International Law, and School of Public and International Affairs, in partnership with the Russian Institute of World Economy and International Relations, and sponsored by the NATO Science for Peace and Security Program, Nuclear Threat Initiative, World Institute for Nuclear Security, University of Salzburg, Swedish Radiation Safety Authority, American Bar Association, and other partners, the Advanced Research Workshop—“Legal Framework for Strengthening Nuclear Security and Combating Nuclear Terrorism”—was held in Vienna, Austria. This volume reflects the presentations and deliberations of workshop participants in an attempt to summarize the current understanding of, and approaches to, the legal framework for nuclear security and counterterrorism. It is the authors' hope that the materials from this volume will be useful for governments, international organizations, researchers, and practitioners worldwide in their efforts to secure nuclear materials and prevent nuclear terrorism.

Defining terrorism itself has proven to be difficult, yet the threat it poses to the nuclear sector is rather clear. Anita Nilsson posits that there is a need to worry about this threat, for the international community understands the dire consequences from stolen or lost material. Fortunately, she explains, there have been several legal instruments implemented to address this threat at the international level. The UN has developed a platform under which the essential elements of nuclear security exist, and the IAEA has developed practices that follow these elements. However, these practices are not perfect; the IAEA has a shortage of funding, and strides must be made in networking to create a global security framework whilst keeping sensitive information confidential.

As Carlton Stoiber remarks, “There is no single primary instrument that establishes the basic legal regime for addressing nuclear security or terrorism.” As such, numerous regimes cover various aspects of the encompassing nuclear security regime. Stoiber notes that this name may in fact be misleading, citing the difference between nuclear and radiological terrorism. Regardless of the name though, nuclear security is not alone in the fight against terrorism; there are many synergies between safety and security, thus legal instruments developed for safety can apply to security. Some key nuclear security regimes, the Convention on the Physical Protection of Nuclear Material, the International Convention for the Suppression of Actions of Nuclear Terrorism, and the IAEA Code of Conduct, are discussed in detail to emphasize the crowd of complex regimes and the challenge they pose to states implementing national legislation.

Just over a decade ago, nuclear security was an often overlooked subset of safety. Today, it is on the agenda of heads of states. While this is considerable progress, the rapid inclusion of security into the nuclear apparatus has left a disconnect between safety and security cultures, as well as ambiguous notions of accountability. Roger Howsley has an intimate understanding of these gaps, having worked as a security director at a major nuclear facility. He discusses the work the World Institute for Nuclear Security (WINS) is doing to address these gaps: namely sharing best practices and promoting corporate governance. Dmitriy Nikonov details the driving factors of the nuclear renaissance: energy demand, fuel prices, energy security, a changing attitude towards alternative energies, and climate change. The renaissance has increased the need for enhanced export controls. To address this issue, Nikonov discusses Articles I and III of the NPT at both the national and international level. He further outlines the obligations states have under UNSCR 1540, along with the challenges states face in meeting these obligations. Foremost among these is a lack of dedicated legal basis for implementing regulations at the national level in many countries, which of course stifles implementation. The EU, on the other hand, provides a salient example of successful implementation policies. Filippo Sevini highlights the fact that the EU developed legal framework regarding atomic energy far before the NPT came into force. This framework, namely the Euratom Treaty, established safeguards that now play a role in the design and physical protection of facilities. The success of the legal instruments in Europe has led to the development of programs aimed at improving capabilities in regions neighboring the EU. Many different programs have been started, but a clear focus of every initiative is illicit trafficking of materials.

Despite the creation of new legal instruments to combat nuclear terrorism, there is a growing division between binding and non-binding international legal basis. Igor Khripunov defines hard and soft law to enumerate the actual distinctions between the two. This duality can be utilized to assist states in the implementation process, but it also poses challenges. Specific steps, outlined by Khripunov, must be taken in order to identify synergies and cull overlaps. Walter Gehr offers a legal perspective, addressing counterterrorism through the means of criminal law. He outlines the counter terrorism regimes that formed in the wake of 9/11, and notes that the counterterrorism conventions are not for diplomatic ends, but the law enforcement officials within states. Domestic legislation is then essential for states' compliance with these international conventions, and steps must be taken to facilitate the passing of this legislation. Gehr presents solutions: awareness raising, training criminal justice officials, and promoting a legislative database.

The United Nations Interregional Crime and Justice Research Institute has a very specific mandate: to develop innovative ideas to assist states in crime prevention and criminal justice. Federico Marcon elaborates on UNICRI, which is currently working in applied research to provide technical assistance to member states in fighting illicit trafficking of CBRN material. Furthermore, the institution seeks to promote a comprehensive CBRN program to improve state capabilities. The fundamental role of the Proliferation Security Initiative, as presented by Anupam Srivastava, is coordinating enforcement policy when nonproliferation itself as a preventative tool has failed. Srivastava shows examples from recent history to provide justification for interdiction – an activity, he stresses, open to any state that agrees with the principle of interdiction. He cites issues that have arisen from PSI, including the necessity of information sharing and public diplomacy, at which states are not particularly successful. Also, there is little time to respond to illicit shipping, and so countries must work together quickly. These challenges notwithstanding, PSI advances states' capacity to engage in value-added trade while at the same time helping members meet their national maritime security goals. The PSI is not alone. The Suppression of Unlawful Acts Convention and the 2005 Protocol to it are the first documents to recognize the new threat of nuclear terrorism and its relation to maritime law. The convention wants all state parties to criminalize transport of radioactive material knowingly onboard intended for harm. The protocol is significant in that concepts from the nonproliferation world migrated to the world of criminal law. Stefano Betti maintains that because of this, implementing this instrument is a multidisciplinary task that requires involvement of actors from varying fields of expertise.

The last decade has seen increasingly more interest in nuclear energy. Yet this nuclear renaissance poses many challenges. Power plants are long-term investments, which require significant infrastructure. The cost of reactors is unknowable. The forecast of nuclear power calls for substantial enhancements, but legal, financial, and regulatory frameworks must also be expanded. Sharon Squassoni contends that all options should be explored, and that nuclear energy may not be for every state. Today, the overwhelming majority of nuclear power production and the fuel cycle occur in the P-5 states, along with Japan and the Republic of Korea. However, a shift is occurring where nations outside this group are seeking nuclear energy. These states do not have nuclear security experience. Ivan Oelrich argues that the implications of widely proliferated national enrichment are dire; internationalization of enrichment is necessary to prevent such a scenario. This plan would be difficult to implement legally, but Oelrich drafts possible means of implementation. Safety, security and safeguards hold distinct definitions, but there are synergies between them. These synergies are the basis for a solid framework of security. Actual implementation of all three is still difficult though, and Laura Rookwood posits that an inter-disciplinary approach could work if those implementing it understand the synergies. Irakli Beridze asserts that the OPCW is in fact aware of these synergies, and is developing a security program that covers all of the pillars of the Chemical Weapons Convention. The OPCW wants to develop a permanent feedback mechanism between the OPCW and stakeholders by developing and implementing joint initiatives to support comprehensive national implementation of the convention and fostering of international cooperation.

The IAEA realizes the necessary elements of a structurally sound binding legal regime, and has prepared a “fundamental document” that details the objectives and legalities of an encompassing nuclear security regime. George Moore and Miroslav Gregoric highlight the work the IAEA is doing to assist states with complying with their international obligations. At an application level, the IAEA has developed a Nuclear Security Series: a set of guides designed for use within the industry. To complement the guides, the IAEA conducts advisory missions with respect to accounting and control of nuclear material, as well as human resource development. The endeavors are further assisted by the International Nuclear Security Advisory Service (INSServ), which serves as an instrument to help states review the general status of measures to protect against terrorism. Diva Puig observes that the recommendations made by INSServ provide a platform for the foundation of a state's future implementation process. Berhanykun Andemicael highlights the need for a dialogue between the IAEA and other organizations to detect and trim overlap between the provisions and requirements of the NPT and UNSCR 1540. Pascal Daures overviews the response to nuclear security violations and the gaps the EC Joint Research Center has uncovered in the current framework for responding to nuclear trafficking cases. Matti Tarvainen notes that the safeguards obligations under INFCIRC/153 are antiquated and are thus not sufficient to deal with the undeclared and transnational nature of modern day materials trafficking. Information sharing is then essential to address these modern challenges. The IAEA has begun an outreach program to gather information, but as Tarvianen asserts, targeting intermediate traders and non-state actors requires voluntary cooperation of all states.

This chapter is divided into two sections: the implementation of more effective punishments for smugglers of nuclear materials and the sharing of sensitive nuclear security information to the public. In the first section Leonard Spector focuses on enhancing penalties for both state and non-state smugglers of nuclear materials. Spector presents three general categories of nuclear smuggling and provides recent examples, challenges to punishment, and suggested mitigation strategies for each. The first category is fissile material and nuclear-specific commodities transferred by states, for which Spector suggests sanctions, interdictions, and increased safeguards as viable solutions. The second category is fissile material covertly transferred by non-state actors, for which Spector sees offshore interdiction as the preferred mitigation technique. The third and final category is nuclear-specific and dual-use items covertly transferred by non-state actors. Because prosecutions in this category have proved difficult in the past, Spector recommends several alternative solutions to be used in conjunction with the methods already in place. In the second section, Beat Wieland offers a solution to the problem of balancing confidentiality and transparency with respect to nuclear security information. Because of the new challenges to confidentiality brought on by the Internet and more aggressive journalism, it is essential to have a well-prepared information-handling concept before an emergency occurs. Wieland advises that tactful handling of sensitive information is key to preventing a security emergency from developing into an information emergency.

Key questions regarding nuclear security culture are put forth to a panel of experts through a round table discussion. The conversation begins with Igor Khripunov's inquiry of the definition of the public and its role in nuclear security culture. Each participant then responds to specific aspects, often related to their field or the perspective of the organization they represent. Roger Howsley stresses the need for improved cooperation among the public, industry and government regulators. Mary Alice Hayward, representing AREVA, expresses that not only does the nuclear industry have a large stake in the interest of nuclear security, but that the education of those stakeholders is critical. Sharon Squassoni addresses the role of the media and its influence on the Public, as well as a concern for transparency in nuclear industry with consideration to how competition could hinder information sharing.

In this chapter, representatives in different organizations involved with the NPT summarize the current stage of nuclear development in their respective countries, address their interpretation of security culture and measures of domestic branches to tackle elements of protection, and outline individual needs and concerns for the future. Diva Puig (Uruguay) comments on the necessity of nuclear protection in regards to national and regional security, pointing to his knowledge of examples of nuclear projects in Latin America. Ahmed Benarbia (Morocco) declares the importance of building a stronger network of anti-terrorist practices and information sharing between countries, reminding the audience of Morocco's own terrorist attack after September 11th. Kornstantin Kovalev (Russia) argues for the improvement of the oversight process in nuclear facilities as it can reveal violations in the system and therefore help to eliminate them. Gennadiy Pshakin (Russia) highlights how nuclear terrorism is impossible if terrorists have no access to nuclear material, and therefore a greater implementation of teaching official agencies responsible for nuclear accounting control and protection is necessary to strengthen security culture. Bjorn Sandstrom (Sweden) discusses how Swedish nuclear safety and security culture evolved from strong radiation protection research in the country, highlighting how vast knowledge built the successful future framework for its nuclear system. Sergiy Kondratov (Ukraine) stresses the importance of international assistance in nuclear security, considering all states do not have the same capacity to execute particular reformations due to political instability or lack of funding.