This fifth volume in the book series on Nuclear Non-Proliferation in International Law focuses on various legal aspects regarding nuclear security and nuclear deterrence.
The series on Nuclear Non-Proliferation in International Law provides scholarly research articles with critical commentaries on relevant treaty law, best practice and legal developments, thus offering an academic analysis and information on practical legal and diplomatic developments both globally and regionally. It sets a basis for further constructive discourse at both national and international levels.
Jonathan L. Black-Branch is Dean of Law and Professor of International and Comparative Law at the University of Manitoba in Canada; a Bencher of the Law Society of Manitoba; JP and Barrister (England & Wales); Barrister & Solicitor (Manitoba); and Chair of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law.
Dieter Fleck is Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); and Rapporteur of the International Law Association (ILA) Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law.

lgrsnf/1115.pdf

scihub/10.1007/978-94-6265-347-4.pdf

Jonathan L Black-Branch; Dieter Fleck; SpringerLink (Online service)

Black-Branch, Jonathan L.; Fleck, Dieter

Stichting T.M.C. Asser Instituut

Springer Nature, The Hague, 2020

Netherlands, Netherlands

sm80319873

Preface
Contents
Abbreviations
1 Legal Challenges for Nuclear Security and Deterrence
Abstract
1.1 Introduction
1.2 Global Issues and Concerns
1.3 Regional Approaches
1.4 Pathways to Nuclear Disarmament
1.5 Conclusions and Outlook
Global Issues and Concerns
2 Questioning International Nuclear Weapons Law as a Field of Resistance
Abstract
2.1 Introduction
2.2 International Nuclear Laws that Support and Enhance the Value of Nuclear Weapons
2.2.1 Nuclear Laws that Imply Nuclear Weapons Are Valuable Providing They Are in the Possession of the Right Actors
2.2.1.1 NPT
2.2.1.2 Security Council Resolutions
2.2.2 Nuclear Laws that Imply Nuclear Weapons Are Valuable Providing They Are Subject to Certain Protections and Limitations
2.2.2.1 The Partial Test Ban Treaty
2.2.2.2 The CTBT
2.2.2.3 ICJ Cases
2.3 Nuclear Laws that Devalue Nuclear Weapons
2.4 Reflections
2.5 Conclusion
Acknowledgements
References
3 The NPT—CTBT Connection
Abstract
3.1 Introduction
3.2 The NPT
3.2.1 Review Conferences
3.2.2 Preparatory Committee Meetings
3.2.3 Middle East WMD Free Zone
3.2.4 Nuclear Disarmament Verification
3.3 The CTBT
3.3.1 Entry into Force
3.4 Conclusion
References
4 Planning for Disaster—Lessons from the 2011 Tohoku Disaster
Abstract
4.1 Introduction
4.2 Defining the Scope of Disaster
4.3 Consequences and Reach
4.4 Planning and Disaster
4.5 Conclusion
References
5 The Legal Regime of the Use of Nuclear Power Sources in Space Missions
Abstract
5.1 Introduction
5.2 Multilateral Treaties Relevant to the Use of Nuclear Energy in Outer Space
5.2.1 Outer Space Treaties
5.2.1.1 General Obligations
5.2.1.2 Liability Regimes
5.2.2 Treaties on Terrestrial Nuclear Activities and Assistance
5.2.3 Nuclear Arms Control Treaties
5.3 Soft Law Instruments on Nuclear Safety in Space Missions
5.3.1 The Role of Soft Law in the International Legal Regulation of Outer Space
5.3.2 The UN Principles Relevant to the Use of Nuclear Power Sources in Outer Space
5.3.2.1 Scope of Application
5.3.2.2 Safety Standards
5.3.2.3 Assistance and Responsibility
5.3.3 The Safety Framework for Nuclear Power Sources Applications in Outer Space
5.3.3.1 A Partnership Between COPUOS and the IAEA
5.3.3.2 Scope and Structure
5.4 Implementing Soft Law, Present and Future
5.4.1 Overviewing Implementation
5.4.2 Proposals for Revision
5.4.3 The Environmental Issue
5.5 Concluding Remarks
References
6 The 2016 ILC Draft Articles on the Protection of Persons in the Event of Disasters and Their Relevance for Victims of Nuclear Accidents and Use of Nuclear Weapons
Abstract
6.1 Introduction
6.2 Applicability of the ILC Draft Articles to a Situation Caused by the Detonation of a Nuclear Weapon
6.2.1 Scope of the Draft Articles
6.2.1.1 Definition of ‘Disaster’ in the Draft Articles
6.2.1.2 Does the Detonation of a Nuclear Weapon Qualify as ‘Disaster’?
The Impact of a Detonation of a Nuclear Weapon
The Assessment of that Impact in Light of Article 3(a) of the Draft Articles
The (Unrealistic) Scenario of the Use of a Low-Yield Nuclear Weapons in Remote Location
6.2.2 Relationship of the Draft Articles with Other Instruments Applicable to the Detonation of a Nuclear Weapon
6.2.2.1 General Remarks
6.2.2.2 The Relationship of the Draft Articles with IHL
IHL as Lex Specialis
Relevant IHL Norms Competing with the Draft Articles
The Subsidiary, yet Important Role Played by the Draft Articles
6.2.2.3 Relationship of the Draft Articles with the TPNW
6.3 Main Responsibilities of States and the Duty to Cooperate
6.3.1 Under the Draft Articles
6.3.2 Under the TPNW
6.4 The Applicable Principles in Responding to Disasters
6.4.1 Human Dignity
6.4.2 Human Rights
6.4.2.1 General Remarks
6.4.2.2 The Relevant Human Rights Affected in the Event of a Detonation of a Nuclear Weapon
The Right to Life
Economic, Social and Cultural Rights
6.4.3 Humanitarian Principles and Vulnerable Groups
6.5 Final Observations
References
7 Sanctions in Nuclear Non-Proliferation Law
Abstract
7.1 Introduction
7.2 The First Avenue: Suspension of Membership Rights in and/or Expulsion from the United Nations Organization
7.3 The Second Avenue: The Treaty on the Prohibition of Nuclear Weapons
7.4 The Third Avenue: Autonomous Sanctions
7.5 Conclusions
References
Regional Matters
8 The Unclassical Match Between Brazil and Argentina: Past and Present of the Nuclear-Weapon-Free Zone in Latin America and the Caribbean
Abstract
8.1 Introduction
8.2 First Stage: Preparation—Setting the Basis for the Brazilian-Argentine Nuclear Cooperation
8.3 Second Stage: Rapprochement—Brazilian-Argentine Cooperation on Nuclear Affairs
8.4 Third Stage: Internationalization—from Bilateral to Multilateral Nuclear Cooperation
8.5 Final Remarks
References
9 Lessons from South Africa’s Voluntary Denuclearisation Process and the African Continent’s Position on Nuclear Weapons
Abstract
9.1 Introduction
9.2 The South African Denuclearisation Experience
9.3 The African Position on Nuclear Weapons
9.4 Lessons for Disarmament
9.5 Conclusion
References
10 Foreign Assistance in Establishing and Operating Nuclear Power Plants: The South African Experience
Abstract
10.1 Introduction
10.2 Nuclear Energy in Africa
10.3 The Trojan Tsar—Russia’s Nuclear Expansion
10.4 The South Africa-Russia Nuclear Deal
10.5 Earthlife Africa Johannesburg and Another v Minister of Energy and Others
10.6 Conclusion
References
11 Small Modular Reactors in Canada: Eroding Public Oversight and Canada’s Transition to Sustainable Development
Abstract
11.1 Introduction
11.2 From Nuclear Renaissance to Nuclear Relapse
11.3 Nuclear Industry Regulator or Enabler: The Canadian Nuclear Safety Commission
11.4 Responding to the Legislative and Policy Barriers to SMR Development
11.4.1 Applying Sustainability-Based Criteria to SMRs
11.4.2 Consenting to Development: Consideration of Indigenous Interests and Rights
11.4.3 Perspectives on Radioactive Waste: Considerations of Intergenerational Equity and Public Trust
11.4.4 Contravening the Polluter-Pays Principle: Nuclear Liability Protection
11.4.5 Imposing Risk on Future Generations: Proliferation Concerns
11.5 Conclusion
References
New Approaches Towards Nuclear Disarmament
12 Understanding Nuclear Deterrence Within the International Constitutional Architecture
Abstract
12.1 Introduction
12.2 International Constitutional Architecture Governing Peace and Security
12.3 UN Competence in Arms Control and Disarmament
12.4 The UN and the NPT
12.5 Great Power Security Governance
12.6 Security and Law
12.7 Nuclear Deterrence and International Security
12.8 Nuclear Deterrence and International Law
12.9 Managing Nuclear Deterrence in the Security Council
12.10 Conclusion: A New Consensus?
References
13 Running Out of (Legal) Excuses: Extended Nuclear Deterrence in the Era of the Prohibition Treaty
Abstract
13.1 Introduction
13.2 Australia, Extended Nuclear Deterrence and the TPNW
13.2.1 The Incompatibility of Extended Nuclear Deterrence and the TPNW
13.3 Article VI of the NPT
13.3.1 Interpreting the Article VI Obligation
13.3.1.1 The Twofold Obligation Interpretation
13.3.1.2 The Plain Meaning Interpretation
13.3.1.3 The Minimal Obligation Interpretation
13.3.2 Article VI in Summary
13.4 Is Reliance on Extended Nuclear Deterrence Compatible with Article VI?
13.4.1 Is Article VI Being Fulfilled?
13.4.1.1 The Place of the TPNW in the Current Global Security Environment
13.4.1.2 Australia Is in Breach of Article VI
13.5 Conclusion
References
14 The Link Between Nuclear Disarmament and the 2030 Agenda for Sustainable Development Goals
Abstract
14.1 Introduction
14.2 From Millennium Development Goals to Sustainable Development Goals: A Short History
14.3 Increased Focus on Global Peace and Security
14.4 Establishing the Link Between Denuclearisation and the SDGs
14.5 Aspects of the SDGs that Are Relevant to Denuclearisation
14.5.1 Goal 16: The Promotion of Peaceful Societies
14.6 Concluding Remarks
Acknowledgements
References
15 Possible Means to Overcome Tendencies of the Nuclear Weapons Ban Treaty to Erode the NPT
Abstract
15.1 Introduction
15.2 The Obligation to Negotiate a Prohibition of Nuclear Weapons
15.2.1 The Obligation to Negotiate in Article VI NPT
15.2.2 Options with a View at Progressive Nuclear Disarmament Under Article VI NPT
15.3 The 2017 Ban Treaty and How it Relates to the Negotiating Obligation in Article VI NPT15
15.3.1 The Treaty and Some of its Possible Weaknesses
15.3.2 The Ban Treaty as Part of a Hybrid Approach?
15.4 The Ban Treaty and Further Elements of a Hybrid Approach
15.4.1 Opening Provisions in the Ban Treaty
15.4.2 Beyond TPNW
15.5 Conclusions
References
16 Precarious Peace: Nuclear Deterrence and Defence Doctrines of Nuclear-Weapon States in the Post-Cold War Era
Abstract
16.1 Introduction
16.2 The Concept of Deterrence
16.2.1 The NPT and State Obligations
16.3 Continued and Renewed Interest in Nuclear Deterrence
16.3.1 The United States
16.3.2 China
16.3.3 Russia
16.3.4 The United Kingdom
16.3.5 France
16.4 Complete and Verifiable Disarmament Under Article VI NPT
16.4.1 Deterrence and Peace
16.4.2 The Unravelling of US-Russian Bilateral Agreements
16.5 Conclusions
References
17 Legal Aspects of Nuclear Weapons Doctrines
Abstract
17.1 Introduction
17.2 Modernization of Nuclear Weapons and Delivery Systems
17.2.1 The United States
17.2.2 Russia
17.2.3 The United Kingdom
17.2.4 France
17.2.5 China
17.2.6 India
17.2.7 Pakistan
17.2.8 Israel
17.2.9 North Korea
17.2.10 Assessment
17.2.10.1 Nuclear-Weapons Strategies Are Still Treated as a Realistic Option
17.2.10.2 Banning Nuclear Tests
17.2.10.3 The Use of Nuclear Weapons Under International Law
17.2.10.4 Nuclear-Armed States not Party to the NPT
17.3 Missiles and Missile Defence
17.4 Nuclear-Weapon-Free Zones and Negative Security Assurances
17.4.1 Antarctica
17.4.2 Outer Space
17.4.3 Latin America
17.4.4 The Seabed and the Ocean Floor
17.4.5 South-East Asia
17.4.6 South Pacific
17.4.7 Mongolia
17.4.8 Africa
17.4.9 Central Asia
17.4.10 Assessment
17.5 Monitoring and Control Mechanisms
17.6 Principles and Procedures for Confidence Building
17.7 Conclusions
References
Index

This fifth volume in the book series on Nuclear Non-Proliferation in International Law focuses on various legal aspects regarding nuclear security and nuclear deterrence. The series on Nuclear Non-Proliferation in International Law provides scholarly research articles with critical commentaries on relevant treaty law, best practice and legal developments, thus offering an academic analysis and information on practical legal and diplomatic developments both globally and regionally. It sets a basis for further constructive discourse at both national and international levels. -- Provided by publisher

2020-01-10