Compliance Chronicles

Transcription

1 Compliance Chronicles Research from the Canadian Centre for Treaty Compliance Number 5 September 2007 Throwing the book at proliferation: national implementation of nuclear treaties Canadian Centre for Treaty Compliance

2 While much research has been done since 11 September 2001 on national implementation measures in respect of chemical and biological weapons and weapons of mass destruction generally, s study is one of the first to single out national implementation measures for nuclear treaties. In addition to identifying and analyzing the panoply of multilateral and regional agreements that govern the nuclear arena, he also spotlights three widely varying case studies, those of Canada, Fiji and Malaysia. He concludes that much work needs to be done before national implementation measures are a match for the terrifying prospect of nuclear terrorism. has a Bachelor of Arts joint honours degree in political science and history from the University of Waterloo, Ontario, Canada. He is currently studying at the Faculty of Law, University of Ottawa, and at the Norman Paterson School of International Affairs, Carleton University, pursuing a concurrent baccalaureate of laws degree and master of arts in international affairs. His most recent research was a study for the Canadian Centre for Intelligence and Security Studies titled Assessment of Terrorist Threats to the Canadian Energy Sector, which was published in March Canadian Centre for Treaty Compliance

3 Throwing the book at proliferation: national implementation of nuclear treaties

4 2 The Canadian Centre for Treaty Compliance, based at the Norman Paterson School of International Affairs at Carleton University, conducts policyoriented research into the theory and practice of compliance in respect of international treaties, resolutions, agreements and arrangements. Its working assumption is that compliance is the bedrock of international law and that all states, from the most powerful to the most disadvantaged, are obliged to comply with their international legal obligations. The centre s research pays particular attention to the technical and other means by which compliance is monitored and verified and the effectiveness and efficiency of institutional arrangements for encouraging, facilitating, inducing and enforcing compliance. In addition to its research and publications, the centre also holds workshops and conferences, engages in various outreach activities and contributes to teaching and other scholarly endeavours at Carleton University and elsewhere. Published in Ottawa, Canada by the Canadian Centre for Treaty Compliance Canadian Centre for Treaty Compliance, 2007 All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from the Canadian Centre for Treaty Compliance or the Norman Paterson School of International Affairs, or as expressly permitted by law. All inquiries should be directed to: Canadian Centre for Treaty Compliance 1402A Dunton Tower Carleton University 1125 Colonel By Drive Ottawa, Ontario Canada K1S 5B6 Telephone: (613) , ext 2032 Fax: (613) cctc@carleton.ca Website: The views expressed are those of individual authors and are not to be taken as representing the views of the editor, the Canadian Centre for Treaty Compliance, its Advisory Board or the Norman Paterson School of International Affairs. Design and Production: Richard Jones, Exile: Design & Editorial Services (rick@studioexile.com) Compliance Chronicles Number 5 September 2007

5 Contents Foreword... 5 Acronyms... 6 Introduction... 7 National implementation of international obligations... 8 Multilateral legal obligations relating to the nonproliferation of nuclear weapons Nuclear Non-Proliferation Treaty, nuclear safeguards, and associated arrangements Convention on the Physical Protection of Nuclear Material (CPPNM) International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT) The test ban treaties Limited (Partial) Test Ban Treaty (LTBT or PTBT) Comprehensive Nuclear Test Ban Treaty (CTBT) Nuclear weapon-free zone treaties Latin American Nuclear Weapon-Free Zone Treaty (Treaty of Tlatelolco) South Pacific Nuclear-Free Zone Treaty (Treaty of Rarotonga) Southeast Asia Nuclear-Free Zone Treaty (Treaty of Bangkok) African Nuclear Weapon-Free Zone Treaty (Pelindaba Treaty) Central Asian Nuclear Weapon-Free Zone Treaty Case study 1: Canada Primary nuclear legislation The licensing system Punishing breaches, monitoring compliance and enforcement mechanisms International trade in nuclear materials, equipment and information Nuclear testing Conclusions Case study 2: Fiji Primary nuclear legislation Criminal law Non-criminal legislation Conclusions Throwing the book at proliferation

6 Case study 3: Malaysia Primary nuclear legislation Atomic Energy Licensing Board (AELB) The licensing system Punishing breaches, monitoring compliance and enforcement mechanisms International trade in nuclear materials, equipment and information Disposal of radioactive waste Nuclear testing Conclusions Conclusion Endnotes Compliance Chronicles Number 5 September 2007

7 Foreword A great fear arising from Al Qaeda s attacks on the United States on 11 September 2001 is that terrorists will acquire and use a nuclear or radiological weapon. While seemingly arcane and unimportant, one of the most significant ways that states can combat this threat is by adopting proper national implementation measures (NIM) to ensure that terrorists do not obtain fissionable or other radioactive material in the possession of authorized national and corporate bodies whether this material be located in nuclear facilities, situated at other locations, or in transit nationally or internationally. While much research has been done since 11 September 2001 on NIM in respect of chemical and biological weapons and weapons of mass destruction generally, s study is one of the first to single out NIM for nuclear treaties. In addition to identifying and analyzing the panoply of multilateral and regional agreements that govern the nuclear arena, he highlights three widely varying case studies, those of Canada, Fiji and Malaysia. He concludes that much work needs to occur before NIM are a match for the terrifying prospect of nuclear terrorism. The Canadian Centre for Treaty Compliance (CCTC) is grateful to the Markland Group for funding the research and the resulting publication on this topic under the Markland Program on Armaments Treaty Compliance. Norman Paterson School of International Affairs master s degree student Tracy Carroll produced the first draft of the Fiji case study, while CCTC Researcher Scott Lofquist-Morgan provided research assistance and carried out fact checking prior to publication. Richard Jones excelled as usual in copy-editing and layout. I am grateful to all of them for their contributions to this pioneering study. Trevor Findlay Series Editor Associate Professor, Norman Paterson School of International Affairs Director, Canadian Centre for Treaty Compliance September Throwing the book at proliferation

8 Acronyms AELA Atomic Energy Licensing Act (Malaysia) AELB Atomic Energy Licensing Board (Malaysia) CAD Canadian dollar CANDU Canada Deuterium Uranium (reactor) CNSC Canadian Nuclear Safety Commission CPPNM Convention on the Physical Protection of Nuclear Material CTBT Comprehensive Nuclear Test Ban Treaty CTBTO Comprehensive Nuclear Test Ban Treaty Organization IAEA International Atomic Energy Agency ICSANT International Convention for the Suppression of Acts of Nuclear Terrorism IMS International Monitoring System LTBT Limited Test Ban Treaty MINT Malaysian Institute for Nuclear Technology Research NIM National implementation measures NNWS Non-nuclear weapon state NPT Nuclear Non-Proliferation Treaty NSCA Nuclear Safety and Control Act (Canada) NSG Nuclear Suppliers Group NWFZ Nuclear weapon-free zone NWS Nuclear weapon state OPANAL Agency for the Prohibition of Nuclear Weapons in Latin America PTBT Partial Test Ban Treaty SQP Small Quantities Protocol UN United Nations USD United States dollar WMD Weapons of mass destruction Compliance Chronicles Number 5 September 2007

9 Introduction Multilateral disarmament, arms control and nonproliferation treaties are usually concluded and signed with much fanfare, followed by a focus, more or less sustained, on the international obligations of the states parties (represented by governments) to comply with their commitments. Traditionally, the international community has paid little heed to the reception of those treaty obligations into the domestic, or municipal, law of the states parties. Even less notice has been taken of whether national implementation measures (NIM) are implemented effectively. After the terrorist attacks of 11 September 2001 pointed up the frightening possibility that nonstate actors, principally terrorists, might seek to acquire and/or use weapons of mass destruction (WMD), the international community s attention dramatically shifted to how to tackle this threat. One item that has been increasingly in the spotlight is the corpus of domestic legal obligations binding on individuals, 1 corporate entities and state agents that are supposed to flow from international treaties. The international community has been especially seized of this issue at the highest levels since the United Nations (UN) Security Council passed Resolution 1540 on 28 April Adopted under Chapter VII of the UN Charter, which makes it binding on all UN member states, the Resolution was an unprecedented step taken by the Council to combat the problems posed by the potential nexus between the proliferation of WMD and terrorism. It obligates states to refrain from providing any form of support to non-state actors that are attempting to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery and related equipment. It also compels states to adopt and enforce effective laws and other domestic controls to prevent any non-state actor from undertaking such activities, or from receiving assistance from an outside source. To this end, states must develop and maintain effective legislative and institutional measures to account for and secure nuclear, chemical or biological weapons materials and technologies. Furthermore, they must develop and maintain effective accounting procedures, security and physical protection measures, and border and export controls, and provide for law enforcement institutions capable of detecting, deterring, preventing and combating illicit trafficking in such materials and technologies. While Resolution 1540 targeted all types of WMD, this study deals only with nuclear weapons. The central question is how effectively do states comply with their international legal obligations on the control of nuclear weapons through NIM? To answer this, one must pose some related questions: what are the sources and content of these international obligations? What primary domestic legislation have states adopted to comply directly with them? If there is no such legislation, what other legislation exists that indirectly fulfils all or part of the state s international obligations? What secondary legislation is in place to support the primary legislation? What bureaucratic and/or institutional mechanisms are in situ to implement the primary and secondary legislation? When answering these questions several legal complexities arise. The first is the interaction between international law and a state s domestic law. When a state signs and ratifies a treaty it is, as a matter of international law, legally bound by its provisions. However, views differ among states as to whether further action is required to enforce the treaty domestically. Some adopt a dualist approach, meaning that treaty law is 7 Throwing the book at proliferation

10 not domestically enforceable until it is incorporated into domestic law. Others take a monist approach, according to which treaties are immediately integrated into domestic law, irrespective of whether any domestic legislation is adopted specifically to bring this about. 3 This may account for the lack of NIM in states that otherwise see themselves as being in complete compliance with their international obligations. A second problem is that some disarmament, arms control and nonproliferation treaties do not explicitly call for NIM. For example, neither the 1968 Nuclear Non-Proliferation Treaty (NPT) 4 nor the 1963 Limited (Partial) Test Ban Treaty (LTBT or PTBT) 5 does so. However, a state that signs and ratifies an agreement is bound by the doctrine of pacta sunt servanda, the notion that every treaty in force is binding upon the parties to it and must be performed by them in good faith. 6 Therefore, even if there is no mention of national implementation in the accord itself, one could argue that any state wishing to meet its obligations pacta sunt servanda still needs, given the importance of nuclear obligations, to devise the necessary NIM. A third difficulty centres on the difference between prescriptive and enforcement jurisdiction. Prescriptive jurisdiction refers to a state s capacity to establish laws that regulate or control the conduct of a person. Enforcement jurisdiction pertains to a state s capacity to enforce a given rule. There is a presumption in international law that a state may exercise plenary jurisdiction over all people, nationals or aliens, within its borders. This is subject to the limits imposed by international law, namely human rights and the (minimum) treatment of aliens. It is widely accepted, though, that a state may not enforce its laws outside of its territory. 7 Nevertheless, a state s prescriptive jurisdiction is not strictly territorial, making it more expansive than its enforcement jurisdiction. A state may exercise prescriptive jurisdiction over an offence if the perpetrator or victim is one of its nationals, or if the crime threatens internal or external security. 8 Thus, prescriptive jurisdiction may extend to matters connected to the state. 9 This is important because a treaty may call on a state to prohibit its nationals from undertaking nefarious activities not only within its territorial limits, but also anywhere in the world. A final complexity is that international law is derived from several sources. Article 38 of the 1945 Statute of the International Court of Justice enumerates the sources of international law as: treaties; customary law, comprising state practice and opinio juris; 10 the general principles of law recognized by civilized nations ; and, in a subsidiary way, the judicial decisions and the teachings of the most highly qualified publicists of the various nations. Although some customary international law is applicable in the nuclear realm, this will not be the main consideration of this study. 11 Rather, international treaties will be the key object of concern, as they constitute the major part of international law. To capture the full extent of the global nonproliferation regime, however, the study will also assess non-treaty sources of obligation, notably UN Security Council Resolution One benefit of focusing on vertical implementation, or reception, of treaty obligations into national law is that it allows for a more penetrating examination of domestic enforcement of those commitments. The domestic environment is subject to the sovereign authority of the state, giving the state the power to search, seize, arrest, detain and punish. In short, domestic laws allow for coercive enforcement of legal obligations in a way that is absent from the international arena. National implementation of international obligations To meet its international obligations on the control of nuclear weapons, related technologies and materials, a state must undertake significant national legislative activity. To begin with, all non-nuclear weapon states (NNWS) parties to the NPT, the principal multilateral agreement Compliance Chronicles Number 5 September 2007

11 in the nonproliferation sphere, should have a legal and institutional infrastructure capable of implementing nuclear safeguards. Operated by the International Atomic Energy Agency (IAEA) in accordance with bilateral agreements negotiated with each state party, the nuclear safeguards system seeks to ensure that states are not diverting fissionable nuclear material from peaceful to weapons uses and they do not assist other states in acquiring nuclear weapons. Traditionally, the IAEA has done this by assessing the correctness and completeness of a state s declared nuclear material and nuclear-related activities, although increasingly it seeks also to verify the absence of undeclared nuclear materials and facilities. In addition, all NPT states parties (nuclear and non-nuclear) should have introduced sufficiently robust export controls, on nuclear material and technologies, and appropriate penalties for breaches of those requirements. Since nuclear materials and technologies have a wide variety of industrial and other applications, it is necessary for states to establish a licensing system to regulate peaceful nuclear activities and peaceful uses of nuclear-related materials both inside and outside government facilities. This system should be backed by sufficient penalties for breaches of the regulations, including criminal sanctions. States should also have in place an institutional infrastructure that allows them to account for and secure all nuclear material of concern. To achieve this, a state s licensing system should require effective physical protection measures and compliance with import and export controls. The government should ensure that law enforcement institutions, such as the police and customs, are capable of detecting, deterring and preventing the illicit possession of nuclear material. In so doing, a state should make certain that such bodies have apposite resources and adequate powers, including of search, seizure and detention. The IAEA safeguards system, combined with national systems for nuclear safety and security, should make it more difficult for non-state actors to acquire fissionable material for weapons purposes. 12 To highlight the various NIM employed to meet international obligations in the nuclear field, this study examines those adopted by three countries: Canada, Fiji and Malaysia. These states were selected because of their geographic and developmental diversity. The following section considers the nuclearrelated treaties taken into account in each case. Throwing the book at proliferation

12 Multilateral legal obligations relating to the nonproliferation of nuclear weapons 10 The international nonproliferation regime comprises a mixture of treaties that ban nuclear testing in various environments, prohibit the proliferation of nuclear weapons, technologies and materials, and seek to declare particular geographical areas nuclear weapon-free zones (NWFZs). In addition, there are treaties that aim to ensure the physical protection of nuclear materials, to prevent them from falling into the hands of terrorists or other non-state actors Nuclear Non-Proliferation Treaty, nuclear safeguards, and associated arrangements Under the NPT, each NNWS party is legally required not to receive, manufacture or otherwise acquire nuclear weapons. In furtherance of this, each NNWS is legally bound to accept nuclear safeguards as set forth in a Comprehensive Safeguards Agreement negotiated with the IAEA to verify compliance with its obligations. As for NIM for safeguards agreements, while there is no explicit mention of implementing legislation in such texts, states are compelled to establish and maintain a system of accounting for and control of all nuclear material subject to safeguards. States are also compelled to provide the IAEA with information on nuclear material subject to safeguards and the features of facilities relevant to safeguarding such material. And states must take the necessary steps to ensure that IAEA inspectors can effectively discharge their functions in verifying a state s compliance with its safeguards obligations. Furthermore, Article III.2 of the NPT has been interpreted as requiring states to enact export controls to ensure that exported nuclear materials are safeguarded in the recipient state. Each nuclear weapon state (NWS) party to the NPT (China, France, Russia, the United Kingdom and the United States) 13 is obligated not to transfer nuclear weapons or other nuclear explosive devices to any NNWS and not in any way to assist, encourage or induce any NNWS to manufacture or otherwise acquire nuclear weapons. IAEA safeguards are concerned only with the control of source and fissile material. They do not deal with the safety or physical security of nuclear materials, nuclear reactors or other nuclear facilities, including laboratories and waste storage facilities. Their purpose is to verify whether nuclear materials are being diverted from peaceful to weapons uses. The original objective of IAEA safeguards was to guarantee the correctness and completeness of a state s declaration of nuclear material and nuclear-related activities. Following the discovery, after the Gulf War, of illicit attempts by Iraq to acquire nuclear weapons, nuclear safeguards have been enhanced to offer reassurance that undeclared nuclear activities are not being undertaken. In addition to extra verification activities by the IAEA under its existing legal authority, states parties are encouraged to sign and ratify an Additional Protocol to their Comprehensive Safeguards Agreement. Additional Protocols provide for enhanced Agency on-site access to relevant nuclear facilities and essentially cradle-to-grave information on a state party s nuclear activities, ranging from uranium mining to waste disposal. Given the growing complexity of IAEA safeguards requirements, a compliant state is likely to have adopted a host of NIM. On top of these treaty-based obligations, there are other, less formal, parts of the nuclear nonproliferation regime that states are increasingly expected to comply with and which require NIM: 14 Compliance Chronicles Number 5 September 2007

13 The Nuclear Exporters Committee, widely known as the Zangger Committee, is a voluntary group of NPT states parties formed in 1970 to agree on nuclear export control guidelines for implementing the NPT s export control provisions. The Committee, which is not provided for in the NPT, adopted the first such guidelines in 1974, including a list of export items that should trigger the application of IAEA safeguards in recipient states. These have been updated periodically, and are implemented by each state in accordance with its national laws. NPT states parties that are not members of the Committee are not bound by the Zangger Guidelines and Trigger List. The Nuclear Suppliers Group (NSG) is also a voluntary group of nuclear supplier states with comparable aims to those of the Zangger Committee. The NSG, established in 1974, adopted guidelines similar to those of the Zangger Committee in 1976, but they went beyond those of the Zangger Committee by restraining transfers of uranium enrichment and plutonium separation equipment and technology. In April 1992, after the Gulf War, the NSG expanded its export control guidelines to encompass 65 dual-use items until then they had covered only uniquely nuclear items. The Group also added as a requirement for future exports that recipient states accept IAEA inspections of all of their peaceful nuclear activities. Each participating state implements the NSG Guidelines in accordance with its national laws. Nevertheless, the creation of systematic guidelines by the NSG is important in identifying best practice for the export of nuclear material that may be emulated by non- NSG members Convention on the Physical Protection of Nuclear Material (CPPNM) Under this treaty, 15 each state party is required to take appropriate steps to ensure that nuclear materials being transported internationally are sufficiently secured and protected. To accomplish this, a party must not export or authorize the export of nuclear material unless it has received assurances that it will be protected during international transport at levels specified in the Convention. In addition, a state party must not import or authorize the import of nuclear material from a state not party to the CPPNM unless it is willing to protect the material at levels set out in the accord. States parties are obligated to identify to one another the point of contact responsible for the physical protection of nuclear material and for coordinating recovery and response operations. In the case of theft of nuclear material or of credible threat of theft, states parties are obliged, in accordance with their national law, to provide to any state that requests it cooperation in and assistance with to the maximum extent feasible the recovery and protection of that material. The CPPNM was amended in 2005 to make the protection of nuclear facilities and nuclear material in domestic use, storage and transit legally binding for states parties. Furthermore, the Amendment provides for expanded cooperation between states on rapid measures to locate and recover stolen or smuggled nuclear material, to moderate any radiological consequences of sabotage, and to prevent related offences. In terms of national implementation, each state party is required to: establish and maintain a legislative and regulatory framework to govern physical protection; set up or designate a competent authority or authorities responsible for the implementation of the legislative and regulatory framework; and take other appropriate measures necessary for the physical protection of nuclear material and facilities. 11 These changes will take effect on ratification by two-thirds of the states parties as of August 2007 there were only 11 ratifiers International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT) The ICSANT, 16 which entered into force on 7 July 2007, makes it an offence to use or threaten to use Throwing the book at proliferation

14 12 any nuclear installations or nuclear explosives to kill or injure persons, to damage property or the environment, or to compel persons, states or international organizations to conduct or to refrain from carrying out any such act. The threat or use of force, or any other forms of intimidation, to demand the transfer of nuclear material would also be regarded as an act of nuclear terrorism. Article 5 requires each state party to establish criminal offences under its national law and to punish the contraventions set out in the treaty. This criminal liability must take into account the grave nature of the transgressions. Under Article 7, states must adapt their national law to prevent and counter preparations for acts of nuclear terrorism on their territory. And Article 8, like the CPPNM, demands that states adopt appropriate measures to ensure the protection of radioactive material. The test ban treaties 1963 Limited (Partial) Test Ban Treaty (LTBT or PTBT) This accord requires states parties to prohibit, prevent and abstain from testing nuclear devices in the atmosphere, underwater and in outer space. It also bans underground nuclear explosions that result in radioactive fallout outside the territorial limits of the state. The agreement contains no explicit requirement for national implementation of treaty obligations in domestic law Comprehensive Nuclear Test Ban Treaty (CTBT) The CTBT 17 prohibits states parties from carrying out any nuclear explosion in any environment, and requires them to prohibit and prevent any such explosions from occurring at any place under their jurisdiction or control. Each state party, under Article III, is compelled to take any necessary measures to implement its obligations domestically. A state party must thus prohibit natural and legal persons anywhere on its territory from performing any of the prohibited activities and must forbid its nationals from conducting any such activity anywhere. Full implementation of the obligations under the CTBT requires, at a minimum, the inclusion of the prohibited activities, for both natural citizens and legal persons, in the state party s criminal statutes. Criminal sanctions should extend to areas under the state s enforcement jurisdiction and to the state s citizens acting outside that territory. Additional national legislative measures are required to facilitate: the hosting of treaty monitoring stations as part of the CTBT s International Monitoring System (IMS); the designation of a National Authority to liaise with other states parties and the Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization (CTBTO) (and the CTBTO itself when it is established on entry into force of the CTBT); and to permit challenge on-site inspections on national territory should they ever be required. While the CTBT is not yet in force, states may introduce NIM to ensure that they are ready when it does become binding. 18 Furthermore, if a state is already hosting a monitoring station it would be advised to have the relevant legislation in place. Nuclear weapon-free zone treaties A NWFZ accord bans nuclear weapons, and in most cases associated activities, from a particular region. Although they replicate obligations already undertaken by NNWS with regard to the NPT, NWFZ treaties involve a more extensive commitment to de-nuclearization than the NPT in the sense that the parties not only reject the acquisition or use of nuclear weapons themselves, but also seek to prevent NWS from producing, storing, installing, testing or deploying nuclear weapons in their zone. The NWFZ treaties have similar basic provisions that create comparable Compliance Chronicles Number 5 September 2007

15 obligations, but some have additional nuclearrelated requirements. The basic substantive legal obligations of states parties under all NWFZ treaties are the prohibition and prevention, in their respective territories, of the stationing, testing, use, manufacture, production or acquisition of nuclear weapons. All NWFZ treaties also oblige states parties to conclude an agreement with the IAEA, if they have not already done so, subjecting them to safeguards. As a result, the implementing legislation that needs to be put in place to fulfil NWFZ obligations is likely to be similar to that used to meet NPT commitments. All NWFZ treaties also invite the NWS to sign and ratify Protocols committing them to respect the zones, notably by not using or threatening to use nuclear weapons against regional states parties Latin American Nuclear Weapon- Free Zone Treaty (Treaty of Tlatelolco) The Treaty of Tlatelolco 19 is the original NWFZ agreement and the model on which subsequent ones are based. In addition to the now standard provisions, it also (to date distinctively) established, in 1967, a dedicated international organization known as the Agency for the Prohibition of Nuclear Weapons in Latin America (OPANAL) to help verify compliance. 20 Tlatelolco is also unique among NWFZ treaties in not only obliging states parties to negotiate safeguards agreements with the IAEA, but also to create their own control system to ensure that devices, services and facilities intended for peaceful uses of nuclear energy are not employed in the testing or manufacture of nuclear weapons. The Treaty of Tlatelolco does not explicitly call for NIM; however, successfully meeting the substantive obligations would likely require legislative action, including criminalization of prohibited activities. There are two Protocols to the agreement. Protocol I seeks to compel states with territories in the region, namely France, the Netherlands, the UK and the US, to apply the provisions of the accord to those territories. Protocol II obliges all NWS to respect the denuclearized status of the region by not deploying nuclear weapons there and commits them not to use or threaten to use nuclear weapons against states parties. All four qualifying states have signed and ratified Protocol I. All five NWS have signed and ratified Protocol II. The Protocols do not require the undertaking of NIM South Pacific Nuclear-Free Zone Treaty (Treaty of Rarotonga) The Treaty of Rarotonga 21 goes one step further than the Treaty of Tlatelolco in prohibiting states parties from providing source or special fissionable material or equipment to any state unless it is subject to safeguards. This regime also forbids the dumping of radioactive waste and other radioactive matter at sea anywhere within the South Pacific Nuclear-Free Zone. Rarotonga does not explicitly call for NIM. However, to implement its obligations successfully would likely require legislation comparable to that needed for the NPT. States also have to implement legislation prohibiting the dumping of radioactive waste. There are three Protocols to the Treaty of Rarotonga. Protocol I obliges non-regional states with territories in the region to refrain from manufacturing, stationing or testing nuclear explosive devices within the NWFZ. Of the affected states, Protocol I has been signed and ratified by France and the UK, while the US has signed but not ratified it. Protocol II prohibits a NWS from threatening to use or from using nuclear explosive devices against a state party. Protocol III forbids the NWS from testing such devices within the NWFZ. Protocols II and III have been signed and ratified by all the NWS except for the US, which has signed but not yet ratified them. None of the Protocols explicitly calls for NIM Southeast Asia Nuclear-Free Zone Treaty (Treaty of Bangkok) One of the novel features of this agreement, 22 which otherwise contains all of the standard 13 Throwing the book at proliferation

16 NWFZ provisions, is that it also allows states parties to request fact-finding missions to resolve or clarify a situation that may be considered ambiguous or give rise to doubts about compliance. Although the Treaty of Bangkok does not explicitly call for NIM, the national legislation that would be required to implement the obligations successfully would be similar to that needed to implement the NPT, with additional legislation prohibiting the dumping of radioactive waste. The accord has a Protocol designed to stop the NWS from contributing to or carrying out any act that would violate the agreement. The Protocol also obliges them not to use or threaten to use nuclear weapons against any state party. None of the five NWS has to date signed or ratified it. and attacks on nuclear installations. Although the Pelindaba Treaty is not in effect, a signatory might wish to implement national legislation in anticipation of entry into force. The accord has three Protocols aimed, respectively, at preventing the NWS from stationing nuclear weapons in the NWFZ, preventing them from using or threatening to use nuclear weapons against a state party, and preventing states with territories in the region from undermining the agreement. France has signed and ratified Protocols I, II and III, China has signed and ratified Protocols I and II, and the other three NWS have signed Protocols I and II. None explicitly requires NIM African Nuclear Weapon-Free Zone Treaty (Pelindaba Treaty) The Pelindaba Treaty 23 is unique in that, in addition to the standard NWFZ provisions, each state party undertakes to maintain the highest standards of security and effective physical protection in relation to nuclear materials, facilities and equipment to prevent theft or unauthorized use and to apply physical protection measures equivalent to those found in the CPPNM. In addition, a party is obliged not to take, assist or encourage any action aimed at launching an armed attack on a nuclear installation in the zone. Again, the agreement does not explicitly call for NIM. However, the national legislation that would be required to implement the obligations successfully would be similar to that needed for the NPT and the CPPNM, buttressed by laws prohibiting the dumping of radioactive waste 2006 Central Asian Nuclear Weapon-Free Zone Treaty A novel feature of this agreement 24 is that states parties are obliged to assist in any efforts geared towards the environmental rehabilitation of territories contaminated because of past activities related to the development, production or storage of nuclear weapons. In a similar fashion to the Pelindaba Treaty, this accord also calls for physical protection measures akin to those of the CPPNM. The Central Asian Nuclear Weapon- Free Zone Treaty does not explicitly call for NIM, and it is not yet in force. It has a single Protocol that invites the NWS to refrain from contributing to any act that would violate the accord. It also obliges them not to use or threaten to use nuclear weapons against any state party. The Protocol has not yet been opened for signature and it does not explicitly require NIM. Compliance Chronicles Number 5 September 2007

17 Case study 1: Canada Canada has a relatively large civilian nuclear power industry, including 22 Canada Deuterium Uranium (CANDU) heavy water reactors, 18 of which are in service, providing 15 per cent of the country s electrical supply. 25 The reactors are located at five sites in the Provinces of Ontario, Quebec and New Brunswick. Canada also has a large uranium mining industry with an annual output amounting to one-third of world supply, more than any other nation. 26 It is the world s largest supplier of radioisotopes for medical and other peaceful applications and is the only country permitted under US legislation to import high enriched uranium (HEU) from the US for such production. It is party to all of the traditional nuclear treaties, although, like most states, it has yet to sign and ratify the more recent ones. Primary nuclear legislation Canada s primary legislative tool for regulating the Canadian nuclear industry is its Nuclear Safety and Control Act (NSCA), which came into force in May Consequently, this Act is also the key mechanism through which Canada meets its international legal obligations on the peaceful use of nuclear energy. The NSCA established the Canadian Nuclear Safety Commission (CNSC) and imposes binding legal obligations on the private sector, individuals and all levels of government. The principal objective of the CNSC is to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances. It is also responsible for fulfilling Canada s nuclear safeguards 15 Table 1 Canada s major international obligations in the nuclear field* Obligation Date of signature Ratification Entry into force NPT 23 July January March 1970 Comprehensive Safeguards Agreement 21 February February 1972 Additional Protocol 24 September September 2000 CPPNM 23 September March February 1987 CPPNM Amendment Not in force ICSANT 14 Sep 2005 PTBT 8 August January October 1963 CTBT 24 September December 1998 Not in force NWFZs n/a** n/a** n/a** Export Group membership Zangger Committee Yes NSG Yes * Canada also has several bilateral nuclear agreements ** n/a = not applicable Throwing the book at proliferation

18 16 obligations. IAEA safeguards inspectors regularly examine Canada s various nuclear installations to ensure that the country is in compliance with its safeguards agreements. The CNSC is charged with facilitating implementation of these agreements by providing information on and access to Canada s safeguarded nuclear material so that Agency inspectors may account for and verify it. The NSCA grants the CNSC extensive authority to regulate a comprehensive range of nuclearrelated activities, including nuclear energy generation, the import and export of nuclear material, and the transportation of nuclear material, nuclear equipment and technology. 28 The CNSC also has authority over mining, producing, refining, converting, enriching, processing, reprocessing, packaging, transporting, storing and disposing of nuclear substances. Section 9 of the NSCA states that the Act is designed to achieve conformity with measures of control and satisfy Canada s international obligations, including the terms of its safeguards agreements. The main way that the CNSC meets its treaty, non-treaty and safeguards-based commitments is through a national licensing and inspection system. The licensing system Section 26 of the NSCA makes it unlawful for any person to engage in activities, broadly defined, related to nuclear substances, equipment or information, without a licence. 29 The CNSC is the only body that can grant a licence. To be awarded one, a potential licensee must comply with the requirements set out in Section 3 of the General Nuclear Safety and Control Regulations. 30 These require detailed information on how the licensee intends to comply with safety and security regulations and manage and dispose of waste, as well as on their organization s management structure. Comparable information requirements exist when an applicant is applying to renew, amend, revoke, replace or abandon an existing licence. 31 The Regulations impose stringent obligations. Among them, licensees must guarantee the presence of sufficient numbers of qualified workers to carry out the licensed activity safely and they must properly train staff. They must also take all reasonable precautions to protect the environment, ensure the health and safety of employees, and maintain security. Furthermore, they must take all reasonable precautions to control and prevent the release of radioactive nuclear substances or hazardous waste. Under this regulatory regime, a licensee is obligated to implement measures that would alert them to the illegal use or removal of a nuclear substance, equipment or information, or the illicit employment of a nuclear facility. The same is true for acts of sabotage. The licensee must also instruct workers about physical security at the site of the licensed activity and on their obligations under the plant s physical security program. 32 To ensure compliance with its obligations under the CPPNM, Canada also relies on its Nuclear Security Regulations. 33 These specify not only stringent licensing requirements but also detailed physical security measures necessary to ensure the physical protection of nuclear materials. 34 The licensing and physical security requirements vary depending on the level of risk associated with the substance, but all impose conditions on licensees. Punishing breaches, monitoring compliance and enforcement mechanisms To ensure compliance with the NSCA, Sections 29 and 30 allow the CNSC to deploy trained inspectors to examine nuclear facilities or other places where nuclear substances, equipment or information are kept. The CNSC maintains a full-time inspector at each licensed nuclear power plant to ensure compliance. Other nonreactor nuclear facilities may be scrutinized at any reasonable time. Penalties for violating the Act s provisions range from a simple warning to full criminal Compliance Chronicles Number 5 September 2007

19 prosecution, carrying penalties of up to 10 years incarceration. As noted, the more severe infractions are pursued through the criminal justice system, with summary offences, or hybrid offences, pursued summarily, punishable by fines of up to CAD 500,000 (USD 427,000) or imprisonment of up to 18 months, or both. 35 However, if the Crown elects to pursue an indictment, or if the offence is clearly indictable, the penalties include fines of up to CAD 1,000,000 (USD 855,000) or imprisonment of up to five years, or both. 36 Imprisonment of up to 10 years is reserved for the most serious offence: the unauthorised possession of a nuclear substance, equipment or information capable of being used to produce a nuclear weapon. 37 International trade in nuclear materials, equipment and information The CNSC regulates licensed nuclear imports and exports through the Nuclear Non-proliferation Import and Export Control Regulations. 38 To obtain a license to import or export any controlled nuclear substance, equipment or information, a potential licensee must submit an application containing, among other things, a description of the substance, equipment or information, as well as details on the quantity, the name and address of the supplier and the country of origin. The licensee must also describe the intended enduse of the substance, equipment or information by the final consignee and the intended end-use location. These requirements comply with Canada s obligations under the NPT, with its Comprehensive Safeguards Agreement with the IAEA and its Additional Protocol, with its Zangger and NSG commitments, and with the CPPNM. The 1985 Export and Import Permits Act also controls nuclear trade activities. 39 This Act authorises the establishment of an Export Control List pursuant to the lists agreed by the Zangger Committee and the NSG. The Export Control List contains items that if exported, might endanger national security. To export any item on the List, a potential exporter must apply to the Minister of Foreign Affairs for permission. 40 Nuclear testing The Government has taken steps to facilitate Canada s compliance with the CTBT (and by default with the PTBT). The Comprehensive Nuclear Test Ban Treaty Implementation Act, although not yet in force, has received Royal Assent and will enter into force on proclamation. 41 Under the Act, a Canadian citizen who carries out a nuclear weapon test explosion or causes, encourages or participates in any nuclear weapon test explosion anywhere in the world is guilty of an indictable offence and is liable to life imprisonment. The Act also allows for the designation of a National Authority with the power to establish or select facilities and laboratories and operate, maintain, equip and upgrade them to permit them to contribute to the CTBT verification system. The National Authority has been set up, and comprises representatives of the Department of Foreign Affairs and International Trade, Environment Canada, Health Canada, and Natural Resources Canada. In addition, Canada hosts 16 testing stations and laboratories as part of the IMS. Canada would, if required, allow on-site inspections, facilitated by the National Authority, in the unlikely event that the CTBTO had to verify whether a nuclear test had taken place on Canadian territory. Conclusions It appears that Canada has in place an adequate legislative and institutional infrastructure to implement its international legal obligations in the nuclear realm. Through the NSCA and the CNSC the Government can control the supply of, and access to, nuclear material, information and technology. The CNSC also facilitates the implementation of Canada s agreements with the IAEA. To this end, the CNSC ensures detailed reporting by licensees, transfers this information to the IAEA, and provides access to nuclear material for accounting and verification. Using the CNSC the Government investigates all potential licensees and imposes strict information reporting requirements before granting 17 Throwing the book at proliferation

20 18 licenses. The latter may contribute to, if not fully satisfy, Canada s obligation to comply with a raft of nuclear agreements, including the CCPNM, the CTBT, the PTBT, and the NPT. Furthermore, they go a long way towards ensuring that Canada is in compliance with UN Security Council Resolution The regime provides the necessary legal framework for detecting breaches of the physical security of nuclear installations and imposes sufficient obligations on licensees to maintain security and safety. Strict licensing requirements also assist in preventing the diversion of nuclear materials for illicit or unregulated purposes, thereby bolstering Canada s commitment to implement IAEA safeguards effectively. However, given the grievous nature of the more serious violations, not least the unauthorized possession of a nuclear substance, equipment or information capable of producing a nuclear weapon, one must question the maximum penalties that currently may be imposed. The Canadian legal system is of the common law tradition. Therefore, Canadian courts are bound by the principle of stare decisis, meaning literally to stand by that which is decided. According to this principle, lower courts have to follow the sentencing direction of previous and higher courts. This is problematic, as there is legal precedent from the Supreme Court of Canada that establishes that a maximum sentence of any kind will by its very nature be imposed only rarely. 42 With respect to the offence of unauthorized possession of a nuclear substance, equipment or information capable of being used to produce a nuclear weapon, the imposition of the maximum penalty would seem unlikely outside of the ticking time-bomb scenario where a terrorist organization has the intent and capability to attack targets with a nuclear weapon. In this context, a 10-year maximum gaol term seems inadequate for the purposes of deterrence or punishment. What is more, any situation that falls short of the worst-case scenario would not likely result in the maximum punishment. And even if the maximum punishment were meted out, statutory release requirements mandate that federally sentenced offenders serve the final one-third of their sentence in the community. This means that an offender would likely be released after slightly more than six years in prison. These aspects need to be viewed in relation to Canada s broader statutory framework. While a 10-year maximum is set for unauthorized possession of a nuclear substance, equipment or information capable of being used to produce a nuclear weapon, a separate provision deems such possession to be a continuing offence. This means that each day an accused person possesses the material constitutes a separate offence that is subject to a separate sentence, with a theoretical maximum of 10 years. Furthermore, in the event that an individual was in possession of such material, it would be likely that they would be in contravention of numerous other legal provisions that would each carry separate penalties. The continuing offence provision, however, does not cover a situation where a person possesses the material for only one day, and it is impossible to determine in advance which, if any, other laws would be flouted. Nevertheless, overall, Canada seems to have the necessary NIM to meet its international legal obligations in the nuclear realm. The Government might wish, though, to reconsider the statutory maximum criminal sanctions for violations of law related to the unauthorized possession of nuclear material. Compliance Chronicles Number 5 September 2007