The Nuclear Security Implementation Initiative: A Catalyst for Needed Action

Jonathan Herbach

The nuclear security summit that took place in The Hague in March was likely the penultimate gathering in the process that President Barack Obama started in 2009. As with the previous summits, in 2010 and 2012, participating states made a number of pledges to reduce the amounts of nuclear material within their borders and to better secure remaining nuclear and other radioactive materials.

In one of the major developments of this year’s summit, several states went further than before in taking concrete steps aimed at enhancing the legal and regulatory framework with a view to ensuring sustainability of nuclear security efforts.

This was manifested most directly in the initiative on strengthening nuclear security implementation, announced by the Netherlands, South Korea, and the United States and joined by two-thirds of the participating states.[1] The initiative was one of the most publicized outcomes of the meeting and arguably the most significant.[2] It looks toward laying the groundwork for a more robust international system based on national commitments to the application of international principles and guidelines[3] and to continuous improvement of nuclear security regimes through peer reviews and other methods.

The question is how this initiative will actually be put into practice. The commitment to conduct self-assessments, host peer reviews periodically, and act on recommendations stemming from such reviews is fairly clearly formulated, whereas some of the language is quite general, referring to “meet[ing] the intent of” international nuclear security guidelines and “subscrib[ing] to” a set of fundamental principles developed under the auspices of the International Atomic Energy Agency (IAEA). Therefore, although the initiative holds potentially far-reaching consequences for the future strength of the nuclear security regime, such consequences will largely depend on how subscribing states choose to interpret the commitments. If the initiative is to have a strong impact, states will need to take the view that it lays a foundation on which they can build through further actions rather than being a final goal in itself.

A Broad Interpretation

The first part of the initiative, points 1 and 2 (see box), commits subscribing states to taking action with regard to elements of their national nuclear security regimes. The fundamentals and recommendations contained in the IAEA Nuclear Security Series, which form the basis of the pledge and reflect international consensus by virtue of their development process,[4] are not legally binding. The initiative does not change this status, nor is that its intention, as stated explicitly in the initiative’s introductory text.

Nonetheless, it is clear that some adaptation of domestic laws, regulations, administrative systems, organizations, or other measures in accordance with these documents is to be expected in carrying out the initiative. The extent of these changes, however, is left entirely to the subscribing states’ discretion, reflecting the voluntary nature of “gift basket” commitments in the context of the summit process.[5] In order to maximize the utility of the initiative in 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. Yet, there is a danger that the general language of the initiative will allow states to declare their commitments fulfilled after having taken only modest steps.

The effectiveness of the initiative ultimately will depend on states’ interpretation of key terms, such as “subscribe” (to the fundamental principles) and “meet the intent” (of the guidance documents).[6] Principles provide a conceptual basis for guiding subsequent action, but are not concrete rules that can be put directly into practice. In the absence of a description of further steps to be taken in subscribing to the principles, it could be expected that these states, in accordance with the document on nuclear security fundamentals, are committing to putting in place an appropriate and effective nuclear security regime based on the document’s list of essential elements. The term “subscribe” means more than acknowledgment of the importance of these principles; it refers to an acceptance of the principles as an integral part of the national regime.

The second point of the initiative commits subscribing states to meeting the intent of IAEA nuclear security recommendations and realizing or exceeding the objectives in them.

“[I]mplementation and enhancement of national regulations and other government measures” are mentioned specifically as methods for fulfilling the commitment, although not the only one. Three recommendation documents form part of the Nuclear Security Series; their intent is to be met by states subscribing to the initiative.[7] Although the intent of international instruments is sometimes difficult to glean, these recommendation documents explicitly mention their purpose in a dedicated section of the text.

Nevertheless, it is difficult to ascertain exactly what “meet the intent” is supposed to mean. Generally, 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 establishment or improvement of particular capabilities in order to reduce risks of malicious activities. One could identify the collective intent of the recommendations as helping states establish a comprehensive, appropriate, and effective nuclear security regime, thereby fleshing out the principles outlined in the fundamentals document.[8]

“Comprehensive” refers to the full gamut of measures—prevention, detection, and response—to deal with criminal or other unauthorized acts involving nuclear and other radioactive materials and related facilities. In that way, the Nuclear Security Series documents go beyond what is required of states-parties to the relevant legally binding instruments, which cover only nuclear materials in civilian use or are not specifically focused on physical protection requirements. A remaining issue is that the security series documents apply only to material and facilities in civilian use.

At a very basic level, subscribing states could claim they had met the commitment under the initiative if, in their estimation, their domestic nuclear security regime was sufficient. In the absence of a monitoring mechanism, states themselves will determine what is appropriate and effective or what meeting the intent of the recommendations entails. Subscribing states should choose to go beyond the goal of following the intent of the guidelines and apply the specific provisions recommended in the documents as much as possible. The more completely the recommendations are followed, the stronger and more harmonized the national regimes will become.

Reviewing Implementation

Although not a true monitoring mechanism, the second part of the initiative, point 3, represents a significant development by committing subscribing states to “continue to improve the effectiveness of their nuclear security regimes and operators’ systems” through international peer reviews and self-assessments. The IAEA has promoted both of these methods, aiming to increase the effectiveness of the peer review mechanisms and assisting states in augmenting their capacity to carry out self-assessments.[9] This section of the initiative is clearly linked to the IAEA activities and strategies. Following through on the commitment to host peer reviews is also one of the most easily measurable aspects of the initiative.

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. The text of the initiative mentions the International Physical Protection Advisory Service (IPPAS) specifically, but the language leaves open the option for hosting other types of peer reviews, such as International Nuclear Security Advisory Service (INSServ) missions. Although IPPAS missions focus on a state’s physical protection system in light of established guidelines and international best practices, INSServ missions serve more generally to examine a state’s nuclear security measures and to identify means for improving the broader range of nuclear security activities.

These voluntary arrangements remain the only international measure of whether states are acting in accordance with nuclear security guidelines, making them essential to building international confidence in states’ nuclear security regimes. The number of requests for such reviews has been increasing over time. The review process identifies issues and makes suggestions for improvement, but it also acknowledges good practices that can then be used to inform recommendations for other states.

A particularly noteworthy aspect of the initiative on this point is that subscribing states are making a general pledge not only to host peer reviews, but to host them “periodically.” Read in conjunction with the commitment to act on recommendations resulting from the reviews, hosting reviews periodically would seem to mean that subscribing states intend to request regular follow-up missions to review their implementation of the suggested improvements. The states would be encouraged to implement the initiative in this way, thereby putting in place certain features of a structure to monitor the effectiveness of national nuclear security measures. The existence of such a structure, which provides for the collection and confidential analysis of information by a set of experts, should help increase trust in other states’ nuclear security regimes.

Demonstrable Competence

Point 4 commits subscribing states to ensuring “that management and personnel with accountability for nuclear security are demonstrably competent.” The nuclear industry has echoed the importance of this point.[10] Developing competence of staff at a nuclear or radiological facility is also part of a learning module under the IAEA educational program in nuclear security.[11] One way to ensure competence would be through required certifications of facility employees with nuclear security responsibilities. For example, a state could include such certifications as part of the licensing process for nuclear facility operators or shippers. The World Institute for Nuclear Security (WINS) has designed a WINS Academy program to support demonstrable competence through certification.[12] Subscribing states could encourage their domestic nuclear industries to make use of this program as part of fulfilling their commitments under the initiative.

Continuous Improvement

The initiative concludes with a set of actions aimed at continuous improvement of nuclear security; the subscribing states express their intention to take one or more of the actions. This section seems to be tacked on as an addendum. The form of commitment is weaker (intent to contribute as opposed to a pledge to take action), and not all of the listed activities are of equal weight and detail.

For instance, the need for states to provide nuclear security experts for peer review missions is a recognized, pressing issue. An increase in the number of requests for these missions—a likely result of the initiative—will further strain the capacity of the current, relatively small pool of experts. This action should be a focus of the subscribing states.

To be fair, the acknowledgment of this issue in the initiative is already an important first step. Similarly, the action of making financial or in-kind contributions to the IAEA Nuclear Security Fund is essential because the vast majority of the funding for IAEA nuclear security activities continues to come from voluntary contributions.

These two examples represent concrete actions, but other actions listed in the document are more vague. For example, improving cooperation with nearby states to improve international and regional nuclear security, although in principle certainly important for strengthening the international framework, is very broad and therefore cannot be considered a specific action by itself. When the language is indeterminate in this way, it becomes less likely that the action taken will achieve a particular intended purpose, and it makes it more difficult for observers to assess whether a state is acting in accordance with its commitments.

Continuous improvement, a concept to which the initiative document refers more than once, suggests an indefinite timeline and reflects the idea that flawless nuclear security will never be achieved. Rather, efforts must be adapted and strengthened in line with changing circumstances. The introductory statement to the initiative explains that the list of actions, although not arbitrarily compiled, is not meant to be exhaustive. In that sense, the list could be reviewed and refined in the run-up to the 2016 summit as states make progress on the action steps and identify other pressing needs.

The Path Forward

Because only a short time has passed since the Hague summit, the practical impact of the initiative to strengthen nuclear security implementation is not yet possible to measure. It is clear that the initiative is meant as a long-term strategy to improve global nuclear security rather than as a set of deliverables to be checked off by a certain deadline. Dedication to continuous improvement is essential in this context.

In the March 25 press conference announcing the initiative, Dutch Foreign Minister Frans Timmermans laid out two objectives: helping to eliminate weak links in global nuclear security and building confidence among various stakeholders in each state’s nuclear security measures. It is doubtful that the initiative alone can achieve these lofty goals, but steps can be taken to ensure that it works as a springboard for further strengthening the nuclear security regime.

First, a goal for the 2016 summit should be to increase the number of subscribing states as much as possible, ideally convincing nuclear-armed holdouts China, India, Pakistan, and Russia to join the initiative. This would give credence to the idea that the guidelines represent international standards, which would have an impact even outside the summit process. Put another way, broader commitment to enacting the fundamental principles and recommendations would legitimize such conduct in a way that would make opposing approaches less justifiable, thereby eventually leading to increased harmonization.[13]

Second, states should share the information they gain from peer reviews to the greatest extent possible, providing updates as they take steps to follow the recommendations that come out of mission reports. States can exchange a great deal of useful information without compromising security interests. In fact, states-parties to the Convention on the Physical Protection of Nuclear Material (CPPNM) are already legally obligated to share information on national laws and regulations that give effect to the treaty, although very few have complied with this requirement.[14] Relevant information that is obtained through the peer review process could be shared by states in such a way as to fulfill the CPPNM obligation. In doing so, states would reinvigorate this existing mechanism for exchanging information and provide a model for other states to do the same.

Third, participating nuclear-armed states should indicate their intention to apply the relevant guidelines to the security of military-use material and facilities.[15] Although the Nuclear Security Series documents are explicitly meant for application to material and facilities used for civilian purposes, states may naturally extend the relevant provisions as they choose. The IAEA recommendations themselves duly make this point. Perhaps this is what the text of the initiative means by “realize or exceed [Nuclear Security Series] objectives.”[16] Such a step would help rectify one of the major weak links in the international framework, namely the focus on security of civilian material when the vast majority of nuclear material is used in military programs, for which there are no international security standards. Also, it will help lessen criticism that the summit process has largely ignored security issues specifically related to material in military programs.[17]

Lastly, the initiative should not be viewed as a substitute for continuing to actively pursue increased adherence to existing treaties or for taking additional legally binding action, where necessary. Eight of the subscribing states are not parties to the 2005 amendment to the CPPNM, and seven are not parties to the International Convention on the Suppression of Acts of Nuclear Terrorism. These two instruments are fundamental components of the nuclear security framework. The announcement of the initiative should not detract from efforts to universalize the nuclear terrorism convention and to bring the CPPNM amendment into force. Instead, it should be seen as helping to achieve broader adherence to legally binding instruments. The IAEA guidelines are designed in part to assist states-parties to the two conventions in applying the treaties’ provisions. For states that are not parties, implementing the guidelines in their domestic systems can lower the threshold to joining the conventions. Only legally binding instruments establish obligations to which states can be held accountable and create a legal basis for sustained interaction through provisions on, for instance, cooperation and consultation. For this reason, a comprehensive underpinning of international law should be the goal.

Yet, in the absence of states’ motivation to take additional, legally binding measures, this initiative is a highly important development, particularly as thoughts turn to sustaining nuclear security efforts in a postsummit world. The initiative puts subscribing states on a path toward significant improvement of nuclear security. It goes further than ever before in committing states to domestic application of international principles and guidelines and accepting external review of their nuclear security regimes. As always, the proof of the pudding will be in the eating. The actions of the subscribing states in fulfilling their commitments will determine whether this initiative serves as a “role model worldwide of excellent and transparent behaviour.”

Jonathan Herbach is a lecturer in public international law at Utrecht University in the Netherlands, as well as a research fellow specializing in nuclear security and arms control law at the university’s Centre for Conflict and Security Law.

ENDNOTES

1. “Strengthening Nuclear Security Implementation,” March 25, 2014, https://www.nss2014.com/sites/default/files/downloads/strengthening_nuclear_security_implementation.pdf. See Kelsey Davenport, “States Commit to Nuclear Rules at Summit,” Arms Control Today, April 2014.

2. Several commentators have made reference to the significance of the initiative in the broader context of the nuclear security summit process. See Hui Zhang, “Why China Should Observe the Nuclear Security Summit Pledge,” Bulletin of the Atomic Scientists, April 21, 2014, http://thebulletin.org/why-china-should-observe-nuclear-security-summit-pledge7076; Sebastian Sprenger, “Nearly Three Dozen Nations Sign Hague Statement on Nuclear Security Framework,” Global Security Newswire, March 25, 2014, http://www.nti.org/gsn/article/nearly-three-dozen-nations-sign-hague-statement-nuclear-security-framework/; Sharon Squassoni, “Outcomes From the 2014 Nuclear Security Summit,” Center for Strategic and International Studies, March 25, 2014, http://csis.org/publication/outcomes-2014-nuclear-security-summit.

3. These guidelines are “closest thing we have to international standards for nuclear security,” according to the statement by U.S. Secretary of Energy Ernest Moniz at the joint press conference announcing the “Strengthening Nuclear Security Implementation” initiative. See Sprenger, “Nearly Three Dozen Nations Sign Hague Statement on Nuclear Security Framework.”

4. For a description of the drafting, review, and adoption process of the Nuclear Security Series documents, see International Atomic Energy Agency (IAEA), “IAEA Nuclear Security Series,” June 20, 2013, http://www-ns.iaea.org/security/nuclear_security_series.asp?s=5&l=35.

5. “Gift baskets” refer to joint statements or pledges to take additional actions made by two or more of the participating states. None of the “outcomes of the nuclear security summit, including the consensus communiqué, are legally binding.

6. In the IAEA Nuclear Security Series structure, the Nuclear Security Fundamentals document sets broad objectives, concepts, and principles providing the foundation for the recommendation documents, which elaborate the best practices to be used in application of the fundamentals. IAEA, “Objective and Essential Elements of a State’s Nuclear Security Regime,” IAEA Nuclear Security Series, No. 20 (February 2013), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1590_web.pdf.

7. IAEA, “Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Revision 5),” IAEA Nuclear Security Series, No. 13 (January 2011), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1481_web.pdf; IAEA, “Nuclear Security Recommendations on Radioactive Material and Associated Facilities,” IAEA Nuclear Security Series, No. 14 (January 2011), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1487_web.pdf; IAEA, “Nuclear Security Recommendations on Nuclear and Other Radioactive Material Out of Regulatory Control,” IAEA Nuclear Security Series, No. 15 (January 2011), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1488_web.pdf.

8. For example, see IAEA, “Nuclear Security Recommendations on Nuclear and Other Radioactive Material Out of Regulatory Control,” p. 2.

9. IAEA Board of Governors, “Nuclear Security Plan 2014-2017: Report by the Director-General,” GOV/2013/42-GC(57)/19, August 2, 2013, pp. 9-10.

10. “Joint Statement of the 2014 Nuclear Industry Summit,” March 24, 2014, https://www.nss2014.com/sites/default/files/documents/nis2014-jointstatement_final.pdf.

11. IAEA, “Educational Programme in Nuclear Security,” IAEA Nuclear Security Series, No. 12 (March 2010), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1439_web.pdf.

12. See World Institute for Nuclear Security, “The WINS Academy Security Certification Programme: Support to Demonstrable Competence,” January 2014, https://www.wins.org/files/support_to_demonstrable_competence_final.pdf.

13. See Alan Boyle and Christine Chinkin, The Making of International Law (New York: Oxford University Press, 2007), pp. 211-212.

14. Article 14.1 of the Convention on the Physical Protection of Nuclear Material states, “Each State Party shall inform the depositary [the IAEA] of its laws and regulations which give effect to this Convention. The depositary shall communicate such information periodically to all States Parties.”

15. See Global Dialogue on Nuclear Security Priorities, “Comprehensiveness—Understanding Non-Civilian Nuclear Materials,” Global Dialogue on Nuclear Security Priorities Non-Paper, No. 3 (November 19, 2012), http://www.nti.org/analysis/articles/non-paper-3-comprehensiveness-understanding-non-civilian-nuclear-materials/.

16. “Strengthening Nuclear Security Implementation,” para. 2.

17. Military-use material has officially been part of the discussion from the beginning of the nuclear security summits. See Office of the Press Secretary, The White House, “Communiqué of the Washington Nuclear Security Summit,” April 13, 2010, http://www.whitehouse.gov/the-press-office/communiqu-washington-nuclear-security-summit.