"비확산체제의 성공여부는 ‘핵비확산조약’과 ‘생물무기금지협약’의 의무 불이행에 대한 벌칙조항 도입, ‘생물무기금지협약’의 검증체제 도입, 다자간 수출통제체제의 기능개선과 규범강화, 안전보장이사회의 입법 및 제재 결의의 적극 활용과 아울러 비확산 관련조약 당사국 및 다자간 수출통제체제 참가국들의 상호 협력과 대량살상무기 및 관련물자의 취득과 수출통제에 관한 국내 관련법의 집행 능력과 강력한 실천의지에 달려 있다."...
"비확산체제의 성공여부는 ‘핵비확산조약’과 ‘생물무기금지협약’의 의무 불이행에 대한 벌칙조항 도입, ‘생물무기금지협약’의 검증체제 도입, 다자간 수출통제체제의 기능개선과 규범강화, 안전보장이사회의 입법 및 제재 결의의 적극 활용과 아울러 비확산 관련조약 당사국 및 다자간 수출통제체제 참가국들의 상호 협력과 대량살상무기 및 관련물자의 취득과 수출통제에 관한 국내 관련법의 집행 능력과 강력한 실천의지에 달려 있다."
"비확산체제의 성공여부는 ‘핵비확산조약’과 ‘생물무기금지협약’의 의무 불이행에 대한 벌칙조항 도입, ‘생물무기금지협약’의 검증체제 도입, 다자간 수출통제체제의 기능개선과 규범강화, 안전보장이사회의 입법 및 제재 결의의 적극 활용과 아울러 비확산 관련조약 당사국 및 다자간 수출통제체제 참가국들의 상호 협력과 대량살상무기 및 관련물자의 취득과 수출통제에 관한 국내 관련법의 집행 능력과 강력한 실천의지에 달려 있다."
The purpose of this study is to identify limitations or problems existing in the current international nonproliferation regimes and present possible remedies, thereby ultimately enhancing the function of the regimes. To do so, this dissertation explores the components of the regimes such as treaties...
The purpose of this study is to identify limitations or problems existing in the current international nonproliferation regimes and present possible remedies, thereby ultimately enhancing the function of the regimes. To do so, this dissertation explores the components of the regimes such as treaties, multilateral export control normative system, verification mechanisms, together with the United Nations Security Council legislative and sanctions resolutions and interdiction principles of Proliferation Security Initiative, and so on from international legal perspective with focus on the implementation and enforcement of the regimes' norms at the international and national level.
Ⅰ
In response to growing proliferation of weapons of mass destruction (WMD), the international community has developed an interlocking set of treaties, conventions, arrangements, and verification mechanism collectively referred to as the "International Non-proliferation Regime." The regime includes components that address nuclear, chemical, and biological weapons, missile delivery systems, and the materials, and technologies needed to produce such weapons.
The regime's components can be placed into three main categories: treaties and agreements establishing norms and legal obligations; tools to verify compliance; and systems to control the means of producing weapons. Norms against the development, possession, acquisition, or transfer of WMD are traditionally established through multilateral, legally binding treaties. Such treaties exist for nuclear, chemical, and biological weapons, but not for missiles.
Verification of non-proliferation obligations encompassed in these treaties is typically carried out by neutral, third-party organizations with the technical assets needed to conduct both routine and special inspections. Such organizations exist in nuclear and chemical areas, and one is contemplated in the case of biological weapons.
Last, members within the various regimes have established "supplier control mechanism" that seeks to limit access to sensitive technology and equipment to states and non-state actors of proliferation concern. While these control regimes have been attacked in some quarters as overly restrictive, they have proved effective in slowing the pace of proliferation, if not stopping it completely.
Ⅱ
The centerpiece of the nuclear nonproliferation regime is the Nuclear Nonproliferation Treaty (NPT). The treaty defines nuclear weapons state as those states that had manufactured and detonated nuclear weapons prior to January 1, 1967. The treaty thus allows five nuclear powers, the United States, Great Britain, Russia, France and China, to manufacture and possess nuclear weapons, but prohibits the transfer of such weapons to other states. All other states parties to the NPT have agreed not to acquire nuclear weapons in return for assistance in developing peaceful uses for nuclear power.
The chief means of verification for the compliance with NPT obligations are through inspections conducted by the International Atomic Energy Agency (IAEA). The IAEA is empowered to conduct "special inspections" if a state party reports a loss of inspected material, but is not authorized to take any action if it suspects that clandestine nuclear programs are taking place at undisclosed sites. In the event it discovers a violation, the IAEA is to report to the United Nations Security Council and General Assembly, as with other non-proliferation agreements. Neither NPT nor IAEA regulations provide for any penalty in case of breach.
The Chemical Weapons Convention (CWC), the first of its kind, prohibits manufacturing and stockpiling of chemical weapons. The CWC calls for all state parties to eliminate their chemical weapons supplies by 2007 and restrict their trade in precursors - chemicals that can be used in the production of weapons as well as for peaceful uses to other states parties. States parties agree to cease producing and stockpiling of weapons, declare all facilities that produce restricted chemicals for non-prohibited uses, submit to verification inspections, and enact legislation implementing the CWC, including criminalizing violations.
The Organization for the Prohibition of Chemical Weapons (OPCW) monitors the enforcement the CWC. The OPCW carries out routine inspections of the relevant facilities on the territory of States Parties to verify the accuracy of annual declarations regarding scheduled chemicals. The organization may also carry out a challenge inspection in response to allegations of noncompliance by one state party to another.
Biological weapons were first addressed in the Geneva Protocol of 1925, which banned their use of the chemical and biological weapons during wartime only. The Biological Weapons Convention (BWC) addresses the development, production, acquisition, or stockpiling of microbial or other biological agents, or toxins. States parties to the BWC undertake to prohibit the above-mentioned forbidden conduct, destroy such weapons, and not to transfer to any recipient whatsoever, and not in the way to assist, encourage, or induce any state. The BWC is presently of limited practical effectiveness because it lacks provisions for verification to enforce its proscriptions. Efforts are underway to negotiate a protocol to strengthen the BWC.
Multilateral export control regimes, including Nuclear Suppliers Group (NSG), Australia Group (AG), Missile Technology Control Regime (MTCR), and Wassenaar Arrangements (WA), are informal, voluntary associations of governments, which seek to contribute to the non-proliferation of various weapons through the implementation of guidelines for WMD, missile and conventional arms-related dual-use goods and technologies. The regimes are not bound by any treaty, and therefore have no formal mechanism to enforce compliance. Participants in the regime do not undertake any legally binding obligations. The export control guidelines are implemented by each participating government in accordance with its national laws and polices on the basis of national discretion.
Ⅲ
UN Security Council Resolution (UNSCR) 1540, addresses a number of fundamental limitations of the existing non-proliferation treaties and regimes system. One of the foremost problems challenging the effectiveness of such treaties and regimes is the problem of the non-universality of the system, a result of the fact traditionally all such treaties and regimes are adopted voluntarily by states, and that for a variety reasons many states, often including some of significant proliferation concern, have remained outside the regime system. In addition, on the national regulatory level, degrees of development and effectiveness of export control systems vary significantly among states.
A second major challenge to the non-proliferation treaties and regimes system, referred to as the non-state actor problems, is the fact that all existing restrictions within the treaties and regimes upon manufacture, development, possession, and transfer in WMD-related goods and technologies are addressed states themselves. Thus at the international level there is no substantive restriction on private parties, including business entities as well as other non-state actors, engaging in any of these activities. In this regard, the UNSCR 1540 is very meaningful in that it was designed to fill gaps in the normative structure of the treaties and regimes system, using binding authority of the UN Security Council's powers under Chapter Ⅶ of the UN Charter.
While UNSCR 1540 was adopted under Chapter Ⅶ of the UN Charter, the Resolution did not provide any enforcement authority. However, when states do not comply with UNSCR 1540 for lack of will, the Security Council might impose sanctions on them until bona fide efforts at compliance are made. While UNSCR 1540 does not specifically allow for such sanctions, it does state that the Security Council intends to "take further decisions that may be required" for enforcement of the Resolution. Moreover, it would be difficult for any state to argue that the subject matter of WMD proliferation is not such that the Security Council powers to act would be enlivened under Chapter Ⅶ of the UN Charter.
Ⅳ
The Proliferation Security Initiative (PSI) states' ability to intercept and search vessels in their territorial seas and contiguous zone may require the consent of the flag-state, unless the vessels' passage is non-innocent. The interdiction of aircraft suspected of carrying WMD and related materials that occurs in national airspace raises fewer legal issues, since there is no right of innocent passage through airspace. However, international law calls for "due regard" to the safety of civil aircraft. Measures involving the use of force to deny aircraft passage or to enforce landings for inspections could raise objections from other nations.
The 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) would require states to criminalize transportation of WMD and related materials. This protocol also "creates a ship-boarding regime based on flag state consent similar to bilateral agreements between the United States and flag of convenience states. A further step could be adoption of a UN resolution that would provide for interdiction activities under Chapter Ⅶ of the UN Charter, which allows the Security Council to authorize sanctions or the use of force to compel nations to comply its resolutions. The explicit authorization by the UN Security Council would be probably the firmest legal basis for interdicting WMD materials.
As mentioned above, international law recognizes that states have the right to interdict vessels and aircraft in certain limited circumstances; however, that legal authority that would allow PSI nations completely "to halt shipments of dangerous technologies to and from states and non-state actors of proliferation concern - at sea, in the air, and on land" appears doubtful under the current state of international law.
The right of self-defence traditionally recognized in international law affords a state the right to take proportionate measures, including the use of force, that are necessary to protect itself from imminent harm. Traditionally, the right included the use of force to forestall an armed attack. The traditional right could include not only the visit and search of a vessel but also its seizure or destruction. However, the inherent right of individual or collective self-defence under the UN Charter should be strictly applied to vessels suspected of carrying WMD and its materials according to Webster formula.
Although nonproliferation treaties and multilateral export control regimes have had important restraining effects on the WMD proliferation, it is apparent that the treaty or conventions only apply to states that choose to join and remain party thereto. Non-state parties may have difficulty procuring WMD-related technology and materials from state parties to the respective treaties, but may trade freely among themselves and are under no legal limitations to refrain from stockpiling such weapons or transferring them to rogue states, terrorist groups and other entities. State parties participate on a voluntary basis, and may choose to back out of the treaty or conventions at any time, as was the case when North Korea pulled out of the NPT. The success of the international nonproliferation system depends on the cooperation of member states and their ability and willingness to enforce their own laws proscribing acquisitions and exports of WMD, missiles and their related materials.
The purpose of this study is to identify limitations or problems existing in the current international nonproliferation regimes and present possible remedies, thereby ultimately enhancing the function of the regimes. To do so, this dissertation explores the components of the regimes such as treaties, multilateral export control normative system, verification mechanisms, together with the United Nations Security Council legislative and sanctions resolutions and interdiction principles of Proliferation Security Initiative, and so on from international legal perspective with focus on the implementation and enforcement of the regimes' norms at the international and national level.
Ⅰ
In response to growing proliferation of weapons of mass destruction (WMD), the international community has developed an interlocking set of treaties, conventions, arrangements, and verification mechanism collectively referred to as the "International Non-proliferation Regime." The regime includes components that address nuclear, chemical, and biological weapons, missile delivery systems, and the materials, and technologies needed to produce such weapons.
The regime's components can be placed into three main categories: treaties and agreements establishing norms and legal obligations; tools to verify compliance; and systems to control the means of producing weapons. Norms against the development, possession, acquisition, or transfer of WMD are traditionally established through multilateral, legally binding treaties. Such treaties exist for nuclear, chemical, and biological weapons, but not for missiles.
Verification of non-proliferation obligations encompassed in these treaties is typically carried out by neutral, third-party organizations with the technical assets needed to conduct both routine and special inspections. Such organizations exist in nuclear and chemical areas, and one is contemplated in the case of biological weapons.
Last, members within the various regimes have established "supplier control mechanism" that seeks to limit access to sensitive technology and equipment to states and non-state actors of proliferation concern. While these control regimes have been attacked in some quarters as overly restrictive, they have proved effective in slowing the pace of proliferation, if not stopping it completely.
Ⅱ
The centerpiece of the nuclear nonproliferation regime is the Nuclear Nonproliferation Treaty (NPT). The treaty defines nuclear weapons state as those states that had manufactured and detonated nuclear weapons prior to January 1, 1967. The treaty thus allows five nuclear powers, the United States, Great Britain, Russia, France and China, to manufacture and possess nuclear weapons, but prohibits the transfer of such weapons to other states. All other states parties to the NPT have agreed not to acquire nuclear weapons in return for assistance in developing peaceful uses for nuclear power.
The chief means of verification for the compliance with NPT obligations are through inspections conducted by the International Atomic Energy Agency (IAEA). The IAEA is empowered to conduct "special inspections" if a state party reports a loss of inspected material, but is not authorized to take any action if it suspects that clandestine nuclear programs are taking place at undisclosed sites. In the event it discovers a violation, the IAEA is to report to the United Nations Security Council and General Assembly, as with other non-proliferation agreements. Neither NPT nor IAEA regulations provide for any penalty in case of breach.
The Chemical Weapons Convention (CWC), the first of its kind, prohibits manufacturing and stockpiling of chemical weapons. The CWC calls for all state parties to eliminate their chemical weapons supplies by 2007 and restrict their trade in precursors - chemicals that can be used in the production of weapons as well as for peaceful uses to other states parties. States parties agree to cease producing and stockpiling of weapons, declare all facilities that produce restricted chemicals for non-prohibited uses, submit to verification inspections, and enact legislation implementing the CWC, including criminalizing violations.
The Organization for the Prohibition of Chemical Weapons (OPCW) monitors the enforcement the CWC. The OPCW carries out routine inspections of the relevant facilities on the territory of States Parties to verify the accuracy of annual declarations regarding scheduled chemicals. The organization may also carry out a challenge inspection in response to allegations of noncompliance by one state party to another.
Biological weapons were first addressed in the Geneva Protocol of 1925, which banned their use of the chemical and biological weapons during wartime only. The Biological Weapons Convention (BWC) addresses the development, production, acquisition, or stockpiling of microbial or other biological agents, or toxins. States parties to the BWC undertake to prohibit the above-mentioned forbidden conduct, destroy such weapons, and not to transfer to any recipient whatsoever, and not in the way to assist, encourage, or induce any state. The BWC is presently of limited practical effectiveness because it lacks provisions for verification to enforce its proscriptions. Efforts are underway to negotiate a protocol to strengthen the BWC.
Multilateral export control regimes, including Nuclear Suppliers Group (NSG), Australia Group (AG), Missile Technology Control Regime (MTCR), and Wassenaar Arrangements (WA), are informal, voluntary associations of governments, which seek to contribute to the non-proliferation of various weapons through the implementation of guidelines for WMD, missile and conventional arms-related dual-use goods and technologies. The regimes are not bound by any treaty, and therefore have no formal mechanism to enforce compliance. Participants in the regime do not undertake any legally binding obligations. The export control guidelines are implemented by each participating government in accordance with its national laws and polices on the basis of national discretion.
Ⅲ
UN Security Council Resolution (UNSCR) 1540, addresses a number of fundamental limitations of the existing non-proliferation treaties and regimes system. One of the foremost problems challenging the effectiveness of such treaties and regimes is the problem of the non-universality of the system, a result of the fact traditionally all such treaties and regimes are adopted voluntarily by states, and that for a variety reasons many states, often including some of significant proliferation concern, have remained outside the regime system. In addition, on the national regulatory level, degrees of development and effectiveness of export control systems vary significantly among states.
A second major challenge to the non-proliferation treaties and regimes system, referred to as the non-state actor problems, is the fact that all existing restrictions within the treaties and regimes upon manufacture, development, possession, and transfer in WMD-related goods and technologies are addressed states themselves. Thus at the international level there is no substantive restriction on private parties, including business entities as well as other non-state actors, engaging in any of these activities. In this regard, the UNSCR 1540 is very meaningful in that it was designed to fill gaps in the normative structure of the treaties and regimes system, using binding authority of the UN Security Council's powers under Chapter Ⅶ of the UN Charter.
While UNSCR 1540 was adopted under Chapter Ⅶ of the UN Charter, the Resolution did not provide any enforcement authority. However, when states do not comply with UNSCR 1540 for lack of will, the Security Council might impose sanctions on them until bona fide efforts at compliance are made. While UNSCR 1540 does not specifically allow for such sanctions, it does state that the Security Council intends to "take further decisions that may be required" for enforcement of the Resolution. Moreover, it would be difficult for any state to argue that the subject matter of WMD proliferation is not such that the Security Council powers to act would be enlivened under Chapter Ⅶ of the UN Charter.
Ⅳ
The Proliferation Security Initiative (PSI) states' ability to intercept and search vessels in their territorial seas and contiguous zone may require the consent of the flag-state, unless the vessels' passage is non-innocent. The interdiction of aircraft suspected of carrying WMD and related materials that occurs in national airspace raises fewer legal issues, since there is no right of innocent passage through airspace. However, international law calls for "due regard" to the safety of civil aircraft. Measures involving the use of force to deny aircraft passage or to enforce landings for inspections could raise objections from other nations.
The 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) would require states to criminalize transportation of WMD and related materials. This protocol also "creates a ship-boarding regime based on flag state consent similar to bilateral agreements between the United States and flag of convenience states. A further step could be adoption of a UN resolution that would provide for interdiction activities under Chapter Ⅶ of the UN Charter, which allows the Security Council to authorize sanctions or the use of force to compel nations to comply its resolutions. The explicit authorization by the UN Security Council would be probably the firmest legal basis for interdicting WMD materials.
As mentioned above, international law recognizes that states have the right to interdict vessels and aircraft in certain limited circumstances; however, that legal authority that would allow PSI nations completely "to halt shipments of dangerous technologies to and from states and non-state actors of proliferation concern - at sea, in the air, and on land" appears doubtful under the current state of international law.
The right of self-defence traditionally recognized in international law affords a state the right to take proportionate measures, including the use of force, that are necessary to protect itself from imminent harm. Traditionally, the right included the use of force to forestall an armed attack. The traditional right could include not only the visit and search of a vessel but also its seizure or destruction. However, the inherent right of individual or collective self-defence under the UN Charter should be strictly applied to vessels suspected of carrying WMD and its materials according to Webster formula.
Although nonproliferation treaties and multilateral export control regimes have had important restraining effects on the WMD proliferation, it is apparent that the treaty or conventions only apply to states that choose to join and remain party thereto. Non-state parties may have difficulty procuring WMD-related technology and materials from state parties to the respective treaties, but may trade freely among themselves and are under no legal limitations to refrain from stockpiling such weapons or transferring them to rogue states, terrorist groups and other entities. State parties participate on a voluntary basis, and may choose to back out of the treaty or conventions at any time, as was the case when North Korea pulled out of the NPT. The success of the international nonproliferation system depends on the cooperation of member states and their ability and willingness to enforce their own laws proscribing acquisitions and exports of WMD, missiles and their related materials.
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