The Status of Nuclear Export Control Regimes in International Law

Abstract

During an October 2008 speech to the Nuclear Energy Agency, IAEA Director General Mohamed Elbaradei stated that more than fifty countries had expressed interest in developing nuclear power programs to meet their growing energy demands.' This phenomenon, referred to commonly as the nuclear renaissance, has now become one of the most significant security challenges facing the international community. Under Article IV of the 1968 Non-Proliferation Treaty (NPT), non-nuclear weapons states have the right to develop nuclear energy as well as to receive transfers of nuclear technology as long as they use their programs strictly for peaceful purposes. Following the entry into force of the NPT two nuclear export control regimes were developed with the aim of controlling and managing the trade of nuclear materials from suppliers to receivers as well as multilaterally coordinating nuclear safeguards activities. While the two regimes, the Nuclear Suppliers Group (NSG) and the Zangger Committee, have played an important role in facilitating the goals of the NPT, the regimes lack the international legal mandate and enforcement power to act in a coordinated and effective manner to meet the challenges presented by the current nuclear proliferation threats facing the international community. In order to better understand the shortcomings of the global nuclear export control system, this article will evaluate the international legal context of existing controls. This necessitates a study of the documents and practices of both organizations in order to determine how a lack of legal foundation affects their ability to execute non-proliferation activities. In addition, evaluating the effectiveness of nuclear export controls necessitates a serious analysis of the circumstances in which they function and the elements that give them force, such as the international non-proliferation legal context, legal aspects of the regimes' organization, and the national implementation of the guidelines agreed to by regime members. The article determines the status of nuclear export controls in international law by evaluating their potential basis in international treaty law and international customary law. To achieve this task, it will be composed of two main parts. The first part evaluates nuclear export control regimes in international treaty law based on their organization, documents, and relationship with international legal non-proliferation tools. The second part evaluates the concrete activities of these regimes in the international sphere in order to determine whether state practice provides a basis for any status of nuclear export control regimes in customary international law. Evaluating the international legal status of nuclear export control regimes will allow for a deeper analysis in the conclusion of this article pertaining to current challenges to the nuclear export control system.