The right to develop research, production and use of nuclear energy for peaceful purposes: Shortcomings and loopholes in legal regulation

Abstract

The right to develop research, production and use of nuclear energy for peaceful purposes without discrimination is addressed in the Nuclear Non-Proliferation Treaty (NPT) in but general terms (preambular paras 6-7, Articles IV-V NPT). It is characterized as an inalienable right of all Parties, to be used in conformity with the nuclear non-proliferation obligations under the Treaty. The author examines the character and contents of this right in context with corresponding obligations of States Parties. The relevant rights and obligations are assessed in view of their development over time, considering changes in global security, safety and environmental protection during the last decades. Some shortcomings and loopholes in legal regulation are identified that need to be solved in international cooperation. The tension between the interest of States in keeping civilian nuclear options open as much as possible on the one side, and the interest in preventing acquisition or manufacture of nuclear weapons and ensuring nuclear safety and security on the other is not fully balanced out by the provisions of the NPT; it rather requires cooperative and sustainable implementation efforts. What is needed is a joint effort in identifying common interests and evolving new potentials for nuclear cooperation. To be successful, such efforts must go beyond the divide between nuclear-weapon States and non-nuclear-weapon States and the even more challenging divide between Parties and Non-Parties to the NPT. At the same time, the role of the IAEA in peer-reviewing and monitoring compliance with safety standards needs to be strengthened.