Strengthening the international legal framework for nuclear security: Better sooner rather than later

In this 21. century global environment, the threat of terrorists or other criminals eventually acquiring and using radioactive material for malicious purposes or sabotaging such material or associated facilities, could be calculated as being an inevitable, albeit a preventable catastrophe. Much has been done to address this situation, such as the International Atomic Energy Agency (IAEA) now having a recognised central role in strengthening nuclear security globally. However, concerns still remain regarding the adequacy of the global nuclear security architecture, consisting of legally binding and non-binding instruments, intergovernmental organisations (IGOs), bodies and various initiatives, as well as internationally-accepted guidance and best practices, such as those reflected in the IAEA Nuclear Security Series of publications. Issues arise with respect to the adequacy of the international framework for nuclear security and the level of effective national implementation thereof. Highlighted in this regard, is a lack of universal adherence to the international nuclear security legal instruments, an absence of sustained information sharing (particularly on national implementation) and the non-existence of binding nuclear security standards and mandatory peer review and assessment. This article examines the framework's adequacy, its gaps and weak links, as well as the measures proposed to strengthen it. Part 1 considers some past and recent events, efforts, and developments that have contributed to the current status. Thereafter, the purported gaps and weak links and proposed strengthening measures are identified. While acknowledging progress, it is assumed that some overarching considerations, particularly national sovereignty, secrecy and complacency, continue to restrictively influence and determine the extent of state behaviour. Accordingly, these considerations are also briefly addressed in Part 1. Thereafter, Part 2 provides a concise overview of the current international legal framework. The purported gaps and weak links and proposed strengthening measures initially identified in Part 1 are then assessed in Part 3. Further to that assessment and prior to a conclusion, Part 4 submits that only a 'watershed nuclear security event' may provide the momentum needed for the international nuclear community to address the apparent existing deficiencies in the near- to mid-term future, i.e. in the next eight years from now. Importantly, this article does not dwell on the decades-long academic debate regarding the prospects of nuclear terrorism, motivations, intent and capabilities. Rather, it is based on the views in various international fora, such as the United Nations (UN) and the International Atomic Energy Agency (IAEA), that the threat of terrorism is real, grave and serious; and that it is one of the most challenging and serious threats to international peace and security, if not the greatest to society in our time. Notwithstanding this significance, there is still no legal definition of 'terrorism' after a decades-long debate, nor is there a definition of 'nuclear terrorism', though some treaties specify certain acts that can be considered as including a terrorist element. Finally, although acutely aware of the vital importance, this article also does not address significant issues such as the need to eliminate highly enriched uranium (HEU) in civil nuclear applications or the pressing need to enhance the security of military nuclear materials (which accounts for the vast majority of nuclear material worldwide (approximately 83%))