5. Legal and Structural Aspects of Nuclear
Disarmament: Compliance, Implementation, and Societal Verification
Questions
What are the essential elements of a legal regime to enforce
state compliance with an obligation of non-possession of nuclear
weapons?
What types of peaceful collective measures would be effective
for this purpose?
What are the essential elements of national implementation?
How do these correspond to a legal regime that provides for
effective and fair criminal prosecution of individual violators
of basic norms of non-possession of nuclear weapons?
What will be the role of societal verification?
Should individuals be required to report violations of the
disarmament regime?
What are the essential elements of a legal regime that protects
individual whistleblowers at both the national and international
levels?
What protections could a state offer citizens reporting on
suspected violations by employers?
Should there be transnational protection arrangements for individuals
who report violations by states?
What expertise and skills base must be developed to enable
the implementation of a universal disarmament regime?
What existing or new areas of research must be developed or
expanded?
Comments
The model NWC envisions a security regime based on incentives
for compliance, good faith, and institutionalizing the norm of
non-possession of nuclear weapons. It suggests assistance to those
states that want to move away from the use of nuclear energy,
sanctions for non-compliance, and measures to seek clarification
and settle disputes.
It has been suggested elsewhere that the Security Council could
agree not to use the veto with respect to weapons of mass destruction.
Some argue this would require Security Council reform, including
wider representation and no veto.
Universal jurisdiction for individual violations of NWC and
"prosecute or extradite" provisions should also be considered.
In the negotiations for the International Criminal Court proposals
to prohibit the use of WMD explicitly and classify their use as
a war crime were rejected. Nuclear weapons could still be considered
prohibited under general prohibitions even though there is no
express prohibition. If the NWC were to prohibit the development
of and possession of nuclear weapons — possessors could
be prosecuted nationally even if only users could be prosecuted
under the ICC treaty.
The compliance process is a graduated process with an international
verification system to engage states in implementation. In the
CWC there are mechanisms for the evaluation of compliance but
under the model NWC it is not clear whether states or the executive
council carry primary responsibility for ongoing evaluation efforts.
Sanctions are a key method for enforcement. To induce compliance,
nationals of a delinquent state party could be expelled from the
secretariat, and the right to call for a challenge inspection
or to vote could be withdrawn, for example. Sanctions should target
the individual members of the ruling elite rather than the whole
state.
Societal verification and civil monitoring are very important
to enhance trust. There are civilian monitoring and verification
aspects to the CTBT.
The model NWC suggests protecting whistleblowers. In the US
protections have been moderately effective — returning whistleblowers
to the job and awarding them damages. It is feasible to make this
protection under the NWC part of national law.
With respect to societal verification, a main concern is confidentiality
or protection of persons working in the nuclear weapons complex,
if they are required to report violations. One way around this
is to have a box in which all employees could leave pertinent
information without disclosing their identity.
Nuclear weapons development is a social process and part of
a social system. We need to make nuclear weapons development illegal
and societal reporting legal. Today whistleblowers are punished
and we can only support them through international protest. Instead
it should be a duty of citizens to report violations.
We need to dispel the notion that nuclear weapons are needed
to address breakout. Having nuclear weapons in the first place
reinforces the idea that they are valuable.
With respect to citizens who might be "disappeared"
it would be necessary to pressure states through protests, publicity,
and creation of international awareness. The model NWC gives a
lot of protection to whistleblowers, but there would be the problem
of states with no independent judiciary.
Societal verification could work in totalitarian regimes, but
people run higher risks. If you give rights to individuals, you
also need to educate the whole society (schools, scientists) regarding
arms control, non-proliferation, disarmament, and verification.
A problem with societal verification is that it increases the
openness of the nuclear complex. This could contribute to proliferation
of information with respect to nuclear weapons if it is not properly
protected.
Many of the requirements and conditions of nuclear disarmament
can only ultimately be resolved by self-policing and societal
verification. Progress on these will give governments the confidence
to move towards a nuclear weapon free world.
There is a role for NGOs with technical and other expertise
to develop verification criteria and technology which governments
would find hard to ignore.
Compliance can be considered along a ladder of graduated measures:
