On State Responsibility Under The Nuclear Non-Proliferation Treaty

This dissertation makes an inquiry into the state responsibility of Non-nuclear Weapons States (NNWS) for their violation of the obligations under nuclear nonproliferation treaty systems. Concerns are to be focused on the nature of obligations, responsibility for the violation and issues related to dispute settlement. Six chapters are devoted to this dissertation in addition to the introduction and concluding parts.Chapter one describes the international legal framework with respect to the nuclear non-proliferation regime. Such description is focused on the treaty systems comprising such international instruments as NPT, the Statute of IAEA and the Safeguards Agreements. It is shown in the textual relations and in the factual practice of implementing the nuclear non-proliferation treaty system that non-proliferation regime is in nature an institutional arrangement for collective enforcement of international obligation hereunder, in which the UN Security Council plays a dominant role and bears core function.Chapter two describes the legal obligations under NPT treaties for the NNWS and relevant legal consequences. Analysis is based on a typological method. Through overall studies on the object, purpose and contracting status of NPT and in accordance with interests protected by NPT, it is revealed that obligations under NPT are of collective character rather than obligations erga omnes, obligation owed to the international community as a whole or ius cogens. Collective obligation entails a legal consequence that the injured state and states other than the injured state are, upon meeting cartain condition, entitled to invoke state responsibility of those states which violate obligations, but such invocation is of limited significance due to the fact that it is the IAEA and the UN Security Council that are in charge of implementing the NPT.On the other hand, obligations under non-proliferation treaties may be classified as obligations of means and obligations of results according to the contents of obligations required on the NNWS. Accordingly, obligation to declare and report, obligation to accept onsite inspection and to cooperate herein, fall within the category of obligation of means, aiming at fulfilling the obligation of results under NPT-maintaining the NNWS identity, ensuring that all nuclear activities shall be of peaceful purpose. Dichotomy of obligation of means and obligation of results may help to conclude that purposes of the state responsibility of NNWS are to keep the identity of NNWS as such.Chapter three investigates the types of wrongful acts under NPT and the basis of state responsibility in terms of subjective constituent elements. If NNWS fails to perform obligations of means, such as duty to declare and report, duty to accept onsite inspection, such failure in performance of obligation, even if the contracting state does not actually carry out any nuclear weapon project, will itself constitute violation. On the other hand, failure to meet the standards of being complete and correct in declaration or report, diversion of safeguarded nuclear materials, failure to be verified on absence of undeclared nuclear material and activities or carrying out nuclear weapon project certainly violate obligations of result.In determining whether state responsibility for their internationally wrongful acts commited by NNWS is objective responsibility or not, the objective test method is employed-determining whether the defence in terms of non-fault has been accepted or not when finding acts commited by NNWS as internationally wrongful. Practices show that in implementing NPT obligations, IAEA and UN Security Council have never accepted non-fault defence. In theory, even if such defence may be available, it will be derogated and nullified by some treaty provisions. It may be inferred that state responsibility entailed as violation of NPT and Safeguards Agreements is objective responsibility.Chapter four deals with invocation of state responsibility. The general principle of international law starts the issue with invocation by injured state(s) when dealing with the matters. It is shown that violation of NPT obligations causes neither material nor moral damages to other contracting states, hence no injured states in a traditional sense. But, in a weaker sense, violation of NPT obligations brings some subtle and negative change to the situation of security, damage to the interest expectation under NPT. The contracting states other than the breaching one can request the latter to fulfill relevant obligations by making recourse to common interests.Invocation of state responsibility is in fact implemented within an institutional framework under the nuclear non-proliferation treaty systems, mainly by IAEA and the UN Security Council. The non-proliferation regime provides that obligations can only be fulfilled in the framework of Safeguards Agreements, while contracting states are entitled to invoke state responsibility only in a subsidiary way. Either in DPRK-US talk or in Six-Party-talk, obligations born by DPRK is to be implemented under the umbrella of IAEA.Chapter five deals with contents of the state responsibility most suitable for fulfiling the purposes under NPT. All nuclear facilities and activities shall be placed under safeguards measures, no nuclear materials shall be diverted for military purpose, no state shall cross the forbidden line of NNWS status. Such obligations presuppose the contents of state responsibility for the breaching state, thus, cessation of breach, continuity of performing obligations and assurance of non-repetition shall be available for breaching obligations of means. For diversion of safeguarded material to military purpose, or crossing the line of NNWS identity, the most suitable way for bearing responsibility is restitution of status quo-establishing the situation before occurrence of the breach, restoring the NNWS status.Analysis in this chapter also shows that injury is not required as a prerequisite for state responsibility, esp., in relation to breaches of obligations of results.Chapter six deals with issues related to dispute settlement. Both DPRK and Iran set out reasons not to fulfill their obligation during the course of respective disputes concerning the nuclear problems, which combine both legal claims and political discourse, also reflect the realist relations among relevant states. Diplomatic channel such as negotiation in settling the disputes shall respond to the plea of these states to some extent.Such dispute settlement provisions as consultation, international arbitration and legal proceedings before ICJ are provided under Safeguards Agreements and the IAEA Statute, but breaches of obligation under Article II and III of NPT are not arbitrable, while legal suits before ICJ is hindered by ratione personae. Such provisions have not played its role in practice.Countermeasure includes no place of threat or use of force, which is governed by its own proper international norms. Threat or use of force can find no legal place in implementing NPT. Countermeasure against illegal act aims at requesting respondent state to perform its obligation rather than to punish, but coercive measure adopted by Security Council against breaching state is considered as collective countermeasure with explicit character of punishment.In conclusion, while NNWS bears objective responsibility which does not require fault or injury as prerequisite, there are some issues left unresolved. First is the ultimate form of responsibility, esp., the substantial content of restitution in terms of restoring to the NNWS status. It needs to be clarified by further practices. Secondly, the dispute settlement procedure has not yet functioned as it should. It needs be constructed more practical, more acessbile and more fruitful.