Recueil des cours, Collected Courses, Tome 424

Series: 

Masahiko ASADA, International Law of Nuclear Non-proliferation and Disarmament
Masahiko Asada, born in Hofu, Yamaguchi, Japan, on 21 January 1958. Studied at Kyoto University Faculty of Law and Graduate School of Law, receiving LLB (1981), LLM (1983) and LLD (2016); Associate Professor at Okayama University Faculty of Law (1989); Professor at Okayama University Faculty of Law (1996); Professor at Kyoto University Graduate School of Law (1999); Vice Dean at Kyoto University Graduate School of Law (2017-2019); Professor at Doshisha University Faculty of Law and Professor Emeritus at Kyoto University (since 2021).
Senior Associate at Oxford University St Antony’s College (1988-1989); Visiting Lecturer at National Institute for Defense Studies, Ministry of Defense (1994, 1997, since 2005); Adjunct Research Fellow at Japan Institute of International Affairs (since 2004); Lecturer at United Nations Audiovisual Library of International Law (2010); Visiting Lecturer at Foreign Service Training Institute, Ministry of Foreign Affairs (2011, 2013, 2014, 2016); Visiting Scholar at University of Auckland Faculty of Law (2019-2020); Lecturer for the Fifth Hans Kelsen Memorial Lecture on International Peace and Security Law (2020).
President (2018-2020), Honorary Councillor (since 2020), Japanese Society of International Law; President, Japan Association of International Security and Trade (2009-2011); President, Japan Association of Disarmament Studies (2013-2015); Chairperson, Organizing Committee of the Biennial Conference 2020, International Law Association (2018-2020); Associate Member, Science Council of Japan (since 2020); Membre associé, Institut de Droit International (since 2021).
Chairperson, Chemical Products Advisory Council’s Subcommittee on Inspection and Confidentiality, Ministry of International Trade and Industry (1997-1998); Councillor, Science and Technology Agency (1998-2001); Councillor, Ministry of Foreign Affairs (2006); Member (2009-2018), Chairperson (2015-2018), Central Council on Defense Facilities, Ministry of Defense; Member, Group of Eminent Persons for Substantive Advancement of Nuclear Disarmament appointed by the Minister for Foreign Affairs (2017-2019).
Legal Adviser, Japanese Delegation to the Conference on Disarmament (1991- 1993); Legal Adviser, Japanese Delegation to the Ad Hoc Group of the States Parties to the Biological Weapons Convention (1995-2001); Adviser, Japanese Delegation to the Review Conferences of the Treaty on the Non-Proliferation of Nuclear Weapons and Their Preparatory Committees (2004, 2007, 2009, 2012, 2014, 2015, 2017, 2018).
Member (1997-2003, 2016-2023), Vice-Chairperson (1999-2000, 2018-2020), Commission for the Settlement of Disputes Related to Confidentiality, Organisation for the Prohibition of Chemical Weapons (OPCW); Member, UN Panel of Government Experts on Verification (2006-2007); Member, Panel of Experts established pursuant to Security Council Resolution 1874(2009) (2009-2010); Member, Advisory Board on Education and Outreach, OPCW (2016-2018); Member-elect, UN International Law Commission (2023-2027).
Excerpt of Table of Contents:
Acknowledgments 29
Introduction 31
Chapter I. Verification of compliance with the NPT obligations 38
Introduction 38
A. Initial attempts to verify non-manufacturing of nuclear weapons. . . 43
B. Comprehensive Safeguards Agreement 49
1. Relationship between the NPT and IAEA safeguards: The question of non-proscribed military use 49
2. Main content of comprehensive safeguards 53
C. Iraq’s attempted development of nuclear weapons and safeguards reform 61
1. Revelation of the nuclear weapons development in Iraq and the reaffirmation of the Agency’s right to undertake special inspection 61
2. Special inspection in the Comprehensive Safeguards Agreement. 65
3. Special inspection in the North Korean nuclear crisis context . . 73
4. Early provision of design information 75
5. Universal reporting 78
D. The IAEA’s “Programme 93+2” 83
1. Part 1 of “Programme 93+2” 83
2. Part 2 of “Programme 93+2”: Additional Protocol 86
E. Comprehensive Safeguards Agreement and the verification of correctness and completeness of States’ declarations 97
1. Statements for the CSA covering verification of both correctness and completeness of declarations 98
2. Arguments underpinning completeness proposition and counter- arguments against them 100
3. Decisions of the Board of Governors as subsequent agreements/ practice 104
4. True substance of the completeness proposition 111
5. Possible sources of misunderstanding of the completeness propo- sition 113
Conclusion 116
Chapter II. Withdrawal from the NPT discussion in the context of the north korean case 118
Introduction 118
A. History of North Korean nuclear development 120
1. North Korea’s incorporation into the nuclear non-proliferation regime 120
2. First North Korean nuclear crisis (phase 1): North Korea’s announcement of withdrawal from the NPT and of its suspension in 1993 122
3. First North Korean nuclear crisis (phase 2): De-fueling of the reactor and the Agreed Framework of October 1994 127
4. Second North Korean nuclear crisis: Announcement of withdrawal from the NPT in 2003 131
B. North Korea’s status under the NPT 135
1. Withdrawal clause of the NPT and four possible interpretations of North Korea’s status under the NPT 135
2. North Korean argument and the IAEA’s response 136
3. Other possible interpretations 142
C. North Korea’s obligations under the IAEA Safeguards Agreement and the Agreed Framework 150
1. Legal basis of IAEA’s monitoring of the freeze under the Agreed Framework 150
2. Agreed Framework as a political document 152
D. Proposals to prevent and counter a withdrawal from the NPT 155
1. Proposals made at NPT Conferences and elsewhere 155
2. Prohibition of withdrawal by a defaulting State 158
3. Involvement of the Security Council or NPT Conferences 160
4. Continued application of safeguards and the return of transferred items 164
Conclusion 168
Chapter III. Restrictions on sensitive nuclear transfer and the universali- zation of the Additional Protocol discussion in the context of the Iranian case 172
Introduction 172
A. Iranian nuclear issue and the responses of the IAEA and the Security Council 174
1. Iran’s incorporation into the nuclear non-proliferation regime and the emergence of nuclear suspicion 174
2. Tehran Agreed Statement of 2003 and Paris Agreement of 2004 178
3. IAEA’s finding of Iran’s non-compliance in 2005 and its submission of the case to the Security Council in 2006 182
B. ElBaradei and Bush proposals to reinforce the nuclear non-proli- feration regime 186
C. Restrictions on sensitive nuclear transfer 189
1. G8’s and NSG’s restrictions on sensitive nuclear transfer 189
2. IAEA’s multilateral nuclear approaches 202
3. Bilateral nuclear cooperation agreements 205
D. Universalization of the Additional Protocol 212
1. Universalization of the Additional Protocol through interpretation 214
2. Conditionality of the Additional Protocol for nuclear transfers. . 230
Conclusion 246
Chapter IV. Nuclear non-proliferation sanctions discussion in the context of the Iranian and North Korean cases 250
Introduction 250
A. Definition of sanctions 251
B. Concept and legal justification of UN sanctions 255
1. Mandatory and non-mandatory Security Council measures as sanctions 256
2. Legal justification of per se illegal mandatory UN sanctions. . . 259
3. Legal justification of per se illegal non-mandatory UN sanctions 265
C. North Korean and Iranian nuclear issues and UN sanctions 280
1.North Korea 281
2. Iran 307
D. Concept and legal justification of autonomous sanctions 326
1. Concept of autonomous sanctions 326
2. Legal justification of autonomous sanctions as countermeasures . 330
E. Iranian nuclear issue and autonomous sanctions 343
4. EU autonomous sanctions against Iran and their per se illegal nature 343
5. ILC Articles on State Responsibility and the autonomous sanctions against Iran 351
Conclusion 366
Chapter IV. Nuclear non-proliferation sanctions discussion in the context of the Iranian and North Korean cases 250
Introduction 250
Definition of sanctions 251
A. Concept and legal justification of UN sanctions 255
1. Mandatory and non-mandatory Security Council measures as sanctions 256
2. Legal justification of per se illegal mandatory UN sanctions. . . 259
3. Legal justification of per se illegal non-mandatory UN sanctions 265
B. North Korean and Iranian nuclear issues and UN sanctions 280
1. North Korea 281
2. Iran 307
C. Concept and legal justification of autonomous sanctions 326
1. Concept of autonomous sanctions 326
D. Legal justification of autonomous sanctions as countermeasures . 330
Iranian nuclear issue and autonomous sanctions 343
1. EU autonomous sanctions against Iran and their per se illegal nature 343
2. ILC Articles on State Responsibility and the autonomous sanctions against Iran 351
Conclusion 366
Chapter V. Comprehensive Nuclear-Test-Ban Treaty 370
Introduction 370
Overview of the CTBT 374
1. Comprehensive ban on nuclear testing 374
2. Verification of the comprehensive nuclear test ban 377
B. Non-entry into force of the CTBT and the comprehensive ban on nuclear testing 380
1. Customary rule on a comprehensive nuclear test ban 381
2. Obligation of signatory and ratifier States prior to the entry into force of a treaty 385
C. Non-entry into force of the CTBT and verification of the comprehensive nuclear test ban 415
1. International Monitoring System 415
2. On-site inspection 450
Conclusion 460
Chapter VI. Negative security assurances 463
Introduction 463
A. Nuclear-free zones and negative security assurances 464
1. Tlatelolco Protocol and the declarations by the nuclear-weapon States 464
2. Legal nature of the declarations made by the nuclear-weapon States to the Tlatelolco Protocol 469
3. Legal effects of the declarations made by the nuclear-weapon States to the Tlatelolco Protocol 475
4. Reservations and declarations made to various nuclear-free zone treaties 481
5. General picture of negative security assurances given to the NFZ treaty parties: Some analysis of their legal effect 499
B. Unilateral declarations on negative security assurances 507
1. Security assurances to non-nuclear-weapon States 507
2. Evolution of unilateral declarations on negative security assurances …512
3. Legal nature of unilateral declarations on negative security assurances…526
4. Recent evolution of nuclear/military doctrines of nuclear- weapon States 539
C. Negative security assurances to specific States 553
1. Dissolution of the Soviet Union and the Budapest Memorandum of 1994…553
2. North Korea and Mongolia 577
Conclusion 581
Chapter VII. Nuclear disarmament 584
Introduction 584
A. Article VI of the NPT and its drafting history 585
B. ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 593
1. Nuclear disarmament-related finding of the Advisory Opinion and its background 593
2. ICJ’s Advisory Opinion and nuclear disarmament obligation. . . 598
C. Treaty on the Prohibition of Nuclear Weapons . . . . . . . . . . . . 62
1. History leading to the adoption of the Treaty 624
2. Basic prohibitions 629
3. Obligations toward the total elimination of nuclear weapons . . . 639
4. Relationship with other agreements 649
5. Implications for general international law 662
Conclusion 664
Conclusion 669
Bibliography 673