International nuclear law is based on three fundamental principles or safety, security and safeguards, commonly known by the acronym”3S”. Among these three S-s, the “safeguards” address the safeguard mechanisms put in place for the purposes of the non-proliferation of nuclear weapons). “Safety” refers to the requirements intended to ensure that the handling of the nuclear material and nuclear facilities are safe to humans (health) and the environment (nuclear safety). “Security” means the broad area of physical protection (guarding and defending) of nuclear facilities and nuclear material from persons with illegitimate interests.
The safeguards or measures to prevent the proliferation of nuclear weapons include internationally monitored accounting of nuclear material and on-site inspections of nuclear facilities, which should ensure that nuclear material and nuclear technology are not used for non-peaceful purposes.
The Peaceful Use of Nuclear Energy and Non-Proliferation of Nuclear Weapons
Nuclear fuel, which is loaded into a reactor of a nuclear power plant to produce electricity, and spent nuclear fuel, which is removed from the reactor thereafter, are indeed radioactive, but do not cause an “explosion” and are therefore unsuitable for making a nuclear bomb (with the exclusion of so-called “dirty bombs”, which are explosive devices designed to disperse hazardous substances, such as any nuclear material, rather than cause a chain reaction or nuclear explosion). However, the same source (or “fertile”) material is used to produce nuclear fuel and special fissile material (aka “special nuclear material” such a Pu-239, U-233, U-233 or U-235 enriched uranium), which is required for nuclear weapons. It is also possible to further process nuclear fuel or spent nuclear fuel to obtain a sufficient quantity of special fissile material to make a nuclear weapon. Due to their destructive power and resulting radioactive contamination, the nuclear weapons are considered as weapons of mass destruction. Self-evidently, nuclear weapons have the potential to destroy not only the “enemy” but also oneself and, irreversibly, all other living things.
International Non-Proliferation Agreements and Control Mechanisms
Under the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) of 1968 (effective for Estonia since January 7, 1992), the NPT member states with nuclear weapons commit not to transfer nuclear weapons or the materials necessary for their production to states without nuclear weapons. The states without nuclear weapons, in turn, commit not to accept them (disarmament). To ensure trust in the disarmament commitments, the non-nuclear-weapon state parties of the NPT are required to conclude agreements (safeguards agreements, the “SGA”) with the International Atomic Energy Agency (“IAEA”), which allow the IAEA to verify, by means stipulated in the IAEA Statute (effective for Estonia with amendments since December 31, 1992), that non-nuclear-weapon states do not use nuclear material and equipment for acquiring nuclear weapons. The IAEA has developed three types of safeguards agreements: the Comprehensive Safeguards Agreement (“CSA”), Item-specific Safeguards Agreements, and Voluntary Offer Agreements, according to which the states agree to implement non-proliferation measures of varying scopes for nuclear material and facilities under their jurisdiction. The IAEA is provided with all relevant information and allowed to inspect nuclear material and the nuclear facilities. The IAEA ensures the confidentiality of the obtained information.
The original SGA system allowed for the control of such nuclear material and facilities, which the states had publicly disclosed. The IAEA could not detect hidden activities potentially indicating secret activities intended for development of nuclear weapons. Therefore, over time, the IAEA’s control authority has been expanded by adding a voluntary additional protocol to SGA agreements, which require states to provide the IAEA with all information related to the nuclear fuel cycle and allowing short-notice access to any nuclear material location. This comprehensive picture enables the IAEA to confirm that states are not secretly developing nuclear weapons or their components. Estonia, as an IAEA member state and a non-nuclear-weapon state party to the NPT, had a safeguards agreement with the IAEA in place before Estonia acceded to the European Union (EU) and the European Atomic Energy Community (Euratom).
European Union and Euratom
Of the historic predecessors, the EU has merged the European Community and the European Coal and Steel Community, but not Euratom. Euratom still exists as a formally separate legal entity, but its member states are also the EU member states and EU institutions act as its governing bodies (primarily the European Commission and the European Council). Estonia has joined, in addition to the EU treaties, simultaneously also to the separate Euratom (establishment) treaty. The Euratom Treaty is significant in the non-proliferation of nuclear weapons for two reasons.
Firstly, the Euratom Treaty establishes specific non-proliferation measures as obligations for member states and grants Euratom the authority to enact and enforce related Euratom legislation (the Euratom nuclear safeguards system, which predates the NPT or IAEA system established in 1970). According to the Euratom Treaty (originally from 1957), all fissile materials produced or imported in member states are owned by Euratom, and the Commission has extensive powers to organize their use and control their use in Member States as necessary.
Secondly, the Euratom Treaty grants Euratom the authority to conclude, within the scope of its competence, agreements with third countries and international organizations. Hence, Euratom has concluded a tripartite agreement[1] (along with a later additional protocol, abbreviated as “IAEA SGA”) with the IAEA and several non-nuclear-weapon Member States, including Estonia, to fulfill the requirements of Articles III(1) and III(4) of the NPT.
Joining the tripartite agreement is mandatory for all non-nuclear weapons countries acceding to the EU. The main substance of the tripartite agreement is the co-operation procedures and rights and obligations of the IAEA, the Commission, and the individual Member States to ensure the implementation of both Euratom and IAEA nuclear safeguards measures. The safeguards established by the IAEA SGA and Euratom and their implementation requirements are established by the directly applicable European Commission Regulation 302/2005/Euratom and need to be specified at the national level only to the extent that is necessary to impose additional obligations on individuals and grant sufficient authorization to state bodies to implement the safeguards measures locally (e.g., to ensure that the international inspectors have the right to enter the premises and buildings of nuclear facilities and conduct measurements).
Terminology Issues
As there is no appropriate equivalent Estonian for the English term “safeguards”, there exists a lot of confusion regarding the English term “safeguards” in both Estonian legal texts and the translations of international nuclear sources.
The term “safeguards” has been translated into Estonian legal language both as “protective measures” (“kaitsemeetmed”, e.g. as in the Estonian translation of the NPT text and the IAEA CSA published in the Riigi Teataja) and as “security measures” (“julgeolekumeetmed”, e.g. as in the case of the translation of the Euratom Treaty (Article 77 and following provisions).
The “security measures” reflect the NPT’s meaning in its international context much more precisely, but may cause confusion in the context of existing Estonian domestic (internal) security regulations (e.g., the Security Authorities Act).
“Protective measures” are also broadly used in Estonian law, mainly in the context of security and safety (e.g., in the meaning of measures for protection of objects from illegitimate assault).
Until the Estonian nuclear energy terminology has been systematically reviewed and established, it would be preferable, for clarity, to use the more explicit but unfortunately clumsy “measures for the prevention of proliferation of nuclear weapons” (“tuumarelvastuse leviku tõkestamise meetmed”). To promote broader knowledge of nuclear energy and international relations, a “sõnaus”-competition could be held to find a good Estonian term for “nuclear safeguards”.
Source:
[1] Treaty 78/164/Euratom between Belgium, Denmark, Germany, Greece, Spain, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden, and the European Atomic Energy Community to fulfill Article III, paragraphs 1 and 4 of the Non-Proliferation Treaty, OJ L 51, 22.2.1978, p. 1, and its Additional Protocol 1999/188/Euratom, OJ L 67, 13.3.1999, p. 1.
