International Nuclear Security Law: The Use of ‘Soft Law’

Abstract

Abstract International nuclear security law includes treaties such as the Convention on the Physical Protection of Nuclear Material and its amendment (A/CPPNM), as well as a series of soft law instruments, such as the International Atomic Energy Agency’s (IAEA) Nuclear Security Series (NSS). These treaties and law instruments function as guidelines providing policy direction and ensuring that the various nuclear facilities are properly protected. Traditionally, soft law has been typified by its flexibility and normativity. However, within the field of nuclear security law, nuclear security is mainly assessed using instruments that are properly implemented by relevant regulatory authorities or operators (in the case of soft law instruments), and regulatory bodies are given the authority to order operators to comply with mandatory instruction on the level of municipal law. This delegation of authority is necessitated by the potentially serious consequences of nuclear and radioactive material, as well as the associated facilities and activities. When the provisions of such instruments are transposed into municipal law, they somewhat function as hard laws despite having originated in international soft law. This is because nuclear security is a sensitive topic intimately related to national security. In conclusion, this unique combination of legally binding instruments and non-legally binding ones, which are often converted into legally binding documents as per municipal law in the case of Japan, enables robust control over nuclear security while also providing sufficient flexibility to ensure that a variety of nuclear facilities can fully adapt to the conditions required to protect these facilities.