INTERNATIONAL NUCLEAR LEGAL REGIME

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CHAPTER III SOUTH AFRICA’S NUCLEAR ENERGY REGIME

INTRODUCTION

South Africa’s nuclear energy initiatives originate in the 1944 British Government’s query about uranium deposits for supplying the on-going nuclear weapons programmes of the UK and the USA700 South Africa conducted a survey which revealed the existence of large deposits of low-grade ore.701 A programme of cooperation between South Africa, the UK and the USA was established to process the uranium which was “extracted as a by-product of gold mining operations.”70
South Africa soon embarked on a legislative process in order to regulate nuclear energy industry. The Uranium Committee was established and the Atomic Energy Act of 1948 which established the Atomic Energy Board (AEB)703 was promulgated.704 In July 1957 South Africa signed a 50-year bilateral agreement for nuclear collaboration with the USA. This agreement was part of the USA « Atoms for Peace » programme. In terms of the agreement the USA provided South Africa with the Safari-1 reactor and highly enriched uranium (HEU) fuel for the reactor.705 This played a central role in advancing the nuclear industry of the country.
South Africa’s nuclear industry was based on processing uranium ore into yellowcake and selling it internationally. However, the Government of South Africa had had further The British Chancellor of the Exchequer sent a telegram to the then South Africa Prime Minister General Jan Smuts inquiring about uranium deposits needed for Manhattan project. See, Fig Uranium Road: Questioning It was estimated that South Africa had 25% of the total uranium reserves in the then non-communist world. See Van Vuuren R Nuclear Non-Proliferation: The South Africa experience in global context (December 2003) A dissertation submitted for the Degree of Masters in International Politics University of South Africa at 164.
ambitions and mandated the AEB to initiate research at the Pelindaba Nuclear Research Centre.706 Meanwhile an “indigenously constructed reactor (also known as Pelinduna, Pelindaba-Zero or Safari-2) located at Pelindaba” went critical in 1967.707
The indigenous nuclear technology of South Africa commenced with the intention to develop knowledge systems intended for the “mining industry, to excavate harbours and underground cavities for oil storage”708 as well as a military programme. South Africa tested scale model of a gun-type device using non-nuclear material as a projectile in 1974709 and in 1977 the AEB managed to manufacture a full-scale nuclear explosive device based on a gun-type design.710
South Africa required a delivery system which ostensibly was based on “large-calibre artillery.” Some analysts view « the155 mm G-5 towed and G-6 self-propelled howitzers developed in the 1970s as potential delivery systems for nuclear weapons.”711 The intention of South Africa was to develop a limited number of nuclear weapons for deterrent purposes,712 but the proposition was opposed by the international community and actually strengthened the international resolve to impose sanctions against South Africa. The UNGA Resolution 37/69Bof 1982 reflected the position of the international community which was “gravely concerned that …South Africa… continued to acquire nuclear-weapons capability, thus posing an ever increasing threat to international community.”713 The UNGA Resolution 37/69 established for comprehensive sanctions and requested:
“…States members of the international agencies and organizations, particularly the members of the European Communities, the parties to the General Agreement of Tariffs and Trade and the members of the International Monetary Fund and the World Bank, to take the necessary steps to deny all assistance and commercial facilities to the racist regime of South Africa.”714
As the pressure on South Africa mounted and in anticipation of a fundamental transformation in South African, on 16 September 1988 IAEA Director General Hans Blix received a letter expressing South Africa’s readiness to accede to the NPT, on condition that it would still be allowed to market its uranium production, subject only to IAEA safeguards. The decision of South Africa to abandon its nuclear capability in the mid of 1988 was encouraged by the diminishing threat posed by the USSR and the agreements ending the conflict between South Africa and Cuba and its allies in Angola and Northern Namibia, by providing for Namibian independence.715 The ending of the Angolan/Namibian conflict improved South Africa’s sense of security, rendering nuclear weapons irrelevant.716 The developments created a suitable platform for Mr. F. W. de Klerk to become elected on 14 September1989 as a President who proposed a complete plan for the dismantling of South Africa’s the nuclear weapons programme, together with the abandonment of “apartheid”.717
South Africa signed the NPT on 10 July 1991 as a non-nuclear-weapon state, allowing the IAEA to inspect the country’s nuclear weapon manufacturing facilities to verify the compliance of the country, including by examining the scope and history of the nuclear program and its eventual dismantling.718 “Once the IAEA completed the verification of the termination of South Africa’s nuclear weapons programme in 1993, South Africa engaged in norm compliance through, inter alia, restructuring its nuclear regulatory environment…”719 “Following verification of the termination of the programme by the IAEA, South Africa’s nuclear diplomacy changed from a defence orientation to one that focuses on the peaceful uses of nuclear energy, nuclear non-proliferation and nuclear disarmament.”720 Consequently, the emerging identity of South Africa demonstrates conformity with the non-proliferation regime which identifies the country as “a responsible producer, possessor and trader of advanced nuclear technology.”721
South Africa’s attainment of the status of a norm abiding identity is a derivative of the country’s constitutional dispensation. The adherence of South Africa to the NPT and overcoming apartheid ended the isolation of the country allowing for the reception of the entire construct of the international nuclear regime. Unlike the previous constitutions, South Africa’s Constitution, Act 108 of 1996 incorporates operative provisions which define the place of international law in the country’s legal system.722 In the Constitutional Court judgment in Glenister v President of the Republic of South Africa and Others723 the Court found that the “provisions of our Constitution demonstrate that international law has a special place in our law which is carefully defined by the Constitution.”724 Moreover, South African courts are required to be “aware of applicable international law standards” and remain under a duty to consider which interpretations best advance the values and transformative commitments of the Constitution in the current political, economic and social context of South Africa.725
South Africa thereby became constitutionally obliged to rationalise and adjust the development of nuclear energy usage in its modern political, economic and social context, while observing modern international law obligations and checks and balances.
The current political and socio-economic issues in the context of South Africa’s nuclear development revolve around the electrification programme intended to achieve the MDGs. The achievement of the MDGs is possible only through a substantial expansion of the electricity supply infrastructure, taking into consideration environmental factors and the availability of resources. Other legal regimes such as those established by the constitutionally enshrined socio-economic rights system as well as environmental rights and law, contribute equally to the new position and future development of South Africa’s nuclear energy regime. Thus the South African nuclear energy regime retains a special character and embodies different layers of norms including those hard legal rules which create binding legal obligations on the States, and evolving soft norms and principles which are ready to be transformed to hard law, eventually taking their place in the municipal legal order.
This chapter describes South Africa’s adherence to the international nuclear regime through the examination of the nature of nuclear energy law, the place of nuclear energy law in South Africa’s legal order, and the South Africa’s nuclear energy governance which ensures non-proliferation of nuclear weapons, maintains safety and security, regulates nuclear liability and promotes sustainable development while using nuclear energy for peaceful purposes.

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THE NATURE OF NUCLEAR ENERGY LAW

The nature of nuclear energy law is based on the distinctive principles which characterise the legal norms dealing with nuclear energy. Nuclear energy law takes its place within the legal hierarchy of the legal systems worldwide. Binding and non-binding nuclear norms have developed with the intention to realise safety, security, and non-proliferation of nuclear weapons through the following legal dynamics:
Firstly: Achieving all the benefits of nuclear energy by accelerating and enlarging “the contribution of atomic energy to peace, health and prosperity throughout the world.”726 This is viewed within the context of the objectives of the international community focusing on “promoting social progress and better standards of life” by employing “international machinery for the promotion of the economic and social advancement of all peoples.”727 Article 55 of the UN Charter reads as follows:
“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

  • higher standards of living, full employment, and conditions of economic and social progress and development;
  • solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
  • universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

The development of nuclear energy by all states falls within “the principle of equal rights and self-determination of peoples”728 and “promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”729
Secondly: The dual-use nature of fissionable materials and nuclear technologies and the devastating effect of a nuclear attack have influenced the nuclear energy law-making process in developing an independent legal construct focusing on the non-proliferation of nuclear weapons. This has engaged the UNSC to involve directly in enforcing the IAEA Safeguards and to act under Chapter VII of the UN Charter in many occasions in order to maintain international peace and security.
Thirdly: The development of nuclear power to generate nuclear energy requires establishing a legal framework which regulates the safety of nuclear power plants through measures relating to “planning, siting, design, manufacturing, construction, commissioning and operation.”730 Moreover, the development of nuclear energy law has been partially formulated as a result of the development of nuclear technologies and nuclear incidents. For example, post Chernobyl proposals contemplated the requirement of “a compulsory international safety regime to be adopted.”731 In other words, the accident exposed deficiencies in the legal frameworks governing the safety of nuclear power plants. Promptly, a fresh legal framework was introduced including the Nuclear Early Notification Convention and the Nuclear Assistance Convention. Next, these two conventions became the “the prime legal instruments that establish an international framework to facilitate the exchange of information and the prompt provision of assistance in the event of a nuclear accident or radiological emergency.”732
Fourthly: In many cases the industry did not wait for the long negotiations required to conclude treaties dealing with nuclear development, and developed safety standards or security standards which emerged as non-binding norms.

SUMMARY
ACKNOWLEDGEMENTS 
CHAPTER I INTRODUCTION
1.1 INTRODUCTION
1.2. RESEARCH PROBLEM
1.3 RESEARCH QUESTIONS
1.4 UNDERLYING ASSUMPTIONS
1.5 OBJECTIVES AND SCOPE
1.6 THE AIM OF THE STUDY
1.7 SIGNIFICANCE
1.8 RESEARCH METHODS
1.9 LITERATURE REVIEW AND OUTLINES OF CHAPTERS
CHAPTER II INTERNATIONAL NUCLEAR LEGAL REGIME
2.1 INTRODUCTION
2.2 NUCLEAR ENERGY LAW
2.3 CONCLUSION
CHAPTER III  SOUTH AFRICA’S NUCLEAR ENERGY REGIME 
3.1 INTRODUCTION
3.2 THE NATURE OF NUCLEAR ENERGY LAW
3.3 SOUTH AFRICA’S LEGAL GOVERNANCE OF NUCLEAR ACTIVITIES
3.4 CONCLUSION
CHAPTER IV SOUTH AFRICA’S NUCLEAR ENERGY DEVELOPMENT IN THE CONTEXT OF ENERGY MIX
4.1 INTRODUCTION
4.2 ENERGY
4.3 CONCLUSION
CHAPTER V THE ESTABLISHMENT OF THE RIGHT TO ACCESS TO ELECTRICITY 
5.1 INTRODUCTION
5.2 THE ROLE OF ELECTRICITY IN PROMOTING ADEQUATE STANDARDS OF LIVING AND ACHIEVING SOCIO-ECONOMIC RIGHTS
5.3 SOUTH AFRICA’S CONSTITUTIONAL EXAMINATION OF THE RIGHT TO ACCESS TO ELECTRICITY
5.4 RECONCILING ENVIRONMENTAL PROTECTION WITH ACCESS TO ELECTRICITY
5.5 CONCLUSION
CHAPTER VI South Africa’s governance of access to electricity and nuclear energy 
6.1 INTRODUCTION
6.2 LOCAL GOVERNMENTS’ RESPONSIBILITY TO SUPPLY ELECTRICITY
6.3 ESKOM’S ROLE IN ELECTRICITY SUPPLY
6.4 DEPARTMENT OF ENERGY’S RESPONSIBILITY IN ELECTRICITY SUPPLY
6.5 CONCLUSIONS
BIBLIOGRAPHY
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SOUTH AFRICA’S PEACEFUL USE OF NUCLEAR ENERGY UNDER THE NUCLEAR NON-PROLIFERATION TREATY AND RELATED TREATIES

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