9. Strengthening the Nuclear Non-Proliferation Treaty

Improving Safeguards and Verification

9.1     Non-nuclear-weapon states party to the Nuclear Non-Proliferation Treaty (NPT) accept an obligation, under Article III of that treaty, not to divert nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devises. To enable verification that they are fulfilling that obligation, they are obliged to conclude a safeguards agreement with the International Atomic Energy Agency (IAEA). Safeguards have an essential role, both in deterring diversion through the risk of detection, and through providing timely warning of diversion, to enable the international community to intervene. The credibility of the safeguards system depends on confidence in two respects: verification capability, and the enforcement actions that are taken on verification findings. These issues, and the closely related question of the institutional effectiveness of the IAEA, are discussed successively in what follows.

9.2     Traditional safeguards. The standard comprehensive safeguards agreement (formerly known as “fullscope”) requires non-nuclear-weapon states to declare all nuclear material and facilities to the IAEA, to maintain nuclear accounting records, and to report changes; the IAEA in turn conducts inspections and other verification activities (e.g. operation of cameras, application of seals, environmental sampling) at nuclear facilities to confirm the correctness of the state’s declarations, records and reports.

9.3     This “traditional” safeguards system was primarily focused on verifying declared nuclear materials and activities. It was assumed that development of fuel cycle capabilities independent of declared facilities would be beyond the resources of most states, and in any event would be readily detectable, and therefore if proliferation did occur, it was likely to involve diversion of nuclear material from declared facilities. The discovery of Iraq’s clandestine nuclear program in the early 1990s – and other clear verification failures in Iran, Libya and Syria – have demonstrated that these assumptions are no longer valid.

9.4     Since then, IAEA and supporting states have been working to strengthen the safeguards system, focusing particularly on establishing the technical capabilities and legal authority necessary for detection of undeclared nuclear activities. Central to these efforts is the effective use of information – involving collection and analysis of information that can enhance the IAEA’s knowledge and understanding of nuclear programs – and providing more extensive rights of access to nuclear and nuclear-related locations, including for the resolution of questions arising from information analysis.

9.5     The IAEA’s technical skills are increasing – but it cannot be expected to find undeclared nuclear activities unaided. Member states have given the agency vital assistance in development of and training in equipment, detection technologies (such as sensors and satellite imagery) and so on. But more is needed in the area of information-sharing. States have substantial information, including intelligence (“national technical means”) and data on nuclear-related exports (encompassing both items supplied and items denied). So too, from time to time, do industry vendors who may, for example, receive supply enquiries giving reasonable grounds for suspicion. Detecting undeclared nuclear activities – or providing credible assurance of their absence – requires an active partnership between them and the IAEA and states, and to the extent possible with relevant industry sectors as well.

9.6     Additional Protocol. Underpinning the program to strengthen safeguards is the Additional Protocol – a (voluntary) legal instrument complementary to safeguards agreements, introduced in 1997, which establishes the IAEA’s rights to more extensive information (on nuclear-related activity in manufacturing, exports and imports and the like) and wider access rights by inspectors (at nuclear sites, nuclear-related locations, and anywhere in a state to investigate “questions and inconsistencies” arising from information analysis). Of the 62 non-nuclear-weapon state NPT Parties with significant nuclear activities, 45 have an additional protocol in force and 11 have signed an Additional Protocol or had one approved by the IAEA Board – a total uptake of 90 per cent of such states.

9.7     This degree of acceptance demonstrates that the combination of a comprehensive safeguards agreement and an Additional Protocol represents the contemporary standard for NPT safeguards. It is of serious concern, however, that six non-nuclear-weapon states party to the NPT with significant nuclear activities (Argentina, Brazil, North Korea, Egypt, Syria and Venezuela) have yet to adopt the Additional Protocol, and that in addition Iran, which applied its Additional Protocol on a “provisional” basis from December 2003, has suspended cooperation under it since 2005. The Commission believes that, in order to encourage universal take-up of the Additional Protocol, all states should make acceptance of it by the recipient state a condition of their nuclear exports.

9.8     “Weaponization” activities An area of major importance concerns the IAEA’s rights to investigate the range of possible nuclear activities, other than the acquisition of fissile material, necessary for the manufacture of a nuclear weapon or explosive device. Examples are the conversion of fissile material into metallic form and particular shapes; the development of high-explosive lenses, high-energy electrical components or high-flux neutron generators; implosion testing; and acquisition of certain non-nuclear materials significant in this context such as beryllium, polonium, tritium and gallium. Arguments about this arise because many of these activities may be dual-use. On a conservative view, the IAEA can only investigate activities where there is a “nexus” with nuclear material. The question is, what is a sufficient nexus? Since weaponization activities indicate intended, if not actual, diversion of nuclear material, they are clearly encompassed by the IAEA’s responsibility under the NPT to provide timely warning of diversion. To the extent there may be doubts about the limits of the IAEA’s mandate in this area, these should be addressed by the IAEA and member states and the necessary action taken to resolve them, as next discussed.

9.9     “Additional Protocol Plus”. Concerns of this kind have led to suggestions that the current form of the additional protocol would benefit from further strengthening as to both reporting and access. On information, the Additional Protocol provides for amendment of its technical annexes by the IAEA Board of Governors on the advice of an open-ended group of experts. Inclusion of relevant dual-use items is one area that requires attention in this respect, and another is for states to report to the IAEA on export denials as well as export approvals. On further access, the issues include shorter notice periods, and the right to interview specific individuals: regarding the latter point there is a sound argument that this is already provided for in the IAEA’s Statute, but this should be put beyond doubt. At a minimum, the Additional Protocol’s annexes should be updated along the lines discussed here, and a strengthened version of it should be applied in cases of non-compliance, if necessary mandated by the Security Council.

9.10     Changing the culture. More is necessary than formal legal change if safeguards are to be effectively strengthened: changes in attitude and behaviour, in essence something of a cultural change, will be necessary on the part of both states and the IAEA. A key area to be addressed is the attitude of states to cooperation. It can no longer be considered appropriate for states to regard safeguards as an imposition, with cooperation kept to the minimum. Safeguards are an essential international confidence-building measure. As the IAEA is now expected to provide more qualitative conclusions – the absence of undeclared nuclear activities – a state’s cooperation and transparency to the agency assume greater importance. The IAEA will need broader information, including access to locations and persons of interest. Denying access will simply serve to heighten international suspicions that the state has something to hide. States need to look on safeguards as a mechanism they can use to demonstrate to others their commitment to non-proliferation.

9.11     While safeguards have been moving from a mechanistic to an information-driven system, cultural change is also required in the way that information is used. Information-sharing is increasingly important. This involves not just a greater preparedness of states to share information, including intelligence information, with the IAEA, but sharing of information by the agency itself – greater transparency of its own processes, and a
re-evaluation of its longstanding practice that information provided to it is confidential. This practice is in marked contrast to more recent treaties, such as the Chemical Weapons Convention and the CTBT, where there is substantial sharing of information with the states parties.

9.12     IAEA safeguards may need to be complemented by confidence-building measures that enhance transparency amongst states. Such measures could have an important role in particular regions. Mechanisms could include collaborative nuclear projects, and bilateral or regional safeguards arrangements such as the Argentine–Brazilian Agency for Accounting and Control of Nuclear Materials (ABACC).

 

 

Improving Compliance and Enforcement

9.13     The NPT is notable for having no executive machinery: in particular, no decision-making mechanism for determining compliance with the treaty. Effectively, this function is entrusted to the IAEA, through the agency’s conclusions regarding compliance with safeguards agreements. The IAEA and its processes bear directly on the effectiveness of the NPT, in that – whether or not this is usually articulated in so many words – a finding of non-compliance with a comprehensive safeguards agreement amounts inherently to a finding that the state is in violation of Article III of the NPT (creating the obligation to accept safeguards), and also, depending on the evidence, Article II (not to seek or acquire nuclear weapons or explosive devices).

9.14     Determining compliance. Under the IAEA’s Statute, safeguards inspectors have the responsibility of determining in the first instance whether a state is in compliance with its safeguards agreement. They are required to report any non-compliance to the IAEA’s Board of Governors (consisting of 35 of its 150 member states, meeting five times a year), and if the Board finds that non-compliance has occurred, it is required to report the non-compliance to the Security Council. Confidence in the security guarantees afforded by the NPT depends to a large extent on how well compliance problems are addressed by this system. A basic problem is that a finding of non-compliance almost inevitably involves both technical and political dimensions: it appears for example that concern about the possible adverse consequences of a non-compliance finding led in the case of Iran to the finding being delayed for three years, with significant risk to the integrity and credibility of the IAEA’s processes.

9.15     It is important, if that credibility is to be maintained, that the IAEA confine itself essentially to technical criteria, applying them with consistency and credibility, and leaving the political consequences for the Security Council to determine. Issues of standard of proof become relevant here, and the IAEA has not helped itself by in practice setting the bar higher than its own standard safeguards agreements, which provide, for example, that a state may be found in non-compliance if the agency is not able to verify that there have been no diversions.

9.16     Enforcing compliance. It is for the Security Council to decide on measures to enforce compliance, but so far it has shown itself to be either unable or very reluctant to take strong action. In the case of North Korea, for example, the Security Council was unable to reach a decision, and the matter was referred to the Six-Party Talks. In the case of Iran, key states have been reluctant to apply sanctions or other measures with any real bite. It is entirely appropriate that the Security Council exercise its own judgment in these cases, and be able to refrain from taking punitive action if it thinks there is a better chance of the matter in question being satisfactorily resolved thereby. But it conveys an unfortunate message if the starting assumption among Council members is apparently one of a degree of indifference to at least some kinds of safeguards violations. In this respect it is important, for the future integrity of the system, that the Security Council takes reporting violations and, in particular, failures to respond satisfactorily to requests for information, just as seriously as evidence of physical diversion of nuclear material.

9.17     Withdrawal from the NPT. A particular aspect of compliance and enforcement concerns the right given in the NPT for a state party to withdraw from the treaty. The concern is that a state might be withdrawing for the very purpose of diverting in future a civil nuclear program to production of nuclear weapons, and escaping in the process from having its treaty obligations enforced – because of the way current NPT safeguards agreements are drawn they, and the application of IAEA safeguards, lapse if the state in question withdraws from the NPT. Put another way, the concern is that a state might “shelter” under the NPT, apparently in compliance with its obligations, but preparing all the while – with its NPT-permitted production of fissile material – to divert that capability to military purposes after a subsequent pain-free withdrawal.

9.18     To date there has been only one (purported) withdrawal, by North Korea in 2003. Many NPT parties question the validity of this withdrawal, on the basis that Article X of the treaty provides that a Party may withdraw only “if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country”, and that North Korea has not demonstrated satisfactorily that there were any such “extraordinary events”. A slightly more compelling practical reason for hanging on to this rather slender procedural reed is that hopes continue to be held out that a negotiated return to compliance with the NPT may be possible, and that path might be easier to take if a formal withdrawal had not been accomplished; moreover, this interpretation would not require the renegotiation of any safeguards agreement that would lapse on actual withdrawal.

9.19     There is a formal right of state parties to withdraw from the NPT under Article X, but circumstances today – with the near-universality of the NPT and the increasing international concern to achieve progress with nuclear disarmament – argue for this no longer being considered an available option. Certainly there can be no question of accepting a state withdrawing from the NPT in order to escape the consequences of previous violations of the treaty, nor should a state be able to do so in order to use, for military purposes, the fruits of peaceful nuclear cooperation. Three basic responses have been proposed, all of which the Commission supports.

9.20     The first is for the UN Security Council (to which the NPT requires notice of withdrawal be given) to severely discourage such withdrawals by making it clear that withdrawal will be regarded as prima facie a threat to international peace and security, with all the punitive consequences that may follow from that under Chapter VII of the UN Charter.

9.21     A second response would be a declaration by the NPT Review Conference that a state withdrawing from the NPT is not free to use for non-peaceful purposes nuclear materials, equipment and technology acquired while party to the NPT, and that any such material provided before withdrawal should so far as possible be returned – with this being enforced by the Security Council. The basis for this would be the principle in the international law of treaties that withdrawal does not absolve a party from performing any obligations that accrued prior to a valid exercise of its right to withdraw. There is an international expectation that nuclear material and items acquired by a state while party to the NPT, certainly from another state where there is a peaceful use expectation on the part of the supplier, will be used only for peaceful purposes.

9.22     To put at rest any legal doubt on this, a protocol to IAEA comprehensive safeguards agreements could be developed which applies safeguards in perpetuity to all existing nuclear material and facilities if for any reason the safeguards agreement ceases to apply. All states with comprehensive safeguards agreements could be asked to conclude such a protocol with the IAEA (of the content of which there is already an example in a provision of the IAEA/Albania safeguards agreement). In the case of states found in non-compliance, this could be mandated by the Security Council.

9.23     A third response to the withdrawal problem would be for states to make it a condition of nuclear exports that the recipient state agree that, in the event it should withdraw, safeguards shall continue with respect to any nuclear material and equipment provided previously, as well as any material produced by using it.

 

 

Strengthening the International Atomic Energy Agency

9.24     Authority. An effective IAEA means in the first instance one with the necessary legal authority – this requires universalizing the Additional Protocol, and strengthening its provisions as discussed above. States must be prepared to take further steps to strengthen the agency’s authority when deficiencies are identified. As a corollary of this, the IAEA must be prepared to make full use of the authority available to it. An illustration of reluctance to do so is the lack of use of special inspections, available where it considers that information provided by the state is not adequate for the agency to fulfil its responsibilities, a procedure which was last invoked in 1993. Failure to use the full authority available not only compromises safeguards effectiveness, but is discriminatory against the great majority of states that are in full compliance with their safeguards commitments.

9.25     Staffing. The IAEA suffers from the same drying up of the pool of nuclear expertise as other components of the global nuclear sector, civil and military. Much of the workforce of nuclear scientists, engineers and managers is approaching retirement, and for nearly thirty years the career entry channels have nowhere kept up with replacement requirements. The growing interest in nuclear subjects in China and India is beginning to compensate, and the memories of Three Mile Island and Chernobyl that have discouraged interest elsewhere are fading. But significant expansion of the IAEA skills base is going to require more readiness on the part of national authorities and commercial firms to second their staff, more budgetary support to ensure positions offered are competitive, and more training opportunities through collaborative arrangements with universities and research centres around the world. It is simply not acceptable or safe that international assurance of non-proliferation is ultimately dependent on a handful of ageing experts, their numbers capped by artificial ceilings and geographical recruitment quotas and their conditions limited by zero growth formulae.

9.26     Funding. The IAEA must have appropriate funding to ensure necessary staffing and equipment, and also requires support from states in developing equipment, methodologies and training. As civil nuclear programs grow, and more states take up nuclear power, the IAEA’s work grows commensurately, and it may be entrusted with new responsibilities in other areas – for example verification of fissile material released from military programs as a consequence of disarmament – which will also need to be sufficiently, and reliably, resourced. The IAEA’s funding arrangements, with many governments continuing to insist on zero real growth, must be broken out of the UN agency mould.

9.27     The adequacy of the overall budget is the biggest single issue here, and – recognizing the crucial importance for international peace and security of its works – the Commission endorses the detailed recommendations in this respect in 2008 of the independent Commission on The Role of the IAEA to 2020 and Beyond, chaired by President Ernesto Zedillo, which proposed, inter alia, a one-off increase to refurbish the agency’s Safeguards Analytical Laboratory, and a growing regular budget, estimated as needing to perhaps double by 2020. It is unacceptable that a function of such fundamental importance as nuclear security continues to be treated largely on an extra-budgetary basis. States of course are entitled to ask for full substantiation of any claims made, and the agency itself needs to assist the budget process through rational decisions on internal prioritization.

9.28     Organizational culture. The reasons for safeguards failures need to be carefully addressed and not just attributed to resource shortfalls, insufficient internal capabilities and inadequate information supply: there is a need to consider if systemic factors are involved, going to the whole organizational culture of the institution. Linked to this is the need for greater transparency in the IAEA’s internal processes, how judgments are reached and decisions taken in the safeguards area especially, and – as discussed earlier in this section – a new approach to information sharing, in which states and the agency work together as partners. An external review of these issues by the Zedillo Commission, or a successor panel, might be helpful in encouraging a rethink of entrenched institutional attitudes and practices.