Is It Still Time to Strengthen IAEA Safeguards?
Paris, 13 November 2006
The greater the number of States possessing nuclear weapons, the greater the risk that, one day, by design or accident they will be used or will fall into the hands of non-state actors with catastrophic consequences.
We must therefore reject, as irresponsible, the idea that the international community should get used to the fact that sooner or later more countries will possess nuclear weapons, and that we can do nothing about it. Rather, it is essential to take all the necessary steps to "dissuade" and "deter" nonnuclear weapons States (NNWS) from acquiring such weapons.
"Dissuasion" entails persuading a State (both the leaders and the people) that it is not in that State’s best interest to acquire a nuclear weapons capability
The most remarkable achievement in recent years has been the success of secret diplomacy in convincing Libya’s leadership that abandoning its WMD and missile programmes would increase the security and improve the economic development of the country.
"Dissuasion" can mainly, if not exclusively, be achieved through bilateral and multilateral negotiations, in order to create the necessary geo-political environment, including first of all appropriate security guarantees. To be most effective persuasion efforts should be undertaken well in advance of any anticipated crisis. We will not dwell further on this important facet.
"Deterrence" plays its role when a NNWS cannot be persuaded that acquiring a nuclear weapons capability is not in its best interest. It is essential for any such State to know:
- First, that any undeclared nuclear weapons programme has a high probability of early detection, and
- Second, that if detected, extremely negative consequences would be inevitable (and not simply possible).
Unfortunately neither of these two deterrents is credibly in place today, and it is therefore essential to take the practical steps necessary to improve the situation.
For that, we need to draw on the lessons learned from previous nuclear proliferation crises.
Strengthening the IAEA verification system
In the wake of the First Gulf War, when it was discovered that Saddam Hussein had secretly been developing nuclear weapons at undeclared sites, the IAEA passed the 1997 "Model Protocol Additional" designed to enable the Agency to confirm that there are no undeclared nuclear materials and activities in a NNWS. To date, however, some 20 NNWS with known nuclear activities have no Additional Protocol in force, including at least three -Argentina, Brazil, and Iran-that are known to have uranium enrichment activities.
The international community should demand much more forcefully that such States sign and ratify the Additional Protocol (AP), and the IAEA should mention them explicitly in its annual report.
The Nuclear Supplier Group (NSG) could also play a significant role in this respect by adopting a rule that no nuclear material, equipment and know-how would be transferred to any country having conversion, enrichment or reprocessing activities unless they have an Additional Protocol in force and unless these and all other nuclear facilities are covered by an INFCIRC/66-type safeguards Agreement.
For its part, the IAEA Secretariat has recently made a number of very valuable recommendations to the so called IAEA "Committee 25" "to further improve the effectiveness and efficiency of the safeguards system". They fall into two main categories:
- recommendations based on existing legal obligations, and
- recommendations regarding voluntary actions.
Among the existing legal obligations one should add to the Secretariat’s list, that, as foreseen in the IAEA Statute, inspectors "should have access at all times […] to any persons […] as necessary […] to determine whether there is compliance with the undertaking against use in furtherance of any military purpose."
The second category, regarding voluntary actions, includes the particularly important recommendation that the BoG "requests all States to provide to the Agency relevant information on exports of specified equipment and non-nuclear material, procurement enquiries, export denials and relevant information from commercial suppliers in order to improve the Agency’s ability to detect possible undeclared nuclear activities".
I have some doubts that the BoG, in the present circumstances, will adopt such a recommendation any time soon.
It would be much faster and effective for the Director General to circulate a note (INFCIRC) to all Member States wherein he would draw their attention to the fact that the above mentioned information is most valuable for the Agency to fulfil its mandate and that the Agency would expect Member States to provide such information on a regular basis under Article VIII.A. of the IAEA Statute.
There is another very important recommendation that should be added to the Secretariat’s list: it is to request all Member States to provide to the Agency, on a regular basis, information regarding each import of specified equipment and non-nuclear material (listed in Annex II of the AP), without any need for the Agency to issue a specific request.
But clearly, none of these recommendations, even if they were adopted, would be sufficient to meet the two goals of early detection of a nuclear weapons programme and inevitable negative consequences in such a case.
So what can be done?
In the present geo-political environment and considering in particular the frustration of most NNWS regarding the lack of progress in nuclear disarmament by the 5 NWS, any attempt to amend the NPT or Comprehensive Safeguards Agreement (CSA) or the Model Protocol Additional would be doomed to failure, if not counter-productive.
One should definitely avoid penalizing all Member States because a couple of them have violated their commitments. It is therefore important to focus our
attention on those States that have been in non-compliance and those which are withdrawing or threatening to withdraw from the NPT.
If a State has been found by the IAEA to be, deliberately, in non-compliance with its safeguards undertakings, experience with both North Korea and Iran has shown that, in order to conclude in a timely manner that there is no undeclared nuclear material and activities in the State as a whole, the Agency needs verification rights extending beyond those of the Comprehensive Safeguards Agreement and Additional Protocol.
This appears clearly from the Director General’s report of 28 April 2006 to the IAEA Board of Governors, where it is stated that "the Agency is unable to make progress in its efforts to provide assurance about the absence of undeclared nuclear material and activities in Iran", nor can it assess "the role of the military in Iran’s nuclear programme".
Already in September 2005 the Board of Governors adopted a resolution urging Iran "to implement transparency measures which extend beyond the formal requirements of the Safeguards Agreements and Additional Protocol".
The problem here is that such IAEA Board resolutions do Kinot provide the Agency with any additional legally binding verification authority.
The most effective, unbiased and feasible way to establish the necessary measures is for the UNSC to adopt (under Chapter VII of the UN Charter) a generic (i.e. not State specific) and legally binding resolution stating that if a State is reported by the IAEA to be in non-compliance:
a. the non compliant State will have to suspend all sensitive nuclear fuel cycle activities for a specified period of time,5 but could continue to produce electricity from nuclear power plants,
b. if requested by the IAEA, the UNSC would automatically adopt a specific resolution (under Article 41 of the UN Charter) making it mandatory for the non-compliant State to provide the Agency with the necessary additional verification authority until it has been able to conclude that there is no undeclared nuclear material and activities in the State and that its declarations to the Agency are correct and complete, and
c. no nuclear material would henceforth be delivered to that State without the guarantee that all nuclear material and facilities declared to the IAEA would remain under Agency’s safeguards even if the State withdraws from the NPT.
In the particular case of Iran, the request to suspend all sensitive nuclear fuel cycle activities is all the more justified in that Iran has violated Article II of the NPT and has thereby forsaken its rights under Article IV of the Treaty.
Withdrawal from the NPT
The current crisis in Iran appears to be a repetition of the earlier (and ongoing) crisis in North Korea.
Since 1993 North Korea has repeatedly been declared by the IAEA to be in noncompliance with its safeguards agreement, and has been reported to the UNSC without the latter deciding to take any action.
In 2003, North Korea gave notice that it was withdrawing from the NPT, and in 2004 declared that it possessed nuclear weapons, without any move from the UNSC because China was threatening to use its veto right against any resolution adverse to North Korea.
It is only after North Korea’s nuclear test of October 9, that the UNSC finally adopted a resolution, under Chapter VII of the UN Charter, deciding that all Member States shall, inter alia, take a number of targeted measures aimed at preventing any direct or indirect contribution to North Korea’s nuclear, ballistic or other WMD-related programmes. It remains to be seen to what degree these measures will be implemented in practice by all Member States.
The incapacity of the UNSC for 13 years to take any dissuasive measure against North Korea’s nuclear weapons programme until it was too late, has considerably undermined the credibility of the nuclear non-proliferation regime.
If the international community does not seem to have learned the lessons from the crisis in North Korea, Iran has. There are signs that it may be preparing to follow the same steps as North Korea if the development of its nuclear programme is threatened by the UNSC or any of its members.
While the international community was debating what to do, Iranian leaders have made stunning advances in mastering all technological aspects of uranium conversion and enrichment without incurring any negative repercussion. Although it has no use for domestically produced low enriched uranium (LEU) for peaceful purposes for at least the next 10 years, Iran is nonetheless busy installing centrifuge enrichment cascades at Natanz.
By ignoring the repeated requests of the IAEA Board of Governors and recently of the UNSC to suspend these activities, Iran is jeopardising any chance of concluding a broad cooperation agreement with the EU that would open the door to large foreign investments, high tech transfers and security guarantees.
By cleverly using to their advantage the divisions among the major powers, by fuelling the fears of a rapid rise in oil prices and by threatening to share their sensitive nuclear know-how (including uranium enrichment) with other states and to increase their support to terrorist movements in the region, Iran’s leaders seem confident that the UNSC will be unable to agree on any significant sanction and that if, eventually, it does, it will further increase the popular support for Iran to carry on its nuclear programme.
Isn’t Iran’s deliberately provocative attitude a step to prepare for its withdrawal from the NPT, as is the letter addressed on 21 March 2006 to Secretary General Kofi Annan, complaining about the fact that senior US officials have publicly threatened to resort to force against Iran "in total contempt of international law and the fundamental principles of the Charter of the United Nations".
Also on May 7, 2006 the Iranian Parliament in a letter to Secretary General Kofi Annan, threatened to force Iran’s government to withdraw from the NPT if pressure continues for Tehran to suspend uranium enrichment activities.
More recently, on September 5, it was announced that the Iranian Parliament’s National Security and Foreign Policy Commission is considering a bill which would suspend all IAEA inspections in Iran, in clear violation of Iran’s safeguards agreement and tantamount to withdrawing from the NPT. Similar threats have been repeated a number of times since then.
It is therefore essential for the international community not to wait for Iran’s withdrawal from the NPT and for the UNSC to adopt (under Chapter VII of the UN Charter) a generic and legally binding resolution stating that if a State withdraws from the NPT after being found by the IAEA to be in noncompliance with its safeguards undertakings:
a. such withdrawal constitutes a threat to international peace and security as defined under Article 39 of the UN Charter; and
b. all materials and equipment made available to such a State, or resulting from the assistance provided to it under a Comprehensive Safeguards Agreement will be forthwith removed from that State under IAEA supervision and remain under Agency’s Safeguards.
As for the specific case of Iran, and considering inter alia its numerous threats to withdraw from the NPT, it would be irresponsible for Russia to deliver fuel to Busher, if that nuclear power plant (as well as all other facilities where Russian fuel would be stored or used) is not subject to an INFCIRC/66-type Safeguards agreement with the IAEA. Also the fuel to Busher should only be delivered under the condition suggested above that in case of withdrawal from the NPT the fuel would have to be forthwith removed from the country and returned to Russia.
In my view, it is most regrettable that the UNSC while discussing what kind of sanctions should be imposed on Iran for not complying with IAEA and UNSC resolutions is not considering, as a matter of priority, which additional verification authority should be granted, on a temporary basis, to the IAEA.
The fear was expressed that, if Iran refuses to comply with such a request, it may lead to an escalation scenario similar to what has happened in Iraq. Isn’t it illogical for the IAEA to repeatedly state that Iran needs to provide the Agency "transparency that goes beyond the measures prescribed in the Safeguards Agreement and Additional Protocol" [and that "the Agency remains unable to make further progress in its efforts to verify the correctness and completeness of Iran’s declarations with a view to confirming the peaceful nature of Iran’s nuclear programme"] while at the same time refusing to request from the UNSC the necessary legally binding additional verification means?
Could it be that those States that have contributed most to Iran’s undeclared nuclear activities may fear that, with more investigation rights, the Agency could discover so far unknown and possibly embarrassing evidence of their previous collaboration?
Some have objected that, under pressure, Iran could withdraw from the NPT. If this were to happen it is doubtful that Russia would still be willing to deliver fresh fuel to Busher and it would be a clear indication that nuclear electricity is not Iran’s priority. If Iran’s endgame is to withdraw from the NPT, isn’t it better now rather than in 5 or 10 years?
The very much publicized divisions among the five veto-wielding members of the UN Security Council, on how the Council should deal with the crisis in North-Korea and Iran is profoundly damaging the credibility of the non-proliferation regime and encourages States found to be in non-compliance with their safeguards agreements to defiantly ignore the resolutions adopted by the IAEA Board of Governors and the UN Security Council.
Adopting the generic resolutions suggested in this paper would be a step in the right direction in order to restore the credibility of the nuclear non-proliferation regime.
Einstein said: "The world will not be destroyed by those who do evil, but by those who let them do and refuse to intervene".
1. A Comprehensive Safeguards Agreement remains in force only for so long as the state remains party to the NPT, whereas under a INFCIRC/66-type agreement, all nuclear material supplied or produced under that agreement would remain under safeguards, even if the state withdraws from the NPT, until such time the IAEA has determined that such material is no longer subject to safeguards.
2. Article VIII.A. states that: "Each member should make available such information as would, in the judgment of the member, be helpful to the Agency".
3. Except that "The list of activities specified in Annex I, and the list of equipment and material specified in Annex II, may be amended by the Board upon the advice of an open-ended working group of experts established by the Board. Any such amendment shall take effect four months after its adoption by the Board. (Art.16.b.)
4. This report also states that: "Additional transparency measures, including access to documentation, dual use equipment and relevant individuals, are,[ …], still needed for the Agency to be able to verify the scope and nature of Iran’s enrichment programme, the purpose and use of the dual use equipment and materials purchased by the PHRC [Physics Research Center] and the alleged studies which could have a military dimension".
5. At least as long as the IAEA has not drawn the conclusion that the State declaration is correct and complete, or possibly longer, in line with what Dr. ElBaradei has called a "rehabilitation period" or a "probation period, to build confidence again, before you can exercise your full rights". (cf. interview with Newsweek- January 23, 2006)
6. Under an INFCIRC/66- type Safeguards Agreement
7. The Agency revealed, in November 2005, and confirmed in January 2006 that Iran had been found in possession of documents for "the casting of enriched and depleted uranium metal into hemispheres, related to the fabrication of nuclear weapon components", in violation of Article II of the NPT.
8. or similar actions such as denying IAEA inspectors access to its territory, facilities or locations which would make it impossible for the Agency to fulfil its verification mandate.
9. This is not a new concept. Under Article XII.A.7 of the IAEA Statute, the Agency has the right to "withdraw any material or equipment made available by the Agency or a member" in furtherance of an Agency project in the event of non-compliance and failure by the recipient State to take fully corrective action within a reasonable time. Article XII.C. has also a similar provision.