When Will the IAEA Check on North Korea's Past Plutonium Production?
*Draft not for quotation without permission from author
The much-delayed Light-Water Reactor project in North Korea is now coming to a major security checkpoint. At issue is the completion of inspections the International Atomic Energy Agency started in 1992 to verify North Korea's initial report to the agency on its nuclear material balance. (1) When the IAEA tried to check physical indications that North Korea illicitly separated a quantity of plutonium, North Korea stopped the inspectors, thereby heightening suspicions and putting that country in violation of the Non-Proliferation Treaty. The DPRK has not relented since then in its refusal to allow such inspections.(2)
Under the 1994 US-DPRK Agreed Framework, North Korea agreed to square things with the IAEA at a certain point in the LWR construction, at about the half-way point, so you might think the matter is straightforward. Not so, however. What may be clear on paper is not so clear in the international world of push and shove. The main involved parties—the North Koreans, the Americans, the Korean Peninsula Energy Development Organization that is in charge of the project, the South Korean who are doing the construction and putting up most of the money, and the International Atomic Energy Agency—are approaching the issue with different interests, and sometimes incompatible views on the timing and thoroughness of the IAEA inspection. No one really believes the North Koreans will open up fully to the IAEA. Will the United States and its allies then take a minimal view of how much the IAEA needs to do, and when it gets to do it, to let the project continue? That may seem unlikely in view of all that has been said and written. But large projects develop a life of their own, supported by powerful political and economic interests, and a momentum that can easily overwhelm words on paper. To some extent, that is happening already as the IAEA inspection provisions of the 1994 agreement get reinterpreted.
Completing the IAEA verification postponed in 1994
The 1994 Agreed Framework postponed the IAEA inspections of the DPRK's past plutonium production, but it did not let the DPRK off the hook indefinitely. The agreement gave the North a grace period for coming into full compliance with IAEA requirements—until the time the constructors were ready to deliver "key nuclear components" to the project, which was then thought to take about five years. The exact provision of the 1994 agreement reads as follows:
When a significant portion of the LWR project is completed, but before delivery of key nuclear components, the DPRK will come into full compliance with its safeguards agreement with the IAEA (INFCIRC/403), including taking all steps that may be deemed necessary by the IAEA, following consultations with the Agency with regard to verifying the accuracy and completeness of the DPRK's initial report on all nuclear material in the DPRK. (3)
The United States has been firm in the view that IAEA verification has to be finished, with a satisfactory report from the agency, before the start of the provision of LWR key parts. But when IAEA officials expressed this view, the North termed it part of a "criminal attempt" on the part of the Agency to side with the United States. (4) That is pretty strong language for a country we are supposed to trust with two large nuclear reactors. The DPRK still blocks the start of such verification inspections, and there is no sign it will soften. The cited Agreed Framework provision, the North explained, meant only that the completion of a considerable part of the LWR project would be the point at which DPRK-IAEA negotiations over safeguards would begin. (5) That timing would, of course, put maximum pressure on the IAEA to do a minimal job as it would then be holding up the project.
The issue: at least a three year lead-time for IAEA verification
There is a further complexity. The IAEA verification of a country's material inventory is not something that happens overnight. It is a lengthy and complicated process involving examination of facilities and records, and one that in the case of North Korea requires the development and fabrication of special instruments. Putting up with this IAEA intrusion is what it means to come into "full compliance with its safeguards agreement with the IAEA . . .including taking all steps that may be deemed necessary by the IAEA . . ." as North Korea promised to do in the 1994 agreement. The IAEA Director General has said it would take three to four years to accomplish the DPRK verification, assuming cooperation from the DPRK. (6) Thus, if the IAEA process is not to hold up the construction, it has to get going three to four years before the project is ready to install the "key nuclear components." The problem is that we are already more or less at that point in construction. This says the DPRK should be opening its facilities and records to the IAEA now— sufficiently in advance of the 'significant portion' construction milestone—in order to be able to comply fully "when a significant portion of the LWR project is completed."
Does 'when' mean 'after'? The Clinton administration interpretation
To take this view would threaten a crisis in dealing with the North. Faced with the dilemma that IAEA inspection lead-time posed for relations with the DPRK, the previous US administration took a view that gives the North more slack. They interpreted the 1994 agreement language not to require the DPRK to allow the IAEA in until after the 'significant portion' construction milestone, about half the project. In other words, the 1994 requirement that North Korea come into full compliance 'when' the LWRs are half built has become full compliance 'after'. But that is no requirement at all. The idea is that KEDO continues building the LWRs up to more or less the half-way point. After that it is up to the DPRK to come into full compliance with the IAEA to get the LWRs' 'key components'. Under this interpretation, if they hold off, they do not get the key components and hence an operating reactor. But they aren't under any other obligation. (7)
All this may seem like facing political reality but it basically adopts the North Korean view and undermines an essential point of principle involving IAEA verification. If the DPRK is under no obligation to allow the IAEA to start the verification until the 'considerable portion' construction milestone, then it will take another three years to get the job done right. Will the project stop to let the IAEA do its work? And stop altogether if the North does not comply fully? Or will the IAEA come under pressure to change the definition of full compliance to let the LWR project proceed?
Does the permissive reading make any sense?
What I have called the permissive reading of the 1994 agreement may be politically convenient in the short run, but it spells trouble in the long run. It cannot have been originally intended, because there would then have been no need to mention anything about the 'considerable portion' construction milestone. After all, the DPRK was always free to let the IAEA in whenever it wanted, before or after that point. All that would have been necessary to say in the agreement was that the IAEA verification had to be completed satisfactorily before the North would be eligible for the 'key components'.
My own view is that the only consistent interpretation of the 1994 verification condition is that the DPRK must be in full compliance with its safeguards obligations by the time the builders reach the 'considerable portion' milestone. The IAEA says it needs access to DPRK facilities and records at least three years before that—assuming wholehearted DPRK cooperation, and longer if that isn't forthcoming. Since we are more or less at that point today, every day of DPRK non-cooperation guarantees a day of delay later—if we are to give the IAEA the time it needs for verification.
IAEA verification is crucial
Finally, let me remind you why the IAEA verification process is crucial from a security point of view. The LWRs in North Korea will produce plutonium that poses a long-term security concern. While the LWR reactor type has certain security advantages compared to some others that lend themselves more easily to plutonium production, there is no doubt that the KEDO LWRs could produce large quantities of weapons grade plutonium. One should not count on the North Koreans not being able to upgrade their mothballed reprocessing plant to separate such plutonium from LWR fuel. Whatever the written agreements say about the spent fuel, the DPRK will have physical control. Our bottom line has to be that we will not turn over operating LWRs to North Korea so long as there remain suspicions that the country is still in the bomb business.
No US nuclear equipment without IAEA verification
That, I believe, will be the position of the US Congress. If North Korea does not open up to the IAEA, the US Congress is not going to allow a US-DPRK Agreement for Cooperation to go forward. Such an agreement, which has yet to be negotiated, is a legal prerequisite for commercial nuclear exports from the United States. While most of the LWR equipment will come from non-US vendors, some of essential reactor equipment will almost certainly have to come from the United States. Export license approved by the US Nuclear Regulatory Commission would also be needed. To issue an export license, the NRC must find that IAEA safeguards "will be applied" in perpetuity both to the export and to any plutonium generated through its use. The law precludes exports to countries that (the President concludes) have "terminated or abrogated IAEA safeguards; or . . . materially violated an IAEA safeguards agreement." It is hard to see how its present DPRK government could credibly pass that test, especially if it continues to stiff-arm the IAEA.
1. Such IAEA inspections are standard for new members of the Non-Proliferation Treaty, which North Korea joined in 1985.
2. These IAEA inspections to verify North Korea's report on its nuclear holdings are entirely distinct from the IAEA presence at certain North Korean facilities to confirm that they remain shut down. The IAEA describes the situation as follows:
The Agency is still unable to verify the correctness and completeness of the initial report of nuclear material made by the Democratic People's Republic of Korea (DPRK) and is, therefore, unable to conclude that there has been no diversion of nuclear material in that State. The DPRK remains in non-compliance with its safeguards agreement. Although the safeguards agreement between the DPRK and the Agency remains binding and in force, the Agency is able to implement only some of the required safeguards measures in the DPRK. The Agency has, however, been able to monitor the "freeze" on the DPRK's graphite moderated reactors and related facilities, as requested by the United Nations Security Council and as foreseen in the "Agreed Framework" of October 1994 between the United States of America and the DPRK. IAEA Annual Report for 2000, p. 97.
3. 1994 US-DPRK Agreed Framework, Article IV(3). "Significant portion" is defined in another agreement and amounts roughly to about half the total project. Specifically,
A significant portion of the LWR project, referenced in Article III(3) of the Agreement, means the following. A further elaboration of the definition will be specified in the separate protocol referenced in Article III(3).
- Conclusion of the contract for the LWR project.
- Completion of site preparation, excavation, and completion of facilities necessary to support construction of the LWR project.
- Completion of initial plant design for the selected site.
- Specification and fabrication of major reactor components for the first LWR unit as provided for in project plans and schedules.
- Delivery of essential non-nuclear components for the first LWR unit, including turbines and generators, according to project plans and schedules.
- Construction of the turbine buildings and other auxiliary buildings for the first LWR unit, to the stage provided for in project plans and schedules.
- Construction of the reactor building and containment structure for the first LWR unit to the point suitable for the introduction of components of the Nuclear Steam Supply System.
- Civil construction and fabrication and delivery of components for the second LWR unit according to project plans and schedules.
1995 KEDO-DPRK Supply Agreement, Annex 4.
Interestingly, the Supply Agreement, a document legally enforceable in international law, which the 1994 US-DPRK Agreed Framework is not, presents a shortened, and stronger, version of the Agreed Framework verification condition:
When a significant portion of the LWR project is completed, but before delivery of key nuclear components, the DPRK will come into full compliance with its IAEA safeguards agreement, including taking all steps that may be deemed necessary by the IAEA. 1995 KEDO-DPRK Supply Agreement, Annex 3, Par. 7.
4. July 16, 2001 Korean Central News Agency dispatch from Pyongyang. "KCNA slams IAEA's attempt to shift responsibility onto DPRK," emphasis added.
Pyongyang, July 16 (KCNA) -- The International Atomic Energy Agency (IAEA) continues following the U.S. wrong policy toward the DPRK, away from the principle of an international body. The general director of the IAEA in a report made at the June meeting of its board of governors took issue with the DPRK. Then the chief for Asia-Pacific of the safeguards department of the IAEA asserted that "North Korea's refusal to allow IAEA's full inspection may adversely affect the LWR provision to North Korea" and that "verification needs to be finished before the start of the provision of LWR major parts." This showed once again a partial behaviour and criminal attempt of the IAEA to shift the responsibility for the non-compliance with the DPRK-U.S. agreed framework onto the DPRK at any cost as their remarks were timed to coincide with Bush's announcement of the U.S. unilateral and conditional "policy toward the DPRK".
It is clarified in the DPRK-U.S. agreed framework that the agency shall have negotiations on the verification of accuracy and perfection of the initial report on nuclear material with the DPRK after the completion of a considerable part of the lwr project and before the delivery of major nuclear-related parts and shall implement the safeguards agreement according to their outcome. However, some members of the IAEA made such remarks quite contrary to the AF. These were let loose by them not because of their ignorance about the AF.
Their assertions were misinterpretation of the AF. Early verification and inspection are still under debate among senior officials of the IAEA though the prospect of the controversial lwr project remains dim and the DPRK is, in fact, suffering a huge economic loss due to its delay. This proves that the IAEA is playing into the hands of the U.S. dancing to its tune.
Talking about verification and inspection under this situation is in diametrical contravention of the AF. The DPRK, therefore, can never accept them.
If the IAEA is to remain true to its mission and principle as an international body, it is well advised not to resort to such practice as ditching the AF, following the U.S. hostile policy towards the DPRK but to take the united states to task for delaying the LWR project and put pressure upon it to complete it by the target period.
the agency shall have negotiations on the verification of accuracy and perfection of the initial report on nuclear material with the DPRK after the completion of a considerable part of the lwr [sic] project and before the delivery of major nuclear-related parts and shall implement the safeguards agreement according to their outcome.
KCNA, Pyongyang, July 16, 2001.
6. The matter is discussed in the IAEA Annual Report for 2000:
Technical discussions and working group meetings were held in 2000 between the Agency and the DPRK.
During the technical discussions, the Agency presented its generic requirements for the verification of the correctness and completeness of the DPRK'sinitial declaration. The Agency was permitted to identify some of the documents that need to be preserved; however no agreement could be reached on how to preserve the information. The Agency also explained to DPRK representatives that the work required to verify that all nuclear material subject to safeguards in the DPRK had been declared to the Agency and placed under safeguards would take three to four years, and would require full co-operation on the part of the DPRK, which at that stage was not forthcoming. IAEA Annual Report for 2000, p. 99, emphasis added.
7. The contemporary record is not unambiguous, but the following does not suggest that coming into full compliance with the IAEA was left open for the DPRK to decide depending on whether they still wanted the LWRs. October 18, 1994 White House Press briefing by Ambassador Robert Gallucci: The question of what North Korea did in the past can be resolved by the IAEA only if the IAEA has the access to the information in sites it needs. Under the terms of the agreement, that access will be provided. The DPRK will agree to the implementation of its full-scope safeguards agreement and whatever is required by the IAEA, the IAEA deems necessary to resolve the question of the past. The implementation of that portion of the framework document takes place over a period of time. The implementation must be completed before significant nuclear components of the first nuclear reactor that would be constructed in North Korea