These days, the dignified art of arms control verification is both lauded and lambasted in the conference rooms of UN Headquarters. Having spent a week in New York, I feel fairly ready to tell a tale of mild schizophrenia in States’ attitudes towards confidence-building through transparency and verification.
The CTBT and its verification regime has received much well deserved attention. The UK-Norway Initiative is frequently discussed in very favorable terms. The US decision to reveal its stockpile numbers was welcomed. However, the IAEA safeguards system seems to be treated quite roughly.
Some have insisted on increased transparency in the nuclear weapon states while at the same time resisted attempts to strengthen verification standards for the non-nuclear weapon states.
At stake is, of course, an attempt to make the additional protocol the contemporary safeguards standard. The chances of achieving this is slim. The half-dozen or so most important holdouts are hard cases from the global south, and include states such as Argentina, Brazil, Egypt, Iran and Syria (see the IAEA’s stylish map here).
Since 2005, 35 more nations have subscribed to the protocol. While progress has been made, it remains important for the conference still to view the protocol as the safeguards standard, and the ultimate goal should be to make it a prerequisite for the supply of nuclear fuel. Some want to go further. As my new staffer David Cliff wrote in Trust & Verify 128 back in March:
One argument is that Additional Protocols should not be voluntary anyway. The text of [the Additional Protocol] is silent on this, but as John Carlson—director of the Australian Safeguards and Non-Proliferation Office—has pointed out, non-nuclear-weapon states have agreed to accept the agency’s ‘safeguards system’, not specifically the measures set out in [a Comprehensive Safeguards Agreement] (which had not even been negotiated when the NPT came into force). As the contemporary safeguards standard, a joint [CSA] – [Additional Protocol] arrangement can thus be plausibly argued to represent the current embodiment of the ‘safeguards system’ referred to in the treaty.
It’s a subtle argument and, as such, it doesn’t get around the positions of many states in Middle East and South Asia that stubbornly refuses to grant the IAEA further inspection authority. One Middle Eastern diplomat I listened to explained that the protocol is a bargaining tool. Western powers could not expect his country to “strip naked and sit in Central Park begging richly dressed nuclear powers for political favors”. Other states in the region clearly just want to avoid close scrutiny of their nuclear affairs, most likely because they have something to hide.
It all leaves the nuclear nonproliferation regime in a rather unpalatable condition.
Perhaps this was on the mind of a western academic I talked to in New York. He held that the bargain of “semi-nuclear disarmament vis-a-vis semi-nuclear nonproliferation” cannot be upheld much longer. Timelines for disarmament should be discussed, no doubt, but only if similar timelines can be set for bringing the safeguards standard up to contemporary requirements. Similar ideas were also briefly raised by some senior Western officials I talked to.
We will know the outcome of the conference in two weeks. It’s making good progress, and the prospects for consensus is good. Whether the Additional Protocol forms part of that consensus, however, remains to be seen.
Thanks for this post, Andreas. I wanted to briefly respond to David Cliff’s argument, trying to shoehorn the IAEA AP into Article III. INFCIRC/153, which is the modern CSA, was adopted in 1972 – only two years after the coming into force of the NPT. It was custom-made to be the “safeguards system” of reference in NPT Article III. This system was the standard and only CSA model for 25 years until 1997, when the AP (INFCIRC/540) was adopted by the IAEA as an optional additional protocol. I think there is a sound and well accepted case for INFCIRC/153 remaining the “Safeguards System” referenced in NPT Article III. Any other interpretation would turn the Article III obligation upon NNWS into a moving target – one that the IAEA could unilaterally move. This is nowhere contemplated in the NPT text and simply doesnt make sense from the perspective of the consensual basis of the sources of international law.
Dan Joyner
Non-nuclear-weapon states have agreed to accept the agency’s ‘safeguards system’, not specifically the measures set out in [a Comprehensive Safeguards Agreement] (which had not even been negotiated when the NPT came into force).
Wow.
Non-weapons states don’t even agree to be held to the measures set out. They agree to be held to arrangements they individually and voluntarily negotiate with the IAEA.
To now say that AP is binding on countries that never agreed to it is a very wild deviation from the language and intent of the treaty.
Andreas – thinking about the subtle argument you referred to, if the NPT requires a signatory to accept the IAEA Safeguards system in whatever form it has evolved into, how could it be that there are variations from signatory to signatory? We had a discussion previously over Iran’s Subsidiary Arrangements, and how they are not in the public domain. I imagine if everybody’s were the same, surely there would be no reason to not publish them? Or the IAEA would have a standard text?
It is absolutely correct that the AP (or more accurately, the threat of future proliferation) is a bargaining tool. It must be remembered that this is the only card that most of the non-weapon-states have in their hand; in many respects it is the only thing that keeps the weapons-states at the table.
Given the current half-hearted foot-dragging progress that the weapons states are collectively making on disarmament it is not difficult to imagine that progress would stop completely were the weapons-states to feel that further proliferation was no longer a worry.
And while it is undeniable that the non-weapons-states get more out of the NPT than simply the promise of eventual dismarment by the weapons-states – the restraint on proliferation by neighbours and competitors being key – it would be a mistake to think that disarmament is merely a side-issue.
Clearly Brazil and Argentina feel that the CSA is enough of a check on each other’s nuclear ambitions; thus they are happy to try and bargain for more disarmament progress.
The other AP holdouts are clustered in the Middle East and South East Asia, where extra-NPT proliferation has already occurred. This means that they gain much less than the other non-weapons-states from the NPT’s bargain, and thus the NPT’s principle attractiveness to these states is the disarmament promise.
Dan – recalling our previous discussion over Iran’s Subsidiary Arrangements and whether their non-implementation of the revised code 3.1 constituted a breach of international law, it is intriguing that Iran can relatively easily commence enrichment to 20% by simply giving notice to the IAEA.
As we don’t know the contents of Iran’s Subsidiary Arrangements agreement I suppose it can’t be said to what extent this is covered by them, but nonetheless it is still a significant unilateral change that hasn’t attracted the opprobrium of the IAEA (other than a complaint that the notice was too short).
With regard to all of the above comments I think it’s perhaps worth considering taking a step back, or down, from Mr Carlson’s suggestion of the “compulsory” nature of the AP to instead look at it as a latter-day obligation, in a moral sense of the word, on NNWS. For sure, the AP is being used – and has utility – as a bargaining chip by some in the NNWS camp, and its equally true to say that once a CSA has been “negotiated and concluded” with the IAEA then under Article III, legally speaking, it becomes somewhat awkward (to put it mildly) to force enhanced safeguards upon otherwise compliant NNWSs. Especially so when taking into account the undeniable fact that the five NWS have hardly lived up to their Article VI disarmament obligations over the last 40 years.
But all that said, the world has changed greatly since the late-1960s/early-70s, and the NPT provisions to prevent the diversion of nuclear energy to nuclear weapons are, it has to be said, somewhat outdated – or perhaps insufficient is a better word. In today’s world, where talk of “virtual nuclear-weapon states” is becoming increasingly commonplace – a phenonemon which, in my view, represents the most pressing danger to the NPT regime – I would argue that ratification of the AP, if not a legalistic obligation, has become a strong moral obligation for all states that wish to see the nuclear non-proliferation regime endure and, well we can all hope I suppose, prosper.
And, furthermore, with every new state to bring an AP into force, is it not true also to say that the obligation on those with just an CSA grows ever stronger?
Alan,
Uranium enrichment per se is not a violation of either a safeguards agreement or the NPT. This is true at 5% enrichment, and its true at 20% enrichment. My interpretation would be that enrichment would only violate the NPT if it produced weapons usable material that could have no civilian use. You have to get up alot higher than 20% for that. As far as I know, there is no safeguards obligation on Iran to inform the IAEA of an increase in enrichment up to 20%, outside of its normal reporting obligations. So no specific time frame in which to notify. As you say, if there is more detail in the subsidiary arrangements, we dont know what it is.
But again, I think the reason there hasnt been much opprobrium is that theres fundamentally nothing wrong with enriching up to 20% for civilian purposes. Its done all over the world.
Dan Joyner
Thanks Dan. I was looking at it from the perspective that as there is likely to be Subsidiary Arrangements in place to accommodate the IAEA procedures for safeguarding enrichment to 5%, a change to 20% would likely require a change to those Subsidiary Arrangements, which would have been unilateral, similar to the revocation of the modified Code 3.1 which remains in dispute.
From what you say, it does seem likely the two issues are not on the same level.