Jeffrey LewisAdditional Protocol and ENR Transfers

As I noted on Sunday, I was in Brussels to attend a meeting hosted by the Carnegie Endowment on the future of the Nuclear Suppliers Group. The meeting was held under the Chatham House Rule. (Interesting side note, the Chatham House site now includes an explicit approval of live-tweeting a meeting under the rule.)

One of the main questions about the effort amend the NSG guidelines as they relate to the transfer of enrichment and reprocessing (ENR) technology concerns whether the Additional Protocol should be a condition of supply and, if so, whether to give Argentina and Brazil an exception.

The current guidelines merely call for “restraint” in such transfers; the US and other states are pushing to replace the vague reference to “restraint” with the following criteria:

(i) Is a Party to the Treaty on the Non-Proliferation of Nuclear Weapons and is in full compliance with its obligations under the Treaty;

(ii) Has signed, ratified and is implementing a comprehensive safeguards agreement with the IAEA, and has in force an Additional Protocol or has signed, ratified and is implementing a regional arrangement approved by the IAEA which operates to achieve the same objective by providing confidence in the peaceful nature of civilian nuclear programs;

(iii) Has not been identified in any report by the IAEA Secretariat to the Board of Governors, including the Safeguards Implementation Report (SIR), as being in breach of its obligations to comply with its safeguards agreement, nor continues to be the subject Board of Governors decisions calling upon it to take additional steps to comply with its safeguards obligations or to build confidence in the peaceful nature of its nuclear programme, nor has been reported by the lAEA Secretariat as a state where the lAEA is currently unable to implement its safeguards agreement. This criterion would not apply in cases where the lAEA Board of Governors or the United Nations Security Council subsequently decides that adequate assurances exist as to the peaceful purposes of the recipient1s nuclear programme and its compliance with its safeguards obligations. For the purposes of this paragraph, “breach” refers only to serious breaches of proliferation concern;

(iv) Is adhering to the NSG Guidelines and has reported to the Security Council of the United Nations that it is implementing effective export controls as identified by Security Council Resolution 1540;

(v) Has concluded an inter-governmental agreement with the supplier including assurances regarding non-explosive use, effective safeguards in perpetuity, and retransfer;

(vi) Has made a commitment to the supplier to apply mutually agreed standards

(vii) Has committed to lAEA safety standards and adheres to accepted international safety conventions.

I was a little surprised  to see that Fred McGoldrick has published the confidential draft language on enrichment and reprocessing.  You can read the draft language in Appendix 2 of his report, Limiting Transfers of Enrichment and Reprocessing Technology: Issues, Constraints, Options.

There are two issues that relate to criterion (ii), which establishes the Additional Protocol as a condition of supply.  First, as Mark Hibbs revealed, South Africa objects to the Additional Protocol as a condition of supply — even though South Africa has an Additional Protocol in force.

Second, as Mark also wrote, neither Argentina and Brazil has signed an Additional Protocol, so the text provides an exception for regional arrangements that operate “to achieve the same objective.”  That is a reference to the Argentine-Brazilian Agency for the Accounting and Control of Nuclear Material (ABACC), which Brazil and Argentina use as a sort of alternative to a traditional Comprehensive Safeguards Agreement.

I happen to dislike this exception for two reasons.  First, a regional arrangement by definition can NOT achieve the same purpose as an Additional Protocol.  (Let’s leave aside any specific shortcomings in ABACC relative to an Additional Protocol.)  Argentina and Brazil’s nonproliferation obligations are not primarily toward each other. Rather, as signatories to the Nonproliferation Treaty, all states-party have an interest in seeing Argentina and Brazil comply with their obligations under the NPT.  Imagine if John Bolton had made this argument — telling some NAM diplomat to shut his cookie-hole because our Article VI obligation to pursue “negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” is fundamentally about the Washington-Moscow dynamic and that the Moscow Treaty suffices. Bolton would get a sanctimonious lecture (which he would richly deserve) about how every country should live under the same rules. Having the IAEA as a party to the agreement with Argentina, Brazil and ABACC does provide some limited protection for the rest of the world’s equities.  But a regional arrangement does not — and by definition cannot — replace an Additional Protocol.

Second, an exception for Argentina and Brazil is an unwelcome precedent.  Argentina and Brazil probably aren’t refusing to sign the Additional Protocol because of clandestine nuclear weapons programs, but I can think of half a dozen countries that are more ambiguous cases.  Suggesting that two or more of them simply agree to a regional arrangement to be eligible for the supply of enrichment and reprocessing technology is just inviting for the Iranians to kick the NSG in the nuts.  Or what if the Algerians and the Libyans simply take the ABACC text, replacing “Argentina” with “Algeria” and “Brazil” with “Libya”?  I can’t tell you how, but I suspect we will live to regret this unless the process ensures that any future regional arrangement require the explicit blessing of the NSG.

I have this vision of an AREVA executive, staring out his window at La Defense, when the telephone rings …

“Ah, ouah.  AREVA headquarters.”

“Ouah, c’est Maurice.”

“Ah, Mohammed, so nice to speak with you again.”

“Yes, well, Mo, as we discussed in Oran, Algeria would make a wonderful customer but NSG guidelines restrict the sale of reprocessing facilities to those states with an Additional Protocol to their …”

“Ah, oui.  That is technically correct … or a regional arrangement to achieve the same objective …”

“Ah, um, no, I have not heard of MahgrebAtom.  What is this?”

“I see.  And how is Colonel Ghaddafi?”

“C’est la vie. Where are you two going to site the reprocessing plant?”

“Damascus?!”

“Perhaps my schoolboy geography is a little rusty, but I recall seem to recall the Mahgreb only …”

“Ah, I see. Well, that was kind of you to invite the Syrians after their arrangement with Egypt collapsed.  You think those two would have learned their lesson after the United Arab Republic.”

“Perhaps the Egyptians will find another partner.”

“I thought you just said the Egyptians had a falling out with the Syrians.”

“What do you mean the Koreans smooothed things over? Perhaps you would consider siting this facility near Daejeon.”

“What do you mean the wrong Koreans? Mo, we could not possibly export a reprocessing facility to North Korea.”

“This is very confusing.  If the North Koreans are not a member of Mahgreb Atom seeking to import …”

“Export?!  Very competitive with the offer AREVA made in Oran?!”

“Well, frankly Mo, I am not surprised the North Koreans have adopted what you describe as a more flexible attitude toward black boxing and intellectual property.”

“Fine, fine.  I am not sure Algeria, Libya, Syria and Egypt were precisely the sort of regional arrangement we had in mind, but I suppose if Director-General Minty says it is all right.  Eh, after all, at least Iran is not a member.”

“What?  Mohammed, let me ask you this: If you have among your members Algeria, Libya, Syria, Egypt and Iran, why not just name the group Islam Atom?”

“Myanmar!?”

“Do you realize how large of a reprocessing facility you are going to need to accommodate six different states?”

“Seven! And who is number seven? Namibia?”

“No, I was under the impression that The Veld is distinctly unpleasant this time of year.”

“Goodbye, Mohammed.”

Comments

  1. bradley laing (History)

    TOKYO – The operator of Japan’s tsunami-wrecked nuclear power plant says a contract worker in his 60s has died after collapsing at the facility’s waste disposal building.

    Tokyo Electric Power Co. spokesman Naoyuki Matsumoto says the man was carrying equipment at the Fukushima Dai-ichi nuclear plant when he collapsed Saturday.

    Matsumoto says they do not know the cause of the worker’s death. He says no radioactivity at harmful levels was detected in his body. He says the worker was fully covered with a mask, gloves and radiation protection suit.

  2. kme (History)

    Rather than go to all this trouble to construct a tortuous definition that includes exactly who we want to include, and excludes exactly who we want to exclude based on secondary characteristics, why not just write “(ii) Is a bunch of Pretty Good Blokes really, who we quite like going to parties with.”

  3. FSB (History)

    I agree.

    ‘operate “to achieve the same objective.” ‘ is pretty subjective anyway.

    Plus, the rules (i) — (vii) seem to say ‘any country that we would like to make an exception for besides Iran’.

    But much more importantly, Brazil is much more likely to breakout into a nuclear weapons status than Iran.

    Only some change of politicians will bring this about:

    e.g.:

    http://www.huffingtonpost.com/2009/09/25/jose-alencar-brazil-vp-sa_n_300187.html

    Not to mention their nuclear submarines and the ex-President’s early jabs at the NPT.

    Just like with the India deal this exception will not be a positive step.

  4. FSB (History)

    (viii) Has, like, crazy-ass pre-Lenten Carnival festivities, or, Gauchos

  5. kme (History)

    (ii) Has entered a contestant in the Miss Universe pageant.

  6. C.A. (History)

    Dear Jeffrey,

    I really like your comments and insights, but apparently you do not understand what is the ABACC. You should take a better look on it.

    For the readers, http://www.abacc.org/engl/index.asp.

    • Jeffrey (History)

      Well, I can’t be perfect all the time. (By the way, it is unclear to me what you think I don’t understand about the ABACC, which I generally think is a successful arrangement for Latin America.)

      The problem I have is that the safeguards agreement in place under the Quadpartite Agreement is similar to an INFCIRC 153-type agreement. (I believe their have been instances where Brazil and Argentina, to their credit, have permitted some environmental sampling — but this has been on a voluntary basis.)

      I may be comfortable with enrichment in Brazil and Argentina under an INFCRIC 153 agreement, but I would not be comfortable with an enrichment plant in Iran under those same conditions. (I have, in other posts, tried to articulate why I believe the Additional Protocol and up-to-date subsidiary arrangements are so important in Iran.)

      Of course, it is neither feasible nor desirable to insist that Iran live by a different set of rules than Brazil (or any other state for that matter). Which is why I believe that Brazil and Argentina should sign the Additional Protocol, update the SCCC (Common System of Accounting and Control) to reflect the AP, and agree that the AP should be a condition of supply for transfers of enrichment and reprocessing technologies.

      If necessary, I would be willing to delay progress on a criteria-based approach to ENR transfers in the NSG until after the international community can address Brazil and Argentina’s issues with the Additional Protocol, which I think are manageable with a bit of discretion about the historical development of fuel-cycle capabilities in Latin America.

    • C.A. (History)

      Dear Jeffrey,

      Thank you very much for your reply. I know you were exaggerating when you wrote that “simply take the ABACC text, replacing “Argentina” with “Algeria” and “Brazil” with “Libya””. But this was really disturbing, and that’s why I though you should have a better understand of what ABACC is. Besides, I assume that many readers, like myself, are not experts and count on your comments to form opinion.

      I agree with you that “the Quadpartite Agreement is similar to an INFCIRC 153-type agreement”.

      But if “it is neither feasible nor desirable to insist that Iran live by a different set of rules than Brazil”, why to think that Brazil can live by a different set of rules than the U.S., France or India?

      Coming back to the origin of this discussion and your fear that Algeria, Lybia or any other countries could take the ABACC text to set a new regional arrangement, we must bear in mind that the NSG criteria proposal actually allows only regional arrangements established before a specific year. You and your readers do not need to be afraid.

      Thanks again, and I am still a big fan!

    • Jeffrey (History)

      Oh, I see. Yes, there was a bit of hyperbole there.

      I had heard the NSG might include a specific year, but was prohibited from saying so. That was why I articulated the requirement that “any future regional arrangement require the explicit blessing of the NSG” — including a date appears to do that and, to some extent, mitigates the precedential harm. (In the Algeria-Libya hypothetical example, they at least have to come back to the NSG and complain that they deserve to be treated like Argentina and Brazil.) Having said that, I still think the best approach is to find a way to address Latin American concerns with the Additional Protocol, rather than suggest Latin America deserves different treatment from the Middle East or Southeast Asia.

      By the way, I do believe that the US, France and India should live by the same rules as Brazil and Iran. This is one reason that I believe that a preferred alternative to the so-called “gold standard” where some states forgo enrichment and reprocessing would be a commitment by all states, including those with nuclear weapons, to (1) not produce of fissile material and (2) commit to only engaging in sensitive fuel cycle activities on a multinational basis.

    • kme (History)

      All joking aside, if the rules are going to be based on a particular, known set of regional agreements that already exist, why not just fess up and have a whitelist of allowed States? It seems more honest, as well as being immune from any future attempt to game the rules.

    • Jeffrey (History)

      All kidding aside, the Bush Administration tried precisely that approach — “the Nuclear Suppliers Group should refuse to sell enrichment and reprocessing equipment and technologies to any state that does not already possess full-scale, functioning enrichment and reprocessing plants.”

      This approach (1) failed to command international support and (2) arguably encouraged a number of states to consider enrichment and reprocessing in an effort to zealously guard their Article 4 rights.

  7. FSB (History)

    Also,
    if the US would get out of the way then there would be a shot at having a Middle-East nuclear weapons free zone. So (ii) can be re-written:

    (ii) …or has signed, ratified and is implementing a regional arrangement approved by the IAEA which operates to achieve the same objective by providing confidence in the peaceful nature of civilian nuclear programs, unless we don’t like that particular region to be nuclear-weapons free since one of the included countries would be Mini-me which already has nukes.

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