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.”