Andreas PersboSafeguards in Vienna

It has been a while since I wrote here. Since I am too busy, or perhaps too lazy, to write my own updates, I thought it would be nice to forward something Hugh Chalmers wrote on the recent adoption, by consensus, of the safeguards resolution.

Some of you will know that the last year was difficult for those working in the safeguards community. The so-called State-Level Concept (SLC) was under attack.

Now, ever since the Agency adopted the Additional Protocol, it has worked to streamline safeguards implementation and make it more cost-effective. One way in which the secretariat has aspired to do so is by introducing “integrated safeguards.” This work started in 1998. As the Agency itself puts it, the “term refers to the optimum combination of all safeguards measures available to the Agency, including those from the Additional Protocol, to achieve maximum effectiveness and efficiency within the available resources.” The state level concept is part of this overall effort.

So the state level concept is not news. One can find references to it dating back to the mid-2000s. Despite this, the concept was challenged by a minority of member states over the last year. The principal concern for some states appears to have been that the SLC risked introducing additional rights or obligations for the member states or the Agency, going beyond already adopted regulations (in particular the Comprehensive Safeguards Agreement and its Additional Protocol). The IAEA Secretariat has made it clear that it does not, and the General Conference has welcomed this in their annual resolution.

Anyway, this is what Hugh Chalmers will put up on the VERTIC website tomorrow:

The 58th General Conference (GC) of the International Atomic Energy Agency (IAEA) concluded last week having successfully passed a safeguards resolution that may have secured the future of a previously contentious element of the Agency’s safeguards system, namely the so-called state level concept. The Conference also avoided a controversial resolution over Israel’s nuclear capabilities. Some IAEA member states have argued that the resolution, if passed, could have jeopardised Israel’s engagement with a conference on a Middle East Weapons of Mass Destruction Free-Zone (MEWMDFZ). This conference has been viewed as a key step towards a successful review of the Nuclear Non-Proliferation Treaty (NPT) in 2015.

Israel’s Nuclear Capabilities
With the 2015 NPT Review Conference looming over the horizon, and with the November deadline for P5+1 talks with Iran fast approaching, delegates may have been keen to establish constructive and convivial atmosphere. After three years of stalled progress towards a conference on a MEWMDFZ, a series of meetings between Israel and Arab states held at the Hotel Victoria in the mountain resort of Glion, Switzerland, had generated an air of almost cautious optimism. Sustained momentum and continued dialogue could lead to an agreed agenda, and perhaps even a conference itself—which Middle Eastern states would then find diplomatically difficult to avoid. Punishing Israel’s actions in Gaza by singling out their nuclear capabilities at the GC would, as Israel made it clear in its statement to the plenary, have ‘serious implications’ for this burgeoning dialogue. Fifty-eight states were unwilling to take this risk, compared to 45 who were, and the resolution on ‘Israeli Nuclear Capabilities’ was rejected. The last time a version of this resolution passed was on 17 September 2009, with 49 votes in favour, 45 against and 16 abstentions. It has been defeated every year since.

The State Level Concept
The Agency’s efforts over the past year to clarify the ‘state level concept’ at the heart of its safeguards system also paid off. The term was first introduced to the Board of Governors in 2004, but came under unexpected scrutiny in 2012 when Russia led a number of states in expressing concern over its implications. The Agency published two reports; ‘The Conceptualization and Development of Safeguards Implementation at the State Level‘ in 2013, and the 61-page Supplementary Document to the 2013 report in August this year in response to lingering concerns in the Board. This latter report is the result of an intense consultation process between the Agency and its members, which included six technical meetings throughout 2014, and gives a highly detailed account of the state level concept and its implementation.

The state level concept aims to give consideration to the state as a whole. As highlighted by Director General Yukiya Amano in his introductory statement to the Board of Governors on 9 September 2013, it ‘does not change, or go beyond, the existing legal framework for safeguards. It does not alter any State’s legal obligations with respect to safeguards.’ He noted that it ‘enables [the IAEA] to concentrate [its] in-field verification efforts in a State on areas of greater safeguards significance and results in better use of Agency resources.’

After the shortcomings of the Agency’s traditional approach to safeguards were laid bare in the 1990s by the revelations of Iraq’s clandestine nuclear program, the Agency adopted a more holistic approach to planning its safeguards activities. The state level concept allows the Agency to use state-specific factors (such as total nuclear fuel cycle, technical capabilities, and the safeguards agreement itself) to plan safeguards activities, with the aim of improving both their effectiveness and efficiency.

Importantly, the extent to which the Agency can ‘tweak’ its safeguards activities depends upon the range of activities made available to it through individual safeguards agreements with its members. Those with only a Comprehensive Safeguards Agreement (CSA) in force would find that very little changes are made to verification efforts in their state from one year to the next, with the original safeguards criteria still providing the primary basis for determining these efforts. In the case of states whose CSA is augmented by an Additional Protocol (AP), the Agency may be able to draw a broader conclusion ‘that all nuclear material in a State has remained in peaceful activities’, and subsequently streamline the implementation of the many activities afforded to it by this augmented agreement.

Trust in the Agency
While the exact nature and origins of the concerns raised in 2012 and 2013 are unclear — state level approaches have been discussed by the General Conference since 2006 without giving rise to similar concerns — the safeguards resolution adopted last week can shed some light. As various drafts of the resolution were released it was clear that while the conference generally welcomed the Agency’s work in clarifying the concept, states felt it necessary to highlight five aspects of this clarification as particularly noteworthy. By emphasising that the Agency is not abusing the concept to acquire the same rights and powers offered by the Additional Protocol, nor is it using information on state level factors for any purpose other than safeguards, the resolution reveals the surprisingly deep level of mistrust held by a vocal minority of member states.

In some cases, this mistrust may have emerged from genuine concern over the manner in which the state level concept was developed and communicated to member states. The Agency’s consultation process seems to have addressed these, and while the conference welcomed continued engagement with the Agency on this issue, it is unlikely that the IAEA will have to make such a concerted outreach on this topic again. In other cases, this mistrust may have emerged from a more general fear over the future direction of safeguards. A former section head of the Agency’s Office of Legal Affairs highlighted this when she associated disputes over the state level concept with a challenge to the Agency’s obligation to verify both the correctness and completeness of a state’s declarations, no matter what agreement they are reported through.

The resolution adopted last week gives little opportunity for such a challenge to take hold within the General Conference. Preambular language stresses the importance of verifying both the correctness and completeness of state declarations, and notes that the Agency’s ability to do this should be increased. Any attempt to mount a challenge to this by objecting to ambiguities or uncertainties in the state level concept will be very hard now that most of these ambiguities and uncertainties are explicitly addressed in the resolution. Nevertheless, the acceptance of the Agency’s approach to safeguards may be tested more at the coalface than in the conference hall. The Agency’s long-running investigation into Iran’s nuclear programme will continue to be a very visible test of the IAEA’s safeguards system. If this system fails to resolve this investigation in a manner that neither compromises a potential diplomatic solution nor tarnishes the Agency’s apolitical status, more questions may be raised in the future as to its suitability.

Disarming Language
The safeguards resolution adopted at the General Conference also goes a long way to cementing the importance of maintaining the Agency’s capabilities to verify any disarmament or arms control agreement it is asked to monitor. While language related to this capability has long been supported by many member states, it has either been rejected for expediency or relegated to the preambular paragraphs. By ‘noting that the Agency must remain ready to assist […] with verification tasks under nuclear disarmament or arms control agreements’, this issue will remain worthy of detailed consideration in many conferences to come.

What happens now remains to be seen. The best outcome would be that member states now feel that they have the assurance that they desired. This would enable the Agency to continue to develop this important safeguards measure in a way that is efficient and adaptive to changes in technology, but above all in a way that effectively builds assurance that member states have comprehensively declared their stockpiles of source and special fissionable material.

Comments

  1. Tariq Rauf (History)

    Good article Andreas. Small but important clarification: the IAEA implements safeguards in both Member States and non-Member States, as such in the last paragraph the correct formulation neds to be as follows:
    “… in a way that effectively builds assurance that states with comprehensive safeguards agreements in force have in fact declared all (the entirety of) their stockpiles of source and special fissionable material”.
    An issue not discussed in your piece, but influencing the views of some critics of the SLC, is the concern or controversy about the use of ‘third party’ or ‘intelligence’ information by the Agency — particularly that which cannot be verified by the Agency (note that there have been instances where the Agency was fed false or fabricated information).

  2. Mishaal (History)

    In the light of the above article… I would like the IAEA and its policy makers that though there is no single authority watching out all the activities happening in the domain of atomic power, UNSC the ultimate body were obviously super powers vested their national interests, so the major focus must be enhancing the trust of states on the agency where they can easily put their issues for consideration and in response can collaborate with the agency… Policies must be in discriminatory and all members must be treated the same way. Otherwise, it would be difficult even with IAEA protocols, and safeguard mechanisms. Secondly, what is the reliability that states after complying with additional protocols would adhere themselves as recently in India a hidden enrichment facility have been exposed?

  3. cyrus (History)

    Sorry but the IAEA cannot legally unilaterally expand its authority in such a manner, as arms control lawyer Fan Joyner has written on his blog ArmsControlLaw.com. Unless a state has signed the Additional Protocol, the IAEA has no authority to determine complteness, which is the entire reason the AP came into existence. Without the AP, the IAEAs role is “exclusively” to act as an accountant of declared nuclear material.

    • andreas (History)

      The entire reason? I doubt that very much.

      On completeness, and for your information, preambular paragraph (i) of GC(58)/RES/14 notes “that the implementation of comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of a State’s declarations”.

      That language was unanimously adopted by all member states this year. So I don’t know what to say beyond that, really. Perhaps the member states doesn’t really decide how they want safeguards implemented? Someone else does?

    • Dan Joyner (History)

      That is correct. The general membership of the IAEA does not get to decide how a bilateral treaty between the IAEA and a member state is implemented. That can only be discerned from the treaty itself. I have explained this concept more fully in a response to Laura Rockwood’s piece here:

      http://armscontrollaw.com/2014/09/14/a-response-to-laura-rockwood/

    • Andreas (History)

      It’s a good thing then that all member states – that include every single state with a CSA in force – signed up to this formulation in GC(58)/RES/14. But maybe they did so in error, not being fully aware of what they were endorsing?

    • Dan Joyner (History)

      Andreas, my friend, you’re putting an awful lot of stock in some fairly watered down diplomatic language that has appeared in many BOG resolutions and now in a GC resolution. Notice that whenever they say this, it’s termed as a “should” statement – an aspirational, goal-oriented statement that is generally uncontroversial as an idea. This language – no matter how many times it is reiterated by the BOG or the GC – doesn’t change the actual interpretation of the bilateral treaties between the IAEA and member states. And I sincerely doubt that any of the states agreeing to the language of this resolution are of the opinion that it does.

    • yousaf (History)

      Agreed.

      Pierre Goldschmidt, former deputy director of the IAEA Safeguards Department, has summed it up well:

      http://carnegieendowment.org/2011/11/03/looking-beyond-iran-and-north-korea-for-safeguarding-foundations-of-nuclear-nonproliferation/6nz6

      “the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting ”

      i.e. the expectations are misplaced.

      To settle this issue of declared versus all material, one can see what the IAEA itself says — The IAEA is pretty crystal clear on this point:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      QUOTE:

      ================
      “Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.

      One set relates to verifying State reports of ****declared**** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.

      Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”
      ===============

      Again, if the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.

      Moreover, there is no one who has tasked the IAEA with proving that a nation’s nuclear program is purely peaceful.

      This would be an impossible task in any nation.

      The IAEA also does not have the technical expertise about nuclear weaponry: their personnel are nuclear material accountants.

      In their reports on Iran, the IAEA is simply making a tautological statement that the “Agency is unable to provide credible assurance….to conclude that all nuclear material in Iran is in peaceful activities.”

      That is of course true, as it is also for 70 or so other states. The Agency cannot also verify completeness or the purely peaceful nature of Brazil’s and Argentina’s nuclear program. Not a problem.

      For 70 or so other states, the IAEA also finds “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.”

      [See “Safeguards and Verification Safeguards Statement for 2011 and Background to the Safeguards Statement Safeguards Statement for 2011”]

    • George William Herbert (History)

      Yousaf wrote in part:
      The IAEA also does not have the technical expertise about nuclear weaponry: their personnel are nuclear material accountants.

      This is not a permanent law of nature; if they desire more technical knowledge, at the very least the open-source people can consult or teach. I haven’t polled everyone (ok, anyone…) but I hope that as a rule most of those involved would be happy to.

      If there is interest or need, please reach out.

    • Andreas (History)

      Dan. Your comment gives me the impression that you think that this is the first time a GC resolution endorses the concept of correctness and completeness. I think you need to fact-check that.

      Perhaps you should come to the GC next year. See how it’s done. I don’t think I’ve ever seen you around.

    • yousaf (History)

      George,
      of course it is not a law of nature: did I say it was?

      The point is that it is not a weakness that the IAEA does not have deep knowledge of nuclear weapons (perhaps just 2 or 3 Westerners not permitted to examine the nation(s) of most interest — member nations can veto nationalities of inspectors).

      The reason it is not a weakness that the IAEA does not have much in-house knowledge of nuclear (or even conventional) weapons is that that is not the IAEA’s job: The IAEA’s job is nuclear materials accountancy.

      If and when it becomes the IAEA’s job to do investigations (as opposed to inspections) they may have a greater need for such expert knowledge, which they currently do not have.

      See the ACT article by ex-IAEA inspectors:

      http://legacy.armscontrol.org/act/2014_09/Features/Nuclear-Verification-in-Iran

      “Iran has been accused of carrying out unspecified weaponization experiments in a large chamber in a building at Parchin. Extensive earth moving, paving, and road building for a kilometer on the northeast side of the alleged containment building began shortly after the IAEA first publicly indicated interest in the building. As a result of this activity, Amano said in a November 2012 report to the board that when the IAEA “gains access to the location, its ability to conduct effective verification will have been seriously undermined,” a reference to sanitizing the site to remove putative traces of uranium.[38]

      There are many flaws in this analysis, which could be better addressed by experts in construction, environmental sampling, satellite imagery analysis, and civil engineering. …….

      Resolution of the outstanding questions about possible Iranian weaponization requires a broad set of skills. If a very small team of accountancy experts, unfamiliar with conventional arms, construction sites, and common practices in nuclear weapons studies is allowed to analyze the data, the team may envision nuclear activities because that is all it knows. This led to the disaster of U.S. claims that aluminum tubes destined for Iraq in 2002 were for centrifuges when they actually were for rockets, and it can happen again.”

      ===========

      Until it gets the legal mandate and the expertise in nuclear weaponry investigations, the IAEA should stick to what it has been authorized to do and knows about: nuclear materials accountancy.

    • George William Herbert (History)

      The IAEA is being asked to look at PMD here. Whether it legally should or not, it’s on the table already, in the reports already,etc.

      I know why you’re arguing that it should not absent more legal framework, but that horse has left the barn.

    • yousaf (History)

      Yes, I think we are more or less agreed that legal — and technical — basis for analysis the issue has ‘left the barn’ and that the issue now more political.

      Many of us have stressed that for a while:

      http://blogs.reuters.com/great-debate/2014/02/21/iaea-conduct-complicates-iran-nuclear-deal/

    • yousaf (History)

      In my view, “should” roughly equates to the UNSC’s “calls upon” not to the stronger “decides”.

      In English, when making a legal requirement the stronger “must” is used, not “should”.

      Dan’s reading is correct, I believe.

      Also see:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      on how the AP extends the monitored nuclear material from only the “declared” subset, to provide assurances as to the absence of undeclared nuclear material and activities in a State. Without an AP only the declared material is monitored. Sad but true.

      In any case, for 70 or so other states, the IAEA also finds “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.”

      [See “Safeguards and Verification Safeguards Statement for 2011 and Background to the Safeguards Statement Safeguards Statement for 2011”]

    • andreas (History)

      Yousaf,

      Usually, the word “shall” is used in the formal setting, not so much “must”.

      Shall and should is sometimes used interchangeably, although that often leads to confusion, as Johnboy’s comment illustrates.

      Diplomats avoid the use of shall in non-binding resolutions. And, yes, I am aware that Res/14 is just a resolution. I can read.

      Okay. Enough of the language stuff. I have a day-job to attend to.

  4. yousaf (History)

    In my view tweaking the safeguards system will not fix the problem of an inherently lax NPT: what is needed is a whole new NPT 2.0, as I argue here:

    http://www.foreignpolicy.com/articles/2012/12/18/radioactive_decay

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