Developments in the International Safeguards System and the Implications for National Nuclear Programs

Seminar on The Role of International Legal Framework on Nuclear Peaceful Uses in Supporting the Indonesian Nuclear Power Plant Program, Bali, 6 June 2007

1. Introduction

Nuclear energy is gaining increased interest in many countries, especially because of its potential to reduce greenhouse gas emissions. In our region, in addition to Indonesia, Malaysia, Thailand and Vietnam are seriously considering nuclear power programs, and the possibility of nuclear power is being discussed in Australia.

It is essential to ensure that the expansion of nuclear programs does not lead to the further proliferation of nuclear weapons, or increasing international suspicions and tensions. This is where safeguards have a vital confidence-building role. The non-proliferation regime has been developed to provide assurance that nuclear programs are exclusively peaceful. Based on the adage “trust, but verify”, an essential aspect of the Nuclear Non-Proliferation Treaty is its verification mechanism, IAEA safeguards.

Of course, the non-proliferation regime comprises much more than safeguards. Important elements complementing the NPT and IAEA safeguards include: controls on proliferation sensitive technologies; the development of proliferation-resistant fuel cycle technologies; relevant regional and bilateral regimes; and effective domestic regulation of sensitive technologies and materials as required by Security Council Resolution 1540. Especially important are incentives and sanctions in support of non-proliferation objectives – these are receiving greater prominence in the efforts of the Security Council and governments to dissuade Iran from continuing with proliferant activities.

Until the 1990s the safeguards system was concerned primarily with declared nuclear materials and activities. It was thought that any undeclared nuclear material/activities would be revealed through diversion of declared nuclear material or misuse of declared facilities. Hence the principal task of safeguards was seen as being to confirm the correctness of states’ declarations, and the focus was on nuclear material, nuclear accountancy, and regular inspections. Since the early 1990s, following the discovery of Iraq’s clandestine nuclear weapon program, the emphasis has turned to detection of undeclared nuclear material/activities – referred to as confirming the completeness of states’ declarations.

The emphasis on providing assurance of the absence of undeclared nuclear material and activities is changing both the nature of the IAEA’s safeguards procedures and the role of the national safeguards authority. In place of predictable and mechanistic procedures, the IAEA now requires access to a broader range of locations and information. This is placing greater emphasis on cooperation and transparency on the part of states. In addition, national authorities need to be proactive in monitoring the activities of industry and others. The operations of the AQ Khan network, involving over a dozen countries including some in our region, show the challenges now faced by national authorities.

2. Developments in the Safeguards System

The safeguards system is not static, but has evolved over time to reflect contemporary circumstances and challenges. The “traditional” NPT safeguards system was primarily focused on verifying declared nuclear materials and activities, applying procedures similar to those developed for the item-specific safeguards that had preceded the NPT.

It was generally assumed that development of fuel cycle capabilities independent of declared facilities would be beyond the resources of most states, and in any event would be readily detectable, and therefore if proliferation occurred it was most likely to involve diversion of nuclear material from declared facilities. As the discoveries made about Iraq’s clandestine nuclear program in the early 1990s demonstrated, these assumptions were not well-founded.

From the early 1990s the emphasis in safeguards has turned to detection of undeclared nuclear material/activities – referred to as confirming the completeness of states’ declarations. It is now recognised that if a state has undeclared nuclear material/activities it is quite likely there will be no obvious links between these and the declared nuclear program.

The program to strengthen safeguards is focusing particularly on establishing the technical capabilities and legal authority necessary for detection of undeclared nuclear activities. Central to these efforts is the effective use of information – involving collection and analysis of information that can enhance the IAEA’s knowledge and understanding of nuclear programs – and providing more extensive rights of access to nuclear and nuclear-related locations, including for the resolution of questions arising from information analysis.

At the technical level, areas of development in safeguards include:

  • detection methods for undeclared activities – including environmental sampling and analysis, and satellite imagery;
  • safeguards procedures – particularly greater use of unpredictability in inspections (e.g. through unannounced or short-notice inspections);
  • the “state-level approach” – tailoring safeguards implementation to state-specific circumstances – moving from the uniformity of traditional safeguards, and basing safeguards intensity on information analysis and expert judgment taking account of all relevant circumstances.

Safeguards analysis and evaluation now involve questions such as: what are the acquisition paths available to the particular state; what are the possible indicators of undeclared nuclear activities; what is the optimal safeguards strategy for detecting such activities?

At the legal level, underpinning the program to strengthen safeguards, is the additional protocol (AP). The AP is a legal instrument complementary to safeguards agreements, which establishes the IAEA’s rights to more extensive information and physical access. The model AP, INFCIRC/540, was agreed by the IAEA Board of Governors in 1997. Indonesia was amongst the first states to conclude an AP.

The combination of a comprehensive safeguards agreement and an additional protocol now represents the contemporary standard for NPT safeguards. Of the 64 non-nuclear-weapon states (NNWS) NPT Parties with significant nuclear activities, at the time of writing 45 have APs in force and 12 have signed APs or had APs approved by the Board – an uptake of almost 90% of such states. It is of serious concern however that seven NNWS NPT Parties with significant nuclear activities have yet to adopt the AP[1] – in addition Iran, which was applying the AP on a “provisional” basis, has “suspended” its cooperation under the AP.

Confidence in safeguards conclusions The IAEA has decades of experience verifying non-diversion from declared nuclear activities, and conclusions in this regard can be reached with a high degree of confidence. Conclusions on the absence of undeclared nuclear activities, on the other hand, are necessarily qualitative, that is, they are less definitive, less certain, than conclusions based on verification of declarations.

Partly this reflects the need to develop more effective detection techniques, but even if these were available today, it is not possible with absolute certainty to prove a negative, i.e. the absence of undeclared activities. However, confidence in more qualitative conclusions can be reinforced by availability of additional information supporting the conclusion.

This situation raises two issues. First, a mechanistic and legalistic approach by states to the implementation of safeguards will not meet international expectations. Where safeguards conclusions are more qualitative, a state’s cooperation and transparency to the IAEA assume greater importance. The Agency will need broader information, including access to locations of interest. Denying or obstructing access will simply heighten suspicions that the state has something to hide.

Second, IAEA safeguards may need to be complemented by confidence-building measures, particularly measures to enhance transparency amongst states. This is discussed in the following section.

3. Importance of Transparency

Transparency is likely to become increasingly important, both as an integral part of the safeguards system and as a complement to the system. Transparency involves a number of aspects, including: transparency of the state to the IAEA; transparency of states to each other; and transparency of the Agency itself.

There are many potential transparency mechanisms, including:

  • wider publication by states of information on their nuclear programs;
  • conduct of research and operational programs on a collaborative basis amongst states;
  • broader privatisation and globalisation of nuclear activities, and establishment of multilateral fuel cycle centres; and
  • conduct of collaborative safeguards activities on a bilateral or regional basis.

In particular, in circumstances where states are looking for additional confidence-building measures, bilateral or regional safeguards arrangements could play an important role, complementing IAEA safeguards – ABACC[2] is a valuable precedent here.

Enhanced cooperation with and transparency towards the IAEA will be particularly important. Strengthened safeguards bring new requirements for states in terms of information, access and cooperation. It is no longer sufficient for a state to meet only its minimum legal commitments to the Agency (although that is always a good start!) – rather, states need to cooperate with the Agency to the standard necessary to maintain the confidence of the international community. This includes showing full transparency to the Agency, particularly where there are issues of compliance or confidence-building to be resolved.

For the IAEA, a particular challenge will be developing a sufficiently rigorous method of testing transparency and drawing appropriate conclusions – failure to cooperate may be obvious, but where the state appears to be cooperating it will be important to avoid being misled, not to draw broader conclusions than are actually warranted.

4. Implications for National Nuclear Programs

What do these various developments mean for national nuclear programs? It is essential for states to be able to show that their nuclear activities are exclusively peaceful. Safeguards and complementary measures provide the mechanisms for doing this. When the focus was on declared nuclear activities, cooperation with the IAEA in implementing safeguards procedures was sufficient. Now the range of information needed for drawing safeguards conclusions has broadened, and there is increasing emphasis on transparency. What this means in practice – how to demonstrate transparency and how to assess transparency in a meaningful way – is expected to be the subject of ongoing development for some time.

The most important theme in current non-proliferation development is how sensitive nuclear technologies (SNT) – especially enrichment and reprocessing – should be controlled. There is no doubt that if these capabilities became widespread the non-proliferation regime will be seriously, perhaps fatally, weakened.

It is not simply a matter of placing SNT activities under safeguards. Safeguards cannot provide assurance about the future intent of states. An enrichment or reprocessing facility under safeguards today could be used as the basis for break-out from non-proliferation commitments in the future. An essential aspect of non-proliferation is minimising the risk that break-out could occur.

Claims that the NPT provides the right for every state to develop all aspects of the nuclear fuel cycle are a misrepresentation of the Treaty. The NPT speaks of the right to the benefits of nuclear energy, not the development of particular technologies. Further, the right to use nuclear energy is not unqualified, but is subject to the other provisions of the Treaty – including the commitment against seeking nuclear weapons and the commitment to place all nuclear material under IAEA safeguards.

Since the NPT does not elaborate on the means of access to the benefits of nuclear energy, it is now apparent there is a need to develop an international framework to deal with the issues involved. These include:

  • reducing the availability of SNT for misuse now or in the future;
  • ensuring that states with nuclear power programs have a secure and reliable supply of fuel without any need to develop national enrichment or reprocessing capabilities;
  • developing proliferation-resistant fuel cycle technologies.

Several proposals and initiatives to address these issues are under development, the single most comprehensive approach being the Global Nuclear Energy Partnership (GNEP) initiative, launched by the US in February 2006.

These developments will have major – and positive – implications for nuclear power programs. Key features of the evolving international framework for nuclear energy are likely to include:

  • multilateral approaches to sensitive stages of the fuel cycle – already we are seeing an example with the Russian initiative to establish an international fuel cycle centre at Angarsk, Siberia;
  • nuclear fuel supply assurances, incorporating a “cradle-to-grave” approach – including dealing with the issue of spent fuel management;
  • development of small to medium sized reactors, suited to the needs of countries with relatively small power power grids.

5. Implications for National Authorities

As already noted, the principal task of the traditional safeguards system was verifying states’ declarations, with a focus on nuclear material accountancy and regular inspections. In this environment the role of national safeguards authorities was straightforward – to facilitate the IAEA’s performance of relatively mechanistic safeguards procedures.

This was easy for states – all states have, or should have, legislation to regulate possession of nuclear material and undertaking nuclear activities. Apart from meeting international obligations (including the physical protection of nuclear material as well as non-proliferation and safeguards), effective control of nuclear material and activities is necessary to ensure public health and safety. Since the state will have a regulatory regime for these good governance reasons, it is simple to add requirements for operators to account for nuclear material to IAEA standards, to report nuclear material transactions to the national authority, and to cooperate with IAEA inspectors.

Today, the strengthening of safeguards, especially the emphasis on providing assurance of the absence of undeclared nuclear material and activities, is changing both the nature of the IAEA’s safeguards procedures and the role of the national safeguards authority.

In place of predictable and mechanistic procedures, the IAEA is making greater use of unannounced or short-notice inspections. National authorities need to have procedures in place to facilitate these – this can raise practical issues in countries which require national authority staff to accompany IAEA inspectors.

In addition, the IAEA now requires access to a broader range of locations and information. Not all of these will be covered by a “traditional” nuclear regulatory regime. Under the additional protocol, the state is required to report considerably more information on both nuclear and nuclear-related activities. The AP also requires the state to facilitate more extensive access – complementary access, that is, access by IAEA inspectors beyond places covered by routine safeguards inspections.

The AP gives IAEA inspectors rights of complementary access:

  • on a “selective basis”, to nuclear sites and certain nuclear-related locations, to establish the absence of undeclared nuclear activities; and
  • at certain other nuclear-related locations, and importantly, anywhere in the state, where necessary to resolve a question relating to the correctness and completeness of information, or to resolve an inconsistency relating to that information.

National authorities need to have legislation and procedures in place to ensure they can provide the access and obtain the information which the IAEA may seek.

Some states have been concerned about the extent to which they can be aware of the matters they should report to the IAEA. This is a problem common to all – no state can be absolutely sure of the activities of all its engineering workshops, specialist manufacturers, and the like. On the other hand, no one can afford to be complacent in this area. The uncovering of the AQ Khan proliferation network – which involved individuals and companies in our region – has highlighted the need for governments to improve oversight of nuclear and dual-use manufacturing and trading activities.

The AP recognises practicalities by specifying inter alia that the state is to use “every reasonable effort” in providing information on nuclear-related activities that are not specifically authorised or controlled by the state. “Every reasonable effort” requires that the state will try to obtain such information, but the IAEA – and the international community at large – recognise that identification of relevant activities cannot be guaranteed. A state will not be considered to have breached its commitments as long as it has in fact exercised reasonable effort.

It is essential for national authorities to be proactive in meeting the states’ safeguards obligations. The state is responsible for ensuring that all nuclear material and activities are declared to the IAEA, so the state should have in place both appropriate legislation and implementation arrangements to counter the possibility of undeclared materials or activities. As part of this, it is important for national authorities to conduct regular outreach programs and to maintain their awareness of relevant R&D sectors.

This is not only a matter of meeting safeguards requirements, but is also mandated by the Security Council. Security Council Resolution 1540 calls on every UN member state to enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over “related materials” (materials, equipment and technology covered by multilateral treaties and arrangements).

To this end states are required to establish and enforce:

  • laws criminalizing non-state nuclear, chemical, or biological (NBC) proliferation;
  • security and accounting for NBC, their means of delivery, and related materials;
  • border controls and law enforcement to block illicit trafficking;
  • export controls and transhipment controls over NBC technology, materials and commodities.

In addition to the regulatory requirements outlined here, national authorities and governments should consider how to address transparency and confidence building issues such as those touched on earlier in this paper.

6. Conclusions

At a time when the nuclear industry is poised for major expansion worldwide, the non-proliferation regime is also facing serious challenge, exemplified by the case of Iran. The maintenance of an effective safeguards system – requiring the cooperation of all states – has never been more important. As one aspect of this, pursuit of universalisation of the additional protocol should be a priority for all safeguards supporters. Another aspect is the need for national safeguards authorities to ensure they have the necessary legislative powers, strategies, programs and skills to meet their responsibilities towards the non-proliferation regime.

On this last point, there are already a number of programs for international and bilateral cooperation in training, skills-building and sharing of experience. Australia, in collaboration with Indonesia, is launching an initiative for a regional safeguards association to build on these programs and relationships.

Increasing attention is being given to the establishment of a new international framework for the development of nuclear energy, strengthening non-proliferation and broadening access to the benefits of nuclear energy. With the Asia-Pacific region looking to be a major growth area for nuclear energy, not only will these international developments impact directly on our region, but there may be benefit in looking at some specifically regional arrangements. At one level, these might involve cooperation between industry sectors. At another level, they could involve development of transparency and confidence-building mechanisms.

One thing’s for certain, the coming decades will be both challenging and immensely interesting for nuclear professionals, especially non-proliferation/safeguards specialists.

[1]. Argentina, Brazil, DPRK, Egypt, Iraq, Syria and Venezuela.

[2]. Argentine-Brazilian Agency for Accounting and Control of Nuclear Materials.

John Carlson
Director General, Australian Safeguards and Non-Proliferation Office,
RG Casey Building, John McEwen Crescent, BARTON ACT 0221

Last Updated: 24 September 2014