• Paper 1 - Experience and Challenges in WMD Treaty Verification: a Comparative View
  • Discusses general verification principles;
    comparative analysis of verification under the NPT (IAEA safeguards),
    Chemical Weapons Convention and Comprehensive Nuclear-Test-Ban Treaty
  • (Some information dated (2006) but the issues remain current)
• Paper 2 - Defining the Safeguards Mission
  • Discusses IAEA safeguards objectives, drawing conclusions,
    and the standard of proof
• Paper 3 - Safeguards in a Changing Environment
  • Discusses the evolution of IAEA safeguards, safeguards challenges,
    
    and changing international expectations
• Paper 4 - NPT Safeguards Agreements – Defining Non-compliance
  • Discusses considerations in reaching non-compliance findings,
    
    and the importance of consistency and predictability
• Paper 5 - Can a Fissile Material Cut-Off Treaty be Effectively Verified?
  • Discusses verification issues relating to an FMCT

1. INTRODUCTION

The discovery of clandestine nuclear programs, first in Iraq following the Gulf War in the early 1990s, and more recently in Iran and Libya, together with the nuclear impasse with the DPRK and that state's purported withdrawal from the NPT, have led some to question whether multilateral approaches to WMD proliferation are effective. Do the WMD treaties only work with the committed, while doing little against the uncommitted? In particular, can treaty verification mechanisms be effective, or do they provide only false assurance?

These issues go to the heart of efforts to counter the proliferation of WMD. This article will discuss whether such criticisms are valid, and lessons learned from experience with the existing WMD treaty regimes.

While this article covers all the WMD regimes, nuclear verification – IAEA safeguards – accounts for the greater part of the discussion. This reflects the central place of the Nuclear Non-Proliferation Treaty in international efforts against WMD proliferation, and the fact that IAEA safeguards are the longest-established, most developed and most universal of the WMD verification systems.

2. MULTILATERAL WMD TREATIES AND VERIFICATION

There are four multilateral WMD treaties:

• the NPT (Nuclear Non-Proliferation Treaty), which entered into force in 1970;
• the BWC (Biological and Toxin Weapons Convention), which entered into force in 1975;
• the CTBT (Comprehensive Nuclear-Test-Ban Treaty), concluded in 1996. As will be discussed, although the CTBT has not yet entered into force, substantial components of the Treaty's verification system are already in operation; and
• the CWC (Chemical Weapons Convention), which entered into force in 1997.

These treaties are of fundamental importance because they have established international norms of behaviour. One has only to think back to the pre-NPT period, when it was predicted there would be some 25 nuclear-armed states by the 1990s, to appreciate the value of the NPT to international peace and security. Even if it is true that treaties like the NPT only bind the committed, that is no mean achievement. The fact that there have been five NPT violators -
Iraq
,
Romania
, DPRK,
Iran
and Libya - is a matter of great concern, but without the NPT the international security situation would be far worse.

A key element in all these treaties, except the BWC, is the establishment of substantial treaty verification mechanisms. For most states the political commitment not to acquire WMD has been carefully made and is strongly held. Observance of their treaty obligations does not depend on verification. Nonetheless, it is an important maxim of international arms control to "trust, but verify". The establishment of a credible verification mechanism to provide confidence that all parties are honouring their treaty commitments plays a vital part in reinforcing these commitments.

In the case of the BWC the Parties have not been able to reach agreement on a Verification Protocol, because of differences about the likely effectiveness of BWC verification. A number of Parties (notably the former Soviet Union and
Iraq
) have had BW programs in violation of their BWC commitments. Regardless of views about the effectiveness of verification, the BWC experience shows the major limitations of a WMD treaty without verification.

Verification underpins the effectiveness of WMD treaties in a number of ways:

• the risk of detection deters non-compliance and reinforces the norms of behaviour set out in the treaty;
• by constraining the use of declared facilities, verification increases the difficulties confronting the proliferator; and
• importantly, verification provides an objective mechanism for identifying non-compliance, so that if necessary enforcement action can be taken.

In practice, the degree to which verification reinforces treaty effectiveness depends on the technical effectiveness of the verification measures. If a would-be treaty violator assesses the risk of detection as low, the deterrent effect will be low, and this will impact on the effectiveness of the treaty. It is important to appreciate that deterrence does not depend solely on verification: the deterrent effect will be limited if the violator assesses that detection is not likely to result in agreement at the political level to take enforcement action.

This leads to a further point: while credible verification makes a vital contribution to the WMD treaty regimes, it is by no means the only determinant of effectiveness. The non-proliferation regime comprises complex interacting and mutually reinforcing elements. Verification is not the only barrier to proliferation, and treaty failures cannot be attributed wholly to shortcomings in verification.

3. MAJOR TREATY VIOLATIONS

What are the treaty violations that have led to misgivings about the effectiveness of verification? Did verification failures lie at the heart of these violations?

Mention has already been made of serious violations of the BWC. These were not a consequence of verification failures, but rather the absence of verification. In the case of Iraq 's violations of the BWC, these were discovered through the verification activities of UNSCOM, established by the UN Security Council. Iraq 's use of chemical weapons, a violation of the 1925 Geneva Protocol, predated the CWC. There are suspicions that a number of states are in violation of the CWC, but to date no violations have been proven, and the CWC's challenge inspection mechanism has not been invoked. The CWC's verification system is outlined in part 6 below.

The major treaty violations that have come to light and been proven conclusively through treaty verification measures have all involved the conduct of significant undeclared nuclear activities. These activities constituted a violation of the relevant safeguards agreement. Since Article III.1 of the NPT requires non-nuclear-weapon states to accept IAEA safeguards, and to follow safeguards procedures, for all nuclear material, they also constituted a violation of the NPT. The IAEA Board of Governors has found four states - Iraq, Romania, DPRK and Libya - in non-compliance with safeguards obligations, and is considering a fifth case, Iran.

These NPT violations, and the implications for verification effectiveness, will be discussed in part 5.5.

4. VERIFICATION PRECEPTS

The NPT and the CWC establish inspection-based verification systems. Verification operates in the context that the treaty parties have materials and facilities that could possibly be used in a WMD program. Inspections are conducted to confirm this is not the case.

An inspection-based verification system typically includes the following major elements:

1. definition of materials, facilities and activities subject to the treaty;

2. establishment of a treaty inspectorate;

3. requirement for parties to declare to the inspectorate relevant materials, facilities and activities;

4. application by the inspectorate of technical measures - including regular on-site inspections and monitoring - to confirm parties' declarations;

5. inspection procedures in case of suspected undeclared materials, facilities and activities; and

6. procedures to deal with treaty breaches and non-compliance.

In addition, there may be measures applied by the inspectorate for the detection of possible undeclared activities, etc. This is not the same as point 5 above, which relates to resolution of suspicions once detection has occurred. As will be discussed, a significant difference between treaty regimes is whether the inspectorate actively seeks to detect undeclared materials/activities, or whether it is a matter for treaty parties to identify suspect locations for investigation by the inspectorate.

Another type of inspection, important to the CWC, is verification of disarmament - the destruction of proscribed materials and facilities (chemical weapons and agents, and related production facilities) declared to the inspectorate.

A verification system based on the elements outlined here was first developed for IAEA safeguards. Subsequently a broadly similar verification system was developed for the CWC. Negotiations for a Verification Protocol for the BWC also proceeded along these lines, but were inconclusive.

By contrast, a very different approach was taken to verification under the CTBT. There are no regular inspections: the focus is not on monitoring ongoing research and industrial activities, but on confirming the absence of a proscribed event, i.e. a nuclear explosion. Verification takes the form of monitoring to confirm that a nuclear explosion does not occur. The similarity with the other treaty regimes comes after a possible nuclear explosion has been detected. On-site inspection procedures - currently being negotiated - will apply to establish conclusively if the event detected was in fact a nuclear explosion.

5. THE IAEA SAFEGUARDS SYSTEM

Safeguards may be described as a system of technical measures (inspections, measurements, information analysis, etc) to verify the performance of legal commitments, namely, commitments given by states under international agreements - the principal agreement being the NPT - to use nuclear materials and facilities for exclusively peaceful purposes.

The IAEA safeguards system had its origins in bilateral inspection arrangements developed in the early years of the nuclear industry. These inspections were conducted by nuclear suppliers and were "item-specific", i.e. they applied only to the particular item supplied. Following the establishment of the IAEA in 1957, an IAEA inspectorate was developed and bilateral inspection activities were gradually replaced by IAEA inspections.

Item-specific safeguards remain for some items supplied to non-NPT states (
India
,
Israel
and
Pakistan
), and to a limited extent in nuclear-weapon states (NWS). Since the entry into force of the NPT in 1970, the most important function of the IAEA safeguards system is to act as the verification mechanism against horizontal proliferation (the spread of nuclear weapons to further states), through the application of the comprehensive safeguards required for all non-nuclear-weapon states (NNWS) under the Treaty.

IAEA safeguards closely follow the verification precepts outlined above. NNWS are required to declare all their nuclear material holdings and nuclear facilities to the IAEA, and to accept inspections and other verification measures, such as surveillance cameras and seals, at the locations concerned.

5.1. NPT comprehensive safeguards

The NPT recognizes the five NWS that existed at the time of the Treaty's negotiation: US,
Russia
,
UK
, France and
China
. The Treaty prohibits the acquisition of nuclear weapons by all other Parties (i.e. the NNWS) and requires the NNWS to accept IAEA safeguards on all existing and future nuclear material to verify it is being used for exclusively peaceful purposes. This requirement used to be known as "full scope" safeguards, and is now termed "comprehensive" safeguards.

5.2. Some factors influencing the operation of the safeguards system

Numbers and types of nuclear facilities under IAEA safeguards or containing safeguarded material are illustrated in Table 1.

Table 1: IAEA safeguards statistics (2004)

Facility type	No of facilities	No of states (preliminary info)
Research reactors	149	54
Power reactors	200	27
Conversion plants	16	8
Enrichment plants	11	8
Fuel fabrication plants	41	21
Reprocessing plants	7	7
Other facilities	162	41
Locations outside facilities	337	63
Total	923	70

There is a limited range of nuclear materials – principally uranium, plutonium and thorium - and these materials are used in a relatively small number (compared with other industrial activities) of specialized facilities. These materials are readily detectable and measurable, and lend themselves to mass balance accounting, i.e. materials can be accurately measured through all the processes and transformations they undergo. Accordingly, nuclear materials accountancy has been adopted as a primary verification tool. Other important tools include surveillance (e.g. camera systems) and containment (sealing systems to provide assurance that nuclear material has not been moved between inspections). More recently techniques such as environmental sampling, satellite imagery and information analysis are assuming increasing importance.

Very specific nuclear materials are used to produce nuclear weapons:

• HEU (high enriched uranium), typically enriched to 80% or more in the isotope U‑235. This compares with LEU (low-enriched uranium) power reactor fuel which is typically in the range 3‑4% U-235; or
• unirradiated plutonium (i.e. plutonium separated from spent fuel or irradiated targets) - nuclear weapons are typically made from plutonium comprising more than 93% of the isotope Pu-239, produced in reactors designed and operated for this purpose, compared with normal power reactor fuel which contains plutonium comprising around 70% Pu-239.

In principle, safeguards could be limited to these materials, and to the facilities required to produce them, i.e. enrichment plants and reprocessing plants. In the future, if it were possible to achieve a sufficiently high level of confidence that a state has no undeclared enrichment or reprocessing facilities, routine safeguards activities could be substantially reduced. Meanwhile, until such confidence is achievable, safeguards are applied to all nuclear material, on the basis that the material could be diverted to be upgraded, either in an undeclared enrichment plant or an undeclared reprocessing plant (in the latter case possibly in conjunction with an undeclared reactor). As will be discussed, the problem of detecting undeclared nuclear activities has assumed central importance in the ongoing development of the safeguards system.

The intensity of safeguards measures (e.g. frequency of inspections, sample sizes measured, and so on) is based on the nature of the nuclear material involved. HEU and unirradiated plutonium are described as "direct-use materials", i.e. for safeguards implementation purposes it is assumed they could be used to produce nuclear weapons, and these materials have the most intensive safeguards - under the basic NPT safeguards system (termed "traditional" safeguards), monthly inspections. Materials that would require upgrading for weapons use are described as "indirect-use materials", and have lesser safeguards intensity: e.g. under traditional safeguards spent fuel is inspected every three months, and LEU and natural uranium are inspected annually.

5.3. Major safeguards violations

As mentioned in part 3 above, the NPT requires NNWS Parties to accept IAEA safeguards on all their nuclear material, and to follow IAEA safeguards procedures. There have been four cases, all involving undeclared plutonium separation (reprocessing) or uranium enrichment activities, where the IAEA Board of Governors has found that the state was in non-compliance with its safeguards agreement, and reported the non-compliance to the Security Council in accordance with the IAEA Statute:
Iraq
in 1991,
Romania
in 1992, DPRK in 1993, and Libya in 2004. At the time of writing, the Board had not reached a conclusion on the serious safeguards violations in
Iran
.

Most of these cases involved undeclared nuclear activities that had not been detected by routine safeguards inspections. In the case of the DPRK, however, the undeclared activities had occurred before NPT safeguards inspections had commenced. As part of the verification of the "initial inventory" of nuclear material declared by the DPRK, the IAEA analysed declared plutonium and found anomalies indicating that the DPRK had separated plutonium at times other than those declared - and therefore that the DPRK had plutonium additional to that declared. The DPRK refused to allow further inspections to investigate this situation.

These cases shared a number of common features, very briefly outlined in the following paragraphs.

5.3.1. Reprocessing or enrichment experiments at declared (i.e. safeguarded) nuclear sites

The cases of
Iraq
,
Romania
,
Libya
and Iran
all involved, inter alia, reprocessing experiments - fuel or targets had been irradiated in safeguarded research reactors, and hot cells used for plutonium separation were at declared sites. In some cases the material used had been exempted from safeguards by the IAEA at the state's request. Although the experiments were small-scale, they were significant because they indicated an intent to use the experience gained for more substantial unsafeguarded activities.

5.3.2. Reprocessing or enrichment activities at undeclared sites

Iraq
,
Libya
and Iran
were found, inter alia, to have undertaken uranium enrichment R&D using undeclared nuclear material at undeclared sites. In addition, they had established, or were well advanced with, substantial enrichment capabilities at undeclared sites.

5.3.3. Obstruction of or refusal to cooperate with IAEA inspectors

Iraq
and DPRK refused to cooperate with IAEA inspections, and Iran
was found to have undertaken a program of "deception and denial" with respect to inspections.

5.4.

Implications for safeguards effectiveness

What do these cases tell us about the effectiveness of IAEA safeguards? Does the failure to detect undeclared activities, which in some cases were part of a pattern of clandestine activities extending over as long as 20 years, suggest fundamental weaknesses in safeguards? These failures can be attributed to a number of factors existing at the time, including:

• restrictions on inspector access – under traditional safeguards IAEA inspectors could access only defined strategic points at declared nuclear facilities (and certain locations outside facilities). In all these cases some undeclared activities had been undertaken on safeguarded sites, but away from the strategic points where inspectors could go;
• lack of detection techniques – e.g. until the introduction of environmental sampling (see below) it was very difficult to detect activities such as small-scale plutonium separation;
• IAEA culture – a "checklist" approach to inspections had evolved, with inspectors not being trained to look beyond the obvious. This, combined with the access restrictions already mentioned, led to many inspectors having a narrow perception of their duties. One reflection of this was the approach taken to safeguards exemptions, since tightened up.

While the
Iraq
situation was a low point for the IAEA safeguards system, there were some positive aspects. The existence of clandestine enrichment was first revealed through detection and analysis of microscopic uranium particles on the clothing of hostages held by the Iraqis. Thus an important new verification tool - environmental sampling - was introduced to safeguards. Also in unravelling
Iraq
's nuclear program extensive use was made of satellite imagery. Environmental analysis and satellite imagery have since become well established safeguards techniques.

The DPRK case served to demonstrate the effectiveness of new analytical techniques, so from a technical perspective can be regarded as a success, though from a broader perspective the DPRK nuclear issue remains unresolved.

As outlined below, the discovery of
Iraq
's clandestine nuclear program led to an extensive program to strengthen IAEA safeguards, which has been underway since the early 1990s. The factors mentioned above are being addressed by this program.

It might be asked, if efforts to strengthen safeguards began in the 1990s, how was it that similar failures came to light a decade later, in the cases of
Iran
and Libya ? Mention might also be made of undeclared nuclear activities discovered in the ROK and
Egypt
, which the IAEA Board of Governors considered in late 2004 and early 2005 but determined did not constitute non-compliance.

These cases show that the establishment of new detection techniques takes some time, and particularly that restrictions on inspector access continue to be a substantial impediment to effective safeguards in those states that have not concluded an additional protocol (see below). In the case of the ROK, environmental sampling revealed indicators of undeclared uranium enrichment and plutonium separation experiments, but these could not be fully investigated until the ROK's additional protocol came into effect. In the case of
Egypt
, undeclared activities were first revealed through the IAEA's information collection and analysis activities. Although regrettably
Egypt
refuses to conclude an additional protocol, Egyptian authorities cooperated with the IAEA in resolving the failures once they were detected.

5.5. Strengthening the safeguards system

The traditional safeguards system developed for the NPT was primarily focused on verifying declared nuclear materials and activities. It was 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 likely to involve diversion of nuclear material from declared facilities. The discoveries made about Iraq 's clandestine enrichment program demonstrated that these assumptions were no longer valid.

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.

Areas of development 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.

Underpinning the program to strengthen safeguards is the additional protocol (AP) - a legal instrument complementary to safeguards agreements, which establishes the IAEA's rights to more extensive information and physical access. The Model Additional Protocol was agreed by the IAEA Board of Governors in 1997. Of the 63 NNWS NPT Parties with significant nuclear activities, to date 43 have APs in force and 9 have signed - an uptake of more than 80% of all such states. Clearly the combination of a comprehensive safeguards agreement and an AP has come to represent the contemporary standard for NPT safeguards. It is of serious concern that (at the time of writing) 11 NNWS NPT Parties with significant nuclear activities have yet to adopt the AP.

5.6. Integrated safeguards

An important development is the introduction of "integrated safeguards". This is not a new form of safeguards, but a rationalisation of safeguards activities under a combination of a comprehensive safeguards agreement and an additional protocol. The degree of redundancy between routine safeguards and AP measures (they provide different ways of covering similar acquisition paths) can be used to justify reductions in routine safeguards effort. Further rationalisation is possible through applying a state level approach. In the first instance introduction of integrated safeguards requires satisfactory implementation of the additional protocol.

More information on the program to strengthen safeguards, the additional protocol and integrated safeguards is provided in other chapters of this book.

5.7. Detection of undeclared nuclear activities

5.7.1. Undeclared activities at declared sites

An important measure to counter undeclared activities at declared sites has been the introduction of routine environmental sampling. This is most effective where an additional protocol is in place giving inspectors wider access rights, but even without a protocol environmental sampling is a powerful tool. For example, "swiping" of areas around hot cells will readily reveal undeclared reprocessing experiments. Another important measure is the regular re-verification of "design information", checking that facility designs have not been altered - and at the same time extending access through facilities.

5.7.2. Undeclared nuclear sites

Clearly detecting undeclared nuclear activities at undeclared sites is more difficult - this is the greatest challenge currently facing safeguards. While it is possible indicators of undeclared nuclear activities could be detected through non-location-specific monitoring operations - such as wide area environmental monitoring (currently not considered sufficiently proven for deployment by the IAEA), or environmental analysis at a declared site fortuitously detecting emissions from another, undeclared, site - the fundamental problem here is identification of locations for investigation. Wider access rights are of limited practical value without leads on where to seek access. This requires information analysis - and is particularly dependent on information from states, whose information collection and analysis capabilities (including use of satellites and intelligence activities) are generally far greater than those of the IAEA.

The importance of information broader than that available from traditional safeguards activities can be illustrated by the Iranian and Libyan cases. In the case of Iran
, there were long-running suspicions but, until relatively recently, no firm evidence. The extent of Iran
's clandestine nuclear program started to be revealed after an Iranian dissident group identified specific locations that the IAEA was then able to ask to investigate. In the case of
Libya
, intelligence information enabled the interception of a shipment of centrifuge components bound for Libya . This led to the unraveling of an international illicit nuclear supply network, organized by the Pakistani AQ Khan, which was providing Libya with an entire centrifuge enrichment plant on a turn-key basis.

While states are an important source of information, it is also important that information available within the IAEA is used effectively. For example, it was disturbing to find that Libya 's early work on uranium conversion and other areas relevant to the nuclear fuel cycle had been assisted under the IAEA's Technical Cooperation Program. There was no process for safeguards inspectors to follow up on the results of such assistance. This is an area that requires further attention.

5.8. Further steps in strengthening safeguards

Some further steps that can be taken in strengthening the safeguards system, and the non-proliferation regime more generally, are outlined in the following paragraphs.

5.8.1. Enhancing the IAEA's technical capabilities

The detection of undeclared nuclear activities presents a considerable challenge. For example, it is notable that undeclared centrifuge enrichment activities are a common denominator for most of the states found to have committed major safeguards violations. Because of the inherent characteristics of centrifuge enrichment - including relatively small physical scale, relative absence of physical indicators - detection presents substantial difficulties. It is essential for all states in a position to do so to assist the IAEA in developing the necessary capabilities and skills.

5.8.2. Increased sharing of information

The preparedness of governments to share national information with the IAEA is essential to an effective safeguards system. There are limits to what can be realistically expected of the IAEA, without the assistance of states, in the detection of undeclared nuclear activities. States need to contribute through the sharing of unclassified information and analyses, the sharing (under appropriate protection) of information from national intelligence sources, and assisting the IAEA in developing necessary information collection and analysis skills. Much has been done in these areas, but there is plenty of opportunity to do more.

Information-sharing with other verification agencies and secretariats can be improved, both within nuclear-related areas, such as the Nuclear Suppliers Group (NSG), the Zangger Committee, and the CTBT Organisation, and also with other WMD areas, such as the Chemical Weapons Convention and the Missile Technology Control Regime. Experience shows that a state pursuing one form of WMD is likely to be interested in others, as well as in suitable delivery systems. Often these states have used the same research institutions and front companies across different WMD areas. Thus knowledge of procurement efforts in other areas may be very useful for the IAEA, and vice versa.

5.8.3. Constraining the spread of proliferation-sensitive nuclear technology

Recent developments have highlighted that the spread of proliferation-sensitive technologies - uranium enrichment and reprocessing - jeopardizes the non-proliferation regime. The confidence that safeguards are intended to provide will be undermined if there is concern that states, in the guise of safeguarded "civil" programs, are developing nuclear weapons capabilities that will enable rapid break-out from non-proliferation commitments. Here, an issue that needs to be addressed effectively is the claim that the NPT gives states an unlimited right to pursue all nuclear technologies, regardless of the consequences for the Treaty's objectives.

6. CWC VERIFICATION

The objective of the CWC (like the BWC) is the elimination of an entire class of weapon. The CWC inter alia bans the development and use of chemical weapons, and requires the destruction of all existing stocks of chemical weapons. Thus, CWC verification measures are aimed at both non-proliferation and disarmament.

The Convention vests the verification function in the Organization for the Prohibition of Chemical Weapons (OPCW). The OPCW, through its Technical Secretariat:

• monitors the destruction of existing stocks of chemical weapons and destruction or civil conversion of facilities used to produce chemical weapons; and
• inspects many research and industrial sites to confirm that chemical weapons are not being produced, and that other proscribed activities are not being undertaken.

The main verification processes follow the model outlined under the verification precepts outlined in part 4 above, and involve Parties making declarations to, and allowing inspections by, the OPCW. A notable transparency measure is that much of the declaration material and some summary inspection data are made available to CWC Parties.

A practical problem for verification is that a very wide range of chemicals, many in large-scale industrial use, are potentially suitable for production of chemical weapons. Chemicals that are subject to routine reporting and inspection arrangements are listed in Schedules to the Convention, or are included in the definition of "discrete organic chemicals". However, many chemicals, including some that are suited to CW production, are omitted from routine inspection coverage because they are too widely spread and inspections would not be practicable - chlorine is one example.

A major cause for concern with the CWC regime is that a number of states, some suspected of having chemical weapon programs, remain outside the Convention.

6.1. Routine inspections

For the chemicals that are subject to routine inspection, facilities are categorized by sensitivity of chemical. The more sensitive facilities are generally inspected annually, the less sensitive facilities are inspected randomly. The random inspections are based on a formula taking account of equitable geographic representation and the nature of the activities. There is a limit on the number of random inspections per state (the limit is 3 + 5% of the number of facilities in the state, up to a maximum of 20 inspections in a year).

The number of CWC routine ("industry") inspections is outlined in Table 2 (figures for June 2004). These figures do not include inspections at military sites for disarmament purposes, which as at June 2004 accounted for most inspection effort - some 84% of total inspector days. The balance of inspection effort is expected to change in favour of routine inspections in the longer term.

6.2. Challenge inspections

A major difference to IAEA safeguards is that the OPCW is not expected to look for undeclared activities in breach of the Convention, except as may be revealed by a routine inspection. Instead, it is up to Parties, through national means, to identify locations that may be in use for prohibited activities. Another Party may request clarification from the suspected Party, and if appropriate may request a challenge inspection. A request for a challenge inspection is subject to a screening process - if the inspection proceeds it would be undertaken by OPCW inspectors. To date there have been no requests for a challenge inspection.

Table 2: CWC routine inspections (2004)

Chemical type	No of inspectable facilities worldwide	No of inspections planned for 2004	Inspection frequency
Schedule 1–high risk to CWC Used or readily useable as CW	27	16	Usually annually (average 8 out of 10 years)
Schedule 2–significant risk to CWC Not produced in large commercial quantities	156	42	All inspected initially, re-inspection depends on risk assessment
Schedule 3–risk to CWC Produced in large commercial quantities	421	24	Randomly
Discrete organic chemicals	4440	80	Randomly

7. CTBT VERIFICATION

The CTBT prohibits nuclear weapon test explosions or any other nuclear explosions. CTBT verification, while technically sophisticated, has a relatively simple objective: the detection of a nuclear explosion. The Treaty has two verification mechanisms: the International Monitoring System (IMS), aimed at detecting possible nuclear explosions, and On-Site Inspections (OSI), which would be employed to investigate an explosion once detected.

The CTBT will not enter into force until it has been ratified by 44 named states - 11 of these have yet to do so. The CTBT specifies that the IMS must be capable of meeting the requirements of the Treaty when it does enter into force. Accordingly, although the Treaty is not in force, the IMS is in the process of being installed.

7.1. International Monitoring System

The IMS will comprise 321 seismic, radionuclide, infrasound and hydroacoustic monitoring stations and 16 radionuclide laboratories in 89 states. Approximately 55% of the IMS stations have been completed and are in operation. IMS stations are operated by national agencies under contract to the Preparatory Commission for the CTBT Organization (CTBTO PrepCom).

A feature of the CTBT verification arrangements is that data from the IMS stations are available to all Treaty Parties - data are transmitted to the Treaty's International Data Centre in
Vienna
, and may be accessed by any Party. Any Party therefore is in a position to analyse IMS data and to call for an investigation, including an OSI.

7.2. On-Site Inspections

In contrast to verification under the NPT and CWC, where regular inspections are carried out by the treaty organization, inspections under the CTBT will be based only on a challenge mechanism. In the event that a suspected nuclear explosion has been detected by the IMS or by national technical means, any Party can request an OSI. Such an inspection would be regarded as a final verification measure which seeks to clarify whether a nuclear explosion had occurred in violation of the Treaty, and to gather evidence to assist in identifying the perpetrator.

OSIs would not be performed by a standing treaty inspectorate, but by inspection teams largely drawn from a list of experts nominated by the Parties to act as inspectors on an ad hoc basis. The detailed OSI arrangements are currently being negotiated, but the OSI provisions will not operate until the Treaty enters into force.

7.3. Effectiveness of CTBT verification

There have been claims that the CTBT cannot be effectively verified. Is this a valid criticism?

The IMS was designed to have a high probability of detecting explosions of one kiloton or more. An early trial of the IMS came with the Indian and Pakistani nuclear tests of 1998. Each said they had carried out two trials in which two or three nuclear devices were detonated simultaneously. Analysis of IMS and other seismic data identified three of these four events. In the fourth case, IMS data could not confirm Indian reports that it had simultaneously carried out explosions of 0.3 kt and 0.5 kt. It is possible that such small explosions, carried out in alluvium, were not well coupled, and thus were not visible to the nascent IMS.

The IMS has been developed considerably since then. Though still only partially installed, the performance of the IMS is proving to be remarkably capable of detecting even quite small explosions. A 100 tonnes conventional explosion carried out in
Kazakhstan
in 1999 for calibrating the IMS was readily detected by much of the IMS network installed at that time. An even smaller explosion, of about 12 tonnes, was used as part of an experimental OSI exercise in
Kazakhstan
in 2002. The quality of the IMS data analysis proved to be very good for both events.

Both of the small explosions mentioned here were carried out underground, and their energy release was well coupled to the surrounding geology. An often-cited evasion scenario involves conducting a nuclear test in a large underground cavity in a yielding medium (e.g. salt) to decouple much of the energy. While a well engineered cavity might offer the possibility of strong decoupling, it would be difficult for a proliferator to be assured that this would prevent detection by the IMS (or national technical means) of anything other than a very small nuclear explosion (e.g. < 0.5 kilotonne). Only an experienced NWS could have any confidence of conducting a successful test of this size, which practically eliminates the possibility that a new proliferator might test undetected. Such a threshold also makes unlikely undetected testing of significantly new designs by a NWS.

A further evasion scenario cited over the years has been the conduct of an atmospheric test over a remote ocean location. There is every chance that such an event would be detected by the IMS infrasound and/or radionuclide monitoring network. The issue then is one of attributing responsibility.

The IMS will not detect small-scale nuclear experiments - hydronuclear tests (i.e. sub-critical tests where a nuclear chain reaction is initiated but stopped at an early stage), or hydrodynamic tests (where non-fissile material is used, e.g. to test implosion systems). In addition, it would be possible to deploy an HEU-based "gun-assembly" weapon or a basic implosion weapon without testing, though a proliferator without nuclear weapon experience would be faced with uncertainty whether the weapon would work effectively, or even at all.

Thus for some specific cases the criticism about verifiability may be valid. However, a proliferator seeking to develop more advanced, "boosted" fission weapons, or thermonuclear weapons, would have to conduct large-scale (> 1 kilotonne) tests. This is also the case for an experienced weapon state developing significantly new weapon designs. Experience demonstrates explosions of this size are likely to be detected. Accordingly, the CTBT is an important complement to the NPT in limiting the proliferation of nuclear weapons.

8. SOME ISSUES COMMON TO THE WMD REGIMES

8.1. Detection of undeclared activities

As has been discussed, verification relates both to possible misuse of declared facilities, and to the possible existence of undeclared facilities. Regarding the misuse of declared nuclear facilities, or conduct of undeclared nuclear activities at declared sites, IAEA safeguards have had some failures, but the causes of these have been addressed and safeguards can now be considered highly effective in countering these possibilities.

The greatest challenge facing IAEA safeguards is detection of undeclared nuclear activities away from declared sites. Detection of small-scale experiments at undeclared sites will always be difficult. Detection is more likely where activities are of a scale sufficient to produce one or more nuclear weapons in a year. In the case of reprocessing, detectability is good, especially if an undeclared reactor is also involved. In the case of enrichment, detection of centrifuge enrichment plants presents a major challenge, but as greater R&D efforts are focused on this problem, detection capabilities can be expected to improve.

The IAEA's detection capability depends on the tools - legal and technical - at its disposal. Technical capabilities have been substantially improved, but the most effective use of these depends on states concluding additional protocols extending the access and information available to the IAEA. Many of the weaknesses in safeguards discussed here remain for states that have not concluded an additional protocol.

Ultimately, national intelligence has a vital role in the detection of undeclared nuclear activities - good results will very much depend on intelligence activities being well-targeted, and evidence being shared with the IAEA. The IAEA cannot be blamed for failures of national intelligence. And no alternative to IAEA safeguards has been devised that solves the basic problem of finding "actionable" information - information sufficiently specific to act on.

The CWC verification regime provides reasonable assurance that activities at declared "high-risk" facilities are consistent with declarations. However, for the wider chemical industry, the low number of inspections relative to the number of facilities (see Table 2), and the non-coverage by routine inspections of a number of toxic chemicals, means that inspections primarily serve a confidence-building function. The fact that a state has accepted inspections - assuming the inspections proceed satisfactorily - has a certain qualitative value, but the level of assurance is not comparable with that gained from safeguards inspections. Inspections aimed at possible undeclared facilities depend on the challenge inspection mechanism being initiated by a state.

8.2. The problem of non-state actors

This is now increasingly recognized as a major aspect of the problem of undeclared WMD activities. The conventional view is that if activities relating to WMD proliferation are occurring in a state, these will be carried out by or on behalf of the state concerned. However, recent events - such as discovery of the Khan nuclear network - have shown that proliferant activities are not exclusive to states. Non-state actors can also be very active in this area. A number of considerations follow:

• traditionally, there is a potentially adversarial relationship between a treaty verification agency and the corresponding national authority – because the national authority is a state instrumentality, it has to be assumed that if proliferation is occurring the national authority is in collusion. But if proliferation is being carried out by non-state actors, the state may be genuinely unaware of this;
• states have a very serious interest here. Governments cannot assume that because they are committed to non-proliferation, all persons in their jurisdiction share this commitment. Exercising effective control over WMD-related activities is not only a matter of meeting treaty commitments and maintaining credibility within the international community, such activities could pose a threat to the security of the state itself;
• the most effective counter to non-state proliferation will be close cooperation between the treaty agency and the national authority. While care is needed to ensure the ability of the treaty agency to reach independent conclusions on state compliance, a partnership approach is needed in countering WMD proliferation by non-state actors.

8.3. How to focus verification effort to best effect

An important political aspect of the verification regimes is that they are non-discriminatory. In the IAEA, this led to uniformity in safeguards implementation, where safeguards effort was determined in a formulaic, facility-by-facility fashion. The end result was that in the 1990s some 60% of total safeguards effort was being expended in just three states -
Canada
,
Germany
and
Japan
– based on the size and complexity of their fuel cycles and the quantities of nuclear material held. Yet actual safeguards violations had demonstrated that the risk of proliferation lay elsewhere, in certain states which under a uniform approach received few inspections.

As part of the program to strengthen safeguards, and also to meet cost-efficiency objectives, IAEA safeguards are now moving from a uniform approach to one of differentiation, taking account of appropriate state-specific factors. Differentiation is not discriminatory provided the same technical objectives apply to all states. The further development of this "state-level approach", where the IAEA's evaluation of the state as a whole plays a key role, remains a work in progress.

The inutility of concentrating inspection effort in states simply because they have the largest number of facilities was also recognised in the CWC context. The CWC has approached this issue in a different way, through a formula which ensures geographic spread of inspection effort. This may be acceptable in a system that samples only a fraction of the total number of facilities, but has the disadvantage that inspection effort is determined mechanistically rather than as an outcome of state evaluation. There are moves by some CWC Parties to promote selection procedures for certain facility groupings that would redress this.

8.4. Transparency of the verification system

To be most effective in its confidence-building function, a verification system must have an appropriate degree of transparency. States must have sufficient knowledge of how the verification system works, including performance standards, quality assurance and decision-making processes, to have confidence in the credibility of conclusions reached under the system. A related issue is the extent to which information available to the verification system should be shared with states.

For the IAEA, it is a long-established practice, reflecting the wishes of Member States, for information provided to the Agency in the course of its verification activities to remain confidential. This is in contrast with more recently-established verification systems, under the CWC and the CTBT. In the case of the CWC, any Party is entitled to access to national declarations submitted by other Parties. Under the CTBT, data collected by the IMS are available to any Party. Under both of these treaties, therefore, Parties are in a position to cross-check the information available to the verification agency - to identify gaps in that information where they may be able to assist, and to reach an informed assessment on the operation of the verification system.

Of course, there will be some information - e.g. commercial matters, physical protection arrangements, national intelligence-sourced information - that must remain confidential, and the verification agency must also be mindful of not revealing information (or its lack thereof) that could be exploited by a proliferator. However, there is an extensive range of information where greater openness could be beneficial – this is an issue that warrants further study.

8.5. Compliance issues

An essential aspect of a WMD treaty's effectiveness is the preparedness of the international community to act to enforce compliance where necessary. If a proliferator assesses that enforcement is unlikely, then the risk of detection will have little deterrent effect. Consistency and predictability in the reaching of non-compliance findings are also very important.

Inevitably political as well as technical considerations come into play in dealing with non-compliance. It is essential however to avoid confusion between technical and political dimensions. Non-compliance as such involves technical judgments, and a non-compliance finding should be based primarily on technical grounds. Political factors will come to the fore in efforts to resolve the situation after a non-compliance finding has been reached. The distinction between technical and political aspects is reflected in the IAEA Statute, which requires non-compliance findings to be reported to the Security Council. The Statute also requires that the Security Council be notified of matters within its competence, pertaining to international peace and security. This is a clear indication that political decisions are the Security Council's responsibility.

In the Iranian case, concern about the consequences of a non-compliance finding - e.g. whether Iran would cease cooperation with the Agency, or even withdraw from the NPT, and whether in any event the Security Council could agree on a response - has led to what amounts to plea-bargaining within the IAEA Board of Governors, under which a non-compliance finding has been withheld while Iran suspends uranium enrichment and reprocessing activities and efforts are made to negotiate a solution.

This may be seen as a pragmatic response to a very difficult situation, but the mixing of technical and political considerations could have damaging consequences for the integrity and credibility of the IAEA's processes. For example, it has led to some arguing that non-compliance ceases to be non-compliance with the passage of time - in effect, that a clandestine program becomes legitimate once it has been discovered and documented. At the time of writing, it was unclear how the Iranian issue would play out, but there are serious lessons to be learnt.

The possible deadlocking of the Security Council is itself a regrettable reflection on the politicization of compliance decisions. Considering that on a number of occasions, e.g. in Resolution 1540 of 28 April 2004, the Council has recognized that proliferation of WMD constitutes a threat to international peace and security, it is essential for the members of the Security Council - especially all five permanent members – to appreciate that combating WMD is a common cause, of far greater importance than the politics of the moment.

9. CONCLUSIONS

IAEA safeguards have proven effective for declared activities. Now that emphasis is being given to assurance of the absence of undeclared activities, safeguards are moving into an area where effectiveness involves more qualitative judgments. As safeguards become more qualitative, it is important not to lose the substantial advantages safeguards now have in terms of effectiveness for declared activities. In the further development of the safeguards system, care is required in rationalising effectiveness versus efficiency.

Compared with IAEA safeguards, CWC verification is fundamentally a qualitative system. Effectiveness is less certain for declared activities, particularly for less sensitive chemicals. To counter undeclared activities there is substantial reliance on state-initiated action. This less rigorous system is acceptable because of practical constraints – it is recognised that, with millions of tonnes of chemicals produced each year, it would be impossible to monitor all production, use, and transfers.

9.1. Centrality of the NPT

The NPT is the most universal of the WMD treaties, and also has the most well-developed verification system. The NPT anticipates and recognises the contribution of the other WMD regimes – the nuclear disarmament provision, Article VI, links nuclear disarmament to a commitment on all Parties, NWS and NNWS alike, to pursue "a treaty on general and complete disarmament under strict and effective international control". The NPT negotiators recognised that nuclear disarmament cannot be viewed in isolation - it is unrealistic to expect the eventual elimination of nuclear arsenals without effective steps to address strategic imbalances in conventional forces, and particularly other WMD concerns.

This places considerable challenge on the WMD regimes generally – not only must the strengthening of IAEA safeguards progress further, and important complementary steps such as entry into force of the CTBT and negotiation of a fissile material cut-off treaty (FMCT) proceed, but the CWC and BWC regimes must be made more effective. Because it is not practical for CWC verification to emulate nuclear safeguards, attention may have to be given to developing compensatory measures to complement verification, such as greater transparency between states and various forms of regional CBMs. The lack of verification for the BWC will also need to be addressed. Here too complementary measures are likely to be required, but it is difficult to imagine these will be sufficient without some form of verification.

9.2. Effectiveness of verification

There is no absolute standard of effectiveness. Whether a particular verification regime provides the degree of assurance required by states - hence is considered "effective" - is a matter for judgment, involving questions such as the verification objectives; the verification methods and standards; detection capabilities; quality assurance for verification activities and conclusions; related CBMs; other information (including intelligence) available to states; incentives/deterrents reinforcing compliance; and so on.

As to the risk of false assurance, this is a complex issue, involving the same questions as just outlined. It is essential to promote a realistic appreciation of what verification can deliver, and to avoid over-expectation. This comes back to the point that deterrence through risk of detection is just one of a number of influences on the behaviour of states. Verification alone cannot be expected to solve the proliferation problem - but makes a vital contribution to the response to this problem.

9.3. Multilateral and national collaboration

The arguments canvassed above have emerged as part of a wider debate about the relative contribution of multilateral and national actions in countering nuclear proliferation. In fact, effective action against proliferation cannot be wholly multilateral, nor wholly national - what is needed is a collaborative relationship between the two.

There is no substitute for the disciplined, ongoing and objective service which a multilateral verification system such as IAEA safeguards can provide. The advantages of IAEA safeguards over national capabilities include: regular access in the state (the ability of inspectors to get "under the roof" at places of interest); a strong body of expertise in verification/investigation techniques; and impartiality - important to international confidence-building and to securing support for enforcement action.

However, national action is also essential – the best results will come from close collaboration. Only governments can address the motivations for proliferation, and ensure effective coordination and application of controls over proliferation-sensitive exports.

Proliferation is a political problem, and can be dealt with effectively only at the political level. We must seek a better understanding of why some states - fortunately only a handful - seek to proliferate, and how they can be persuaded to change course. Political negotiations, such as those aimed at resolving the DPRK and Iran
nuclear issues, are an example of this. Technical measures - especially IAEA safeguards - and complementary measures such as export controls, development of proliferation-resistant technology, and establishment of a multilateral framework dealing with sensitive technology, make a vital contribution. But the success of the non-proliferation regime depends on political judgments about confidence and trust – where verification plays an important role - and ultimately on political resolve to uphold compliance, using incentives and if necessary sanctions.

Abstract

The IAEA's safeguards mission – the objectives of the safeguards system – is defined by the relevant agreements and by the practice of the Board of Governors, the Secretariat and States in implementing these. The principal agreements are the NPT and comprehensive safeguards agreements. There are some apparent differences of scope – the NPT refers to verification of Treaty obligations concerning diversion of nuclear energy, while comprehensive safeguards agreements refer to verification of nuclear material. Just as the safeguards system is undergoing evolution, so too is the safeguards mission. The increasing emphasis given to detection of undeclared nuclear material and activities has led to extension of verification activity to nuclear-related matters – e.g. through the Additional Protocol. It is recognised that a broader approach to verification is needed to substantiate the Agency's conclusions on nuclear material. One issue that has arisen is the extent of the Agency's authority to investigate possible nuclear weaponisation activities. The Agency cannot afford to overlook these – they could signal preparations for diversion, or may indicate that diversion, in the form of undeclared nuclear material/activities, has already occurred without detection. Another issue relates to the kinds of conclusions the Agency can draw. The framers of INFCIRC/153 realised the danger of setting an unrealistically high standard of proof – hence the use of terms such as "not able to verify" and "purposes unknown". Confidence about a State's performance of non-proliferation obligations comes down to the judgment of other States – the Agency's conclusions are very important to this but not decisive. A shared understanding of the safeguards mission is essential to avoid misunderstandings and failure. This paper seeks to enhance understanding of the safeguards mission through discussion of these issues.

1. INTRODUCTION

The IAEA's comprehensive safeguards system has been in operation for some 35 years. After this time, it might be thought that all issues regarding the safeguards mission – the objectives and scope of safeguards – have been clarified. However, issues continue to arise, e.g. with respect to the Agency's inspection authority, its safeguards objectives, and the scope of its conclusions. Any uncertainty in these areas could have a detrimental effect on the Agency's safeguards operations and even its credibility.

The nature of the Agency's safeguards mission – what the safeguards system is seeking to achieve – can be considered at a number of levels: what is required under the NPT; what is required under safeguards agreements; what are the expectations of the international community?

The safeguards mission is defined both by the relevant agreements and instruments, and by the practice of the Board of Governors, the Secretariat and States in implementing these. The four basic instruments describing safeguards and setting out the objectives of the safeguards system are: the Agency's Statute; the NPT; the model comprehensive safeguards agreement (INFCIRC/153); and the model additional protocol (INFCIRC/540). The inter-relation of these instruments is critical, especially the relationship between the NPT and the Agency's safeguards system. Here, it should be noted that the application of these instruments is not static but is subject to Board and State practice, which is evolving over time.

There are differences between the terms of the Statute, the NPT and safeguards agreements, which could affect the scope of safeguards activities, hence could affect the Agency's ability to draw conclusions, including determinations of non-compliance. This highlights a key issue – whether the apparent divergence between provisions of the NPT and safeguards agreements indicates that safeguards are intended to cover something less than the non-proliferation commitments provided for in the Treaty. While there is no doubt that activities by a NNWS (non-nuclear-weapon State) NPT Party aimed at the development of nuclear weapons – including those described as "weaponisation activities" – constitute non-compliance with the Treaty, the IAEA's authority to investigate weaponisation activities has been questioned, absent some "nexus" to nuclear material.

A further issue of fundamental importance concerns the nature of the conclusions the Agency is able, and can be expected, to draw. Does the Agency have to show that a nuclear program is non-peaceful? Conversely, is the Agency able to establish definitively that a nuclear program is for exclusively peaceful purposes?

This paper seeks to enhance understanding of the safeguards mission through discussion of these issues.

2. DEFINING THE SAFEGUARDS
MISSION – THE BASIC DOCUMENTS

Under the NPT, NNWS undertake inter alia not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices.^[1] They also undertake to accept safeguards:

• in accordance with the Agency's safeguards system
• for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty
• with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.^[2]

Thus the NPT foresees a broad mission for IAEA safeguards – the verification of obligations assumed under the Treaty, particularly not to divert nuclear energy to nuclear weapons.

The NPT then refers to matters that safeguards are to cover:

• "Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material …", and
• "The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State …"

This focus on nuclear material is understandable – after all, the manufacture of nuclear weapons requires nuclear material. Nuclear material is readily categorised and quantified, and lends itself to the accountancy-based verification approaches which had already become well established by the late 1960s. The prevailing view at that time was that an attempt to manufacture nuclear weapons would necessarily involve diversion of declared nuclear material and/or the misuse of declared nuclear facilities. Hence it was thought the NPT objectives could be met through verifying declared nuclear material and facilities.

Accordingly INFCIRC/153 was drafted in terms of safeguards procedures to be applied to nuclear material. The "Basic Undertaking" in paragraph 1 of INFCIRC/153 refers to the "undertaking by the State to accept safeguards … on all source or special fissionable material in all peaceful nuclear activities within its territory …". However, the process of paraphrasing Article III.1 of the NPT introduced an apparent divergence from this Article. As discussed, under Article III.1 the purpose of verification is not limited to nuclear material, but encompasses "the fulfilment of (the State's) obligations assumed under this Treaty" relating to diversion of nuclear energy to nuclear weapons.

Not too much should be made of this apparent difference. Clearly nuclear weapons cannot be manufactured without nuclear material, so Article III.1 sets out the basic requirement that safeguards procedures should apply to all the nuclear material in the State. This means an obligation to declare all nuclear material so safeguards procedures can be applied to it. It does not mean that safeguards procedures are limited to nuclear material. As will be discussed, verification also needs to encompass relevant non-nuclear materials and items in order to be able to draw conclusions about the absence of undeclared nuclear material.

INFCIRC/153 itself defines the Agency's safeguards mission, albeit in the context of that document's focus on nuclear material. INFCIRC/153 provides that the Agency has the right and obligation to ensure safeguards are applied to all nuclear material in the State, to verify that such material is not diverted to nuclear weapons or nuclear explosive devices.

[3]

This basic statement is elaborated further in the description of the "objective of safeguards", namely:

"… the timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown ..." ^[4].

3. THE SAFEGUARDS
MISSION
– A PROCESS OF EVOLUTION

The interpretation of INFCIRC/153, in terms of safeguards implementation and the expectations of the international community, has evolved over time, and continues to do so.

From the terms of the NPT it is clear that INFCIRC/153 does not represent the full extent of the IAEA's verification mandate. Under the NPT, the State has accepted "the Agency's safeguards system". This is an evolutionary system, a system whose content is under continuing development – as shown by the fact that when the NPT was concluded INFCIRC/153 did not exist, in signing on to the NPT States accepted a commitment to a system that was then undefined.

To find major elements of the safeguards system it is necessary to go outside INFCIRC/153 – upwards, to decisions of the Board of Governors, and downwards, to the IAEA's Safeguards Manuals, Safeguards Criteria, the integrated safeguards conceptual framework and associated documentation, and so on. The point is, there is considerable flexibility in "the Agency's safeguards system", the Board of Governors and the Secretariat are able to adapt the system to meet changing circumstances. This adaptability is a key strength, essential to maintaining and improving the effectiveness of the safeguards system.

Until the 1990s the principal task of safeguards was generally seen as being to confirm the correctness of States' declarations. As noted above, 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 focus of safeguards agreements 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. 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.

One expression of this broadening of focus – of fundamental importance in the evolution of the safeguards system – was the development of the Additional Protocol, INFCIRC/540. With INFCIRC/540 the Agency and Member States have recognised that, in order to make the safeguards system more effective, the Agency's verification authority needs to go beyond the application of safeguards procedures to nuclear material.

INFCIRC/540 has extended the Agency's authority into a number of areas where nuclear material would not normally be present, such as manufacture of centrifuge components, heavy water, nuclear grade graphite, and shielded flasks, and construction of hot cells. The rationale for this is clear: the Agency can – and should – look at broader information that strengthens the Agency's ability to verify and draw conclusions regarding nuclear material in the State concerned. This encompasses procedures to find indicators of undeclared nuclear material and nuclear activities, or indicators of diversion or proposed diversion of nuclear material.^[5]

In parallel with the introduction of INFCIRC/540, the Agency has been developing a new range of verification methods and technologies, including information collection and analysis, environmental analysis, use of satellite imagery, and so on. Information analysis now has a central place in the evaluation of States for safeguards purposes and consequent decision-making, looking at questions such as: what are the acquisition paths available to a State; what are the possible indicators of undeclared nuclear activities; what is the optimal safeguards strategy for detecting such activities?

With the emphasis now being given to undeclared nuclear activities, the safeguards system is reflecting more closely the intent of the NPT, that verification should have a view to preventing diversion.^[6] Of course safeguards as such cannot prevent diversion, except through the deterrent effect of the risk of detection. Prevention is likely to require the intervention of the international community – but effective intervention depends on timely warning. The Agency's duty to the international community is, where possible, to provide warning before, not after, a nuclear weapon program has proceeded beyond the point where intervention can be effective.

4. NUCLEAR WEAPONISATION^[7]

Issues concerning the scope of verification and timely warning are directly relevant to the issue of weaponisation. "Weaponisation" is a shorthand term for the range of activities, in addition to the acquisition of fissile material, necessary for the manufacture of a nuclear weapon or nuclear explosive device. The manufacture of nuclear weapons obviously requires nuclear material, but many preparatory activities do not. Some relevant non-nuclear materials and activities are "dual-use", i.e. taken in isolation they do not necessarily indicate an intention to manufacture a nuclear weapon. While such an activity may be ambiguous, however, it may be less so in the context of other information about the State (e.g. discovery of undeclared nuclear material/activities).

Whether the State is known to have direct-use material, or the capability to produce it, is an essential aspect of assessing the significance of apparent weaponisation activities – but it should not be overlooked that weaponisation activities may themselves be an indicator of the existence of undeclared nuclear material/activities, as yet undetected.

The Secretariat has suggested that "absent some nexus to nuclear material the Agency's legal authority to pursue the verification of possible nuclear weapons related activity is limited".^[8] What is a sufficient nexus? Clearly, development of nuclear weapons must at some stage involve nuclear material. The conduct of certain activities by a State may be a clear indication of intent to misuse nuclear material. The Agency has a responsibility to provide timely warning of diversion of nuclear material to nuclear weapons, so cannot ignore activities that indicate preparation for diversion, or indeed that diversion involving undeclared nuclear material/activities may have already occurred without detection.

In considering the IAEA's rights and responsibilities in this area, it is important to distinguish between:

• the IAEA's legal authority – its right of access to locations in a State to investigate possible weaponisation activities, and its responsibility to draw conclusions;
• the IAEA's detection capabilities – detection of some of these activities could be very difficult. This should not be confused with the right to investigate, but it can affect the level of assurance the IAEA is able to provide in this area.

By their nature, many weaponisation activities will be difficult to detect. Here, there are two issues: how to identify specific locations for investigation; and how to detect indicators at such locations. A further difficulty is that even after investigation the activity may remain ambiguous – the outcome may be inconclusive. Because of the inherent difficulties, the international community must accept that the Agency may not be in a position to resolve particular suspicions, and also that it might miss indications of certain activities. In most cases the Agency will not be in a position to provide absolute assurance of the absence of weaponisation activities – although also in most cases State evaluation should show there is no reason to believe such activities may exist.

The difficulties in detecting weaponisation activities need to be taken into account in drawing safeguards conclusions. Absent unusual circumstances, safeguards non-compliance should be regarded as a strong indicator of proliferation intent.

5. SAFEGUARDS CONCLUSIONS AND THE STANDARD OF PROOF

The detection of wholly undeclared nuclear material/activities is much more of a challenge than confirmation of the correctness of declarations. As already mentioned, it has been necessary to develop a new range of verification methods and technologies. Although these techniques can be viewed as being "technical" in nature, decisions on which measures should be applied and the intensity of their application – how much is "enough" to fulfil the safeguards mission – involve qualitative judgment. Safeguards implementation requires a judgment on what is required to be done, which needs to be guided by a clear understanding of the safeguards mission. This in turn can be guided by an understanding of the kind of conclusions the Agency is able to reach.

The IAEA reports in the annual Safeguards Implementation Report (SIR) whether it found any indication of diversion or any indication of undeclared nuclear material/activities. The results of the Agency's activities are then used to support conclusions.

Traditionally the Agency expressed its conclusions in terms of declared material:

"All the information available to the Agency supports the conclusion that the nuclear material and other items placed under safeguards remained in peaceful nuclear activities or were otherwise adequately accounted for."

^[9]

Once the Agency began to implement safeguards measures under the Additional Protocol, however, there was an expectation that it would also draw a conclusion about the absence of undeclared nuclear material/activities. The Agency did this for the first time in the SIR for 2000, when it reported:

"In 2000, in respect of seven States, the Secretariat – having evaluated all the information obtained through activities pursuant to these States' comprehensive safeguards agreements and additional protocols as well as all other information available to the Agency – found no indication either of diversion of nuclear material placed under safeguards or of the presence of undeclared nuclear material or activities in those States. On this basis, the Secretariat concluded that all nuclear material in those States had been placed under safeguards and remained in peaceful nuclear activities or was otherwise adequately accounted for." (underlining added)

It is essential that the Agency's conclusions on the absence of undeclared nuclear material/activities are credible. The international community must be confident that the absence of indicators does not simply reflect inadequate or ineffective verification effort. The Agency is devoting considerable effort to the development of verification methods that will provide a credible result. In this regard, credibility will depend on a number of factors: that the verification methods are appropriate; that they are implemented appropriately in each case (which involves issues of quality assurance); and that the Agency's practices are adequately understood by the international community.

It is essential for States to understand what the Agency means by a conclusion on the absence of undeclared nuclear material/activities. Such a conclusion is not unqualified – it is important not to confuse credible assurance with certainty. It is never possible to prove a negative with absolute certainty. For at least the last 30 years, the Agency has recognised that it is necessary to draw its conclusions on the balance of probabilities. There has been a substantial effort to ensure the credibility of the conclusions drawn, but it is recognised that seeking higher levels of assurance rapidly falls victim to the law of diminishing returns.

One aspect of conclusions about undeclared nuclear material/activities concerns the significance of the detection of such material/activities, and whether their existence constitutes diversion. Is it sufficient for the IAEA to show a failure to declare nuclear material or nuclear activities, or is something more required, such as evidence of nuclear weapon intent?

It is most unlikely inspectors will catch a State red-handed, e.g. by finding a nuclear weapon or nuclear material in the form of nuclear weapon components. It is more likely a State facing exposure in such an obvious way would deny access, preferring to argue whether lack of cooperation constitutes non-compliance, and to be able to maintain some ambiguity about its actions. For this reason, the reference in INFCIRC/153 paragraph 28 to diversion to "purposes unknown" is very important. The framers of INFCIRC/153 realised that the standard of proof should not be set unrealistically high.

Further, INFCIRC/153 provides that the Board may report to the Security Council if it finds that the Agency is not able to verify that there has been no diversion to nuclear weapons.^[10] Broadly speaking there are two possible scenarios here:

• inspectors find that nuclear material is unaccountably missing (and self-evidently, the purpose for which the nuclear material may be being used is not known); or
• inspectors find undeclared nuclear material, without satisfactory explanation – i.e. the reason (purpose) for the failure to declare is not known.

In either case it is essential for the Board to have the opportunity to consider the matter without delay.

This understanding of what it is the Agency needs to demonstrate should help to guide what the Agency needs to do in its verification activities – in other words, to clarify the Agency's safeguards mission. To "prove" the existence of a nuclear weapon program is too demanding – detection of weaponisation activities will be very difficult, or if they are detected their purpose may be ambiguous. Depending on the circumstances, the existence of undeclared nuclear material/activities should raise a presumption of diversion – especially if direct-use material, enrichment or plutonium separation are involved. The more additional information the IAEA can gather the better – this will help to make the judgment whether a weapon purpose is plausible in the circumstances. Detection and investigation of apparent weaponisation activities need to be part of the IAEA's remit, but are not essential to support a finding of diversion/non-compliance.

6. CONCLUSIONS

The NPT reflects the expectations of the international community as to compliance with the non-proliferation obligation and verification of this compliance. The NPT provides that the safeguards system is to verify fulfilment of the obligations assumed under the Treaty "with a view to preventing diversion of nuclear energy to nuclear weapons". Accepting safeguards procedures on nuclear material is an essential mechanism for demonstrating compliance with the non-proliferation obligations, but it is by no means the full extent of these obligations. With the adoption of INFCIRC/540 both the Agency and Member States now appreciate that, for the Agency to fulfil its mandate, safeguards procedures cannot be limited to nuclear material, but need to encompass related matters that support conclusions about nuclear material.

It is essential to avoid unrealistic expectations – States must be made aware of limitations in safeguards capability, especially since notwithstanding good progress the development ofcapabilities to detect undeclared nuclear activities is still at a relatively early stage. On the other hand, if the Agency does not investigate matters of serious concern to States – such as indications of weaponisation – this will adversely affect credibility. Apparent weaponisation activities may indicate preparation for diversion – or that diversion (including activities involving undeclared nuclear material) has already occurred but not been detected. This is a matter the Agency cannot afford to neglect.

It is also important that the Agency doesn't set the standard of proof for safeguards conclusions too high. The framers of INFCIRC/153 were realistic in their use of language such as "purposes unknown" and "not able to verify". The responsibility to provide timely warning and a requirement for certainty could well be mutually exclusive – by the time certainty is established it may be too late.

Whether governments have confidence that a State's nuclear program is exclusively peaceful is a matter of judgment made, not on the basis of certainty but on the balance of probabilities. The situation is more likely to be one of ambiguity, rather than conclusive evidence. Once inspectors find they are unable to verify that there has been no diversion to nuclear weapons – or that there has been diversion to purposes unknown (which includes use of nuclear material in activities whose purpose is uncertain) – it is for the Board of Governors and governments to consider the implications and what is necessary to rebuild confidence.

For the safeguards system to be credible a close correlation is needed between safeguards outcomes and the expectations of the international community. It is essential to all parties that the safeguards system is able to provide confidence about a State's performance of its peaceful use commitments – or to provide timely warning if there are grounds for concern. A shared understanding of the safeguards mission – the objectives of the safeguards system – is essential to avoid misunderstandings and failure.

Abstract

Safeguards have evolved substantially over time, reflecting changes in the technical and political environment in which they operate. Key influences have included the extent and scope of nuclear programs under safeguards, the kind of proliferation challenges that have arisen, and state expectations.

Safeguards originated with inspections by nuclear suppliers on a bilateral basis, applied to transferred materials and items – hence 'item-specific'. Following the establishment of the IAEA in 1957, safeguards were gradually multilateralised – and with the NPT, were extended beyond transferred items to cover the entire nuclear program of non-nuclear-weapon states ('comprehensive' safeguards). Comprehensive safeguards represented a change of fundamental importance, since they bring the responsibility of verifying the absence of undeclared nuclear materials and activities.

From the early 1990s it has been seen that the main contemporary proliferation risk lies not with mainstream nuclear programs but with undeclared nuclear activities. The challenge of detecting these has prompted a major overhaul of safeguards – including greater use of information, a broadening of verification activity, and the drawing of more qualitative conclusions. Especially important has been the move to a state-level approach, taking account of state-specific factors, under which safeguards effort can be prioritised to areas of higher proliferation risk.

This paper outlines the evolution of safeguards to date and suggests some directions for the future.

1. INTRODUCTION

Verification of peaceful use commitments, provided by safeguards measures, is crucial to maintaining international confidence that nuclear programs are exclusively peaceful. From the early days of civil nuclear activities, safeguards have played an essential role in non-proliferation efforts. Far from being a static system, safeguards have evolved substantially over time, reflecting changes in the technical and political environment in which they operate. Key influences have included the extent and scope of nuclear programs under safeguards, the kind of proliferation challenges that have arisen, and the expectations states have for the safeguards system.

Safeguards are seen by many as a deterministic, even mechanistic, system. This is reflected in views expressed by critics about the adequacy of nuclear material accountancy, and also in current concerns about the adequacy of the IAEA's safeguards budget to deal with an expanding nuclear industry. Indeed, safeguards implementation did go through a mechanistic phase in the 1970s and 80s, but in practice safeguards have always involved management of risk – safeguards processes and parameters are set taking account of how best to counter proliferation risk, using available authority and resources.

Proliferation risk may be presented through:

(a) proliferation-sensitive nuclear materials and facilities; and

(b) unsafeguarded nuclear programs (involving sensitive nuclear materials and facilities).

Proliferation-sensitive nuclear materials and facilities The principal barrier to proliferation continues to be the difficulty of obtaining fissile material. Production of nuclear weapons requires suitable high enriched uranium or separated plutonium. A proliferator requires these materials or the means to produce them – enrichment or reprocessing facilities (and with the latter, suitable reactors). Safeguards implementation is made easier by the fact that these proliferation-sensitive materials and facilities are relatively limited in non-nuclear-weapon states (NNWS).

Unsafeguarded nuclear programs The principal proliferation risk lies with nuclear activities outside safeguards coverage. Since the conclusion of the NPT in 1968, states with unsafeguarded nuclear activities comprise:

(a) the five recognised nuclear-weapon states (NWS);

(b) the states outside the NPT^[11]; and

(c) any NPT NNWS with undeclared nuclear activities (thereby being in violation of the NPT).

Capping production of fissile material for nuclear weapons in the NWS and the non-NPT states, and bringing their nuclear programs under appropriate verification arrangements, is the goal of the proposed fissile material cut-off treaty. This paper discusses safeguards in the context of comprehensive safeguards agreements (CSAs), i.e. in states where all nuclear material and activities are required to be placed under safeguards (essentially, NNWS party to the NPT).

An essential task for safeguards is to monitor production, possession and use of sensitive nuclear materials and sensitive facilities that are subject to peaceful use commitments (primarily, under CSAs). If, for example, the IAEA were sure it knew of all reprocessing plants, it would not need to inspect reactors, since plutonium contained in spent fuel is not accessible without reprocessing. Through a risk-informed approach, therefore, confidence about the absence of reprocessing in a particular state supports reductions in safeguards effort on reactors. This is the basis of integrated safeguards, and is the key to how the safeguards system can both: (a) re-prioritise effort to areas of higher proliferation risk; and (b) deal with an expanding number of power reactors without a corresponding increase in safeguards resources.

2. HISTORICAL OVERVIEW

Safeguards originated with inspections by nuclear suppliers, applied to transferred materials and items on a bilateral basis, i.e. they were 'item-specific'. Following the establishment of the IAEA in 1957, an IAEA inspectorate was developed and bilateral inspection activities were gradually replaced by IAEA inspections.

A fundamental change in IAEA safeguards was introduced by the NPT, concluded in 1968. The NPT contained a commitment by NNWS to accept IAEA safeguards on all their holdings of nuclear material, existing and future, not only on supplied nuclear items. Thus the basis of IAEA safeguards changed, for NPT NNWS, from being 'item-specific' to being 'full scope' (today termed 'comprehensive') safeguards.

The 1970s and 80s were a period of very substantial growth for the IAEA safeguards system, through a combination of factors: the introduction of full scope safeguards, the increasing number of states joining the NPT, and the overall expansion of the nuclear industry. As the 'traditional' safeguards system developed, the primary focus was on verifying declared nuclear material, applying procedures similar to those developed for item-specific safeguards. The principal proliferation indicator, for NPT NNWS, was thought to be diversion of nuclear material from safeguarded facilities. Hence safeguards developed as a facility-based system with an emphasis on nuclear material accountancy.

A complicating factor was the political imperative, in a multilateral agency, to avoid 'discrimination'. This came to be interpreted as requiring uniformity in safeguards implementation, a practice that led, by the 1990s, to some 60% of total IAEA safeguards effort being allocated in just three states –
Canada
,
Germany
and
Japan
– based on the size and complexity of their fuel cycles and the quantities of nuclear material they held. However, the safeguards violations that have come to light showed that the actual risk of proliferation lay elsewhere, in states that had only limited safeguards inspection coverage.

Discovery of Iraq 's clandestine nuclear activities prompted a major program by the IAEA – with the help of experts from member states (e.g. through Safeguards Support Programs and SAGSI^[12]) – to redesign the safeguards system, a process that is very much ongoing today. This started with 'Programme 93+2', and led to the establishment of the additional protocol, together with a major program of technical development. As a consequence, safeguards are changing from a largely facility-based system to a state-level, information-driven, system.

3. STRENGTHENING THE SAFEGUARDS SYSTEM

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.

Underpinning the program to strengthen safeguards is the additional protocol (AP) – a legal instrument which supplements safeguards agreements, establishing the IAEA's rights to more extensive information and physical access. The Model AP was agreed by the IAEA Board of Governors in 1997.

Perhaps the most important single innovation in safeguards development is the introduction of the state-level approach ( SLA ). Safeguards are moving from the old uniform approach to one of differentiation, designing safeguards implementation to take account of state-specific factors, such as the acquisition paths available to individual states. A major achievement has been gaining recognition that differentiation is not discriminatory, provided an objective process, applicable to all states, is used.

A central aspect of the new safeguards system is the introduction of integrated safeguards (IS). IS are described as the optimum combination of safeguards measures available to the Agency under both CSAs and APs which achieves maximum effectiveness and efficiency within available resources. Implementation of IS recognises the degree of redundancy between 'traditional' and strengthened safeguards measures, which can both cover the same acquisition paths. Accordingly, reductions can be made in 'traditional' measures without reducing overall effectiveness.

The SLA allows effectiveness objectives to be met, better focusing and prioritising the application of safeguards resources, and in so doing also addresses cost-efficiency objectives. The challenge here is to be able to optimise the opportunities for flexibility provided by the SLA without introducing safeguards vulnerabilities. The development of the SLA – particularly broadening the state-specific factors that are considered appropriate to take into account – together with corresponding changes to ways of evaluating safeguards performance and reporting safeguards results, are a major undertaking, and will be a work in progress for some time.

4. MEETING PROLIFERATION CHALLENGES

Actual proliferation challenges have come from clandestine nuclear activities, not mainstream nuclear programs. Four of the five cases of safeguards non-compliance reported by the IAEA Board to the Security Council have involved undeclared facilities –
Iraq
,
Libya
and Iran
– or facilities operated outside safeguards – the DPRK^[13]. In addition, an apparent attempt by
Syria
to build a clandestine reactor has recently come to light.

The technical challenges to safeguards include the illicit spread of proliferation-sensitive technology – especially the sale of centrifuge technology and even nuclear weapon designs through black market networks – and the difficulty of detecting undeclared nuclear activities, particularly where these are relatively small-scale. Centrifuge technology is a common thread in the cases of
Iraq
,
Iran
and Libya , and is also an issue with the DPRK.

Clandestine centrifuge enrichment operations do not need to be industrial-scale to present a major proliferation threat. Nor is the threat limited to clandestine facilities – an emerging threat is the spread of supposedly legitimate enrichment capability that could be used for rapid break-out^[14].

Detection of undeclared nuclear activities How realistic is it to expect the IAEA to detect undeclared activities? This problem has to be addressed at a number of levels:

(a)

methodology – identifying acquisition paths and indicators of activities on these paths, together with the verification procedures needed to enable inspectors and analysts to find these indicators;

(b)

technology – developing the technical means needed to detect nuclear activities;

(c)

authority – ensuring the IAEA has the necessary powers to obtain information and to carry out verification procedures, especially at suspect locations.

Substantial progress has been made with methodology and technology, though clearly detection capability continues to be a major challenge. The AP has been essential to strengthening the IAEA's authority. The combination of a CSA and an AP now represents the contemporary standard for NPT safeguards.

It is of serious concern, however, that 11 years after the Model AP was agreed, there are seven NNWS NPT Parties with significant nuclear activities –Argentina, Brazil, DPRK, Egypt, Iraq, Syria and Venezuela – that have yet to adopt the AP. In addition, Iran
has 'suspended' its cooperation under the AP. The cases of
Syria
as well as Iran
show why refusal to implement an AP can no longer be considered acceptable. The IAEA has emphasised that without an AP its ability to draw conclusions on the absence of undeclared nuclear material/activities is limited. All states must do more towards achieving universalisation of the AP – it is high time all nuclear suppliers made the AP a condition for supply.

It is unrealistic to expect the IAEA to detect undeclared nuclear activities by itself – while the Agency is developing considerable skills in information collection and analysis, including techniques such as satellite imagery analysis, it can never hope to match the intelligence capabilities of a major state. A partnership between states and the Agency is required.

States need to be more willing to share safeguards-relevant information concerning third parties, including nuclear export denials and intelligence information. The AP Annexes should be updated, including the addition of dual-use items. For its part, the IAEA needs to be more proactive in using the authority available to it, especially special inspections. States will not share information if they are not confident the Agency will put this to effective use.

5. CHANGING EXPECTATIONS

Initially the IAEA was expected to verify only the specific items placed under safeguards. The introduction of comprehensive safeguards had far-reaching implications, involving the responsibility of verifying the absence of undeclared nuclear materials and activities, although it was not until the 1990s that states and the Agency began to think in these terms.

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. Now states expect the Agency to also draw conclusions about undeclared nuclear material and activities – to verify the completeness as well as the correctness of states' declarations.

This expectation is manifested in two ways. Most importantly, states are concerned that the Agency's conclusions about the absence of undeclared nuclear activities are credible – specifically, that the Agency's procedures will be effective in detecting any such activities. States are also keen to gain a 'clean bill of health' for themselves, so they will qualify for IS as quickly as possible.

Conclusions on the absence of undeclared nuclear activities are necessarily qualitative. 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. It is essential to avoid false assurance, to recognise there are limitations to the assurance that safeguards can deliver.

Rightly, the IAEA Secretariat is very careful in the way it expresses its safeguards conclusions. In particular, it avoids saying there are no undeclared nuclear activities in a state. Rather, the conclusions are expressed in terms of whether it found indications. Further, the Secretariat recognises that the conclusions that can be drawn depend on the scope of the safeguards implemented in each state – stronger conclusions where IS are being applied, more limited conclusions where there is only a CSA.

In its current format for safeguards conclusions, the Secretariat reports as follows:

1. for states under IS, it found no indication of the diversion of declared nuclear material from peaceful nuclear activities and no indication of undeclared nuclear material or activities. On this basis, it concluded that, for these states, all nuclear material remained in peaceful activities;
2. for states with a CSA and an AP, but which had not yet qualified for IS, it found no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities remained ongoing. On this basis, it concluded that declared nuclear material remained in peaceful activities;
3. for states with a CSA but no AP, it found no indication of the diversion of declared nuclear material from peaceful nuclear activities. On this basis, it concluded that declared nuclear material remained in peaceful activities.

Confidence in the IAEA's competence is of crucial importance. No matter how well the practical limitations on what the Agency can deliver are understood, it is damaging to confidence when undeclared activities come to light that the Agency had not detected. For example, it is of concern that Iran
's clandestine nuclear activities went undetected for some 20 years.

Criticisms about the failure to detect the Iranian nuclear program can be considered unfair, because: detection techniques, especially for centrifuge enrichment operations, remain under development; the IAEA needs the access rights provided by the AP, which Iran has refused to observe; and national intelligence agencies also failed to detect these activities – but the situation is not reassuring, and illustrates very well the challenges facing the Agency. Now states are considering the implications of
Syria
's apparent clandestine nuclear activities not being detected by the Agency.

The IAEA's safeguards responsibility involves more than technical verification activities. The credibility of the safeguards system – whether the system meets international expectations – depends on confidence in both verification capability and the outcomes resulting from verification findings. Predictability and consistency of safeguards findings are essential. Again, the Iranian case is pertinent. It took the Board three years to reach a non-compliance finding. States may wish to reflect on the IAEA's decision-making processes and how these might be improved for the future.

Also essential is confidence in the Agency's internal processes for evaluating information and drawing safeguards conclusions. To the extent practicable, there needs to be transparency of Agency processes – too much confidentiality will erode confidence. Where confidentiality requirements genuinely need to exclude transparency, mechanisms like a safeguards auditor who can review Agency performance on a confidential basis could be considered.

6. FURTHER DEVELOPMENT OF THE SAFEGUARDS SYSTEM

As part of the process of better matching safeguards intensity to proliferation risk, the safeguards system is moving from uniformity to a state-level system, where safeguards implementation takes account of state-specific factors. As part of this evolution, different implementation levels have emerged. This situation is clearly reflected in the IAEA's safeguards conclusions, which distinguish between:

1. states under IS;
2. states with a CSA and an AP but which have not yet qualified for IS; and
3. states with only a CSA.

The concept of different implementation levels should be taken further. In one direction, further relaxation of routine safeguards might be considered in future in states in which IS have been satisfactorily implemented for a number of years. Perhaps this could be combined with occasional more intensive safeguards activity to ensure nothing has been missed. Needless to say, as in all cases of SLA implementation, states would be kept under review in case changing circumstances warrant a return to more intensive safeguards.

In the other direction, safeguards intensity may need to be increased in states where significant safeguards issues have arisen. Significant safeguards issues might include significant unresolved questions and inconsistencies, significant anomalies, safeguards implementation problems, etc. The most serious cases are where compliance issues have arisen.

Verification in non-compliance cases The situation of non-compliance needs particular attention. Fortunately non-compliance is an exceptional situation, and there is no established model for how to deal with follow-up verification. After the first Gulf War, safeguards verification in Iraq was based on Security Council resolutions, which provided authority for more intrusive verification activities. In the DPRK, inspectors were first expelled, then re-admitted under a reduced scheme of monitoring agreed between the DPRK and the
US
. In Libya , much of the work in rolling up the clandestine nuclear program was undertaken by certain NWS.

In the case of
Iran
, the IAEA's efforts to establish the extent and purpose of Iran
's undeclared nuclear activities are based on the CSA and 'voluntary' cooperation. The IAEA does not even have the right to information and access provided by the AP, since Iran
had never ratified its AP and has 'suspended' it. So, the Agency has to appeal to Iran
for cooperation.
Iran
has provided limited cooperation, but in the main takes a very legalistic approach in what it will allow – indeed, worse than a legalistic approach, since Iran
has attempted to unilaterally rescind the Agency's legal rights^[15].

Perhaps the worst aspect of this situation is the semblance of legitimacy that continued safeguards implementation under the CSA gives Iran
, which is operating conversion and enrichment facilities in defiance of Board and Security Council resolutions. It is important to monitor what
Iran
is doing at these facilities, as well as to pursue investigation of
Iran
's nuclear activities as a whole, but it may be better to do this under a different mechanism than the CSA. Perhaps what is needed is a more rigorous safeguards regime for states in non-compliance – including stronger access and information rights than provided by the AP (i.e. a new 'AP plus') – mandated by Security Council resolution^[16]. The Secretariat should be developing ideas for such a regime for the Board's consideration. Of course the state concerned might choose not to cooperate with the Agency under such a regime, just as Iran
is defying the current Security Council resolutions, but at least the state couldn't claim that it was meeting all its obligations.

Undeclared nuclear activities – what can the IAEA report? Although the safeguards system has undergone considerable evolution, it continues to be centred on verification through inspection. In the case of suspected undeclared nuclear activities, however, there is the obvious problem that without location-specific information, actionable through inspection (or complementary access), suspicions cannot be resolved.

The problem is illustrated by the case of Iran
. As noted earlier, Iran
's clandestine nuclear program went undetected for 20 years. In fact, for much of this time there had been serious grounds for suspicion from what the Secretariat knew about Iran
's procurement activities. However, because this information was not location-specific and could not be resolved, it was not referred to in IAEA reports, and the IAEA's annual Safeguards Implementation Reports gave the impression that Iran
was meeting its safeguards obligations.

The question needs to be addressed, whether the Agency can, or should, report suspicion, where there are significant grounds and the state does not appear to be cooperating to resolve the matter. This is not simply a question of whether it is appropriate to report suspicion. More seriously, it is a question whether, by not so reporting, the Agency is misleading the international community. Consideration needs to be given to an appropriate form of reporting to put the international community on notice of a potential problem case.

7. CONCLUSIONS

IAEA safeguards have undergone substantial evolution over some five decades. Safeguards have always been a risk-informed system, but explicitly recognising this helps to provide the flexibility needed to address major changes and challenges.

Prioritising safeguards effort to the areas of greatest proliferation risk will require further innovation in defining and identifying risk, and in recognising areas of lower risk where further reductions in safeguards intensity can be made. In the latter cases, a particular challenge is to avoid introducing vulnerabilities, and to ensure timely recognition of changes in circumstances warranting recalibration of safeguards intensity.

As part of improving effectiveness and efficiency, safeguards implementation should take account of developments that could have a favourable effect on proliferation risk, such as greater privatisation and globalisation of nuclear activities, the development of multination fuel cycle centres, and regional collaboration on nuclear programs (being alert however to the possibility of collusion between states).

Detection of undeclared nuclear activities presents a major challenge. The IAEA, with the assistance of states, can develop improved methods and detection technologies, but realistically there is a limit to what the Agency can do without the information that states can provide. A partnership is required. States must be prepared to share more information with the Agency – but the Agency must be prepared to address the reasons for the apparent reluctance of states to do this.

More than ever, it is essential for safeguards to be complemented by other multilateral and regional measures that can benefit non-proliferation objectives. For example, transparency mechanisms and other confidence-building measures could have an important role, particularly in some regions. Mechanisms could include collaborative nuclear projects, and bilateral or regional safeguards arrangements such as ABACC^[17]. Also important is the development of proliferation-resistant fuel cycle technologies.

The safeguards system benefits from two important factors: the strongly held commitment by most states against seeking nuclear weapons, and the relatively limited number of enrichment and reprocessing facilities. These factors are closely related – if the real purpose behind new enrichment and reprocessing programs is suspected to be break-out, confidence in the non-proliferation regime would be eroded, and others will be motivated to follow suit. If the capability to produce fissile materials spreads more widely – whether by clandestine or even declared programs – the safeguards system would come under severe strain, in terms of safeguards resource requirements, but more seriously because of the proliferation potential. The single most pressing non-proliferation issue today, impacting directly on the safeguards system, is the spread of sensitive nuclear technologies.

1. INTRODUCTION

It is surprising that although there have now been five cases where the Board of Governors (Board) of the International Atomic Energy Agency (IAEA) has determined that a state has been in non-compliance with its NPT safeguards agreement – involving
Iraq
,
Romania
, DPRK,
Libya
and Iran
– there is no established definition of "non-compliance".

The process of determining non-compliance is not only an important aspect of the IAEA safeguards system, but is also the only established mechanism for determining non-compliance with the NPT itself: non-compliance with an NPT safeguards agreement will constitute non-compliance with Article III of the NPT – to accept safeguards on all nuclear material – and, depending on the circumstances, possibly also Article II – not to acquire nuclear weapons.

Some forms of non-compliance – such as refusal to allow IAEA safeguards inspections – will be clear cut. More difficult are circumstances involving ambiguity – e.g. if inspectors discover undeclared nuclear material or activities, does this necessarily indicate an intention to produce nuclear weapons? Inadvertent safeguards breaches do occur – and it is necessary to be able to distinguish between breaches that have significant safeguards implications and those that may be of a less serious, "technical" nature.

Lack of a definition may be seen as advantageous – allowing the Board flexibility to deal with complex cases – but this comes at a cost. Lack of clarity and consistency in this vitally important area could have adverse consequences for the integrity and credibility of the IAEA's safeguards system. This paper suggests that guidelines could be helpful to the Board's deliberations, and could assist all parties in their understanding of the issues.

2. LEGAL CONTEXT

IAEA Statute The term "non-compliance" in the safeguards context was introduced in the IAEA's Statute, which entered into effect in 1957, i.e. some 13 years before the Nuclear Non-Proliferation Treaty (NPT). Article XII.A of the Statute outlines the Agency's rights and responsibilities with respect to arrangements where the Agency is requested by the parties concerned to apply safeguards. Article XII.C provides that the IAEA's inspectors shall have "the responsibility of … determining whether there is compliance with … conditions … prescribed in the agreement between the Agency and the State … concerned" (underlining added).

Article XII.C further provides that "The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors" (underlining added). Article XII.C requires the Board to report non-compliance to the Security Council^[18].

Nuclear Non-Proliferation Treaty The entry into force of the NPT in 1970 introduced a range of new obligations for non-nuclear-weapon state (NNWS) Parties, especially to accept IAEA safeguards on all their nuclear material^[19].

Under the NPT, a NNWS undertakes the fundamental obligation "not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices"^[20]. The fulfilment of this obligation is to be verified, through the obligation to "accept safeguards, as set forth in an agreement to be … concluded with the [IAEA] … and the Agency's safeguards system, … with a view to preventing diversion of nuclear energy (underlining added) from peaceful purposes to nuclear weapons or other nuclear explosive devices. … The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere"^[21].

It can be seen these provisions contain a number of elements pertinent to the issue of compliance. The reference to diversion of nuclear energy is particularly interesting. Commonly the term "diversion" is thought of as relating to nuclear material, but in the NPT the term is given a much broader meaning – here the sense is the misuse of nuclear processes. Also interesting is the reference to prevention, which underlines the timely warning aspect of safeguards – safeguards must be forward-looking, drawing inferences from known facts.

Comprehensive safeguards agreement The safeguards agreement required of NNWS under the NPT – now termed a comprehensive safeguards agreement^[22] – has been standardized through the model agreement published as IAEA document INFCIRC/153. In terms of the IAEA Statute, an NPT safeguards agreement is an "arrangement where the Agency is requested by the parties concerned to apply safeguards" (Article XII.A).

The basic obligation in an INFCIRC/153 agreement, reflecting the language of NPT Article III.1, is "to accept safeguards … on all source or special fissionable material … for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices"^[23]. Also of fundamental importance is the obligation to cooperate with the IAEA in facilitating the implementation of safeguards pursuant to the safeguards agreement^[24].

3. DETERMINING NON-COMPLIANCE

Procedural aspects A non-compliance finding may be reached through the process set out in Article XII.C of the Statute, outlined above, or through paragraph 19 of INFCIRC/153.

Paragraph 19 of INFCIRC/153 provides that if the Board "upon examination of relevant information reported to it by the Director General finds that the Agency is not able to verify that there has been no diversion of nuclear material … to nuclear weapons or other nuclear explosive devices" (underlining added), the Board may make the reports provided for in Article XII.C of the Statute.

While INFCIRC/153 does not use the term "non-compliance", the effect of the reference in paragraph 19 to Article XII.C is to bring the concept of non-compliance into INFCIRC/153. The cases mentioned at the beginning of this paper demonstrate it is firmly established practice that the Board may reach a specific finding of non-compliance with respect to INFCIRC/153 agreements.

A way of understanding the relationship between Article XII.C and paragraph 19 is to see the former as applying to unambiguous non-compliance, such as detection of diversion or refusal to allow inspections. The "inability to verify" formulation of paragraph 19 could also apply to some such situations, but in addition could apply to circumstances that are less clear-cut, or where the IAEA's investigations are inconclusive.

Distinguishing non-compliance from less serious breaches A judgment on non-compliance is made first by the "the inspectors" in deciding what should be reported to the Board, and then by the Board in deciding whether it finds that non-compliance has occurred. Once the IAEA inspectors have decided that a breach is sufficiently serious to report to the Board, how does the Board determine whether the breach is sufficiently serious to constitute non-compliance?

The drafting of Article XII.C ("compliance with … all … conditions of the … agreement") could be read as indicating that non-compliance is a failure to observe any condition in a safeguards agreement. But clearly not every safeguards breach constitutes non-compliance – otherwise the agendas of both the Board and the Security Council would be taken up with safeguards cases. There needs to be a way of distinguishing serious from less serious breaches.

Some guidance can be found in the Statute, and by reflecting on the purpose behind the Statute's provisions for reporting to the Security Council. Looking at e.g. the indication in Article XII.A.1 that items under safeguards should not further any military purpose, and the close link between Article XII.C and Article III.B.4, which deals with "questions that are within the competence of the Security Council … as the organ bearing the main responsibility for the maintenance of international peace and security" (underlining added), it can be inferred that non-compliance involves safeguards breaches that have an actual or potential proliferation significance.

What kind of breaches are of actual or potential proliferation significance? This is a judgment that needs to be made on the facts of each case, but obvious considerations would include:

·

Is there diversion of nuclear material to nuclear weapons, to purposes that could be related to production of nuclear weapons, or for "unknown" purposes (see below) that could include nuclear weapons?

·

Where undeclared nuclear activities have been discovered, do these involve fissile material or production of fissile material^[25] – i.e. enrichment or reprocessing? If so, are the quantities involved significant, or is there indication of an intention to scale up the undeclared activities to produce significant quantities?

What is the context of the safeguards breaches: is there a systematic pattern of breaches; are the nuclear materials and the activities involved of a nature that could be relevant to nuclear weapons; might they be part of an overall program aimed at acquiring nuclear weapons?

• Is the IAEA being obstructed in carrying out its safeguards activities – e.g. inadequate cooperation with inspections, failure to produce records, interference with safeguards equipment, etc. – so that the IAEA is not able to exclude the existence of diversion or undeclared nuclear activities?

• What is the overall record of the state on performance of safeguards and non-proliferation commitments?

Diversion There are two elements to diversion: action and purpose. Regarding action, diversion is commonly taken to mean removal of nuclear material from safeguarded activities. More correctly, however, the term encompasses both removal of nuclear material from safeguards and failure to declare nuclear material for safeguards. The state's basic obligation is to accept safeguards and apply safeguards procedures on all nuclear material – any significant departure from this obligation could indicate diversion.

The other element of diversion is purpose – diversion is stated to be "to nuclear weapons or other nuclear explosive devices" (INFCIRC/153 paragraphs 1, 2, etc.) or to "purposes unknown" (INFCIRC/153 paragraph 28). The reference to "purposes unknown" is of critical importance, indicating that the standard of proof is set at a practical level, not one that is unrealistically high. This point is discussed further below.

Undeclared nuclear material/activities Although the NPT and INFCIRC/153 express the obligation to accept safeguards in terms of nuclear material, under INFCIRC/153 the obligation to declare nuclear material also extends to an obligation to declare nuclear facilities^[26]. In addition, INFCIRC/153 requires reports on the processing of nuclear material, which necessarily involves reporting of relevant activities. The Additional Protocol (INFCIRC/540) also requires reporting on – and provision of complementary access to – specified nuclear-related activities even if nuclear material is not present, on the basis that knowledge of such activities will assist the IAEA in drawing conclusions concerning nuclear material.

The discovery of undeclared nuclear material or activities does not necessarily indicate an intention to produce nuclear weapons. It is necessary to make a judgment on implications and significance, e.g. whether the failure to declare might be inadvertent, and the possible consequences if the failure had remained undetected, e.g. how might the material concerned be used?

In assessing whether particular failures can be accepted as inadvertent, relevant factors might include the following:

• Whether there is evidence of deliberate falsehoods or concealment efforts, indicating that the failures were intentional rather than inadvertent;
• The nature of the nuclear material involved – particularly whether fissile material;
• The nature of the nuclear activities involved – whether these are related to production of fissile material (i.e. enrichment or reprocessing) or to processes that could be relevant to nuclear weapons.

4. STANDARD OF PROOF

Whether governments have confidence that a state's nuclear program is exclusively peaceful is a matter of judgment made, not on the basis of certainty but on the balance of probabilities. A judgment on non-compliance cannot wait until the state has succeeded in acquiring nuclear weapons. If the standard of proof is set too high, the IAEA is bound to fail in its responsibility to provide the international community with timely warning.

To "prove" the existence of a nuclear weapon program is unrealistic: a state having a nuclear weapon or nuclear weapon components, or conducting weaponisation experiments with nuclear material, is unlikely to be caught red-handed. More likely, a state facing obvious exposure would deny inspectors access to the location concerned, preferring to argue whether lack of cooperation constitutes non-compliance, maintaining some ambiguity about its actions.

Depending on the circumstances, the existence of undeclared nuclear material/activities should be enough to raise a presumption of diversion – especially if fissile material, enrichment or plutonium separation is involved. The NPT requires acceptance of safeguards on all nuclear material, for the purpose of verifying the fulfilment of obligations assumed under the Treaty, namely, not to produce nuclear weapons. Where it is found that a state has not declared nuclear material, apparently intentionally, the initial presumption must be that non-peaceful purposes are intended. The "smoking gun" is the failure to declare nuclear material.

If undeclared nuclear material/activities are discovered, an immediate challenge is to try to establish whether there are further undeclared nuclear material/activities – the IAEA's ability to do this might depend on having a non-compliance finding from the Board with increased authority from the Board to carry out additional verification activities.

The more additional information the IAEA can gather the better – this will help to make the judgment whether a weapon purpose is plausible in the circumstances. Detection of apparent weaponisation activities could be very important, and the IAEA needs to investigate such activities to the extent it is able, but discovery of weaponisation activities is not essential to support a finding of diversion/non-compliance^[27].

The drafters of INFCIRC/153 recognised the importance of avoiding an unrealistically high standard of proof. This is shown by the use of qualitative language – "purposes unknown"^[28] and "not able to verify"^[29] – that allows for application of judgment to deal with ambiguous or inconclusive situations.

INFCIRC/153 takes a practical approach – it is sufficient for the IAEA to show:

• Failure to declare nuclear material and/or a nuclear activity – or that nuclear material has been removed from safeguards;
• The failure is considered to be significant – e.g. because of the nature of the nuclear material and/or activity; and
• The purpose of the use of the nuclear material or the nuclear activity is not clearly exclusively peaceful – it could be military, or it could be uncertain, i.e. "unknown".

In these circumstances, the onus is then on the state to show that non-peaceful purposes are not intended. It can attempt to do this through full cooperation with, and transparency to, the IAEA, as discussed in the following section.

5. REMEDYING NON-COMPLIANCE

As discussed above, a non-compliance situation may well be one of ambiguity rather than conclusive evidence. Once inspectors find they are unable to verify that there has been no diversion to nuclear weapons – or that there has been diversion to purposes that are uncertain or unknown – it is for the Board and governments to consider the implications and what is necessary to rebuild confidence.

Article XII.C provides that the Board "… shall call upon the … State to remedy forthwith any non-compliance which it finds to have occurred", and paragraph 18 of INFCIRC/153 provides that where the Board "decides that an action by the State is essential and urgent in order to ensure verification that nuclear material … is not diverted to nuclear weapons … the Board shall be able to call upon the State to take the required action without delay …".

An essential issue for the IAEA to determine is the range of verification activities needed for effective investigation of the non-compliant state's nuclear activities. It is most unlikely that verification under the INFCIRC/153 agreement alone will suffice. At the least, the IAEA is likely to require access and information in accordance with the Additional Protocol (AP), so if the state doesn't have an AP in place the Board may need to require equivalent measures. Indeed, there are arguments whether the standard AP is sufficient to deal with non-compliance, or the IAEA may need further measures – what has been termed "the AP plus" – possibly under authority from the Security Council^[30].

When is non-compliance resolved? This comes down to an issue of what the Board requires before it can conclude that the non-compliance has been fully remedied. It is not simply a matter of making good the specific safeguards violations that have been discovered. Discovery of acts of non-compliance raises the question whether the state may have more, as yet undiscovered, safeguards violations. A substantial ongoing program of verification, requiring continuing cooperation by the state, may be required before there can be confidence that there are no other instances of non-compliance, and that non-compliance is not likely to recur. It could be some time before the Board is able to reach a positive conclusion, and before there can be confidence on the part of the international community.

6. CONCLUSIONS

Reinforcing confidence in, and commitment to, the non-proliferation regime depends not only on proficient verification but also, where necessary, on effective action to uphold treaty compliance. Well-functioning procedures for determining non-compliance are essential to this.

It is not appropriate to apply a rigid approach to determinations of non-compliance. The facts are likely to be complex, and a case-by-case approach will be required. The terms of Article XII.C of the Statute and paragraph 19 of INFCIRC/153 provide the Board with appropriate scope for the exercise of judgment. This is not to say, however, that the Board's discretion should be unlimited. Consistency and predictability are essential if the Board's decisions are to be credible and maintain confidence in the integrity of the IAEA's processes. It is essential that the approach taken by the Board is understood and accepted by the Member States.

Clarification of the issues involved in non-compliance determinations is important for all parties – states and the IAEA Secretariat as well as the Board. The development of guidelines to assist the Board, and indeed the Secretariat, could be very helpful. This paper has suggested some of the considerations that could inform the development of such guidelines.

1. INTRODUCTION

Negotiation of a fissile material cut-off treaty (FMCT) has been blocked for several years by the failure of the Conference on Disarmament (CD) to agree on its program of work. At this stage therefore we can only speculate about the likely substantive provisions of an FMCT. The negotiating mandate for the CD, drawn from a 1993 UN General Assembly Resolution^[31], has the following elements:

• the treaty is to ban "the production of fissile material for nuclear weapons and other nuclear explosive devices"
• the treaty is to be "non-discriminatory, multilateral and internationally and effectively verifiable".

The
US
has recently concluded that effective international verification of an FMCT is not realistically achievable. The
US
supports the early conclusion of an FMCT to establish "cut-off" as an international norm, but is concerned that negotiation of a verification regime will seriously delay the treaty.

This raises two issues: the practicability of effective verification; and whether the detailed verification system must be specified in the principal treaty instrument.

2. VERIFICATION CONSIDERATIONS

Is there anything in the FMCT concept that makes it inherently incapable of effective verification? This depends on the objectives of the FMCT, as reflected in its substantive provisions, yet to be negotiated. We must take care that questions of verifiability are not confused with differences over objectives, or issues of treaty architecture.

For example, the generally held FMCT concept does not proscribe production of additional nuclear weapons from unsafeguarded stocks of fissile material existing prior to the FMCT's entry-into-force (EIF). Rather, the objective is to ensure these stocks are not added to. Some may question whether the existence of large stocks of fissile material outside the FMCT reduces the treaty's usefulness - but this is an issue relating to the appropriateness of the FMCT's objectives, not its verifiability.

The maxim underlying nuclear "peaceful use" treaties - the principal one being the NPT - is "trust but verify". The subject matter of the NPT is of such fundamental importance to national and international security that no state would be prepared to rely on trust alone. The existence of a credible verification mechanism - in the form of IAEA safeguards - is essential to maintaining confidence in the effectiveness of the NPT and reinforcing the commitment of treaty parties.

Most states approach the FMCT with a similar perspective - the FMCT would not be considered credible without a verification mechanism. Here, we are not starting with a clean slate - there is already a highly developed verification regime for nuclear material and activities. We have over 40 years experience with IAEA safeguards. In addition, there is considerable experience with bilateral verification and confidence-building mechanisms (CBMs), some directly applicable to nuclear weapons and sensitive materials.

3. TREATY ARCHITECTURE

In the area of multilateral verification treaties, there are two alternative precedents. One is for a single treaty containing both the basic treaty objectives and commitments and the details of the verification system – the approach taken with the Chemical Weapons Convention (CWC). The disadvantages of this approach include the time required to negotiate the treaty – a
US
concern in the case of the FMCT – and the degree of inflexibility in the verification system. Updating the verification system would be a major political exercise.

The alternative approach – demonstrated very successfully by the NPT – is to have the basic political commitments in a principal treaty, and to set out the verification system in a secondary agreement (or series of agreements – in the NPT's case each party concludes a safeguards agreement with the IAEA based on the model in IAEA document INFCIRC/153). This approach separates largely political from largely technical subject matters, and allows for an adaptable verification system.

The NPT was concluded in 1968 and entered into force in 1970. The model safeguards agreement, INFCIRC/153, was not concluded until 1972. The negotiation of the model Additional Protocol (INFCIRC/540), agreed in 1997, illustrates how this basic approach allows flexibility for major updates of the verification system. Another advantage of having separate negotiations on the technical details is that such negotiations can proceed quite expeditiously – despite their complexity, INFCIRC/153 and INFCIRC/540 each took only about 18 months to conclude.

Given the commonalities in subject matter between IAEA safeguards and FMCT verification, it would seem sensible to follow the NPT route, thus enabling the political commitment – the international norm – to be established quickly, and the details of the verification system to follow.

4. OBJECTIVES AND SCOPE OF FMCT

The basic objective of FMCT will be to proscribe production of fissile material for nuclear weapons or other nuclear explosive devices. Accordingly, upon EIF each party would undertake:

• not to produce fissile material for nuclear weapons;
• to accept international verification on relevant facilities and nuclear material to verify this commitment;
• not to use any fissile material subject to verification under FMCT for nuclear weapons - i.e. the principle of irreversibility would apply, "subject material" could not be withdrawn for weapons use.

For the purposes of the FMCT, it is expected that "fissile material" would encompass separated (unirradiated) plutonium, uranium-233, and highly enriched uranium (HEU). It would probably also need to include separated neptunium, which is recognised by the IAEA as a material of potential proliferation significance.

Non-proscribed activities Production of fissile material for civil purposes, and for non-explosive military purposes such as naval propulsion, would be permitted, but only under verification to ensure fissile material is not diverted to weapons. Recycle (or clean-up) of plutonium from weapons - an established stockpile stewardship practice – which does not involve new production of fissile material, would also be permitted.

States affected The FMCT would apply to three groups of states:

• non-nuclear weapon states (NNWS) party to the NPT;
• the five NPT nuclear weapon states (NWS);
• the three "nuclear capable" states outside the NPT -
  India
  ,
  Israel
  and
  Pakistan ^[32].

NNWS party to the NPT are already committed not to produce or use nuclear material for weapons purposes, and to accept IAEA safeguards on all their nuclear material and activities to verify this commitment (comprehensive safeguards ^[33]). In principle therefore the FMCT should not involve any additional commitments from NNWS that are implementing both an NPT safeguards agreement and an Additional Protocol. The principal effect of the FMCT - and its verification task - relate mainly to the NWS and the non-NPT states.

Scope of the FMCT A major issue to be resolved in the negotiations is the scope of the FMCT - the facilities and material to which verification would apply. In broad terms the basic options are:

• a treaty of wide scope, covering all nuclear facilities and nuclear material - other than non-proscribed military activities, i.e. naval propulsion, and subject to the issue of stocks (discussed below); or
• a treaty of focused scope, concentrating on the most proliferation-sensitive fissile material production facilities - i.e. reprocessing and enrichment facilities - and relevant production from those facilities.

There would be substantial problems in trying to extend the comprehensive safeguards system to the NWS and non-NPT states:

• truly comprehensive safeguards covering all nuclear material cannot apply in the NWS and non-NPT states while they have nuclear weapons and therefore will retain, outside verification, nuclear material existing at the FMCT's EIF;
• the cost of verification on the comprehensive model in the NWS would be very high.

Taking these and related considerations into account,
Australia
has concluded that a separate, distinct FMCT verification regime would be required for the NWS and non-NPT states. The FMCT commitment to be verified would be the same as that verified by IAEA safeguards in the NNWS - i.e. that fissile material is not being produced for nuclear weapons purposes – but the verification approach would be more appropriate to the circumstances of the NWS and non-NPT states.

Australia
has proposed a focused approach, involving:

• the monitoring of facilities that can produce fissile material (production facilities) – i.e. enrichment and reprocessing plants;
• verification of fissile material subject to the FMCT (subject material) - separated plutonium, U-233, HEU and separated neptunium produced after EIF. This would require verification measures at downstream facilities handling these materials.

In addition, the FMCT verification regime will need to include measures aimed at detection of possible undeclared production facilities - see below.

5. STOCKS

A major issue - fundamental both to the substance of the FMCT and to the prospects of successful negotiation - is how to treat past production of fissile material, i.e. stocks existing at EIF.

The issue of stocks does not arise in the case of states which have accepted comprehensive safeguards under the NPT. All holdings of nuclear material in these states are subject to IAEA safeguards. The issue relates to those states which are outside comprehensive safeguards and have the capability to produce fissile material, i.e. the NWS and the non-NPT states.

The term "stocks" can have a wide meaning, ranging from fissile material in weapons, to bulk material declared surplus to defence needs, and to civil stocks of fissile material. Essentially, the FMCT could not apply to all pre-existing stocks held by the NWS and the three non-NPT states, as this would amount to instant disarmament – clearly an unrealistic objective. The FMCT will cap future production, but it must be recognised that past production in the NWS and non-NPT states would be outside verification.

If the parties so wished, however, the FMCT could contain a mechanism by which parties could place surplus and civil stocks under the treaty in accordance with the principle of irreversibility. Some parties may wish to do this as a mutual CBM.

6. VERIFICATION METHODS

It is envisaged that verification under the FMCT would comprise three basic elements: routine verification activities for declared facilities and material; verification activities aimed at detection of possible undeclared fissile material production; and complementary measures aimed at transparency and confidence-building.

Declared activities In concept this aspect would be very similar to IAEA safeguards. FMCT parties would be required to declare all relevant facilities – enrichment and reprocessing facilities, and downstream facilities handling subject material.

Declared facilities would be monitored – through inspections, containment and surveillance, and other measures – to verify there is no undeclared production of fissile material, and that declared fissile material is not diverted to nuclear weapons (or purposes unknown).

For enrichment plants, verification would be applied to all facilities, including those producing low enriched uranium (LEU), to ensure there is no undeclared production of HEU. In principle verification would not be applied to LEU – but in view of the advantages of LEU as a feedstock for undeclared HEU production, some verification measures for LEU may need to be considered, particularly in the case of states with smaller arsenals.

For reprocessing plants, verification would be applied to verify throughput. Verification would be applied to separated plutonium, and to facilities in which separated plutonium is present, sufficient to ensure the plutonium remains under treaty commitments. Verification would cease to apply once plutonium has been returned to a reactor as fuel and irradiated, since irradiated plutonium is of no further strategic value until it has been reprocessed.

Undeclared activities Here, two broad forms of verification activity are envisaged: routine activities aimed at evaluating the completeness and correctness of FMCT declarations; and inspections based on suspicion of a breach of FMCT commitments.

A major challenge for IAEA safeguards is the detection of undeclared nuclear facilities, particularly - because of the limited observable indicators - centrifuge enrichment facilities. In the past, for IAEA safeguards, techniques for the detection of undeclared facilities were limited, and detection of undeclared nuclear material was seen as the major indicator of the existence of undeclared facilities. Now, the increasing availability and capability of techniques for detection of undeclared facilities has led to a revolutionary change in safeguards. In the ongoing program to strengthen IAEA safeguards, emphasis is being given to detection of undeclared facilities.

A whole suite of new measures is being established, including: more effective information collection and analysis (including sharing of intelligence information); satellite imagery; and - through the Additional Protocol - wide-ranging complementary access to apply verification measures such as environmental sampling. Another technique under study is wide-area environmental monitoring – there is practical experience with this technique from UNSCOM/UNMOVIC activities in Iraq . It can be expected that methods similar to these would apply under the FMCT.

An issue raised for the FMCT is, how to recognise non-compliance. Since the NWS and non-NPT states have "undeclared material" – fissile material pre-existing EIF – how can it be determined whether particular material is the result of undeclared production post-EIF? There are techniques to resolve this question – nuclear material can be dated – but, as is increasingly the case with IAEA safeguards, the principal focus of FMCT verification to counter undeclared activities will be the detection of undeclared enrichment and reprocessing facilities.

As with IAEA safeguards, detection of undeclared enrichment and reprocessing facilities will also be a challenge for FMCT verification – but in some respects the problem is more manageable for the FMCT, because of extensive intelligence information held by the relevant states on each other, and the limited motivation to cheat for states that have nuclear arsenals they consider adequate – and in some cases are actively reducing. The more difficult cases might be states with small arsenals -
India
and
Pakistan
- where bilateral CBMs could have an important role in complementing international verification.

Similar to the Additional Protocol, under FMCT the verification agency would have the right to request access to locations to resolve questions and inconsistencies arising from information analysis. In addition to access initiated by the verification agency, FMCT parties may require a verification mechanism they can initiate directly, along the lines of the CWC's challenge inspection mechanism.

National security aspects The NWS and non-NPT states are concerned to protect national security and proliferation-sensitive information relating to past nuclear weapons programs and ongoing stockpile stewardship activities. Hence, verification methods and procedures will need to be carefully defined. Managed access provisions will be essential, probably elaborated in greater detail under the FMCT than in the Additional Protocol.

Other verification methods, and transparency/confidence building measures In addition to measures drawn from IAEA safeguards experience, other approaches that could be relevant to FMCT include "open skies" (flight corridors available for verification purposes), and bilateral or regional access arrangements. Such measures could have an important confidence-building role, complementing international verification, e.g. between
India
and
Pakistan
, or in the Middle East .

Verification of HEU produced for naval propulsion This is often raised as a problem for the FMCT, because the design of naval fuel is highly classified. Appropriate verification is required to ensure this does not become a route for diversion. This is complex but not insurmountable – the Trilateral Initiative between the
US
,
Russia
and the IAEA demonstrates the practicability of innovative approaches to verifying fissile material of sensitive composition, shape and mass.

7. VERIFICATION INTENSITY

Although some of the methods of IAEA safeguards are readily applicable to FMCT verification, the treaty objectives are very different. This would be reflected in the design of the FMCT verification regime.

Comprehensive safeguards are designed to provide assurance against horizontal proliferation, i.e. the acquisition of one or more nuclear weapons by a NNWS. The acquisition of just one or two nuclear weapons would be a dramatic change in the strategic status of such a state. The sensitivity of IAEA safeguards, reflected in technical parameters such as goal quantities (e.g. the significant quantity of 8 kg plutonium), detection probability, timeliness goals, and inspection frequency, has been set accordingly.

On the other hand, with states outside comprehensive safeguards, the concern is essentially vertical proliferation, i.e. additions to existing arsenals. The FMCT would address this by providing assurance that stocks of fissile material held outside international verification will not increase. For states that already hold nuclear weapons, their concern will be with treaty violations that could substantially alter strategic relativities: for states with thousands of weapons, a strategically significant violation might involve hundreds of weapons. Thus the design of verification approaches to deter vertical proliferation could be qualitatively different to those directed at horizontal proliferation.

A major development in IAEA safeguards implementation is a move away from uniformity to safeguards based on a "state-level approach", taking into account appropriate state-specific considerations. This development remains a work in progress^[34] – but the concept is readily applicable in the FMCT context. Applying a risk-informed approach, decisions on verification intensity could take account of considerations such as the following.

Since the NWS will retain military stocks outside the FMCT, it is reasonable to assume they have concluded, before joining the treaty, that those stocks are sufficient for their foreseeable needs. Hence they should have little incentive to cheat. This is especially the case for the
US
and
Russia
, which are dramatically reducing nuclear weapon numbers and are committed to irreversibly transferring substantial quantities of fissile material out of weapons programs. In these circumstances rigorous verification is not required. On the other hand, for states with small arsenals, verification intensity will need to reflect the fact that small-scale violations could have a serious effect on strategic relativities.

8. CONCLUSIONS

The US,
Russia
, France and
UK
have announced cessation of fissile material production for nuclear weapons, and it is understood
China
has also ceased such production. The FMCT would make an important contribution to nuclear non-proliferation, by formalising this situation and making it irreversible. A further important contribution would be capping the fissile material available in the non-NPT states, which are otherwise under no restraint. The FMCT would also help establish conditions under which further nuclear disarmament, involving all relevant states, would be possible – a significant consideration in the context of the NPT review process.

To achieve these benefits will require the treaty to be effective, and this requires a credible verification regime. There is a substantial foundation to build on, drawing on experience from IAEA safeguards and bilateral verification arrangements.

Undue delay in concluding a normative treaty can be avoided by separating negotiation of the principal treaty from negotiation of the verification system. The latter would be a largely technical negotiation, which can commence in parallel with the principal negotiation but be concluded subsequently.

Whether a particular verification regime provides the degree of assurance required by the parties - hence is considered "effective" - is a matter for judgment, based on many factors: the verification objectives; the verification methods and standards; related CBMs; other information (including intelligence) available to the parties; incentives/deterrents reinforcing compliance; and so on. Only when we have defined the objectives and main features of FMCT verification will it be possible to design the verification system and to judge whether it will be sufficiently effective – but there seems no in-principle reason why this should not be the case.

---

John Carlson is Director General, Australian Safeguards and Non-Proliferation Office. He is also Chairman of SAGSI, the IAEA's Standing Advisory Group on Safeguards Implementation. This paper reflects the personal views of the author and does not necessarily represent the views of the Australian Government, nor of SAGSI.