The New IAEA State Level Safeguards Approach Report

State Level Safeguards Concept Report August 2013

Bulletin of the Atomic Scientists Roundtable Complete

A colleague recently sent me the attached August 12 IAEA Director General’s report to the Board of Governors entitled “The Conceptualization and Development of Safeguards Implementation at the State Level.” Mark Hibbs has written a very good summary here of the development of safeguards strategy by the IAEA, including the new state level approach, which will give readers useful background. The report starts off with a “Background” section in which it makes a case for the legal authority of the IAEA to investigate and assess safeguards agreement compliance by member states. Here’s the gist of it:

Under comprehensive safeguards agreements (CSAs), the Agency has both the right and the obligation to verify the correctness and completeness of States’ declarations so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities . . . Notwithstanding the above, for many years after the Agency first started implementing safeguards pursuant to CSAs, its safeguards activities were focused primarily on nuclear material and facilities declared by the State concerned . . . Between June 1995 and June 1996, the Secretariat held informal consultations with Member States on the measures to be implemented under complementary legal authority, as well as on a draft model protocol for such complementary legal authority. In June 1996, the Board of Governors acknowledged that such measures would strengthen the Agency’s ability to detect undeclared nuclear material and activities, and decided to establish an open ended committee of the Board of Governors to negotiate a draft model protocol based on the Secretariat’s draft. In May 1997, the Board of Governors approved the Model Additional Protocol and instructed the Director General to use it as the standard for additional protocols (APs) concluded by States with CSAs.

Before proceeding, I just want to reiterate what I’ve said before about this narrative, which is that it just does not make sense. It’s so clearly a strained, revisionist legal argument to show that states like Iran who only have CSA’s in force with the IAEA and not AP’s, nevertheless are subject to the IAEA’s full right to investigate and assess not only the correctness but also the completeness of their declarations, i.e. to verify that there are no undeclared fissile materials in their territory. I mean think about it. What this narrative is saying is that the IAEA has all along had this full authority to investigate and assess correctness and completeness. They just chose not to exercise it for the first, oh, say 30 years or so of the IAEA’s NPT safeguards role. But then Iraq happened and the IAEA decided that it now had to use its full latent authority to detect undeclared fissile materials.

Now, if that were the end of the narrative, it might still make sense. But it doesn’t stop there. After realizing that they have had this legal authority all along, the IAEA did what? They created a new treaty that all member states were supposed to sign, the Additional Protocol, to enable the IAEA to exercise this full authority that it already had. Wait, what?

If they already had the authority, why did they need states to additionally sign on to the Additional Protocol in order for them to exercise it? Notice that the Office of Legal Affairs has tried to use some creative semantics to get around this fairly obvious unpersuasiveness of their narrative. They refer here to the AP as establishing the IAEA’s “complementary legal authority” to investigate and assess both correctness and completeness of the declaration. The word “complementary,” here, is supposed to assure diplomats that the AP didn’t really add anything to the IAEA’s authority, it just complemented (whatever that means) the authority it already had.

This is just ridiculous. If the IAEA already had the authority to investigate and assess both the correctness and completeness of state declarations under the CSA, there would have been no need for the Additional Protocol. You just can’t get around that conclusion.

The true narrative is so much more simple and persuasive. And you can find it in the History of the International Atomic Energy Agency: The First Forty Years, written by David Fischer and published by the IAEA itself, constituting something of an official history of the agency. Here’s how the narrative is presented on Pgs. 296-299:

It will be recalled that in verifying compliance with comprehensive safeguards agreements IAEA inspectors had essentially confined their focus, during routine inspections, to the nuclear material at locations that had been declared by the State (but the agreement required the State to notify all material in peaceful uses). The IAEA’s inspectors would verify the State’s reports on its stocks of nuclear material and changes in those stocks . . . chiefly by access limited to a number of pre-defined strategic points in the plant concerned. The 1971 system was thus largely one of auditing the State’s nuclear material accounts, and it had worked well in regard to locations and nuclear material that had been reported to the IAEA. The IAEA’s experience in Iraq and the DPRK had shown, however, that it was essential that the Agency should go beyond auditing the State’s nuclear accounts. The Agency must be able to assure itself that the State’s declarations were also complete – that the State had reported all its nuclear material. . . In 1995, the Board authorized the Secretariat to put into effect those elements of the ‘Programme 93+2’ that did not require additional legal authority. In May 1997, the Board approved a protocol, to be added to existing comprehensive safeguards agreements, which will provide the legal authority for several safeguards measures that go beyond the existing system, for instance, access by the IAEA to more information about a State’s nuclear activities, more intensive inspections, including access beyond previously agreed ‘strategic points’ in a safeguarded plant, access to any installation within the perimeter of a nuclear site, and access to plants engaged in nuclear related activities such as those manufacturing components of enrichment plants. . . [t]he Board approved the protocol on 15 May 1997.

See? It’s so clear and easy and persuasive. The AP did in fact significantly expand the authority of the IAEA, for those states that signed AP’s, to investigate and assess the completeness of a state’s declaration regarding its nuclear program, and to verify that there are no undeclared nuclear materials within the territory of a state. However, the AP is a voluntary protocol, and not all IAEA member states have adopted it. This poses a problem for the IAEA in applying the full scope of safeguards that it would like to apply to every state. This explains why the sophistry of the IAEA’s lawyers is necessary to try to persuade states that have not signed onto the AP that, notwithstanding this fact, the IAEA has the same authority to investigate and to assess their nuclear program as if they had signed the AP. Again, this is just nonsensical.

I’ve written about this whole issue of the scope of authority of the IAEA to investigate and assess quite extensively before, including here, here, here, and in the BAS Roundtable which I’ll insert in this post as another document, because the BAS has apparently taken the roundtable off their site.

I hope that all this writing has made it clear that the IAEA lawyers are simply incorrect in their recent arguments about the scope of the IAEA’s legal authority under the CSA. Their arguments are a revisionist attempt to increase the authority of the IAEA by fiat of the Director General and Board of Governors. They are trying to convince states, in particular NNWS, that the IAEA has a much more expanded scope of legal authority than it actually is given in the relevant legal documents, in hopes of convincing states to cooperate with the IAEA BOG in whatever intrusive and subjectively defined scheme of investigation and assessment the BOG thinks should be applicable to their individual case.

As I have made clear in my other writing, and as is further clear from the Fischer quote above, the IAEA, particularly under DG Amano, has moved its position regarding its own authority increasingly beyond its actual authority and mandate as provided in NPT Article III and Articles I & II of the CSA.

Looking further into this new state level safeguards approach document, I’m just struck by how it seems to be a proposal for turning the IAEA from being an independent fissile materials monitoring and verification body, as its Statute clearly created it to be, into an FBI-like investigative agency, focused on rooting out any NNWS’s nuclear weapons aspirations, or anything that may even look like nuclear weapons aspirations, and exposing them for the enforcement action of the UN Security Council and through sanctions by powerful states.

Just look at this stuff on page 5 of the report:

In determining how these generic safeguards objectives are to be addressed for a particular State, the Agency first conducts an analysis of all technically plausible paths by which that State could pursue the acquisition of nuclear material for the development of a nuclear weapon or other nuclear explosive device. This process is referred to as ‘acquisition path analysis’. In the course of that analysis, a technical assessment is made of the specific steps a State could potentially undertake (e.g. carrying out undeclared nuclear activities) along each plausible path, taking into consideration the State’s nuclear fuel cycle and related capabilities.24 These paths are prioritised according to an assessment of their safeguards significance. The Agency then establishes technical objectives for each path and prioritises them according to their relative importance in covering that path. Safeguards measures for addressing the technical objectives are then identified.

By way of example, for a State with only a nuclear reactor, a plausible acquisition path would involve the diversion of spent fuel from the reactor and its subsequent processing at an undeclared reprocessing installation to recover plutonium from the spent fuel. One technical objective for this path would be to detect undeclared activities related to reprocessing. Safeguards measures to address this technical objective could include complementary access, the collection of environmental samples at research institutions in the State, and evaluation of information available to the Agency related to the State’s research activities.

I found this passage quite shocking. It seems to essentially reverse any presumption that NNWS members of the IAEA should be free from any suspicion of wrongdoing without evidence to the contrary, and instead adopts a generalized assumptive suspicion that all NNWS members are potentially seeking nuclear weapons, and so should be constantly scrutinized for any sign of illicit behavior. This is quite a paradigm shift.

The state level approach overall seems geared to reduce the attention the IAEA pays to “good states,” i.e. those for whom a broader conclusion has been reached, and instead focus the IAEA’s scrutiny on a list of “suspect states.” The means by which states get added to the “suspect” list would appear to be susceptible to a considerable degree of subjectivity and politicization. But once you’re on the naughty list, the IAEA will essentially assume your wrong intent and then follow up methodically on every possible way in which you might even potentially go about developing a nuclear weapon – even if there is no evidence that you are trying to do so or have ever tried to do so – and monitor those pathways constantly, requiring your complete cooperation with whatever invasive and subjectively determined processes and standards of investigation and assessment the BOG determines to be necessary in your specific case.

Can you imagine any of the NWS/P5 EVER consenting to such discriminatory, intrusive and subjective investigation and assessment standards being applied to them? Neither can I.

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7 Comments on “The New IAEA State Level Safeguards Approach Report”

  1. Cyrus says:

    The biggest irony in this “latent power” argument is that *the IAEA itself* complained loudly for many years that it did NOT have the authority to ensure completeness without the AP in effect.

  2. Nick says:

    The erroneous reporting does not end with Amano’s understanding of the CSA, as pointed out here by Dan and others. I thought he tried in this report to address DJ’s argument against completeness, which he failed.

    But more painful is how some news media, not NYT this time, thanks Bill Broad you are improving, but the PBS NewsHour completely fabricated a lie about what was said in the report.

    The correspondent Kwame Holme said last night that the IAEA reported Iran has added 1000 new more powerful centrifuges (IR-2m) to enrich to weapons grade level !!!!!

    What kind of journalism is this? They have no shame or professional integrity.

  3. Cyrus says:

    All this talk about the AP and Iran misses some important point: Iran has in fact already signed the AP, and had implemented it for more than 2 years with nothing illicit found there, and on many occasions Iran had allowed IAEA inspections that exceeded even the requirements of the AP, and that Iran has already offered to ratify the AP if and when its right to enrich is also recognized and to even place additional restrictions on its nuclear program well beyond what the AP would require (such as a verifiable cap on enrichment and joint administration of the nuclear program with foreign companies) The US of course ignored or refused these offers and instead moved the goalposts.

    SImilarly when you read about the controversy about Iran’s 20% enriched uranium (actually, it is 19;75%, which is defined by the IAEA glossary as “Low Enriched” however the media have bought into the scaremongering narrative, started calling it “Medium Enriched” uranium and emphasize just how OH SO CLOSE to weapons grade this stuff is — never mentioning that Iran was forced to enrich to that level in the first place, in order to make fuel for the TRR to treat cancer victims after the US prevented the sale of more reactor fuel to the TRR. This, despite the fact that the TRR is hardly a proliferation threat since the reactor is far too small and also constantly monitored by the IAEA. So in effect Iran’s 20% enrichment is a direct and foreseeable consequence of the US policy itself — nice shot in the foot. Indeed, Iran has repeatedly offered to cease the “20%” enrichment too, if only they can just buy the fuel again (Ahmadinejad himself went before the UN GA and made this offer) but the US refuses.

    So, the bottom line is that even if Iran did sign the AP, it would not resolve this matter. Why? Because ultimately the nuclear issue is just pretextual just as “WMDs in IRaq” was a pretext, and the US as no intention of allowing the issue to be peacefully resolved whilst the regime in Iran is still in power.

  4. Don Bacon says:

    It appears to be a new approach to get the US-puppet IAEA into Iran’s knickers.

  5. Irani says:

    While the Agency’s report is not frank, but is clear enough to conclude that in order to address a particular technical objective the “increase in safeguards activities” mentioned in paragraph 26 includes access to information and locations outside the purview of CSA, no matter AP is in force, as a strengthening safeguards measures leading to additional question on benefit of concluding the AP for States.

    Moreover, regarding the impact on safeguards implementation for States with CSAs, but without APs, the paragraph 27 of the report reads “…To pursue the technical objectives relating to the detection of undeclared nuclear material or activities in the State as a whole, the Agency utilizes the measures provided for in the CSA, evaluates all safeguards relevant information about the State and, as necessary, seeks clarifications from the State.”, with the effect that the resolving anomalies would led to satisfactory conclusion.
    However, the latest DG report on implementation of safeguards in Iran, as in many previous reports, makes clear that the conclusion on the absence of undeclared nuclear material and activities in Iran is not achievable without AP in force, as it reads: “67. While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”, with the effect that the proposed “increase in safeguards activities” may entail requiring a State to consent with a new Treaty!

  6. Irani says:

    The Agency report (GOV/2013/30) is not only confusing, but is somehow deceptive.

    1- In paragraph 2, it reads that: “safeguards implementation is governed by the safeguards agreement and, where applicable, the additional protocol (AP), between the Agency and the State or States concerned;” as a principle.

    2- Furthermore, in the paragraph 27, regarding the legal framework to resolve any probable anomalies in those States, the report reiterates: “any anomalies, questions or inconsistencies identified in the evaluation of all safeguards relevant information are followed up in a timely manner, which may include the Agency seeking clarification from the State itself and, if necessary, an increase in safeguards activities (within the limits provided for in the CSA) in order to address a particular technical objective;” [emphasis on “within the limits provided for in the CSA”]

    3- However, in the final step of “Drawing Safeguards Conclusions”, the paragraph 25 reads: “The process for drawing safeguards conclusions for CSA States is outlined in the annual SIR.” The latest SIR report (GOV/2013/20) reads: “To ascertain that there are no indications of undeclared nuclear material or activities in a State, the Agency needs to carry out an evaluation of the consistency of the State’s declared nuclear programme with the results of the Agency’s verification activities under the relevant safeguards agreements and additional protocols and with all other safeguards relevant information available to the Agency.” [necessity of AP to drive conclusion!]

    Reading again the para. 1 above, the term of “where applicable” is meaningless, as well as misleading, the fact that has confirmed by an article of Deputy Head of Agency safeguards, as he says: “In all States without an additional protocol the Agency is not in a position to fully implement its mandate and fulfill its obligation to confirm that there are no undeclared nuclear material and activities in these countries.”

    As Dan pointed, the article confirms the “paradigm shift” by: “Instead of just being accountants, our safeguards practitioners also need to be investigators”.

  7. Marianne says:

    Dan, seems to me that the documents you cite reflect a straightforward, widely accepted perspective that is supported by past IAEA experience and that is other than your reading, in fact, the opposite.

    They all say that under 153 (1) the IAEA has the authority and the obligation to verify the completeness and correctness of states’ declarations; (2) the tools available in 153 are not strong enough to satisfy member states and need to be strengthened; 3) Additional Protocol is adopted to provide additional tools to detect undeclared activities (where it is in force).

    Let’s see what Fischer really has to say.

    Fischer’s excerpt that you cite has the same perspective that is other than your reading – inspectors, he says, “essentially confined their focus during routine inspections.” Keep in mind that routine inspections are defined in 153 and take place at agreed points. But there are other kinds of inspections, and Fischer’s following parenthetical reminds us that states have to report all nuclear material. The Protocol, he says, provides legal authority for several measures that go beyond the existing system. True, after Iraq and North Korea, the DG and the Board wanted to strengthen the IAEA’s capabilities.

    So did the 1995 NPT Conference, which agreed, and Fischer quotes: “The Conference also “urged support for Agency efforts to strengthen safeguards and to develop its capability to detect possible undeclared nuclear activities.”

    He also writes: “Until the Gulf War the IAEA had no occasion to make special inspections at ‘additional’ locations.’ If the IAEA were to make use of such inspections in the future, they could enable it to detect the presence of undeclared material (or undeclared plants for which no design information had been submitted to the IAEA). Or, if the State refused the inspection, it would ipso facto incriminate itself. This was what was soon to happen in the DPRK.”

    Again he writes: “The IAEA was seen by many as having failed its (presumably) first diversion detection test; it had patently been unable to detect a large and longstanding undeclared programme.” If you are not taking the course, so to speak, there is no test to fail.

    Or later, he notes that by the mid-1990s, “The IAEA’s Board of Governors had formally reaffirmed the IAEA’s right, in the context of comprehensive safeguards agreements, to carry
    out special inspections at undeclared locations.” You cannot reaffirm a right that is absent.

    Or in a footnote he observes, “148: As noted above, this procedure [special inspection] is foreseen in paragraphs 73 and 77 of the standard IAEA safeguards agreement which permits the IAEA to send its inspectors to any location where it has reason to believe that undeclared nuclear material may exist.”

    As you write, “It’s so clear and easy and persuasive.”


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