Is the Conclusion of an Additional Protocol Mandatory under the NPT?

In an article published in the July/August 2012 of Arms Control Today (‘The Rocky Road of Nuclear Diplomacy With Iran’), the former IAEA Head of Safeguards, Olli Heinonen, repeats the well-known contention that progress in the negotiations on the Iranian nuclear programme would require Iran’s agreement ‘to implement an additional protocol to its safeguards agreement’ with the IAEA (the reader in search of an overview of the differences between the comprehensive IAEA Safeguards Agreements (INFCIRC/153) and the IAEA Additional Protocol (INFCIRC/540), shall have a look at the IAEA document ‘The Safeguards System of the International Atomic Energy Agency’, undated, available at http://www.iaea.org/OurWork/SG/documents/safeg_system.pdf, and the book published by the IAEA, The Evolution of IAEA Safeguards, Vienna: International Atomic Energy Agency, 1998).

It is interesting to observe that this ‘requirement’, which is basically a political one, has for some time been put in a ‘legal’ form, for instance during the latest Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (2010), during which several States parties expressed the view that the conclusion of an Additional Protocol (AP) is mandatory under Article III of the NPT.

For instance, Finland argued that ‘the Comprehensive Safeguards Agreement, together with the Additional Protocol, represents the verification standard pursuant to article III (1) of the Treaty’ (see ‘Implementation of the Treaty on the Non-Proliferation of Nuclear Weapons: Report submitted by Finland’ (NPT/CONF.2010/6), also reprinted in the Final Document of the 2010 Review Conference of the Parties to the Treaty of the Non-Proliferation of Nuclear Weapons (NPT/CONF.2010/50 (Vol. II), at 71).

Similarly, Canada affirmed that ‘a comprehensive safeguards agreement together with an additional protocol constitutes the safeguards standard required under article III’ (see NPT/CONF.2010/9, also in the Final Document (NPT/CONF.2010/50 (Vol. II), at 79).

The same argument was put forward, inter alia, by Sweden (see NPT/CONF.2010/10, also in the Final Document (NPT/CONF.2010/50 (Vol. II), at 95), and by a a group of States comprising Japan, Australia, Austria, Belgium, Finland, France, Hungary, Ireland, Italy, New Zealand, Norway, Peru, the Republic of Korea, Singapore and Uruguay (see NPT/CONF.2010/WP.5/Rev.1, also in the Final Document (NPT/CONF.2010/50 (Vol. II), at 412).

Quite surprisingly, the position of the United States was a bit less affirmative (stating that the US ‘believes that all NPT Parties should conclude and bring into force an Additional Protocol and that a comprehensive safeguards agreement together with an Additional Protocol should be considered an essential standard for IAEA safeguards’, see NPT/CONF.2010/45, also in the Final Document (NPT/CONF.2010/50 (Vol. II), at 343).

The clearest expression of this ‘legal’ position seems to have been that of Austria (which ‘considers the Additional Protocol to be an integral part of the IAEA NPT safeguards system and holds the legal position that the conclusion of an additional protocol is mandatory under article III of the Treaty, seeNPT/CONF.2010/3, also in the Final Document (NPT/CONF.2010/50 (Vol. II), at 57, emphasis added).

It is noteworthy that the conclusions of the Review Conference were less affirmative as to the mandatory character of the conclusion of an AP:

13. The Conference reaffirms that the implementation of comprehensive safeguards agreements pursuant to article III, paragraph 1, of the Treaty should be designed to provide for verification by IAEA of the correctness and completeness of a State’s declaration, so that there is a credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear material and activities.

14. The Conference welcomes that 166 States have brought into force comprehensive safeguards agreements with IAEA in compliance with article III, paragraph 4, of the Treaty.

15. The Conference welcomes the fact that since May 1997, the IAEA Board of Governors has approved additional protocols (INFCIRC/540 (Corrected)) to comprehensive safeguards agreements for 133 States. Additional protocols are currently being implemented in 102 States.

16. The Conference welcomes that all nuclear-weapon States have now brought into force additional protocols to their voluntary-offer safeguards agreements incorporating those measures provided for in the model additional protocol that each nuclear-weapon State has identified as capable of contributing to the non-proliferation and efficiency aims of the protocol.

17. The Conference recognizes that comprehensive safeguards agreements based on IAEA document INFCIRC/153 (Corrected) have been successful in their main focus of providing assurance regarding declared nuclear material and have also provided a limited level of assurance regarding the absence of undeclared nuclear material and activities. The Conference notes that the implementation of measures specified in the model additional protocol provides, in an effective and efficient manner, increased confidence about the absence of undeclared nuclear material and activities in a State as a whole. The Conference notes that numerous States were of the view that those measures have been introduced as an integral part of the IAEA safeguards system. The Conference also notes that it is the sovereign decision of any State to conclude an additional protocol, but once in force, the additional protocol is a legal obligation.

18. The Conference notes that many States recognize that comprehensive safeguards agreements and additional protocols are among the integral elements of the IAEA safeguards system. The Conference notes that in the case of a State party with a comprehensive safeguards agreement concluded pursuant to article III, paragraph 1, of the Treaty and supplemented by an additional protocol in force, measures contained in both instruments represent the enhanced verification standard for that State. The Conference notes that the additional protocol represents a significant confidence-building measure. The Conference encourages all States parties that have not yet done so to conclude and bring into force an additional protocol.

(from the Review of the operation of the Treaty, as provided for in its article VIII (3), taking into account the decisions and the resolution adopted by the 1995 Review and Extension Conference and the Final Document of the 2000 Review Conference: Conclusions and recommendations for follow-on actions, in Final Document of the 2010 Review Conference of the Parties to the Treaty of the Non-Proliferation of Nuclear Weapons (NPT/CONF.2010/50 (Vol. I)), 3 ff).

The ‘balanced’ character of the conclusions of the Review Conference obviously reflects the disagreements between NPT Member States regarding the extent of the obligation to apply safeguards under Article III of the NPT. However, it is interesting to assess the legal position according to which the conclusion of an additional protocol is mandatory under article III of the Treaty, from the point of view of the law of treaties. Article III is indeed to be read and interpreted according to the rule of interpretation contained in Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

This question has been fully explored by Masahiko Asada in his article ‘The Treaty on the Non Proliferation of Nuclear Weapons and the Universalization of the Additional Protocol’, Journal of Conflict & Security Law (2011), Vol. 16 No. 1, 3–34. He has established in particular that, given the current disagreements between NPT States parties, it cannot be contended that the mandatory character of an AP would derive from a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ in the meaning of VCLT, Article 31, paragraph 3(a). Nor can it be deemed to result from the ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ as another element to be taken into account in interpreting a treaty, pursuant to VCLT Article 31, paragraph 3(b). Thus, while the conclusion of an AP may of course be considered desirable, and in some cases an important confidence building-measure, it cannot be accepted that an AP be considered the adequate compliance with Article III of the NPT. In other words, the correct interpretation of NPT Article III is that non-nuclear weapons States comply with their obligation under Article III(4) to ‘conclude agreements with the International Atomic Energy Agency to meet the requirements of this Article’, as soon as they enter into a comprehensive (INFCIRC/153) safeguards agreement with the IAEA. In his book Interpreting the Nuclear Non-Proliferation Treaty (Oxford University Press, 2011), Dan has also comprehensive developments on that point (at 60-64).

The above statement in the conclusion of the 2010 Review Conference, according to which the 166 States which have brought into force comprehensive safeguards agreements with the IAEA have done so ‘in compliance with article III, paragraph 4, of the Treaty’ is therefore legally correct. The same may be said of the statement in the same text that ‘it is the sovereign decision of any State to conclude an additional protocol’.