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.

ACL Quoted in The Guardian Yesterday

See here.

New Vertic Brief

I just saw this new Vertic Brief, written by John Carlson and Andreas Persbo. I’ve known Andreas for many years and have had many fruitful debates with him on nonproliferation law subjects, most recently in a BAS Roundtable. We are both members of the International Law Association’s Committee on Nuclear Weapons, Nonproliferation, and Contemporary International Law. I don’t know John Carlson, though I have certainly read his work.

In the continuing spirit of collegial debate, I have to say that there are a number of points about which I disagree with the authors of this piece. While not mentioning my work directly, Carlson and Persbo do seem to be responding to the kinds of arguments I typically make about the limited legal authority of the IAEA. As they say note:

Over the past decade, difficulties in implementation of the safeguards agree­ment between the IAEA and Iran have led to some commentary on the rights and obligations of the IAEA and the inspected state (in this case Iran, but the issues are generic)

Again, this is precisely the topic that Andreas and I, along with Chris Ford, debated in the BAS roundtable.

My first point of disagreement is with the very next sentence of the brief, wherein the authors state:

As this brief will discuss, the performance of a safeguards agree­ment cannot be considered narrowly as a bilateral matter between the two parties to the agreement. Both the IAEA and the inspected state also have responsibilities towards other states, and often towards other international institutions. 

I think that this statement is certainly incorrect as a formal legal matter – safeguards agreements are most definitely bilateral treaties between the IAEA as an international organization, and a single state. This fact has a bearing on interpretation of the treaty, and on determinations regarding compliance. As I wrote in my 2011 book:

Furthermore, one must remember that IAEA safeguards agreements are bilateral treaties between the IAEA, in its exercise of legal personality explicitly granted to it by the IAEA Statute, and a state.  The proposition that the IAEA itself can determine in authoritative fashion that the other party to a bilateral treaty, to which it itself is the other member, is in breach of its obligations under that treaty, has no precedent or analogue in international law.

I know what the authors are trying to argue here, of course. It’s that the entirety of the NPT/IAEA/U.N. Security Council system should be viewed together, holistically, and the purposive spirit of its legal documents achieved, even more importantly than their letter.  

Indeed, the authors say as much when they later argue:

If safeguards are construed too nar­rowly and legalistically they will fail in their confidence-building and assurance function—with potential repercussions for all parties. Lack of full cooperation with the IAEA will, at the least, result in a ‘confidence deficit,’ which will be counter-productive to the inspected state’s own interests. Recourse to legalistic arguments in place of cooperation, far from building confidence, will have the opposite effect.

The problem I have with this approach is, and I mean this about all lawyers and not just Carlson and Persbo, that we all like to be legal formalists when it suits us, but when it doesn’t suit the particular arguments we want to make, we have a tendency to turn all too quickly away from our formalist roots, and toward a more purposive, realist approach to law.  The reason for this is that you always want, if possible, to have the actual text of the law, as objectively rendered, on your side. So you will always try a formalist, textual argument first to achieve your aims. It’s only if you see that a formalistic, textual argument is not supportive of your desired outcome, that you will then retreat to Plan B, and say that even if the letter of the law might not be on my side, the spirit of the law certainly is.

A purposive interpretation of legal sources will focus not on a close reading of the actual text of the legal source, but on the overall purpose or aim of the law, and will apply this macro sense of purpose to the facts under consideration. This is an absolutely classic rhetorical technique for lawyers, and appears to be the tack that Carlson and Persbo are taking here.

The problem with this purposive approach, of course, is that when you don’t clearly tie your legal arguments to the text of the legal sources themselves, determining the “purpose” or “spirit” of the law is a rather ambiguous exercise, with many different possible outcomes and subjective choices of meaning.

This is precisely why the 1969 Vienna Convention on the Law of Treaties in Article 31 made a clear choice to prioritize textual interpretation of treaties, and assigned the more purposive resort to the preparatory debates surrounding the treaty to secondary status in Article 32.

The United States is itself quite (in)famous for its very limited, formalistic interpretations of its own obligations under Articles I & II of the NPT in the context, for example, of the stationing of U.S. nuclear weapons on the territory of NATO member NNWS. In fact, I just wrote a post on this recently. You can see it here.  

Similarly, in order to justify the nuclear technology sharing agreement the U.S. has entered into with India, the U.S. has relied on very limiting, formalistic interpretations of its obligations under Article III of the NPT. As I wrote in my 2009 book (footnotes removed):

In terms of the NPT Article III.2 obligations of the United States, the U.S. has argued that civilian nuclear cooperation with India, including transfers to India of nuclear fuel and enrichment technologies, is not in violation of its Article III.2 obligation not to “provide source or fissionable material . . . or equipment or materiel especially designed or prepared for the processing, use or production of special fissionable materiel, to any non-nuclear weapons state. . . ,” firstly because India is not a non-nuclear weapon state party to the NPT.  The question of whether the term “non-nuclear weapon State” as used in Article III.2 of the NPT refers only to non-nuclear weapons states parties to the treaty, as specified in other NPT provisions, or whether the term in this Article refers more broadly to any state not in possession of nuclear weapons, whether NPT party or not, is one which is debated by international lawyers. However, in the case of India, this distinction is largely moot as India is in possession of nuclear weapons and thus could not be included in any definition of a non-nuclear weapons state.  Thus, the U.S. argues that transfers to India are not subject to this provision of the NPT.

However, critics argue that, even if not a violation of the letter of the NPT’s provisions, the U.S.-India nuclear supply deal is undermining of the spirit of the NPT and of the grand bargain among NPT parties which the treaty represents.   They argue that in concluding this deal to provide civilian nuclear technology to India, the United States, a NuclearWeaponState under the NPT, is giving concessions to a state which has never undertaken the limiting obligations of the NPT, and which has in fact developed and is in possession of nuclear weapons.  To NPT NNWS which have undertaken the obligations of the NPT and not pursued nuclear weapons programs as a result, and which have submitted all nuclear sites within their territory to full-scope IAEA safeguards, this deal appears to give to India, in exchange for only the most basic of nonproliferation commitments, the reward which NPT NNWS were required to undertake and maintain these much more stringent obligations to obtain.  Many NPT NNWS see this granting of nuclear technology concessions to India by an NPT NWS as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.  

So again, we are all legal formalists when it suits us; generally for the purpose of limiting our own legal obligations. But we can also be quite easily tempted to become occasional legal realists, particularly when it’s a question of the other guy’s legal obligations, which we would like to have understood very broadly and comprehensively.

So this is why I think one has to view rather cynically arguments by Western states that NNWS should see their safeguards obligations as part of a holistic nonproliferation program, and should therefore basically accept whatever scope of authority the IAEA decides it has within this program because, after all, the IAEA is a good guy, and is trustworthy, and is only fulfilling its role in this grand and noble institutional creation of the international community, and would never (gasp!) abuse its authority or be captured by political interests. Shame on you for even thinking that!

Adopting a legal formalist approach to understanding nuclear nonproliferation obligations is not a manifestation of low esteem for the nonproliferation cause. If it was, the U.S. would be one of the chief culprits. It is, rather, an insistence upon the balance of rights and responsibilities, commitments and protections of state sovereignty, that were carefully negotiated and codified into the relevant legal documents.

There is the U.S. nonproliferation community these days a pervasive spirit of revisionism of nonproliferation law, as it applies to developing NNWS’ obligations under the NPT and IAEA safeguards agreements – the idea that the nonproliferation legal frameworks need evolving, and that this can be accomplished through fiat by the IAEA Board of Governors, and the governments of powerful NWS.

But this is not how international law works. Expansion of the international legal obligations of a state can only be accomplished consensually. This is one of the fundamental principles of the international legal system, and is one which, with regard to their own legal obligations, powerful states jealously guard. There should be no greater concern attached to developing states’ insistence upon it.

The last point of disagreement I’ll mention is with the authors’ arguments in this piece that the IAEA has the authority to investigate and assess possible military dimensions of a safeguarded state’s nuclear program. Basically this means that the IAEA should investigate and assess any activity within the territory of a safeguarded state that could potentially be of use in a nuclear weapon development program, and that NNWS must cooperate with the IAEA in these investigations in whatever way the IAEA thinks they should. I’ve already written about the PMD issue pretty extensively, and it will suffice to say here that I disagree completely with the authors’ arguments on this point. See my writings on this e.g. here, here, here.

I welcome Carlson’s or Persbo’s comments or counter-arguments.