Did Japan Violate its Safeguards Obligations through Failure to Report Plutonium?

Last week media outlets were abuzz with news that Japan had failed to report about 645kg of plutonium to the IAEA. Naturally, this freaked everybody out, not least Japan’s neighbor China.

It’s taken me a while to get around to addressing this topic. I was out of town for a couple of weeks, and in that time I’ve talked to a number of people about the subject to try and understand it as best I can.

I want to start out by recognizing that I’m still not 100% sure that I understand everything here, so I’m going to style this post as a first foray into the issue, and invite people to comment if they can clarify things. This includes some of the involved technical issues that I frankly don’t have the technical competency to understand.

But as regards Japan’s safeguards obligations with the IAEA, this is what I think the situation is.  The amount of plutonium in question apparently was declared to the IAEA in the general terms of, and in a manner satisfying, Japan’s obligations under its CSA and AP with the IAEA.

The failure to report has to do only with the INFCIRC/549 regime, and its reporting guidelines.  The INFCIRC/549 regime is an additional, voluntary regime adopted among the five declared NW states plus Belgium, Japan, Switzerland, and Germany, and communicated to the IAEA, for the purpose of increasing the level of detail with which self-reports are made with regard to stocks of civil plutonium.

Here’s how the IPFM blog described it:

Japan misreported some of its plutonium in two recent INFCIRC/549 declarations that described the status of its civilian plutonium stock as of 31 December 2011 and 31 December 2012.

The declarations, that draw on the annual Japan Atomic Energy Commission reports “The Current Situation of Plutonium Management in Japan” reported that Japan had 4.5 tonnes of plutonium in unirradiated MOX fuel. According to the Current Situation report, this number included 959 kg of fresh MOX fuel at power plants. This number, however, did not take into account the 640 kg of fresh MOX fuel that was loaded in Genkai #3 reactor on March 9-12, 2011. Since the reactor never went operational, the fuel was still unirradiated, but was not accounted for in any of the categories of the Current Situation report (or INFCIRC/549). It was removed from the reactor in March 2013 and may be again reported in Japan’s 2013 INFCIRC/549 declaration.

The discrepancy was reported by Masafumi Takubo, a member of the International Panel on Fissile Materials, who reported it at Kakujoho, a nuclear information website.

The conclusion that the under-reporting was only with regard to the voluntary INFCIRC/549 regime, and not with regard to Japan’s core safeguards obligations under its CSA and AP, is supported by this statement from IAEA Spokesman Gill Tudor:

The IAEA confirms that Japan has submitted to the IAEA all safeguards-related information under its safeguards agreement.  Accordingly, all nuclear materials in all nuclear facilities in Japan are under IAEA safeguards, including material at the Genkai NPP. The IAEA also confirms that there has been no diversion of the nuclear materials.

The submission of plutonium stock reports to the IAEA is undertaken based on a voluntary arrangement among countries concerned (see below links). The IAEA cannot comment on what should be reported because it is up to those countries to decide.

The links to the “Guidelines for the Management of Plutonium” (including reporting format) are:

http://www.iaea.org/Publications/Documents/Infcircs/1998/infcirc549.pdf

http://www.iaea.org/Publications/Documents/Infcircs/2009/infcirc549m1.pdf

The links to the recent communications from Japan to the IAEA are:

2012: http://www.iaea.org/Publications/Documents/Infcircs/2012/infcirc549a1-15.pdf

2013 (latest): http://www.iaea.org/Publications/Documents/Infcircs/2013/infcirc549a1-16.pdf

So again, if the question is did Japan violate its safeguards obligations through failure to report this 645kg of plutonium to the IAEA, I think the answer has to be no, because Japan did apparently report this material in the manner required by its CSA and AP.  There was simply an alleged underreporting of the material per the stipulations of the INFCIRC/549 regime, which is not itself the source of a legal obligation, as far as I can tell.

Concluding that Japan did not violate its legal obligations in this matter does not, of course, mean that there was nothing that happened here that shouldn’t have happened. The INFCIRC/549 regime is an important part of the overall IAEA system for transparency regarding plutonium.

I think a number of points of critique of both the Japan and the IAEA system can be made arising from this case, and commenters are certainly welcome to do so.

I know that one of the questions percolating out there with regard to this case is, inasmuch as Japan is one of the countries regarding which the IAEA has adopted a “broader conclusion” – basically the IAEA’s highest blessing of safeguards compliance – what sorts of deviations from safeguards best practices would or should merit a rolling back of the broader conclusion? Such a demotion from a broader conclusion has never happened before, and it’s unclear under what conditions it would happen.

I would add that since the broader conclusion procedure is completely an invention of the IAEA, and finds no textual support in either the CSA or the AP, there are therefore no legal criteria to use, either for bestowal of the broader conclusion blessing, or for its removal. As with so much of IAEA practice, the Agency’s procedures and modus operandi have become so far removed from what is actually in the Agency’s foundational legal sources, they are, to use a technical phrase, really just making this shit up as they go.

Anyway, I’ll stop there and open up for comments.