Additional Protocol Negotiating HistoryPosted: December 4, 2014
A friend recently brought to my attention a three volume treatment of the negotiating history of the IAEA Additional Protocol:
Volume I: http://www.bnl.gov/isd/documents/71012.pdf
Volume II: http://www.bnl.gov/isd/documents/71014.pdf
Volume III: http://www.bnl.gov/isd/documents/71015.pdf
The report was published in 2010 and authored by a group from Brookhaven Science Associates, which has close ties to the U.S. national laboratories. I haven’t read the whole thing, but what I have read looks very good. What I like most about it is that it seems to actually be descriptive of what the various parties to the negotiations of the AP said and did during the negotiations. Some works that purport to be negotiating histories are really just the opinions of one party to the negotiations.
For example, on the issue of the IAEA’s authority to investigate and assess the question of whether undeclared fissile materials exist in a safeguarded state that is a party only to the INFCIRC/153 CSA – an issue that I have debated with former IAEA head safeguards lawyer Laura Rockwood – compare the treatment of this question in a source that she cites to in her piece, which you can find here at pgs. 33-43, with Volume II of the Brookhaven Additional Protocol study here at pgs. 6-11.
Do you see the difference? In the treatment that Laura cites to, there is very little if any discussion of what states other than the US thought about the question when negotiating INFCIRC/153. While in the Brookhaven AP study, they take pains to consider statements from a wide array of negotiating parties on essentially the same question which had been brought up again in the context of the negotiation of INFCIRC/540. This makes the Brookhaven AP study, at least on this point, a much more credible representation of negotiating history on this subject, in my opinion.
I would encourage readers (and Laura if she’s reading) to look at pgs. 6-11 of Volume II of the Brookhaven AP study on this question, because I think it’s very insightful into the debates that took place when the AP was being negotiated. And I think that the review of this negotiating history clearly supports my interpretation of the IAEA’s authority under INFCIRC/153, which I presented in my response to Laura’s article.
As the authors of the study conclude from their review:
Although the issue of whether additional legal authority was needed for many of the proposed measures for strengthening safeguards was fundamental to many of the decisions of the Board and Committee 24, it received relatively little debate in either forum. Both the Secretariat and the member states either wanted new explicit authority or seemed prepared to proceed on the basis of an assumption of the need for additional legal authority. This would, thereby, avoid a lengthy and possibly contentious and inconclusive debate as to which measures did and which did not require additional legal authority. Although suggestions arose that would have permitted States to use different mechanisms for providing the IAEA with the necessary authorities, a consensus emerged, and is reflected in the Model Additional Protocol, that a single instrument was best. This would achieve uniformity and avoid any risk of different interpretations arising.
Although some Board actions during the period from 1991-1997 suggest that the Agency might have the legal authority to apply protocol measures in states with comprehensive safeguards agreements that have not concluded a protocol, the fact of the Additional Protocol, itself, suggests otherwise politically, if not also legally. As a result, obtaining universal adherence to Additional Protocols is the best, perhaps, the only way, to provide the Agency everywhere with the authorities contained in the Model Additional Protocol.