By Mr. Nicolò Brugnera, Analyst at IB Consultancy
Introduction
Since 1945 the world came to appreciate the destructive power of nuclear weapons. The uncontrolled proliferation of such arms presented high risks for international peace and security, but the peaceful use of nuclear energy promised inviting benefits. In the years that followed, States felt the necessity to adopt legal means to prevent the spread of nuclear weapons, leading to the adoption of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. This treaty identified two categories of states: those possessing nuclear weapons (NWS)1 and those which did not (NNWS), with different obligations for each.
In brief, the former agreed not to aid NNWS to acquire nuclear weapons and to stop broadening their arsenal and work towards complete disarmament. The latter committed not to acquire or develop nuclear weapons, and to accept controls by the International Atomic Energy Agency to verify their compliance with the NPT provisions. Hence, NNWS agreed to give up their right to acquire nuclear weapons to receive aid in developing and producing nuclear energy for peaceful purposes.
It is argued that the regime established by the NPT has prevented some thirty States from acquiring nuclear weapons or giving up the ones they already had. However, three States in possession of nuclear weapons – Israel, India, and Pakistan – refused to sign the NPT. A fourth one, North Korea, announced its withdrawal from the treaty in 2003 to develop its nuclear arsenal. Along with Iran’s non-compliance with its safeguards provisions, these can be considered among the main challenges that the nuclear non-proliferation regime is currently facing. A dramatic spread of nuclear weapons could also result in non-state actors acquiring them or dangerous material such as enriched uranium or separated plutonium.
Mohamed ElBaradei, former Director-General of the IAEA, made some recommendations to improve the non-proliferation regime. Many of his suggestions are still valid. Notably, the need for the CTBT to come into force, a new treaty forbidding developing new nuclear weapons (the TPNW), and to begin serious negotiations on the long-awaited Fissile Material Cut-Off Treaty. He also stressed how the IAEA needs sufficient legal authority to effectively verify the peaceful use of nuclear energy by NNWS and the disarmament process envisaged by the NPT. He advocated for stronger cooperation between the IAEA and the Security Council to achieve that.
IAEA verification authority
International verification through IAEA safeguards is, in Rockwood’s words, “the cornerstone of the nuclear non-proliferation regime”. Article XII IAEA Statute describes what means the Agency inspectors can apply to deal with States found or suspected to be in non-compliance with the provisions of their safeguards agreements. In the last two decades, the IAEA developed an “analytical approach” to effectively verify the reality of NNWS nuclear programs, with State Evaluation Reports and corresponding action plans as primary means. SERs analyse internal consistency with stated purposes of NNWS nuclear research and development programs, e.g., through the results of environmental inspections of a specific site’s surroundings or the movement of relevant nuclear material. However, some states still refuse to cooperate fully.2
Nonetheless, as noted by Goldschmidt, the IAEA failed to exercise in full its verification authority. A good example is the case of Iran and Syria. Both States refused to provide access and information on some of their nuclear sites. Despite these breaches of their safeguards agreements, the Board of Governors did not act promptly.3 The IAEA did not lack the legal authority to act against these two cases of non-compliance, as under CSAs it has the right to request and conduct special inspections. By failing to require one, the IAEA risked undermining the future use of such a fundamental verification tool, wearing away the confidence in the effectiveness of the Agency safeguards. In cases such as Syria’s, the Board of Governors may adopt a resolution to acknowledge the lack of cooperation provided by the non-compliant state, its concern for such behaviour, and requests urgent special inspections. Avoiding such actions could lead other States not to take seriously the request to comply with their CSA or go for similar obstructive tactics, preventing effective verifications.
The IAEA legal authority is also strengthened by Subsidiary Arrangements, made between the Agency and the Member States to specify how the procedures laid down in the Agreement are to be applied. Particularly interesting is the provision that obliges states to deliver detailed information on their nuclear facilities. In 1992, the IAEA established in its Subsidiary Arrangement Code that states had to provide such information no later than 180 days before starting new facilities construction. However, the 1976 version of the Code 3.1 required only 180 days’ notice before the date in which the facility was scheduled to receive nuclear material for the first time. In 2007, Iran unilaterally opted to stop implementing the new version of the Code, settling back to the 1976 version. That constitutes a breach of the safeguards agreement since obligations under Subsidiary Arrangements are an integral part of CSAs. The Board could have adopted a resolution to address Iran’s breaches as non-compliance under art. XII IAEA Statute, so to avoid establishing the wrong precedent.
Measures by IAEA organs to deal with non-compliance
To promptly detect non-compliance, the IAEA needs to be informed regularly about the imports and exports of nuclear equipment and material. The Secretariat has made two recommendations, in 1992 and 2006, that States report all international transfers of equipment and non-nuclear material listed in Annex II of the Additional Protocol quarterly, and their nuclear transfers since they joined the NPT, including those with commercial suppliers. The Board, which was required to make such requests to the States, failed to endorse such recommendations. An advance in the current regime could thus be achieved through two steps. First, the Director-General could issue an Information Circular to all members, to stress how the Secretariat expects them to make that information available quarterly. Second, the Board could approve and publish a list of information that members are expected to provide as per Article VIII of the IAEA Statute, also requiring them to regularly provide information regarding each import of specified equipment and non-nuclear material listed in Annex II.
Moreover, experience has demonstrated the need for the IAEA to promptly address non-compliance. The Agency has failed to act consistently in some of the cases that could be identified as non-compliance. Therefore, making clear how the IAEA exposes it is one immediate way to strengthen the non-proliferation regime. The Board should also invite the Secretariat to report clearly suspicious or borderline cases – such as, for instance, those that occurred with South Korea, Egypt, and Iran – in its annual Safeguards Implementation Report. As past examples taught, this may have a positive effect. After being reported in SIR 2000 and 2002 for not having adopted subsidiary agreements or not having ratified the Additional Protocol, almost all States mentioned fulfilled their obligations within a year.
Lastly, the Board of Governors should consider the possibility that a State withdraws from the NPT following its non-compliance. It seems logical to prevent a withdrawing state to freely use material and equipment it acquired under the NPT grand bargain. Such material should remain under the IAEA safeguards, but the CSA seems to present a structural weakness in this sense: it is valid as long as a State is part of the NPT. Therefore, it has been suggested that both the Board of Governors and the General Conference adopt resolutions to protect all sensitive nuclear fuel cycle facilities also with 66-type safeguards, which do not cease its validity in case of a state’s withdrawal. The Nuclear Suppliers Group could help to cope with this aim by requiring it as a prerequisite to export nuclear material or equipment.
The role of the Security Council
A problem that the IAEA has in overseeing the compliance of States with their safeguards agreements is the lack of enforcement. In fact, some specific resolutions adopted by the Board do not offer further legally binding verification authority. The matter may be solved by the Security Council acting under Chapter VII of the UN Charter, providing such additional legal validity to the actions the IAEA needs to undertake. Therefore, the Security Council could adopt two generic resolutions, not addressing any specific state, that would not cast any immediate sanction. That would prevent delayed referring of a non-compliant State, as happened with Iran in 2003.
The first generic resolution would set some standard actions a non-compliant State would face. That would imply, first, the UNSC automatically adopting a specific resolution under Chapter VII requiring that state to grant to the Agency extended access rights. Secondly, if after a predetermined period such non-compliance would persist, the UNSC would adopt a second specific resolution to entail the non-compliant state to cease all sensitive nuclear fuel cycle activities.4 Thirdly, if the state does not abide by the previous two resolutions, the UNSC would adopt a third specific resolution under art. 41 UN Charter to pose a universal embargo on military equipment and cooperation with the non-compliant state.
The second generic resolution would address the cases of withdrawal from the NPT. Particularly worrying for the international community should be the case of a State withdrawing from the NPT after being found to be in non-compliance with its safeguards agreements. To prevent it, the UNSC could adopt a resolution under Chapter VII to provide that such a withdrawal constitutes a threat to international peace and security. Such a resolution should also establish that all nuclear and nuclear-related material and equipment acquired by that state under the NPT and its CSA would be immediately confiscated. Such action is very similar to art. XII IAEA Statute, endorsing the Agency to “suspend or terminate assistance and withdraw any materials and equipment made available by the Agency or a member in furtherance of the project.” UNSC would guarantee theoretic enforcement to such provision, which may be also seen as the first step toward the “irreversibility” of the NPT.
Conclusion
To summarise, some concrete measures that could be taken to improve the nuclear non-proliferation regime can be listed in three categories. First, the IAEA could exercise in full the investigation authority that it already holds. Second, the Agency organs, particularly the Board of Governors, should adopt measures to address specific issues that may arise, like a State deciding to withdraw from the NPT. Third, the Security Council should play a more proactive role in cooperating with the IAEA to supervise states’ compliance with the provisions of the NPT and their safeguards agreements. That could be attained by adopting two resolutions that would legally endorse the IAEA the right to carry out special inspections if a state is suspected to be in non-compliance and ensure adequate prevention and deterrence if such state would withdraw from the NPT. These actions, being simple procedural changes, would not require any NPT or CSAs amendment, but would still significantly strengthen the non-proliferation regime.
Lastly, it is interesting to mention the need for a political will to undertake such actions. ElBaradei stressed the need for states’ political momentum to achieve the necessary consensus to adopt the measures that will make a difference in strengthening the non-proliferation regime and foster the disarmament process. In this sense, the IAEA Board of Governors should acknowledge that it did not act consistently in the past and adopt two resolutions recognizing the failure of South Korea (in 2004) and Egypt (in 2005) to comply with their safeguards. These actions would seek to establish a positive precedent, without any punitive measure, to avoid any double-standard impression in the IAEA Statute implementation.
About the Author
Nicolò was awarded an LL.M. in International Law and Strategic Studies at the University of Aberdeen in 2020, where he was also part of the Aberdeen Student Law Review Editorial Board. He worked in maritime transports before his academic studies, and joined the NCT Team in 2021.
