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IAEA SAFEGUARDS ADDITIONAL PROTOCOL
20 January 2009
The Additional Protocol – so-called because it is intended to be additional to a state’s existing safeguards agreement with the IAEA – arose from efforts commencing in the 1990s to strengthen the IAEA safeguards system in response to the discovery of Iraq’s nuclear weapon program following the first Gulf War.
The primary focus of the “traditional” safeguards system, first developed for the NPT in the early 1970s, was verifying declared nuclear material and activities. It was assumed that development of fuel cycle capabilities independent of declared facilities would be beyond the resources of most states, and in any event would be readily detectable, so that proliferation attempts were likely to involve diversion of nuclear material from declared facilities. Events in Iraq demonstrated that this assumption was wrong.
The program to strengthen safeguards is focusing particularly on establishing the technical capabilities and legal authority necessary for detection of undeclared nuclear material and activities. Central to these efforts is the effective use of information – involving collection and analysis of information that can enhance the IAEA’s knowledge and understanding of nuclear programs – and providing more extensive rights of access for IAEA inspectors to nuclear and nuclear-related locations, including for the resolution of questions arising from information analysis.
2. The Need to Strengthen Safeguards
Implementation of safeguards by the IAEA is based on a safeguards agreement concluded with the IAEA by each state. In the case of parties to the NPT, the NPT requires non-nuclear-weapons states to accept IAEA safeguards on all their nuclear material, and to conclude a safeguards agreement for this purpose. This form of safeguards used to be known as “full scope safeguards”, and today is known as “comprehensive safeguards”. The text of a standard safeguards agreement, INFCIRC/1532, was negotiated in the IAEA’s Board of Governors, to be used for each non-nuclear-weapon state NPT party. Agreements on the INFCIRC/153 model are called “comprehensive safeguards agreements”.
Comprehensive safeguards agreements require states to declare and submit regular reports on their nuclear material and nuclear facilities, and to accept inspections and other measures by the IAEA to verify these declarations and reports. In what later turned out to be a serious weakness in INFCIRC/153, routine inspections are limited to agreed “strategic points” in declared facilities. This reflected concerns by some states in 1969-71, when the text of INFCIRC/153 was negotiated, that safeguards inspections might be used for industrial espionage.
In addition to routine inspections, the IAEA is also given the right of special inspection, which can allow inspectors to go anywhere in the state to investigate circumstances giving rise to suspicion. In practice however the right of special inspection has been rarely used – in fact, the IAEA has sought special inspections to investigate a suspected undeclared nuclear activity only once, in 1993 in the case of the DPRK.3
Reasons for the lack of use of the special inspection provisions are not clear, but the situation appears to have become self-reinforcing, i.e. the longer the provisions were not used, the more they came to be regarded as being available only in very exceptional circumstances. This perception may have been strengthened by the 1993 case which occurred in adversarial circumstances – and by discussion in the Board of Governors in 1992 that special inspections should occur only on “rare occasions”.4
Following the first Gulf War, Iraq’s clandestine nuclear program came to light through new techniques not then used for safeguards. The fact that Iraq had undertaken uranium enrichment was first revealed through detection and analysis of microscopic uranium particles on the clothing of hostages held by the Iraqis. Thus an important new verification tool - environmental sampling - was introduced to safeguards. Action to unravel Iraq’s nuclear program made extensive use of satellite imagery. Environmental analysis and satellite imagery have since become well established safeguards tools.
Major elements of Iraq’s nuclear program were located well away from declared nuclear sites, with no obvious connection to these – so traditional safeguards measures were unlikely ever to have found them. But some other undeclared activities had been undertaken at declared sites, almost under the noses of IAEA inspectors - in buildings which, because of the restriction of routine inspections to strategic points, they could not enter.
From the Iraq experience it was clear that a major shake-up of the safeguards system was needed. A collaborative effort between the IAEA and Member States was launched. This came to be called Programme 93+2 – because it commenced in 1993 and at that time was planned for completion in 1995. Programme 93+2 proceeded on two fronts:
By 1995 the IAEA and Member States had developed a detailed outline of strengthened safeguards measures. There was general acceptance that certain of the measures proposed could be carried out under existing safeguards agreements, and the Board of Governors endorsed the implementation of these in 1995. Important aspects include use of environmental sampling5 in conjunction with inspection activities, and use of unannounced inspections.
For certain other measures it was concluded that additional legal authority was required6, and it was decided to develop the Additional Protocol. Rather than re-negotiate existing safeguards agreements, with the obvious problems this could involve, it was decided to develop a new instrument which would be additional and complementary to existing agreements, addressing the deficiencies in these. A special open-ended committee of the Board of Governors was established (“Committee 24”), and the Additional Protocol was negotiated in 1996-7. The model Additional Protocol – known as INFCIRC/540 – was agreed by the Board of Governors in May 1997. Later that year Australia, which had been very active in the negotiations, became the first state to sign and ratify an Additional Protocol.
3. Outline of the Additional Protocol
Key elements of the model Additional Protocol can be summarised as follows:
(a) The IAEA is to be given considerably more information on nuclear and nuclear-related activities, including through an “Expanded Declaration” by each state and widened reporting requirements.
This information is to include, inter alia:
(b) IAEA inspectors have substantially increased access rights, termed “complementary access”, to:
At nuclear sites and certain locations listed in the Expanded Declaration the IAEA has access as of right. Elsewhere access is given where the IAEA wishes to resolve any “question or inconsistency” arising from information analysis. At locations not included in the Expanded Declaration, in the first instance inspectors are to carry out environmental sampling. If this is inconclusive, inspectors may use radiation detection and measurement devices and, as agreed with the state, other “objective measures”.
(c) Access on nuclear sites can be at short-notice, two hours or less, if carried out with an inspection8; elsewhere access is available on 24 hours’ notice.
(d) The IAEA can deploy environmental sampling, to look for indications of undeclared nuclear activities anywhere in the state.
Initially environmental sampling is to be “location-specific”, directed at a particular location identified in a question or inconsistency. But the Additional Protocol recognises the right of the IAEA to deploy “wide area environmental sampling”9, looking for nuclear indications over extensive areas, once the efficacy of this technique is established.
An aspect that was queried early on is whether the Additional Protocol goes beyond the IAEA’s mandate in INFCIRC/153 to verify nuclear material. The Additional Protocol has extended the IAEA’s authority into a number of areas where nuclear material would not normally be present, such as manufacture of centrifuge components, heavy water and nuclear grade graphite. However, the rationale for this is clear: the IAEA can – and should – look at broader information that strengthens its ability to draw the conclusion that all nuclear material in the state has been declared (i.e. that there is no undeclared nuclear material). This encompasses procedures to find indicators of undeclared nuclear material and nuclear activities, or indicators of diversion or intended diversion of nuclear material.10
Following agreement on the model Additional Protocol, there has been some discussion as to whether the Additional Protocol is voluntary or mandatory. There is no determination, by the Board of Governors or elsewhere, that conclusion of an Additional Protocol is mandatory. On the other hand, non-nuclear-weapon states party to the NPT have committed to accept “the Agency safeguards system”. The Agency safeguards system is not frozen at 1970, when the NPT entered into force (indeed, the model comprehensive safeguards agreement, INFCIRC/153, had yet to be negotiated then), but evolves over time. The Additional Protocol, in conjunction with the comprehensive safeguards agreement, represents a consolidated statement of the “Agency safeguards system”, and – as indicated in the following paragraph – has now become established by international practice as the contemporary standard for NPT safeguards.
Of the 65 non-nuclear-weapon states party to the NPT that have significant nuclear activities, at the time of writing 47 have Additional Protocols in force and 12 have signed an Additional Protocol or had an Additional Protocol approved by the Board of Governors – an uptake of 90% of such states. In all, 129 Additional Protocols are in force or have been signed or approved. Further information on states with an Additional Protocol is at Annex A.
It is of serious concern that more than 11 years after the model Additional Protocol was agreed, six non-nuclear-weapon states party to the NPT with significant nuclear activities – Argentina, Brazil, DPRK, Egypt, Syria and Venezuela – have yet to adopt the Additional Protocol. In addition Iran, which was applying the Additional Protocol on a “provisional” basis, has “suspended” its cooperation under the Additional Protocol. The cases of Syria as well as Iran show why refusal to implement an Additional Protocol can no longer be considered acceptable.
While the Additional Protocol relates primarily to states with comprehensive safeguards agreements (non-nuclear-weapon states party to the NPT), the foreword to INFCIRC/540 affirms that nuclear-weapon states and “other states” may also conclude an Additional Protocol. All the nuclear-weapon states have an Additional Protocol, and India is committed to concluding one.
Because the nuclear-weapon states and non-NPT parties have nuclear material and activities outside safeguards, which they are under no obligation to declare, clearly the purpose of the Additional Protocol is not to strengthen the IAEA’s capability to detect undeclared nuclear material and activities in those states. Accordingly, their Additional Protocols vary from the INFCIRC/540 model. The nuclear-weapon states’ Additional Protocols operate so as to increase the information available to the IAEA regarding nuclear cooperation with and transfers to non-nuclear-weapon states. The scope of India’s Additional Protocol has yet to be negotiated.
4. “Additional Protocol Plus” – Is there a Need to Improve on the Additional Protocol?
In discussions about the possibility of an “Additional Protocol Plus”, the term has been used in two senses – strengthening the Additional Protocol itself, and additional measures further to the Additional Protocol.11 The following discussion covers both aspects.
Although the Additional Protocol has now been in existence for over 11 years, it might be thought premature to consider that INFCIRC/540 is deficient. The major safeguards violations that have occurred since 1997 have involved states without Additional Protocols (Libya, Iran and likely Syria).12
Further, there is some concern whether proposing an “Additional Protocol Plus” will complicate efforts to sign up states still without an Additional Protocol. Also, amending the main body of the Additional Protocol would be very difficult – since Additional Protocols are concluded between the IAEA and individual states, the IAEA would need to negotiate proposed changes with each and every state.
However, when INFCIRC/540 was negotiated, technical aspects were incorporated in Annexes, and a simplified process was established to amend the Annexes. Annex I lists nuclear-related activities that are to be reported to the IAEA, and Annex II lists nuclear-related equipment and materials for which exports and imports are to be reported to the IAEA.
Discussion of the need to improve the Additional Protocol generally covers the following topics:
Information and access are closely related, since some of the complementary access provisions are linked to matters to be reported pursuant to Annexes I and II, and analysis of information is key to identification of specific locations that may warrant investigation.
Further information This falls into three broad areas:
INFCIRC/540 provides that the Annexes may be amended by the Board upon the advice of an “open-ended group of experts” established by the Board. A step in this direction was taken with the establishment of “Committee 25” of the Board, the Committee on Safeguards and Verification, in 2005, but little progress was made and the Committee lapsed in 2007.
An obvious area for updating the Annexes relates to Annex II, listing equipment and materials specially designed and prepared for nuclear use, which corresponds to the Nuclear Suppliers Group (NSG) Part 1 “Trigger List” as it was when the text of INFCIRC/540 was agreed in 1997. At that time the NSG Trigger List was in its second revision (Rev.2). Since then, the Trigger List has been amended several times, and is currently at Rev.9. The intervening changes are too numerous to describe here, suffice to say that it is highly desirable to keep Annex II in line with the Trigger List.
Another important change would be to extend the Annex from equipment and materials specially prepared for nuclear use, to also include information on dual-use items (NSG Part 2 list). While by definition dual-use items are not necessarily intended for nuclear use, lack of information on procurements in this area impacts adversely on the IAEA’s ability to find indicators of possible undeclared nuclear activities for further investigation.
There is a strong case for requiring export denials as well as export approvals to be reported to the IAEA. Information on unsuccessful procurement efforts could be important for alerting the IAEA to the possible interest of a state in pursuing clandestine nuclear activities. Because of the complication of securing amendments to the main text of the Additional Protocol, it would be preferable, if possible, to cover this through an amendment to Annex II, or some other mechanism such as a Board decision.
Whether there are additional kinds of locations that would be usefully included in the Expanded Declaration is a matter for examination. This could be pertinent in the cases of states with sensitive nuclear activities or states under investigation for major safeguards violations, discussed below.
Further access rights This falls into four broad areas:
Some commentators consider that the IAEA’s rights of complementary access under the Additional Protocol to locations outside those declared by the state are too constrained. As noted earlier, inspectors may carry out environmental sampling at such locations and, if environmental sampling is inconclusive, may use radiation detection and measurement devices and other agreed “objective measures”. Of course, there could be some delay before analysis of samples would show whether the results were inconclusive. Further, the IAEA is required to give at least 24 hours notice of access – and must provide the state with the opportunity to resolve the particular question or inconsistency before requesting access, unless the IAEA considers that the delay would prejudice the access objectives.
During the negotiation of INFCIRC/540 it was considered that providing for complementary access subject to these constraints was a reasonable balance between the interests of the IAEA and those of the state. If there were nuclear activities at a location under investigation, it was considered that both the verification measures and the notice requirements would work satisfactorily – the state would not be able to successfully remove evidence of nuclear activities in the time available. A further point is that under comprehensive safeguards agreements the IAEA has the right of special inspection – if the information regarding a location is sufficiently strong the IAEA can gain access to the location and carry out necessary verification measures through the exercise of the special inspection provisions.
Weaponisation activities This area has drawn attention through the IAEA’s efforts to gain access to locations of suspected weaponisation activities, such as high explosives testing, in Iran. Some have questioned the IAEA’s mandate to investigate apparent weaponisation activities – however weaponisation is not only a breach of NPT commitments, but indicates diversion or intended diversion of nuclear material, so is clearly encompassed by the IAEA’s responsibility to provide timely warning of diversion.13
Some have questioned the adequacy of the Additional Protocol’s access provisions with respect to detection of weaponisation activities – indicators of weaponisation activities might not be as easy to detect, and could be more easily concealed, compared with nuclear activities. Accordingly, it is argued, the IAEA needs a much shorter notice period and the right to search a suspect location. There is no doubt some weaponisation activities will be difficult to detect. Documentary evidence, whether in hard copy or electronic form, will be particularly difficult to find. The adequacy of the IAEA’s access rights should be kept under review, and further addressed if experience shows this is necessary.
In considering access issues, the key point is that the IAEA must have location-specific information, either through its own information analysis or through information provided by third parties. If location-specific information is available, it can be actioned, if necessary through a special inspection rather than complementary access. If location-specific information is not available, realistically this shortcoming is unlikely to be remedied simply by providing the IAEA stronger access rights.14
Right of access to specific individuals On the question of whether the IAEA has the right to interview specific individuals, the IAEA Statute expressly provides for this.15 The IAEA Secretariat appears to construe this provision narrowly. This aspect – and the reluctance to use special inspections – are more issues of the Secretariat’s policy and practice than any inadequacy in the Additional Protocol.
There are two situations where stronger authority than provided by the current Additional Protocol might be considered:
Sensitive nuclear facilities In some cases states with sensitive facilities, especially centrifuge enrichment plants, may present a major challenge to IAEA safeguards. If a state has enrichment technology and is able to replicate centrifuge installations, it will be very difficult to detect any undeclared enrichment facilities, particularly as the “footprint” for centrifuge facilities is relatively small. The most effective solution to this problem is to seek international agreement to limit the states having these capabilities.
For states that have enrichment capabilities, it may be necessary to provide the IAEA with authority to apply more intrusive verification. For example, to counter the possibility of a state producing more centrifuge components than declared, in order to supply undeclared facilities, the IAEA may need to look more closely than provided for in the current Additional Protocol at component manufacturing operations – as well as relevant export/import data – to try to monitor the flow of components. It would be important that any such strengthened authority would not be applied as a matter of routine, but only where the IAEA has determined, on the basis of a specific state-level safeguards approach, that it needs to do so.
More broadly, issues of confidence about a state’s use of sensitive nuclear facilities involve more than technical verification. Safeguards are retrospective – they can show that diversion has not occurred – but they can provide only limited assurance about future intent. As part of demonstrating that nuclear programs are intended for exclusively peaceful purposes, the international community needs to develop transparency mechanisms to complement safeguards. One example would be to move away from national to multilateralised programs for the sensitive stages of the fuel cycle.
Verification in non-compliance cases The situation of non-compliance needs particular attention. Fortunately non-compliance is an exceptional situation, and there is no established model for how to deal with follow-up verification. There is a good argument that the Additional Protocol is not sufficient for following up a case of non-compliance. This was the experience with Iran – before Iran’s “suspension” of the provisional application of its Additional Protocol, the IAEA had considerable difficulties obtaining Iran’s cooperation in providing information and access.
There would be advantage for the IAEA to have stronger authority, as was done in Iraq under UN Security Council Resolution 687 (which of course pre-dated the Additional Protocol). This might include “anywhere/any time” access, the right to install monitoring systems, authority to interview any person, and so on. A more rigorous verification regime for states in non-compliance could be mandated by Security Council resolution.16
The Additional Protocol is an essential element in strengthening the IAEA’s capability to detect undeclared nuclear activities. The IAEA has emphasised that without an Additional Protocol its ability to draw conclusions on the absence of undeclared nuclear material and activities is limited.
All states must do more towards achieving universalisation of the Additional Protocol. It is high time all nuclear suppliers made the Additional Protocol a condition for supply – there is no justification for continuing nuclear supply under insufficient safeguards.
While it has yet to be shown that the Additional Protocol needs improvement overall, the Protocol provides a procedure for the revision of its Annexes, and these should be reviewed and updated where necessary. Further, dual-use items and a requirement to report export denials should be added. Consideration should also be given to strengthened verification authority, through an amended Additional Protocol or a further instrument, to be available to the IAEA where needed – as well as complementary transparency mechanisms – for states operating enrichment or reprocessing plants. Finally, as part of an examination of strengthening the IAEA’s authority in cases of safeguards non-compliance, consideration should be given to the need for a strengthened form of Additional Protocol, mandated by the Security Council.
Some related papers by the author:
Five Decades of Safeguards, and Directions for the Future: An Australian Perspective, Journal of Nuclear Materials Management, Summer 2007.
Defining the Safeguards Mission, IAEA Safeguards Symposium, Vienna, 16-20 October 2006.
[With R.Leslie and A.Berriman], Nuclear Weaponisation Activities: What is the Role of IAEA Safeguards?, Annual Meeting of the Institute of Nuclear Materials Management, Nashville, Tennessee, 16-20 July 2006.
Special Inspections Revisited, Annual Meeting of the Institute of Nuclear Materials Management, Phoenix, Arizona, 10-14 July 2005.
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