LLNL-MI-557415This work was performed under the auspices of the U.S. Department of Energy by Lawrence Livermore National Laboratory under contract

DE-AC52-07NA27344. Lawrence Livermore National Security, LLCThis work was supported by the NNSA Office of Nuclear Safeguards and Security’s Next-Generation Safeguards Initiative (NGSI)Program Manager: Dunbar Lockwood

LLNL-PRES-559676

Pursuing Possible Noncompliance with NPT Safeguards Agreements: IAEA Legal Authorities and their Use in Practice

Celia Reynolds

International Safeguards Policy and Information Analysis CourseJames Martin Center for Nonproliferation StudiesMonterey, California, June 4-8, 2012

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States for which the IAEA determined non-compliance reportable to the Security Council• Iraq (1991)• Romania (1992)• DPRK (1993, 2003)• Libya (2004)• Iran (2005)• Syria (2011)

Other cases where States’ failures to meet safeguards obligations have been specifically reported to the Board• Republic of Korea (2004)• Egypt (2005)

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Scope of the Agency’s noncompliance mandate

Key legal provisions – a quick review*• IAEA’s legal authority• States’ obligations

Practice

Outline

*Note: Because none of the noncompliance cases to date has involved a Statewith an Additional Protocol in force at the time of the noncompliance, this presentation does not discuss authorities that derive exclusively from the AP.

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Scope & key legal provisions

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Noncompliance as concept in a safeguards context• Originated in the IAEA Statute (1957) at a primarily abstract level • Evolved with changes in the Agency’s safeguards system and

with application to actual cases

Agency’s mandate • Has the right & obligation to determine if a State is complying with

its IAEA safeguards agreement(s)— Specifically INFCIRC/153 in the context of this presentation

• Does not have an explicit right or obligation to determine if a State is complying with the NPT

Scope of the IAEA’s noncompliance mandate

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Statutory provisions related to the IAEA’s legal authority The Statute has provisions that relate to the IAEA’s legal

authorities to: • Ensure that Agency safeguards are being implemented accordingly• Report findings of noncompliance to the broader international community

Article XII A.6: Ensuring Safeguards Implementation• It establishes broad inspection rights for ensuring the implementation of

safeguards• States that Agency inspectors will have access at all times to all places,

data, people, materials, equipment, and facilities that it deems necessary for ensuring that a State is complying with its IAEA safeguards agreements

• Serves as the foundation for a more detailed elucidation of safeguards application guidance as embodied in the IAEA’s safeguards agreements

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Statutory provisions related to the IAEA’s legal authority

Article XII.C: Reporting Noncompliance• Describes the process that the IAEA follows when it encounters

instances of noncompliance• Specifies measures the Board can take if a State fails to take

corrective action in a timely manner

Inspectors shall report any noncompliance they

encounter to the Director General (DG)

Dept. of Safeguards

Shall transmit this report to the Board of Governors for its

deliberation

Director General

•Shall call upon the State to remedy any noncompliance that it finds to have occurred

•Shall report the noncompliance to the UNSC & UN General Assembly

Board of Governors

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Relationship between IAEA & UNSC They are not just linked by the noncompliance reporting process

Article III.B.4 also mandates reporting to the UNSC if, in connection with Agency activities, questions arise within the competence of the Council as the organ with primary responsibility for international peace & security

There is also a mutually reinforcing element to their relationship

The UNSC can & has affirmed that actions required of a State as specified in the Board resolutions are binding

The Agency is obligated to cooperate with the UNSC as the Council exercises its responsibility to maintain international peace & security

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INFCIRC/153: “Big Picture” ProvisionsRights & obligations of the

AgencyCorresponding rights & obligations of the State

¶ 2: Right & obligation to apply safeguards to all nuclear material within all peaceful uses in a State

¶ 2: Obligation to place all nuclear materials in all peaceful uses under safeguards

¶ 3: Mutual obligation to cooperate in the facilitation of safeguards within a State

¶ 8: Obliged to limit its requests for information to only that which is necessary for its (the Agency’s) effective implementation of safeguards• The Agency gets to decide what

information is necessary

¶ 8: Obliged to provide all information that is necessary for the IAEA’s effective implementation of safeguards• Two types of information are supplied:

• Information directly related to nuclear material that is subject to safeguards

• Information related to the design of facilities

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INFCIRC/153: Meeting ¶8’s Information Provisions Providing information directly related to NM that is subject to

safeguards• ¶34(b): Declare imports of nuclear material (even ore and ore concentrate)

• ¶34(c): Declare & place under safeguards material that reaches starting point of safeguards

• ¶36, 37: Before exempting material as allowed in small quantities or for non-nuclear use, must first declare material and request exemption

• ¶62: Provide an initial report of all nuclear material required to be safeguarded

• ¶63-67: Provide material accountancy reports

• ¶49-50: Provide information on nuclear material in locations outside facilities

• ¶69: Provide amplification and clarification of reports as requested

(More detailed reporting requirements are specified in the Subsidiary Arrangements)

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INFCIRC/153: Meeting ¶8’s Information Provisions

Providing information related to the design of facilities• Applicable to the State:

— ¶42-45: Provide design information, including advance notification as specified in Subsidiary Arrangements

– Example: Abiding by Modified Code 3.1 and its calls for the early provision of design information

(More detailed reporting requirements are specified in the Subsidiary Arrangements)

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INFCIRC/153 ¶3 obligates States to cooperate with the IAEA to facilitate Safeguards implementation, including the IAEA’s exercise of its access rights

IAEA’s access rights include:

• ¶48: Verification of design information

• ¶70-77 : Right to make inspections:— ¶71: Ad hoc inspections to verify information contained in the initial report, to

identify and verify changes in the situation, and to identify and verify international transfers

— ¶72: Routine inspections for independent verification of material accounting reports and to investigate discrepancies (details specified in Facility Attachments to the Subsidiary Arrangements)

— ¶73: Special inspections that are additional to routine inspection effort or that involve access to information or locations in addition to the access specified for ad hoc and routine inspections

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INFCIRC/153: Special Inspection ProvisionsIAEA’s access rights include:

• ¶73(b): The Agency may make special inspections, subject to the provisions of ¶77, “if it considers that the information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”

• ¶77: In circumstances which may lead to special inspections, the State and the Agency shall consult forthwith. As a result of such consultations the Agency may . . . obtain access in agreement with the State to information or locations in addition to the access specified for ad hoc and routine inspections.

— Any disagreement concerning the need for additional access shall be resolved in accordance with ¶20-21 (arbitration tribunal)

— In case action by the State is essential and urgent, ¶18 shall apply(The can Board decide to require the State to grant prompt access)

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INFCIRC/153: Provisions related to verifying non-diversionRights & obligations of the Agency Corresponding rights & obligations

of the State

¶ 18: Right to call on the state to take actions without delay if deemed urgent and essential to ensure non-diversion

¶18: Obligation to Cooperate promptly with actions deemed urgent and essential to ensure non-diversionFailure to co-operate with such a request would constitute noncompliance and under the Statute would need to be reported to the Security Council

¶ 19: If unable to verify non-diversion, the Agency may make Article XII.C reports (supplemental to the XII.C obligation to report known non-compliance). State should be given reasonable opportunity to provide reassurance.At its discretion, the Board may report the Agency’s inability to verify non-diversion, even without concluding that there has been actual non-compliance

¶ 19: Has the right to be afforded an opportunity to provide reasonable assurances to the Agency regarding its concerns about verifying non-diversion

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Use in practice

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Summary of noncompliance findings

Case

Decision toreport non-compliance?

Basis for non-compliance finding

Iraq, 7/1991 Y ¶ 34(c) failure to declare material

Iraq, 9/1991 Y Numerous violations related to undeclared material, facilities, and processing), not called out individually by Article

Romania, 1992 Y(for info only)

Romania self-reported Ceaucescu regime’s past undeclared irradiation and reprocessing experiments

DPRK, 4/1993 Y ¶ 3, 18, 71, 73, 77 (non-cooperation w/ ad hoc inspection and an urgent, essential special inspection)

DPRK, 3/2003 Y Noncooperation with urgent and essential request for clarification of information on an alleged enrichment program; rejection of CSA

Iran, 9/2003 - Despite numerous reporting failures, cooperation with Article 18 demand (and EU3-negotiated suspension), did not find Iran in noncompliance

Libya, 3/2004 Y(for info only)

Under an agreement negotiated with UK and US, the State self-reported undeclared facilities, nuclear material imports, and processing

Iran, 09/2005 Y Cited numerous past failures to report, together with noncooperation with measures required by BOG resolutions

Iran 11/2009 - Despite Iran’s failure to provide early notification of the Fordow enrichment facility as required under modified Code 3.1, BOG did not find noncompliance

Syria, 6/2011 Y ¶ 42, 43* (failure to provide early notification of a facility)

*Articles 41, and 42 of INFCIRC/407

(Derived from information in IAEA Board of Governors resolutions and DG reports to the Board)

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How IAEA actors have engaged their legal authorities

Presiding DG CaseDG expressly

declare that a State’s actions =

noncompliance?

Does the DG link SGs

failures to specific CSA

articles?

Does the Board link SGs failures to specific CSA

articles?

Hans Blix (Served 1981-

1997)

Iraq (7/1991) Yes Yes No

Iraq (9/1991) Yes No No

Romania (1992)

Insufficient info Insufficient info Insufficient info

DPRK (4/1993) Yes Yes No

Muhammad ElBaradei

(served 12/1997-11/2009)

DPRK (3/2003) Yes No No

Libya (3/2004) No No No

Iran (9/2005) No No No

Yukiya Amano(12/2009-now)

Syria (6/2011) No Yes Yes

(Derived from information in IAEA Board of Governors resolutions and DG reports to the Board)

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Summary of reports to the Security Council

CaseReport of

non-compliance?Report of inability to

verify non-diversion?

Report of issues that fall w/in the UNSC’s

competence?Iraq, 7/1991 Y - -

Iraq, 9/1991 Y - -

Romania, 1992 Y(for info only)

- -

DPRK, 4/1993 Y Y -

DPRK, 3/2003 Y Y -

Iran, 9/2003 - - -

Libya, 3/2004 Y(for info only)

- -

Iran, 2/2006 Y (delayed from 11/2005)

- Y

Iran, 2009 - - -

Syria, 6/2011 Y - -

(Derived from information in IAEA Board of Governors resolutions)

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Other tangential legal authorities issues Authority under Security Council resolutions, negotiated agreements, etc.

Related to notification and design verification of facilities:• Continuing right of access for design verification of facilities once they are notified to

the Agency, even if they were notified earlier than required.• Inability of a Member State to unilaterally modify its CSA, for example by asserting

that it is reverting to original Code 3.1 after agreeing to Modified Code 3.1 of the Subsidiary Arrangements to its CSA.

Right to report to the Security Council regarding a State’s fulfillment of actions required of it by Security Council Resolutions. (Note Article III.2 of the Relationship Agreement and Article III.B of the Statute)

Right of the Board to require measures “beyond the CSA”: Note Article 18, which allows the IAEA to require actions that are urgent and essential to ensure non-diversion. What is Agency’s authority to require measures to “restore confidence?”

Authority to use/hire expert consultants

Questioning the abuse of de-designation of inspectors (¶ 9)