Nuclear Non-Proliferation: The Future Depends On Us

Pierre Goldschmidt

The following article is adapted from Dr. Goldschmidt’s remarks made upon receipt of the Forum’s Burton award at the APS meeting held in St. Louis, MO, April 2008. We apologize for the serious delay in getting Dr. Goldschmidt’s remarks into print – Ed.

Introduction: Nuclear Safety & Geo-Politics

I am greatly honored and most grateful to have been selected to receive the 2008 Joseph A. Burton Award. I have been very fortunate to have been the Head of the Agency’s Department of Safeguards at a time when the Department had to respond to a number of major proliferation challenges.

There are presently clear indications that we are about to see a revival of nuclear energy worldwide. It is important to make this expansion of nuclear energy for the production of electricity and desalinated water as safe and secure as possible. This expansion will however, in the coming decade, be limited by a number of socio-economic factors as well as industrial limitations such as the capacity to manufacture reactor vessels. This should give us time to “do” nuclear right, not under an unwarranted rush. Doing it right means, in particular, putting stronger barriers to proliferation in place before, not after, new nuclear capabilities spread. What is of concern is that some states that have recently indicated interest in acquiring nuclear power plants (NPP) seem to be motivated by geo-political considerations as much as by economic or environmental factors. It is also worrisome to see some supplier states racing to offer their services to countries where starting an electro-nuclear program now does not necessarily appear to be the best or a priority option. Organizations such as the IAEA can help in laying out objective, well studied criteria to judge when and where nuclear energy makes sense and where it does not.

In the short term, in order to compensate for the lack of adequate industrial infrastructure and nuclear safety culture in some recipient states, suppliers may offer so-called “BOT contracts,” whereby they would build, operate and later transfer the NPP to the buyer. That might work initially in few cases, but the question is whether it is sustainable in the longer term. Are we really going to see Russian, French, American or Chinese experts being requested to assume the responsibility of operating NPPs in Libya, Jordan, the UAE and many other States? One must always keep in mind that a severe nuclear accident anywhere in the world will have damaging consequences for the whole industry, even in those countries where NPPs are operated in the safest way. Today I will not dwell on these important safety aspects; rather, I will focus on some of the non-proliferation challenges inevitably associated with a worldwide expansion of the peaceful use of nuclear energy. In order to minimize proliferation risks, it has become apparent that we must both discourage the spread of sensitive fuel cycle activities and strengthen the IAEA verification authority, in particular when a State has been found to be in non-compliance with its safeguards agreement.

Discouraging the Spread of Sensitive Fuel Cycle Facilities

There is very little economic incentive for a non-nuclear weapon State (NNWS) to construct new fuel cycle facilities such as uranium conversion, enrichment or reprocessing plants domestically, because without the support of external sources these plants cannot be economically competitive.  To further minimize any incentive to build such plants domestically, it is necessary to provide nuclear fuel supply guarantees. Even if the nuclear fuel cycle industry is an oligopoly, it should be recalled that there is not a single example in history where a State that had a Comprehensive Safeguards Agreement (CSA) in force had to close down an electrical NPP because it was denied the delivery of fresh fuel assemblies. The concern expressed by a very small number of non-aligned countries is that the delivery of fuel assemblies to NPPs could be suspended or denied by a supplier for purely political reasons.  Although the likelihood that all suppliers would deny such fuel supplies is small, this concern must be addressed seriously and rapidly.

It has been suggested that a solution would be to construct and operate multinational facilities, in particular enrichment plants, where the customers would also be shareholders, but without access to the technology. Notwithstanding the merits of such a concept, it does not address the real perceived risk which is that the exporting state will ultimately fail or refuse to grant the necessary export license in a timely manner. The ultimate guarantee against such an occurrence is for the IAEA to own a fuel reserve that would be used to provide fuel assemblies to any country that would be denied fuel delivery for purely political reasons. It is essential that such an IAEA fuel bank be established in the near future. Such a fuel reserve, to be effective, should be operated under three conditions:

(1) An IAEA low-enriched uranium fuel bank should, for practical and economic reasons, be physically located (in the form of UF6) at some, if not all commercial enrichment plant sites.

(2) The Agency should conclude contracts with all manufacturers of fuel assemblies to assure the Agency’s access, in case of necessity, to some fabrication capacity.

(3) Countries where the fuel bank and fabrication plants are located should grant the IAEA a generic (or a priori) export license, subject to the IAEA confirming that a number of objective and well defined safety, security and non-proliferation conditions have been met by the recipient state, and that the recipient state does not possess domestic sensitive fuel cycle facilities.

Independently, suppliers of NPPs should also consider the merit of leasing fresh fuel assemblies required for the lifetime operation of the plants and of taking back the spent fuel, as an incentive (if not a condition) for the recipient State not to set up domestic enrichment and reprocessing activities.  Spent fuel could be taken back in exchange for an equivalent quantity of well conditioned high level vitrified wastes.

Expanding the IAEA Verification Authority

The IAEA safeguards system is being implemented more effectively and efficiently than ever before. Traditionally, the IAEA focused on accounting for nuclear materials in a state facility-by-facility.  This work was done only at declared facilities and was largely an audit. Since 1998, however, the IAEA has developed a global analytical approach that asks not simply whether the declared numbers add up, but also, “What’s going on in this state’s nuclear program? Is everything really consistent?”

At the heart of this approach is the production and periodic update of State Evaluation Reports (SERs) and of a corresponding action plan. SERs combine the results of inspections in the field and environmental swipes with analysis of all relevant information from open sources, including satellite imagery. State Evaluation Reports analyze the history of all anomalies and inconsistencies recorded during previous inspections. They examine whether a state’s research and development program is internally consistent, corresponds with stated purposes, and point to a commitment to use nuclear technology exclusively for peaceful uses. The SERs analyze export and import notifications regarding relevant nuclear material and equipment and other information available to the IAEA. Every SER also includes a section that examines the most likely diversion scenarios on the assumption that the state under review intends to divert nuclear material for military purposes.

Not only have the SERs become more robust, but the findings and conclusions reported by the Agency’s Secretariat in its annual “Safeguards Implementation Report” have become more pragmatically informative. Starting with the “Safeguards Statement for 2003,” the Secretariat’s findings and conclusions were directed to five distinct categories of countries: those with a Comprehensive Safeguards Agreement (CSA) and Additional Protocol (AP) in force, those with a CSA but no AP in force, those with what is known as “66-type” safeguards agreements, those which are party to the NPT but have not yet brought a CSA into force, and the five Nuclear Weapons States (NWS). Also in 2003, for the first time, in the interest of transparency, the Agency’s Board of Governors (BoG) approved the release of a 12-page “Background to the Safeguards Statement and Executive Summary.” This  document named 16 NNWs with known significant nuclear activities that had yet to sign and bring an Additional Protocol into force even though the Model Additional Protocol had been approved by the BoG more than six years before [As of the time of this talk, seven of these states have signed an AP but only one, Kazakhstan, has brought it into force.] It also pointed out that in the 70 States with “small quantities protocols” the Agency had only very limited means to evaluate any potential nuclear activities. [Editor’s note: Safeguards are activities by which the IAEA can verify that a State is living up to its international commitments not to use nuclear programmes for nuclear-weapons purposes. An AP grants the IAEA complementary inspection authority to that provided in underlying safeguards agreements. 66-type agreements provide for the application of safeguards to specific facilities; see http://www.iaea.org/Publications/Factsheets/English/sg_overview.html].

Parallel with these developments, the IAEA has replaced almost all analogue video cameras with digital surveillance cameras, and the implementation of remote monitoring has continuously increased since 2000. Progress is also being made in using more advanced equipment such as ground penetration radar to improve the IAEA’s ability to verify that highly complex nuclear facilities conform to their official design. The Agency has also established a new R&D project to explore, with the support of Member States, the potential use of advanced technologies in detecting undeclared nuclear material and activities at a distance. In addition, in response to the discovery in 2004 of an extensive covert supply network of sensitive nuclear technology which came to light as a result of Libya’s disclosure of its clandestine nuclear weapons program, the Agency’s Department of Safeguards has established a new unit focused on documenting, investigating and analyzing nuclear trade activities worldwide, with the aim of uncovering the existence of undeclared nuclear activities.

This more rigorous, transparent and resourceful approach to safeguards has led one knowledgeable commentator (Richard Hooper – IAEA Bulletin – June 2003) to assert that “changes in structure and practices of the Safeguards Department have been accompanied by a change in culture that is more of a revolution than evolution.” This “radical departure from the past practice” has also been acknowledged in the US Government Accountability Office Report of October 2005 on Nuclear Non-proliferation. To be sure, there are still problems inherent in ensuring that in “bulk facilities” even small amounts of nuclear material (a few kilograms among tons) are not diverted without timely warning, even if the safeguards approaches for fuel cycle facilities have been improved during the last 5 years. I believe that the IAEA is in a position to provide adequate assurances that there is no diversion of nuclear material from NPPs and no undeclared nuclear material and activities in any country that does not have sensitive nuclear fuel cycle facilities and has a CSA and an AP in force with the Agency.

In contrast, the Agency’s ability to provide the necessary assurances in a country that operates sensitive nuclear fuel cycle facilities and has not ratified the AP is limited. It is even lower if such a country has been found to be in breach of its obligation to comply with its safeguards agreement, or is uncooperative in resolving any question or inconsistency, or refuses or delays access to locations (e.g. to take environmental swipes) requested by the Agency or rejects or delays the installation of surveillance and containment devices equipped with remote monitoring. The non-proliferation regime needs to be strengthened.

Safeguards in Perpetuity

One of the greatest weaknesses of the model Comprehensive Safeguards Agreement is its Article 26, which provides that the Agreement is to “remain in force as long as the State is party to the Treaty on the Non-Proliferation of Nuclear Weapons”. Nothing is said about what happens if and when the State withdraws from the Treaty. It would be logical to forbid withdrawing countries the free use of material and equipment delivered to them while and because they were a Party to the NPT. Consequently, it is very important to guarantee that such material and equipment remain under IAEA safeguards even if a state withdraws from the NPT or otherwise unilaterally terminates any safeguards agreement.

It should become a norm that at least all sensitive nuclear fuel cycle facilities, even in states with a CSA, be covered also by a 66-type safeguards agreement that would specify that “safeguards shall continue to apply with respect to nuclear material and facilities which are subject to safeguards on the date of termination of a CSA and any nuclear material produced, processed or used in or in connection with such nuclear material or facility after the termination of the CSA, including subsequent generations of produced nuclear material.” Such an agreement would only become operative in case the state withdraws from the NPT. The Nuclear Suppliers Group (NSG) should adopt this requirement as an export condition for any material or equipment related to sensitive nuclear fuel cycle facilities. The Governments of the Netherlands, Germany and Japan should lead by example, and conclude with the IAEA such safeguards agreements for their enrichment and reprocessing facilities.

Non-compliance and Enforcement

Experience has demonstrated that when a state is found to have deliberately been in non-compliance with its safeguards agreements or in breach of its obligation to comply with its safeguards agreements and does not show full transparency and cooperation for resolving questions with regard to its past or present nuclear program, the Agency will temporarily need expanded verification rights. This expanded authority, which will be in addition to that granted to the Agency under a CSA and the Model Additional Protocol will be necessary, in these circumstances, to provide in a timely manner an adequate level of assurance that there are no undeclared nuclear material and activities in that state and that no previously undeclared nuclear or other activities (e.g., weaponization or missile developments) have been undertaken to support a nuclear weapons program. This is clearly reflected in the IAEA’s report of September 2005 regarding Iran to the Board of Governors, where it is stated: “In view of the fact that the Agency is not yet in a position to clarify some important outstanding issues after two and a half years of intensive inspections and investigation, Iran’s full transparency is indispensable and overdue. Given Iran’s past concealment efforts over many years, such transparency measures should extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol and include access to individuals, documentation related to procurement, dual use equipment, certain military owned workshops and research and development locations. Without such transparency measures, the Agency’s ability to reconstruct, in particular, the chronology of enrichment research and development, which is essential for the Agency to verify the correctness and completeness of the statements made by Iran, will be restricted”. The problem is that these additional transparency measures have not been defined in any precise way and that even when they are requested under an IAEA Board resolution (as was the case for Iran on 4 February 2006) they are not legally binding for the non-compliant State.

In this regard the United Nations Security Council (UNSC) should consider the merit of adopting a generic resolution, stating that if a state is found by the IAEA to be in non-compliance with its comprehensive safeguards agreement, the UNSC would, upon request by the Agency, automatically adopt a specific resolution under Chapter VII of the UN Charter requiring that state to temporarily suspend all sensitive nuclear fuel cycle-related activities and to grant to the Agency extended access rights. These rights would be used to resolve outstanding issues, and would be terminated as soon as the Agency has been able to draw the conclusion that there are no undeclared nuclear material and activities in the State and that its declarations to the IAEA are correct and complete. This mechanism would allow the IAEA safeguards system to provide the international community with more credible assurances regarding the exclusively peaceful nature of all nuclear related activities in the state in a faster, more effective and more efficient manner. These broader access rights must not exclude military sites, since it would be likely for the military to be involved in nuclear activities associated with a weapons programme, should one exist. It is clear that military sites may contain sensitive information that would not be relevant to the Agency’s investigation. It is expected that Agency activities on such sites will need to be conducted under “managed access” conditions that protect such information while allowing the Agency to reach its objective. Denial of or unwarranted delays in access should be reported by the Director General to the Board of Governors and, as appropriate, to the UNSC.

As experience with North Korea and Iran taught us, one of the greatest difficulties in deterring states from violating their non-proliferation undertakings or from ignoring legally binding UNSC resolutions is their hope that for geostrategic or economic reasons at least one of the five veto-wielding members of the UNSC will oppose the adoption of harsh sanctions. It should be easier to find consensus on a generic non-state specific resolution as the one suggested above which would have no retroactive effect. If a state has deliberately violated its NPT or safeguards undertakings and thereafter refuses to temporarily suspend sensitive nuclear fuel cycle activities as mandated by the UNSC, it should be made clear that this represents a threat to international peace and security. It would therefore seem logical for the Security Council to agree a priori that in these circumstances all military cooperation with that State would be suspended. This would constitute a strong disincentive for that State to defy legally binding UNSC resolutions, but would not impact on the well-being of its population.

Undeclared Nuclear Trade Activities

As reported in August 2006 by the IAEA Secretariat, “before 1991, the prevailing view… was that a State’s nuclear activities prior to entry in force of its comprehensive safeguards agreement were not relevant to the Agency’s work. This changed with Board endorsement of the Agency’s right and obligation to verify not only the non-diversion of declared nuclear material, but also the absence of undeclared material and activities”.

As far back as May 1992 the IAEA Secretariat had recommended that the Board call on all states to report to the Agency, on a quarterly basis, all exports and imports of equipment and non-nuclear material listed in an Attachment which corresponds to what is today Annex II of the AP; unfortunately, this universal reporting system was not endorsed by the Board when the recommendation was made in 1992. Indeed, among many other examples, it appears from reports to the Board of Governors (BoG) that in 1998 Iran concluded a contract with a supplier in the Russian Federation related to the delivery of equipment for laser enrichment at the undeclared AVLIS facility in Lashkar Ab’ad. It would have been useful for the Agency to be aware of these deliveries as it was the opinion of Agency experts that the system at Lashkar Ab’ad, as designed and reflected in the contract, would have been capable of HEU production had the entire package of equipment been delivered. The Secretariat, in an August 2006 Note has recommended that States should now provide information on their past nuclear activities. It is important for the Agency not only to be systematically informed both by the exporting and the recipient States of future transfers of the items listed in Annex II of the AP, but, in order to fill the gap of the past, to be informed of all such transfers that have taken place at least since the recipient state joined the NPT.

There are, however, reasons to doubt that the Board of Governors will adopt such recommendations any time soon. However, the Director General (DG) could circulate a note to all Member States wherein he would draw their attention to the fact that the above mentioned information is most valuable for the Agency to fulfill its mandate and that the Agency expects Member States to provide such information under Article VIII.A of the IAEA Statute, which states that each member should make available such information as would, in the judgment of the member, be helpful to the Agency. It would also be useful for the DG to confirm that Member States should provide to the Agency information on export denials and aborted procurement enquiries for items listed in Annex II of the AP.

Conclusion

Over the next 20 years a considerable number of new electrical nuclear power plants are likely to be constructed and start operation around the world. This prospective market is already attracting competition among a few large suppliers. This healthy competition should not be engaged in at the expense of stringent safety, security and non-proliferation standards. Recent nuclear cooperation agreements concluded by exporting countries without explicit non-proliferation conditions such as having an Additional Protocol in force are a matter of great concern. If the Nuclear Suppliers Group, under the pressure of some of its powerful members, agrees to disregard its present export rules for what the US has unilaterally defined as the “special case of India,” I am afraid that the non-proliferation regime will be weakened precisely at a time when it should be strengthened.

What is most important is to make constructive and politically acceptable proposals to correct the anachronistic limitations and loopholes contained in the NPT and Safeguards Agreements. In the present political environment any attempt to amend the NPT or Comprehensive Safeguards Agreement or the Additional Protocol would be doomed to failure and most likely counter-productive. One should expect many NNWSs to be irritated and to perceive these attempted changes as intensifying discrimination against the nuclear have-nots. For that reason, one should avoid any measure that could be seen as unduly penalizing states in good standing with their safeguards undertakings because a couple states have violated their commitments. This is why the generic UNSC resolutions proposed in this address deal exclusively with the case of NNWSs that have been in non-compliance with their safeguards agreements. A rule-based regime defeats itself if it does not embrace reasonable enforcement measures such as these.

The international community, too often, has the unfortunate tendency of waiting for a crisis to occur before taking corrective actions instead of drawing the lessons from previous crisis and taking preventive measures in order to diminish the risk of their reoccurrence. The international community knows what should and could be done to diminish the risk of nuclear proliferation. If we do not act now there will be a renaissance of nuclear weapons proliferation.  The future depends on us.

Finally, I would like to take this opportunity to express my gratitude to the Safeguards Department, with its 600 staff members from 86 nations, whose extraordinary dedication and teamwork has resulted in many improvements and successes.

Pierre Goldschmidt is former Deputy Director General of the International Atomic Energy Agency (IAEA) and currently a visiting scholar in the Nonproliferation Program at the Carnegie Endowment for International Peace. He was awarded the FPS Joseph A. Burton Award for 2008 “For transforming the safeguards culture and procedures of the IAEA, greatly strengthening its ability to detect nuclear proliferation activities, and for his courage and integrity, especially in the period 2002 - 2003.”

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This contribution has not been peer refereed. It represents solely the view(s) of the author(s) and not necessarily the views of APS.