Safeguards Noncompliance: A Challenge for the IAEA and the UN Security Council

Article excerpt

Compliance with safeguards obligations is a fundamental part of a country's participation in the global nuclear nonproliferation regime. The issue of compliance was central to the contentious discussions at the 2005 Nuclear Nonproliferation Treaty (NPT) Review Conference and is likely to play a similar role at the 2010 conference.

The main objective of the International Atomic Energy Agency (IAEA), as set out in its statute, is to promote "the contribution of atomic energy to peace, health, and prosperity throughout the world" while ensuring that nuclear material, equipment, facilities, and information are not used for any military purpose.1 The IAEA carries out the latter part of this mandate by establishing and implementing safeguards.

In fulfilling its nonproliferation mandate, the most important task of the IAEA is the prompt detection and reporting of unauthorized nuclear work in any nonnuclear-weapon state that is a party to the NPT. This unauthorized work may involve the diversion of nuclear material from declared facilities as well as undeclared nuclear material and activities.

IAEA inspections are designed to ensure that countries are complying with their commitments under their safeguards agreements. The UN Security Council indicated the importance of noncompliance by addressing it in the first operative paragraph of Resolution 1887, which the council adopted on September 24, 2009, during the United Nations' summit on nonproliferation and disarmament.2

Nevertheless, the international community must go beyond that resolution by adopting a refined and strengthened approach toward cases of safeguards noncompliance, which, as discussed below, has several elements. One element is how the IAEA Department of Safeguards should distinguish between cases of noncompliance that should be reported to the IAEA Board of Governors as "non-compliance" in accordance with Article XII.C of the IAEA statute and cases that constitute only technical or legal compliance failures and therefore need be reported only in the annual Safeguards Implementation Report, if at all.3 The board, when it finds that the agency is unable to resolve a case of noncompliance promptly, should not hesitate to request additional verification rights from the UN Security Council. The latter, in turn, should take steps to improve the likelihood of prompt and effective action when confronted with persistent cases of noncompliance or with withdrawal from the NPT.

The Safeguards Department's Role

In examining IAEA responsibilities, it is necessary to distinguish between the respective roles of the secretariat and the board. The IAEA Secretariat is the technical arm of the agency in charge of detecting any technical or legal noncompliance with the safeguards agreements concluded between the IAEA and a state. The secretariat is expected to perform this task in the most objective and nondiscriminatory way possible, without the influence of any political considerations.

The fact that there is no official definition of what constitutes noncompliance should not be used as an excuse by the secretariat for not reporting promptly, fully, and factually any significant or intentional failure or breach of safeguards undertakings, including those of agreed "subsidiary arrangements."4

In judging whether a failure is intentional, the Department of Safeguards should, inter alia, take into account whether any state organization, including the state system of accounting for and control of nuclear material, knew of undeclared nuclear material (whatever its quantity), facilities, or activities that should have been declared to the IAEA.

Denying access to a declared or suspected facility or location, as well as not allowing inspectors to take environmental samples as requested by the IAEA, is by definition intentional. If such a denial is prolonged, for example, more than a few days unless for legitimate safety reasons, it must be promptly reported by the Department of Safeguards to the director-general as a matter of concern. …