Senate Passes Additional Protocol

Miles A. Pomper

The U.S. Senate March 31 unanimously approved an “additional protocol” to the U.S. safeguards agreement with the International Atomic Energy Agency (IAEA), less than a month after President George W. Bush made a strong push for Senate passage of the pact.

Before the treaty becomes national or international law, however, Congress must first pass implementing legislation, a process that could take several months as the administration’s proposed language has yet to be considered by the relevant House and Senate committees.

All non-nuclear-weapon states-parties to the nuclear Nonproliferation Treaty (NPT) have safeguards agreements with the IAEA that require detailed declarations of nuclear activities and allow IAEA inspections to ensure that those activities are not being used for illegal military purposes. As a recognized nuclear-weapon state under the NPT, the United States is under no legal obligation to accept such safeguards but has, as a matter of policy, voluntarily permitted them, albeit with broad “national security” exemptions.

The additional protocol agreement approved by the Senate is based on the 1997 Model Additional Protocol. The IAEA, after its failure to detect Iraq’s pre-1991 crash nuclear weapons program revealed weaknesses in the agency’s inspections and monitoring procedures, developed the protocol to strengthen the agency’s ability to detect clandestine nuclear activities. For example, the protocol allows agency inspectors to conduct short-notice inspections of undeclared facilities and requires states to provide more information to the IAEA about their nuclear activities. The IAEA cannot actually implement these measures in a particular country unless its government has concluded its own version of the Additional Protocol.

The U.S. version of the Additional Protocol, signed in 1998, would provide the IAEA with nonmilitary information on U.S. research, development, enrichment, and reprocessing activities; locations and capacity of fissile material production sites; export and import of nuclear material; and uses of fissile material and waste products.

The agreement, however, allows the United States to invoke a provision called the “national security exclusion” to deny the IAEA access to “activities with direct national security significance…or to locations or information associated with such activities.” The United States has the “sole discretion” in determining whether it can invoke the exclusion. In the event that it does allow IAEA inspectors into a facility, the United States will be able to use “managed access” to limit the inspectors’ activities. Washington can also employ “managed access” to protect “proliferation-sensitive” and “proprietary or commercially sensitive information” in military and commercial nuclear facilities.

Senate approval of the additional protocol came after the Senate Foreign Relations Committee had voted 19-0 on March 4 in favor of a resolution of ratification. In the same markup, the panel also approved legislation reauthorizing spending for the Department of State that includes several important nonproliferation efforts.

The Senate panel also unanimously approved a fiscal year 2005 State Department authorization bill, laying down policy markers and spending ceilings for the fiscal year beginning Oct. 1 The bill would authorize $485 million for the “Nonproliferation, Anti-terrorism, Demining, and Related Programs Account”—$70 million more than Bush requested.

The legislation would also authorize funding for several new initiatives designed to improve foreign countries’ abilities to deal with proliferation threats from radiological to biological weapons. These include fellowships for multidisciplinary training on nonproliferation issues; programs to train “first responders” such as doctors and police officers to cope with an attack by a radiological, or “dirty,” bomb; and programs to improve public health facilities and expertise overseas to detect the use of biological weapons better.

In addition, the bill calls for the president to submit an annual report to Congress summarizing U.S. policy and actions regarding arms control, nonproliferation, and disarmament, with input from all of the major national security agencies.