Login/Logout

*
*  

"ACA's journal, Arms Control Today, remains the best in the market. Well focused. Solidly researched. Prudent."

– Hans Blix
Former IAEA Director-General
September 2007
Edition Date: 
Thursday, September 6, 2007
Cover Image: 

U.S.-Indian Nuclear Deal Advances

Wade Boese

The United States and India completed negotiations July 27 on a bilateral nuclear cooperation agreement, edging them closer toward erasing long-standing U.S. and international nuclear trade restrictions on India. But before realizing that goal, the two governments must still win over their own lawmakers and other countries, some of which, most recently Australia, are already angling to do business with India.

President George W. Bush and Prime Minister Manmohan Singh two years ago launched the initiative to expand U.S. and global nuclear trade with India. In broad terms, the United States pledged to help India shed its roughly three-decade status as a nuclear trade pariah. New Delhi had earned that status for carrying out a 1974 explosion of a nuclear device fashioned partially from U.S. and Canadian nuclear imports intended for peaceful purposes. In return for the promised U.S. effort, India vowed to grant greater foreign oversight to a select portion of its nuclear enterprise.

Bush officials saw overcoming the nuclear trade impediments as a means of forging closer strategic and economic ties with India. Undersecretary of State for Political Affairs Nicholas Burns told reporters July 27 that it was Secretary of State Condoleezza Rice who went to New Delhi in the spring of 2005 “with this big idea to break through three decades of separation.”

Washington released Aug. 3 the text of the pact, known as a 123 agreement after the section of the Atomic Energy Act of 1954 that requires such instruments. It is supposed to govern future U.S. and Indian nuclear commerce for at least 40 years once it takes effect. Burns, the lead U.S. negotiator in the talks, heralded the agreement as “perhaps the single most important initiative” ever between the two countries.

Not everybody greeted the pact enthusiastically. Some Indian parliamentarians Aug. 13 tried to shout Singh down when he briefed them on the agreement. The Bharatiya Janata Party, the main opposition group, contends the pact will impinge on India’s nuclear weapons program, while some members of India’s Communist parties, which support Singh’s coalition government, allege India is kowtowing to the United States. India’s parliament does not have a vote on the pact, but it could engineer procedural hurdles to slow or sink implementation of the agreement.

Meanwhile in Congress, Rep. Edward Markey (D-Mass.), an outspoken critic of the deal, derided the agreement Aug. 13 as “nuclear capitulation to India’s every wish.” House Foreign Affairs Committee Chairman Tom Lantos (D-Calif.) cautiously noted Aug. 3 that he would review the pact to see whether it conformed to legislation that lawmakers passed last December setting the stage for further nuclear cooperation. (See ACT, January/February 2007. ) Congress must approve the 123 agreement for it to enter into force.

That critics in New Delhi and Washington allege that their governments were duped in the negotiations reflects domestic politics in each country as well as the compromise nature of the pact. In response, both governments have interpreted key and controversial aspects of the agreement to their benefit and to stifle detractors. Nevertheless, the agreement tilts more to India’s initial negotiating positions than those argued by the United States.

The 123 Agreement

U.S. and Indian negotiators wrangled for more than a year on several matters in which India was seeking exceptions or privileges that went beyond most other U.S. 123 agreements with foreign governments.

Although India pledged in July 2005 to continue a nuclear testing moratorium, New Delhi opposed any explicit provision in the 123 agreement terminating cooperation if it conducts a future nuclear test. Such termination provisions are standard features of U.S. agreements with non-nuclear-weapon states. India, which has nuclear weapons, is classified as a non-nuclear-weapon state by the 1968 nuclear Nonproliferation Treaty. New Delhi has never signed the accord.

The U.S.-Indian agreement does not contain the word “test,” nor is there an automatic trigger to cease cooperation for any activity or violation by either country. Singh Aug. 13 asserted the pact “does not in any way affect India’s right to undertake future nuclear tests.”

India could choose to test, according to U.S. officials, but that does not mean that there would not be repercussions. In an Aug. 6 interview with Times Now television, Burns noted that India has a sovereign right to test but that, under U.S. law, the president would have “the right to end the agreement.”

Article 2 of the 123 agreement maintains that countries will implement cooperation “in accordance with its… national laws.” The Atomic Energy Act mandates an end to nuclear trade with a non-nuclear-weapon state that conducts a nuclear test. The president could waive such a termination but Congress has the power to nullify that waiver by passing a resolution in opposition.

U.S. law also holds that Washington retains a right of return of its nuclear exports if the recipient conducts a nuclear test, and most 123 agreements explicitly reiterate that right. But India fought against including such a provision.

The agreement does authorize each country to seek a right of return in the event that it chooses to terminate the agreement, which requires one year’s notice in writing and consultations before taking effect. But the agreement also aims to dissuade such a move by stressing that “exercising the right of return would have profound implications” on the two countries’ relations. Other U.S. 123 agreements do not contain similar language.

Another unique feature is the inclusion of “fuel assurances” for India. These provisions commit the United States to “support” New Delhi in establishing a “strategic fuel reserve” in case foreign fuel supplies are ever halted. In such an event, the United States vows to assist India in pursuing a resumption of outside fuel supplies.

Foreign fuel supplies are critical for India because it lacks sufficient domestic resources of uranium to make reactor fuel to continue powering its entire nuclear enterprise at full capacity, let alone support its nuclear energy expansion plans. In his Aug. 13 address, Singh noted that “indigenous supplies of uranium are highly inadequate, and hence we need to source uranium supply from elsewhere.”

Critics contend that foreign fuel supplies will free India from having to decide between using its uranium to make energy or nuclear weapons by enabling it to use foreign fuel for energy and domestic resources for weapons. Although U.S. lawmakers expressed concern that India not ramp up its nuclear weapons activities after it begins to import foreign nuclear fuel, Burns noted July 27, “[W]hat India does on the strategic side is India’s business.”

The 123 agreement specifies that the U.S. fuel assurances apply to “any disruption,” suggesting that were the United States to cut off nuclear fuel supplies or trade with India because it conducted a nuclear test or violated the agreement in some way, Washington still would be required to help other countries fill the void.

The fuel assurances seemingly contradict Congress’s guidance staked out in its December 2006 legislation, known as the Hyde Act after then-chairman of the House International Relations Committee Henry Hyde (R-Ill.). The nonbinding “sense of Congress” portion of the Hyde Act states that the United States “should not seek to facilitate or encourage the continuation of nuclear exports to India by any other party” if the United States ends cooperation under law. In addition, lawmakers in a joint explanation of the Hyde Act noted that any fuel assurances should pertain to disruptions caused by “market failures or similar reasons, and not due to Indian actions” that break its commitments.

Lawmakers also stated in their report that development of any Indian strategic fuel reserve should be “commensurate with reasonable reactor operating requirements” and not so large to install India with confidence that it could act with impunity. On Aug. 13, Markey observed that the agreement’s strategic reserve provision “would render toothless any termination of trade if India breaks the agreement.”

Indian officials trumpeted the assurances. Singh claimed that the measures “ensure that there is no repeat of our unfortunate experience with Tarapur.” The United States cut off fuel supplies to India’s Tarapur reactors after the 1974 test, which forced India to scramble to procure fuel to keep them running.

In addition to fuel assurances, New Delhi secured a U.S. commitment in principle to permit India to reprocess U.S.-origin spent fuel. Reprocessing involves the harvesting of plutonium from nuclear fuel after it is used in a reactor. Because plutonium can be used to make nuclear weapons, standard U.S. policy is to deny other countries advance reprocessing rights. India is now set to join the other two exceptions to that policy, Japan and the European consortium EURATOM.

To take advantage of that right, however, India would have to construct a new reprocessing facility under International Atomic Energy Agency (IAEA) safeguards to handle U.S.-origin spent fuel, as well as that of other countries. IAEA safeguards are measures to ensure that nuclear material and technologies for peaceful purposes are not diverted to making bombs.

In addition, the U.S. and Indian governments must agree on “arrangements and procedures” under which any Indian reprocessing of U.S.-origin spent fuel could occur. The agreement declares that such talks should begin within six months of a request by either party to start them and should finish within one year.

The agreement also provides the option for the two countries to conclude future arrangements to trade reprocessing and enrichment technologies. Enrichment is the process through which natural uranium is transformed into nuclear fuel and, if carried to a certain point, fuel for nuclear weapons. The Hyde Act limits such transfers to India to the limited scenarios in which the recipient is a multinational facility involved in an IAEA-approved project or a facility involved in a multinational project to develop a “proliferation-resistant fuel cycle.”

The concessions to India on enrichment and reprocessing stand in contrast with the administration’s global effort to dissuade states from acquiring such capabilities. In a February 2004 speech, Bush declared that “enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.” (See ACT, March 2004. )

Next Stops: The IAEA and the Nuclear Suppliers Group

Before Congress votes on the 123 agreement to initiate U.S.-Indian nuclear trade, India must first negotiate a safeguards agreement with the IAEA. That agreement will have to be approved by a majority of the agency’s 35-member Board of Governors.

In addition, the 45-member Nuclear Suppliers Group (NSG) must agree by consensus to exempt India from a 1992 group rule, adopted at U.S. insistence, that significantly restricts trade with non-nuclear-weapon states that do not subject all of their nuclear facilities and materials to IAEA safeguards. Such comprehensive safeguards are known as full-scope safeguards. The safeguards agreement India intends to negotiate would not cover its full nuclear complex.

New Delhi maintains that it will seek “India-specific” safeguards to its declared civilian nuclear facilities. In March 2006, India announced that 14 of its 22 existing or under-construction power reactors would be declared civilian and that the other eight would be classified as military and off-limits to safeguards. Six of the 14 reactors designated as civilian already were subject to or slated for safeguards.

India exempted from safeguards its test breeder reactor and prototype breeder reactor, which produce more plutonium than power reactors. New Delhi further reserved the right to declare as military all future reactors it builds. (See ACT, April 2006. )

No official definition of “India-specific” safeguards has been made public, but reportedly the notion is that safeguards would only be operational when foreign nuclear materials and technologies are present at a facility. The 123 agreement states that the future safeguards should be in “perpetuity,” but it also notes India’s right to take “corrective measures” if foreign fuel supplies are disrupted. Neither the U.S. nor Indian government has explained what these “corrective measures” might entail.

India was waiting on the conclusion of the 123 agreement before beginning negotiations with the IAEA. Although Burns suggested in an Aug. 6 interview with Aajtak news agency that Washington hoped that an IAEA-Indian agreement could be completed “no later” than Sept. 1, it was unclear in late August whether the two sides had started negotiations. The Indian government did not respond to Arms Control Today’s questions about the status of the process, and the IAEA declined to answer questions on the matter.

Completion of the safeguards agreement is viewed by NSG members as a prerequisite for any group decision on India. Still, Washington reportedly is seeking to prepare group members with a Sept. 30 briefing on the 123 agreement. The NSG generally makes decisions at an annual spring plenary meeting, but extraordinary meetings can be convened to take an action.

Group members reportedly are divided about giving India special treatment. France, Russia, and the United Kingdom support the U.S.-Indian initiative, but several members remain skeptical.

Some members also have suggested that instead of solely granting India a 1992 rule exemption, the group should establish certain criteria that must be met by an interested government in order for the rule to be waived. Such an approach could conceivably open the door for Pakistan and Israel to seek nuclear trade from NSG members (see page 38 ).

Washington and New Delhi strongly oppose this concept. Indian officials have stressed that that they want a “clean” NSG exemption that does not impose any conditions or restraints on future nuclear trade.

If India successfully completes its negotiations with the IAEA and the NSG decides to make India eligible for nuclear trade, the administration will then present the 123 agreement to Congress for a vote. Burns said July 27 that he hoped the agreement would be before lawmakers prior to the end of this year.

An Open Field

When Congress receives the agreement for consideration, it could be confronted with the reality that other governments are already courting India with their nuclear wares. Unless conditioned in some way, the NSG decision that serves as the trigger for the 123 agreement to be sent to Congress would void the international restraints on other suppliers engaging in nuclear commerce with India, possibly under terms less restrictive than those envisioned by the United States.

Since the July 2005 initiative was announced, France and Russia have started to position themselves to pursue nuclear deals with India. Australia recently joined the queue.

Australian Prime Minister John Howard said Aug. 16 that his government would drop a long-standing prohibition against supplying uranium to India. He conditioned the move on India having appropriate safeguards in place, an NSG decision to relax its restriction against trade with India, and the “conclusion” of the U.S.-Indian 123 agreement, including its approval by Congress. Opposition Labor Party officials have criticized the initiative, and an Australian election will take place sometime this fall that could unseat Howard.

Future Australian shipments of uranium to India would breach Australia’s legal commitments under the 1985 South Pacific Nuclear-Weapon-Free Zone Treaty. Australian Foreign Minister Alexander Downer told the Australian parliament in October 1996 that, in dealings with non-nuclear-weapon states, the 1985 treaty “imposes a legal obligation not to provide nuclear material unless subject to…full-scope safeguards.”

Although some countries might get an early jump on trade with India, Burns said he expects U.S. nuclear companies to have a fair opportunity to compete. “We are confident that American companies will have equal access to this huge market and that they will succeed there,” he stated.

In addition, Burns predicted that the nuclear policy changes might also benefit U.S. arms manufacturers, claiming that he sees “far greater defense cooperation” between the United States and India. Washington is currently offering New Delhi advanced U.S. fighter jets and has pitched anti-missile systems.

France, Libya Sign Nuclear Desalination Deal

Alex Bollfrass

On his state visit to Libya, French President Nicolas Sarkozy signed a memorandum of understanding on nuclear energy cooperation with long-time Libyan leader Moammar Gaddafi. The July 25 memorandum clears the way for French access to Libyan uranium and outlines an agreement on the eventual construction of a nuclear desalination plant to provide drinking water to the littoral desert country.

Press reports indicate that Areva, a French company, would be building the reactor for the facility. Although the desalination plant is not an immediate project, the memorandum might give an advantage to Areva in the bidding competition for 1,600 metric tons of yellowcake in Libyan possession. Several foreign nuclear energy entities have expressed interest in acquiring it. Although obligated to dispose of it after ending a clandestine nuclear weapons program, Libya’s plans for the yellowcake are not known.

Areva’s reactor would power the energy-intensive process of making salt water potable. According to the World Nuclear Association, an industry group, 30 million cubic meters of seawater are desalinated every day worldwide. About one-half of this amount is processed in the Middle East, mostly in hydrocarbon-powered plants.

The type of reactor to be used in the facility has yet to be decided. Sarkozy disputed a recent announcement that Libya was purchasing a European Pressurized Water Reactor from Areva.

Libya’s acquisition of the Milan anti-tank missile system and communication equipment was also announced during Sarkozy’s visit. French opposition leaders, among them Socialist leader François Hollande, have called for a parliamentary probe, suspecting that this sale was improperly linked to the release of six medics from Libyan captivity. The missile supplier maintains that the deal had been under discussion for 18 months.

Preparations for the French-Libyan nuclear cooperation agreement started in 2005. Its conclusion marks another milestone in Libya’s normalization of relations with the West. As recently as 2003, the North African country was working to develop a nuclear weapons capability.

The United Kingdom and the United States choreographed Libya’s return to the international mainstream, but France has most actively taken commercial advantage of the end of sanctions. Both the United Kingdom and Russia have pledged to cooperate with Libya on medical applications of nuclear technology.

Later this year, Secretary of State Condoleezza Rice is expected to visit Libya to further cooperation between Washington and Tripoli. According to Department of State spokesperson Sean McCormack, Rice wishes to “mark the fact that this is a very changed relationship” since she first joined the Bush administration as national security adviser.

On his state visit to Libya, French President Nicolas Sarkozy signed a memorandum of understanding on nuclear energy cooperation with long-time Libyan leader Moammar Gaddafi. The July 25 memorandum clears the way for French access to Libyan uranium and outlines an agreement on the eventual construction of a nuclear desalination plant to provide drinking water to the littoral desert country. (Continue)

U.S. Cuts Tactical Nuclear Weapons in Europe

Oliver Meier

The United States may have quietly removed all 130 nuclear weapons from its air force base in Ramstein, Germany. Before the withdrawal, Ramstein had been the biggest U.S. nuclear base in Europe. If true, the withdrawal means that there are probably about 350 U.S. nuclear weapons in Europe, down from thousands at the height of the cold war.

In a July 9 report, Hans Kristensen of the Federation of American Scientists revealed that Ramstein is missing from a Jan. 27, 2007, list of NATO nuclear bases that are scheduled to receive a Nuclear Surety Staff Assistance Visit, a precursor for an inspection by a Nuclear Surety Inspection. Such an inspection must be passed every 18 month if nuclear bases want to remain certified for nuclear deployments.

If the weapons have been withdrawn, the German air force base at Büchel would be the only remaining U.S. nuclear base in Germany. Presumably, 20 U.S. B61 gravity bombs are deployed there under NATO nuclear-sharing arrangements. Under these arrangements, 140 weapons would still be assigned for use by Belgium, Germany, Italy, the Netherlands, and Turkey, none of which have their own nuclear arms. These weapons remain under U.S. custody during peacetime but can be released to U.S. allies for delivery in times of war.

Guy Roberts, NATO deputy assistant secretary-general for weapons of mass destruction policy and director for nuclear policy, told Arms Control Today Aug.1 that NATO “currently deploys a few hundred nuclear weapons in Europe.” In line with NATO custom, Roberts declined to provide any further information on NATO’s nuclear weapons practice or deployments.

The timing of a possible withdrawal and the reasons for it remain unclear. The German magazine Der Spiegel reported in 2005 that the weapons deployed in Ramstein may have been withdrawn for safety reasons during construction at the site. Kristensen now speculates that the bombs never returned.

NATO is currently conducting an internal debate on the future role of nuclear deterrence. A June 15 Nuclear Planning Group (NPG) communiqué welcomed discussions on “deterrence requirements for the twenty-first century.” Roberts explained that the alliance is reviewing its nuclear posture “as NATO goes through the process of agreeing on a new Strategic Concept possibly by 2009 or 2010.” Roberts expressed hope that a decision could be taken to report findings of those discussions during NATO’s Bucharest summit in April 2008 or no later than the 2009 spring defense ministerial. He said that the NATO secretariat would prefer an early agreement on a new nuclear doctrine.

Little detail about the scope or direction of those discussions is publicly available. Roberts said that, in ongoing discussions on NATO’s nuclear deterrence posture at the NPG and other NATO bodies, there was unanimity among NATO allies that nuclear deterrence, a U.S. nuclear presence in Europe, and burden sharing will remain vital. The NPG communiqué reiterates alliance doctrine that “NATO’s nuclear forces are maintained at the minimum level sufficient to preserve peace and stability” and that the purpose of NATO nuclear weapons is “to preserve peace and prevent coercion and any kind of war.” NATO member states, according to the statement, continue to view nuclear sharing as an “essential political and military link between the European and North American members” of the alliance. Roberts, however, conceded that there were different perceptions among allies on a range of other issues related to NATO’s nuclear posture.

Mixed Reactions

German officials declined to comment on the reports about a possible withdrawal of nuclear weapons from Ramstein, citing the government’s policy of not confirming or denying details of NATO nuclear deployments.

The two ruling parties of Germany’s governing coalition, the left-of-center Social Democrats and conservative Christian Democrats, reacted differently to the news. Karl-Theodor zu Guttenberg, arms control spokesperson for the Christian Democrats, told the German online magazine stern.de July 13 that a partial withdrawal of U.S. nuclear weapons would not contribute necessarily “to departure of others, such as Iran, from their nuclear ambitions.”

Uta Zapf, Social Democrat and chair of the Bundestag’s subcommittee on disarmament, arms control and nonproliferation, told Arms Control Today Aug. 10 that the withdrawal of nuclear weapons from Ramstein is good news but “by itself does not signify a change in policy” because U.S. nuclear weapons remain deployed at Büchel and in five other European countries. “I think we should use the opportunity to push for a more fundamental debate about nuclear deterrence,” Zapf said.

German opposition parties are going further and are demanding a quick withdrawal of the remaining nuclear weapons. This debate is taking place against the background of persistent differences between the governing parties on the role of nuclear weapons. (See ACT, July/August 2006. )

Convention in Peril? Riot Control Agents and the Chemical Weapons Ban

Kyle M. Ballard

As the Chemical Weapons Convention (CWC) commemorates its 10th anniversary, states-parties have much to celebrate: the near universal status of the treaty, the destruction of major chemical-weapon stocks, and the establishment of an international organization dedicated to outlawing these weapons. Yet, an important loophole in the convention could threaten the gains made in attaining the convention’s stated goal “to exclude completely the possibility of the use of chemical weapons.”[1] The exception pertains to riot control agents (RCAs), chemical agents used to disperse crowds, temporarily incapacitate human targets, or deny access to protected areas.

In drafting the convention, countries sought to protect their right to use chemical agents, such as those used in tear gas, for law enforcement purposes. Some countries have also sought to justify the use of RCAs overseas where civilians and combatant are intermixed in situations such as terrorist attacks, riots, attacks on peacekeepers, and hostage crises. Unfortunately, the treaty’s legal language is sufficiently vague on the definitions of “riot control agents” and “law enforcement,” that countries might believe they are legally permitted to use toxic chemical agents as battlefield weapons. Already U.S. officials have sought to evade restrictions as they planned for operations in Iraq and Russian officials did so in confronting Chechen rebels in Moscow.

In the short term, states-parties need to amend or add a protocol to the CWC in order to specify exactly what chemicals may be used for such purposes and under what circumstances. In the long run, the international community must uphold its commitment to completely eradicate chemical weapons by establishing a time frame under which states must research and deploy alternative nonlethal weapons.

The Changing Nature of Conflict

Since the end of the Cold War, conflicts have become increasingly intrastate, and civilians and combatants have been far more intermixed. Although wars fought between states are still a serious possibility, nonstate actors have risen to prominence in security circles and the public square alike, hence the “Global War on Terror” and the push to transform militaries to address more diffuse threats in an environment of “uncertainty and surprise.”[2] In U.S. national security doctrine following the September 11 attacks, for example, the “military structured to deter massive Cold War-era armies must be transformed to focus more on how an adversary might fight rather than where and when a war might occur.”[3] Thus, militaries and law enforcement communities have more often had to deal with relatively small-scale conflicts in civilian areas, including terrorist attacks, riots, attacks on peacekeepers, and hostage crises.

The development and use of nonlethal weapons is a legitimate approach to this new security environment and military structure. In order to be prepared for the full spectrum of conflict, soldiers and law enforcement officers must be equipped and trained to deal with nonstate actors and their tactics. The pressure to do this in a humane way leads logically to a desire for nonlethal weapons. Chemical-derived RCAs represent one type of nonlethal weapon, although not the type that should be preferred for the future.

What Constitutes a Riot Control Agent?

The CWC defines RCAs as “[a]ny chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.”[4] This definition consists of several operative clauses that are cumulative in their legal implications. The first point is that RCAs must be chemicals not included in the schedules published by the CWC and the Organization for the Prohibition of Chemical Weapons. These schedules essentially classify chemicals according to their toxicity and dual-use applicability in order to prevent their use as weapons. For example, a Schedule 1 chemical is toxic and has little to no industrial application, whereas a Schedule 3 chemical can be weaponized and also has a broad peaceful application.

The second major clause is that the effects of nonscheduled, weaponized chemicals must be temporary. A traditional RCA, such as tear gas, seems to fit well within this definition; but other, more lethal chemicals may also fall into this category under the CWC. Unfortunately, not only are the long-term effects debatable, but the decision to use such nonscheduled chemicals as RCAs is left to the discretion of the state. Under these circumstances, states sometimes can and will make a decision to use chemical agents that do, in fact, cause significant, long-term harm.

One major example is the Russian theater siege in 2002, when Russian authorities weaponized fentanyl, an opioid analgesic, and attempted to knock out the perpetrators and siege the theater in which rebels had taken hostages. The chemical agent killed 50 rebels and more than 117 of the hostages the authorities were trying to free.[5] The claim was that the Russian authorities had weaponized a nonscheduled chemical and used the weapon in a law enforcement capacity. Seemingly, the Russians were within their legal authority and upheld their agreement under the CWC.

According to a report from the British Medical Association, which notes recent efforts by states to weaponize pharmaceuticals, the Russian case is not uncommon internationally: “As well as Russia, publicly available information provides evidence of interest” in some NATO member states and “in particular” the Czech Republic, Germany, the United Kingdom, and the United States.[6] Evidence suggests that government research programs have been using opiates, benzodiazepines such as Valium, antidepressants such as Zoloft and Prozac, and even club drugs such as ketamine (Special K) and the so-called date rape drug (GHB and rohypnol), just to name a few. Thus, new agents are being weaponized despite the CWC’s explicit aim to ban all use of weaponized chemicals in warfare, including RCAs.

The convention also includes another loophole. Article I, paragraph 5 states that “[e]ach State Party undertakes not to use riot control agents as a method of warfare.” The convention also says that RCAs can be used for “law enforcement including domestic riot control purposes.” Note that domestic riot control is included and thus the term “law enforcement” is not necessarily limited to domestic riot control and could apply to international law enforcement. Yet, where does international law enforcement end, and where does warfare begin?

Different countries have drawn the line in different ways, as has been established by the divergent approaches of the United Kingdom and the United States in Iraq. The United Kingdom, the United States’ largest coalition partner in Iraq, views the use of RCAs as a method of warfare and thus prohibited by the CWC.[7]

On August 3, 2007, however, the Multi-National Forces in Iraq used tear gas against rioting inmates at the Badoush detention center outside of Mosul. This should come as no surprise considering the U.S. stance prior to the invasion of Iraq. In 2003, Secretary of Defense Donald Rumsfeld testified before the House Armed Services Committee in defense of RCAs, asserting that “[w]e are doing our best to live within the straitjacket that has been imposed on us on this subject” and saying the CWC has made this issue “very complex.”[8]

Rumsfeld then claimed that, under Executive Order No. 11850, the U.S. military would “fashion the rules of engagement in a way that we believe is appropriate. Where we can’t, I go to the president and get a waiver.”[9]

Although no such waiver has been sought, Rumsfeld was referring to an executive order issued by President Gerald Ford in the early 1970s as the Senate was considering the 1925 Geneva Protocol. At that time, objections to how the U.S. military had used defoliants, such as Agent Orange in the Vietnam War, threatened Senate approval of the protocol.[10] Agent Orange is a herbicide used by the United States against human targets rather than being used simply to clear the dense jungle landscape.

In order to win Senate support for the protocol, Arms Control and Disarmament Agency Director Fred Ikle testified before the Foreign Relations Committee in December 1974, that the president, through an executive order, would “renounce as a matter of national policy” first use of herbicides and RCAs except in certain circumstances. In addition, Ikle testified that the president, “under an earlier directive still in force, must approve in advance any use of riot-control agents and chemical herbicides in war.”[11]

Ford delivered on his promise with Executive Order 11850 on April 8, 1975. The order did renounce first use of herbicides and RCAs in war but went on to make a few exceptions:

(a) Use of riot control agents in riot control situations in areas under direct and distinct U.S. military control, to include controlling rioting prisoners of war.

(b) Use of riot control agents in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided.

(c) Use of riot control agents in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.

(d) Use of riot control agents in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.

In addition to these exceptions, the executive order had two additional sections. The first called on the secretary of defense “to take all necessary measures” to assure that the use of herbicides and RCAs in war was prohibited “unless such use has Presidential approval, in advance.”[12] The second section tasked the secretary of defense with making the rules and regulations that assured the armed forces’ adherence to this policy.

The United States, the New Threat, and Its Use of RCAs

There are several problems with Rumsfeld’s assertion that the executive order can effectively trump the CWC. First, in becoming a state-party to the convention, the United States understood that it would be subject to all provisions, especially considering that Article XXII states that the CWC is not subject to any reservations.

Another flaw in Rumsfeld’s argument lies in his assumption that the president can issue a waiver for any reason in order to release the U.S. Armed Forces from any legal “straightjackets.” A close reading of Executive Order 11850 suggests otherwise. The president has guidelines under which he can issue such waivers.

Furthermore, these guidelines are not all that helpful in themselves. The first guideline begs the question: What constitutes direct and distinct control? Particularly when it comes to wars in which insurgency and nonstate combatants are the defining characteristic, establishing who is in control is very difficult. The second guideline does not consider a situation in which the combatant is a civilian, much less the legally troubling classification of “enemy combatant.” Under such circumstances, it is unclear whether the president can issue a waiver. The last guideline assumes an outdated battlefield model where the front lines and rear echelons are easily identifiable. All three of these guidelines highlight the executive order’s age and show that these three guidelines must be re-examined.

More importantly, these guidelines do not explicitly answer the threshold question of when an action should be viewed as law enforcement rather than war. The answer to this question lies in one’s interpretation of state sovereignty and conditions of authority within a country’s borders. One thing is clear, however: if a state is a UN member, it enjoys some form of legally protected sovereignty. On June 28, 2004, Iraqi sovereignty was officially returned to an Iraqi government. However, its UN membership never ceased and thus, according to Article II of the UN Charter, Iraq should always have been afforded the full rights and benefits of membership. There is no legal basis for the United States to declare direct and distinct control in Iraq or any state in which it is engaged. Therefore, its legal authority and law enforcement power ends at its border unless the United Nations recognizes otherwise.[13]

The other two contentious guidelines in the executive order are intertwined and reflect the old paradigm under which the executive order was developed. As the face of conflict has changed, battlefields are no longer fought along front lines nor are they fought among traditional uniformed soldiers. Even though the executive order seeks to save the lives of civilians on the battlefield, it fails to consider that these may be the very citizens the armed forces are fighting. This in turn means that the battlefields of today are multidimensional—no longer are wars fought across a clear line. Using weaponized chemicals “in rear echelons” is no longer a valid claim, nor is seeking to minimize civilian deaths when the distinction between combatant and civilian is blurred.

Why Does This Debate Matter?

The debate over RCAs and the weaponization of chemicals is very important not only for clarity’s sake. If it was simply a matter of jurisprudence or an intellectual exercise, this debate would not be so contentious. The debate matters for several reasons. First, it goes to the spirit of the international arms control regime. Second, these weapons and the implications of their use and legal status have a real impact on real people.

The fact that chemical weapons were a major factor in World War I but were not even used on the battlefield in World War II suggests that a norm against their use had been developed. According to Richard M. Price:

Restraint embodied in treaty prohibition, though imperfect, reinforced both public and military dislike and fear of chemical warfare and provided a ready excuse for lack of substantive preparation. These factors constituted a threshold for justifying CW [chemical weapons] that raised the ante high enough that, in combination with the timing of the historical course of events, chemical arms were not employed as a battlefield weapon in the major theaters of Allied-Axis confrontation.[14]

As mentioned, the Biological Weapons Convention and the CWC explicitly call for the elimination of both types of weapons, and it is in this spirit that all signatories agreed to the conventions. Furthermore, the remaining stockpiles of chemical weapons, in addition to aforementioned developments in the new generation of chemical weapons, suggest that some states seek to maintain their capacity to retaliate. Note Egypt’s and Israel’s failures to ratify the CWC, for example. Considering these two facts in conjunction, it is clear that chemical weapons have become a threshold weapon prone to escalation, much like the thresholds to which the world has been beholden as a result of nuclear weapons. In both cases, the taboo against use is strong due to the destructive force and indiscriminate nature of such weapons and because some form of deterrence (if latent) exists.

Now consider the fact that it is not the weapons themselves that create danger, but rather the way in which states engage these weapons and each other that produces environments of danger or peace. Therefore, if the United States seeks to legally justify the use of weaponized chemicals in a way that is contrary to the international community’s interpretation of the law and runs counter to the spirit of the agreements in question, it is not just the legal regime that is affected. More importantly, the security environment is affected. In regard to matters of threshold weapons, when the impact of these perceptions is compounded by legal ambiguity, the result can be disastrous.

Thus, allowing states to legally justify the weaponization of toxic chemicals and pharmaceuticals for the purpose of targeting civilians is a very unnerving notion. Considering that chemical arms are threshold weapons, it is difficult to justify an allowance for states to use such weapons, whether as a method of warfare or otherwise.

Conclusion

It is imperative that the international community works to change the CWC through an amendment or additional protocol in order to clarify the use of RCAs better. The first significant problem that must be addressed is the way in which the convention classifies RCAs. The CWC negatively defines RCAs by simply stating that schedulized agents cannot be used. This approach has left huge loopholes and has made it impossible for the convention to stay abreast of disruptive technologies. This is exemplified by the deadly incident at the Russian theater in 2002 and the analogous pursuits of many states in developing chemical-based nonlethal weapons.

Instead, the convention should seek to define positively what chemicals can be used as RCAs. The international community can begin with discussing the most commonly known agents, generally known as tear gas, such as chloroacetophenone (CN or mace), chlorobenzylidenemalononitrile (CS), chloropicrin (PS), bromobenzylcyanide (CA), and dibenzoxazepine (CR). These agents have proven to be effective in one way or another and are widely recognized as legitimate RCAs.[15] A list of acceptable agents as well as their doses and dispersal methods can be added as an amendment or protocol to the CWC.

This list should be limited to a specific time frame, however. The international community should discuss a time frame during which states can study and develop other nonlethal weapons. For the goal and spirit of the CWC to be fully recognized, all exploitation of chemical toxicity should be phased out completely over time. Other nonlethal technologies, such as anti-traction materials, rubber bullets, thermobaric weapons, and pulse-energy projectiles, should replace RCAs in the long run. Alternative technologies exist and have proven effective in minimizing civilian deaths. These alternatives must be developed and deployed within the confines of international law in order to uphold the spirit of the international arms control regime.

The second issue that the international community must address is the definition of law enforcement. The CWC states that use of RCAs is for law enforcement activities. The definition of law enforcement should mean domestic law enforcement within the recognized, sovereign borders of a country and activities undertaken in conjunction with a UN mandate. In other words, RCAs should only be used in a state’s own jurisdiction unless otherwise deemed permissible by the United Nations. All other use must be deemed an act of warfare, which is specifically prohibited by the CWC.

The debate surrounding RCAs is very contentious and reflects not just a legal crisis but an issue that has a broad and deep impact. The international community must address these issues, as the security environment is ever changing and technology evolves faster than legal regimes are able. To move forward in a humane and effective way, international law must keep up with the latest developments lest it collapse under the burden of irrelevance.

 


Kyle M. Ballard is resident fellow for international security affairs at the Institute on Religion and Public Policy.


ENDNOTES

1. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, April 29, 1997 (hereinafter CWC).

2. “Secretary of Defense’s Annual Report to the President and the Congress,” 2002, p. 25.

3. “The National Security Strategy of the United States,” September 17, 2002.

4. CWC, Article II, section 7.

5. Craig Gordon and Earl Lane, “Experts Name Deadly Gas,” Newsday, October 29, 2002.

6. “The Use of Drugs as Weapons: The Concerns and Responsibilities of Healthcare Professionals,” British Medical Association Board of Science, May 2007, p. 7.

7. Barbara Hatch Rosenberg, “Riot Control Agents and the Chemical Weapons Convention” “FAS Working Group on Biological and Chemical Weapons. Prepared for the Open Forum on Challenges to the Chemical Weapons Ban: The Peace Palace,” The Hague, May 1, 2003).

8. David McGlinchey, “United States: Rumsfeld Says Pentagon Wants Use of Nonlethal Gas,” Global Security Newswire, February 6, 2003.

9. Ibid.

10. Daniel P. Jones. “American Chemists and the Geneva Protocol,” Isis, Vol. 71, No. 3 (September 1980), pp. 426-440.

11. U.S. State Department, “Narrative on the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare,” September 25, 2002.

12. “Executive Order 11850--Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents,” 40 FR 16187. 

13. This is not to argue against any state’s right to self-defense laid out in Article 51 of the UN Charter. Although the U.S. invasion of Iraq is itself disputed in international legal terms, that debate falls outside the scope of this paper. Admittedly, however, determining its authority to invade Iraq would add another dimension to the discussion here.

14. Richard M. Price, The Chemical Weapons Taboo (Ithaca, NY: Cornell University Press, 1997), p. 133.

15. Centers for Disease Control, “Facts About Riot Control Agents,” February 22, 2006.

Congress Moves to Impose Iran Sanctions

C. I. Bosley

The House of Representatives July 31 passed two pieces of legislation tightening sanctions on Iran, in response to the international row over its nuclear ambitions. Both bills garnered broad bipartisan support. Further measures focused on Iran are also on the congressional agenda.

By a vote of 408 to 6, the House approved the Iran Sanctions Enabling Act. To prevent lawsuits on the grounds of fiduciary irresponsibility, the bill extends a legal shield to companies and financial institutions that undertake disinvestment from firms with holdings of more than $20 million in Iran’s energy sector, firms selling armaments to Iran, and firms extending loans in excess of $20 million to the Iranian government. State and local governments are also allowed to prohibit investment in such firms, and the Department of the Treasury must publish a list of all entities holding more than $20 million in Iran’s energy sector.

A second bill, authored by Rep. Ileana Ros-Lehtinen (R-Fla.), would amend current sanctions on Tehran to close a loophole that has permitted foreign subsidiaries of U.S. parent companies to sidestep prohibitions on investment and trade with Iran. The current sanctions were imposed by President Bill Clinton in 1995. The House approved the bill by a vote of 415 to 11.

In the Senate, Sen. Gordon Smith (R-Ore.) incorporated similar provisions concerning foreign subsidiaries into the broader Iran Counter Proliferation Act. This bill would freeze almost all trade between the United States and Iran. Save for food and medicine, all U.S. exports to Iran would be banned, as would all imports from Iran to the United States. Currently, imports of pistachios, caviar, and carpets from Iran are permitted, owing to a policy shift undertaken by the Clinton administration to improve relations with reformist president Mohammed Khatami.

In addition, the bill bars the executive branch from facilitating Iran’s accession to the World Trade Organization (WTO). As of yet, Iran has not sought membership in that organization. This provision stands in contrast to the June 2006 proposal made by the United States, in concert with China, France, Germany, Russia, and the United Kingdom, which would have supported Iran’s application to the WTO had Tehran agreed to give up its enrichment and reprocessing technology, which could produce material for nuclear weapons.

To discourage countries from building facilities to enrich and reprocess fissile material—activities at the core of the current controversy over Iran—the bill also designates $50 million in appropriations toward establishing an international bank of nuclear fuel, under the authority of a multilateral institution such as the International Atomic Energy Agency (IAEA). Another Senate bill, the fiscal year 2008 energy and water appropriations act, allots a supplementary $50 million for the same purpose. In June, the House and the Senate Foreign Relations Committee approved similar legislation for establishing an assured nuclear supply. (See ACT, July/August 2007. )

Moreover, the Senate’s Iran Counter Proliferation Act singles Russia out for the nuclear reactor it is currently constructing in the Iranian port of Bushehr and for which Iran’s government has concluded a 10-year agreement for purchasing enriched uranium from Moscow. (See ACT, November 2006. )

In an attempt to entice Russia to halt nuclear cooperation with Tehran and to take a more tenacious stance in the UN Security Council, the Senate bill would deny Russia Washington’s cooperation on any nuclear projects unless the Kremlin halts “all nuclear assistance” and all transfers of “advanced conventional weapons” to Iran, or unless Tehran “completely, verifiably, and irreversibly” gives up its enrichment and reprocessing capabilities. The United States has long sought to stop Russian sales of advanced weaponry to Iran, most recently in January, when Washington opposed Moscow’s sale of Tor-M1 anti-aircraft missile systems.

This Russia-focused stipulation has proved controversial, as the sanctions on Russia it envisions cannot be overridden by presidential waiver. Opponents inside and outside the Bush administration believe the provision unnecessarily antagonizes Russia, thereby reducing the likelihood of achieving a diplomatic solution under the auspices of the UN Security Council, where Russia and the United States are two of the five veto-holding members. Because Iran has agreed to purchase low-enriched uranium for its reactor, critics contend, the Bushehr project poses little risk of proliferation. (See ACT, July/August 1996 and September 2002. ) In addition, this clause of the Smith bill would directly affect the pending nuclear cooperation agreement between Russia and the United States, initialed by Presidents George W. Bush and Vladimir Putin July 3 (see page 29).

The Bush administration has stated that it generally “opposes mandatory sanctions and other comparable constraints on the President’s flexibility.” In 2006 the Department of State successfully lobbied against passage of legislation sponsored by Sen. Rick Santorum (R-Pa.) that would have ratcheted up sanctions on Iran, contending it would have undermined international diplomacy. (See ACT, July/August 2006. )

Diplomats furthermore maintain that the Kremlin has provided more back-channel cooperation than its public pronouncements indicate. Moscow, they contend, used the excuse of a dispute over Iran’s failure to make scheduled payments to delay finishing work at Bushehr in order to increase pressure on Tehran. As State Department spokesperson Tom Casey noted May 11 of negotiations on sanctions, “There was good private consultation with the Russians, the Russian leadership.”

The House version of the Iran Counter Proliferation Act, authored by House Foreign Affairs Committee Chairman Tom Lantos (D-Calif.), would impose further punitive measures on firms maintaining business ties to Iran. The legislation may be voted on after the congressional summer recess. Currently, it has 323 co-sponsors, enough to override a presidential veto, should such a vote become necessary.

“Our goal must be zero foreign investment in Iran’s energy sector,” Lantos stated June 27 at a committee session. “That is the only formula that can prevent Iran’s acquisition of nuclear weapons,” he argued.

Pursuant to the Lantos bill, entities found to have violated the ban on financial and business transactions with Iran may be denied U.S. bank loans exceeding $10 million, forbidden from concluding procurement contracts with the U.S. government, and may face a ban on imports to the United States. Under current U.S. law enacted in 1996, the White House is instructed to impose sanctions on foreign entities engaging in significant energy-sector investments in Iran, although the president may waive this stipulation. Both Bush and Clinton have chosen not to sanction any companies under this provision in order to avoid disputes with allies in Europe and Asia. (See ACT, June 2002. ) However, the Lantos bill would remove the president’s ability to waive this requirement.

In addition, the bill encourages the State Department to designate Iran’s Revolutionary Guards Corps as a terrorist organization. In August, press reports indicated that the White House was taking steps in this direction.

Several Western governments whose companies do business with Iran are reportedly lobbying Capitol Hill for removal of the clause requiring the president to impose sanctions. There has even been talk of claims against the United States before the WTO.

Yet, Congress seems not to be easily swayed. When Arms Control Today asked on Aug. 8 whether the various sanctions bills before Congress risked undermining multilateral Security Council initiatives, Rep. Brad Sherman (D-Calif.), a member of the House Foreign Affairs Committee and one of the bill’s co-sponsors, responded, “Isn’t it really the EU’s continued refusal to adopt measures that prevent their own companies from doing business with Iran that is undermining our common diplomatic efforts?”

Iran Agrees on Work Plan With IAEA

Peter Crail

In July and August, Iran and the International Atomic Energy Agency (IAEA) held three rounds of talks aimed at resolving a number of outstanding verification issues regarding Tehran’s nuclear program. The talks concluded Aug. 21 with agreement on a work plan for Iran to answer long-standing questions regarding its nuclear activities and to formulate a “safeguards approach” for the Natanz uranium-enrichment facility. But the agreement failed to fully address the concerns of the United States and some European governments about Tehran’s program and they vowed to push for additional UN sanctions to curtail it.

Answering Questions

The majority of the work plan outlines a phased process for Iran to provide clarifications on a set of outstanding issues previously identified by the IAEA. These outstanding questions relate to a number of clandestine nuclear activities which Iran failed to declare before the IAEA  discovered them in 2003, as well as weapons-related projects the United States has accused Iran of carrying out. (See ACT, March 2006.)

According to the work plan, Iran has already provided clarifications to the IAEA regarding its undeclared experiments with plutonium separation during the 1990s which are consistent with the agency’s findings, thereby resolving the issue.  

In addition to resolving outstanding issues, Iran has agreed to cooperate with the IAEA on preparing a safeguards approach and “facility attachment” for its Natanz uranium-enrichment facility with the aim of finalizing these arrangements by the end of September. The safeguards approach is intended to outline the types of inspection mechanisms that may be used at Natanz. The facility attachment specifies how these mechanisms are to be carried out.

Although the details of this approach will be subject to further discussions between Iran and the IAEA, the work plan makes clear that safeguards will be applied “in accordance with Iran’s Comprehensive Safeguards Agreement,” suggesting that Iran will not re-implement an additional  protocol   to its safeguards agreement. Such protocols provide the IAEA with greater authority to verify that a country does not have undeclared nuclear facilities or material. Implementing an additional protocol had been continuously cited by the IAEA as necessary for the agency to provide assurances that Iran’s nuclear activities are consistent with its international obligations, most recently reiterated in a May 23 report. Beginning in 2003, Tehran had allowed the IAEA to operate in Iran as if an additional protocol were in force but stopped doing so in February 2006. (See ACT, March 2006.)

The UN Security Council, under Resolutions 1737 and 1747, requires Iran to verifiably suspend all enrichment-related activities as a way of providing such confidence. Iranian officials have continually declared that Tehran has no intention of carrying out such a suspension, and Iran has continued to install centrifuges since the adoption of the resolutions. The May 23 IAEA report indicated that about 1,600 centrifuges were operating or being tested at the uranium-enrichment facility, and another 500 were under construction.

The Security Council resolutions also call on Tehran to suspend any spent fuel reprocessing activities and the construction of its 40-megawatt heavy-water reactor at Arak. The Arak reactor remains under construction and, according to Tehran, is expected to be completed by 2009. The reactor could produce spent fuel with enough plutonium for about two weapons each year.

During the first session of the talks held July 11-12 in Tehran, Iran agreed to allow the IAEA to conduct inspections of the Arak reactor, and inspectors visited the facility July 30. Since April, the agency’s monitoring of the Arak site had been limited to satellite imagery because Iran curtailed further cooperation at the site in response to the Security Council’s adoption of Resolution 1747. (See ACT, April 2007.)

The IAEA Board of Governors has requested that Iran reconsider the construction of the reactor since June 2004. Moreover, last November, the IAEA Board of Governors rejected Iran’s request for technical assistance on the reactor. (See ACT, November 2006.) Iran declared that it would continue work on the reactor in spite of the decision.

Iranian Cooperation With the IAEA Will Not Avoid Push For Sanctions

As in the past, Iranian officials have suggested that its new cooperation with the IAEA is proof of good faith efforts toward resolving the international community’s concerns regarding their nuclear program, thereby making punitive measures unwarranted. Secretary of Iran’s Supreme National Security Council Ali Larijani said Aug. 20, “This agreement is achieved based on a political consensus, and the United States too has to yield to it.”

The United States and other major powers have indicated that the Aug. 21 agreement is a positive move but insufficient to either address concerns over Iran’s nuclear programs or fulfill Tehran’s obligations to the Security Council.

 A Department of State official told Arms Control Today Aug. 22 that although Iran’s offer to clarify certain outstanding issues with the agency was welcome, “Iran should have answered these questions years ago.” Similarly, a German diplomat told Arms Control Today Aug. 22 that the talks were welcomed “as an important, long-overdue step” and expressed hope that the agreement “was not just a tactical maneuver” aimed at avoiding additional sanctions.

The United States has criticized the action plan for not going far enough to provide transparency regarding Iran’s nuclear efforts. U.S. Ambassador to the IAEA Gregory Schulte told reporters Aug. 22, “We understand there are real limitations with the [timetable] plan.” He noted in particular Iran’s “continued refusal” to re-implement an additional protocol.

Moreover, because Iran has not suspended the nuclear projects outlined by the Security Council, the five permanent council members (China, France, Russia, United Kingdom, and United States) and Germany continued their consultations on a third sanctions resolution on Iran. A State Department official told Arms Control Today Aug. 22, “The agreement does not constitute compliance with the Security Council resolutions,” adding that the council must therefore move forward with an additional resolution.

Similar sentiments were expressed by some European governments.

During a daily press briefing Aug. 21, French Foreign Ministry spokesperson Denis Simonneau stated, “We must therefore, in accordance with Resolution 1747, return to the Security Council and begin the necessary consultations for adopting a third resolution on sanctions, and we would like to see it be substantial.”

In regard to the content of a third resolution, a French diplomat told Arms Control Today Aug. 22 that a “long list of options” was being considered, including additional targeted sanctions as well as broader penalties, but that the Security Council members will have to see “what the market will bear” in terms of additional punitive measures.

The push for sanctions is likely to meet opposition by other members of the council. For example, Russia insists that the Security Council should allow time for Iran to finalize its arrangements with the IAEA in order to resolve the outstanding questions about its nuclear program. A Russian diplomat told Arms Control Today Aug. 23 that Russia does not support an additional round of sanctions at this point and believes that such a move would not be productive. The diplomat indicated that Russia might support a resolution that stresses the need for Iran to comply with all of its obligations but does not include sanctions.

Bushehr Construction Delays Persist

While Iran’s enrichment program and Arak reactor have been subject to scrutiny by the IAEA and UN Security Council, Iran also continues to face difficulties with the construction of its first nuclear power plant at Bushehr. (See ACT, May 2007.)

Ivan Istomin, head of the firm subcontracted by Atomstroiexport, the Russian state-owned company constructing the plant, indicated that a realistic time frame for the start-up of the reactor is autumn 2008, RIA Novosti reported July 25.

Iran has expressed hope that the plant, which has undergone numerous delays since Russia agreed to take over construction in the 1990s, will be completed this fall. Mahmoud Jafari, head of the Bushehr Nuclear Power Plant workshop, told the Islamic Republic News Agency July 24 that the plant was more than 90 percent complete and “should be launched on schedule in September-October of this year.”

Russia has cited payment arrears as the reason behind the delays. Russian Deputy Foreign Minister Sergey Kislyak told Itar-Tass July 26, “The problem is that our Iranian colleagues had shouldered an obligation to pay for services of Russian specialists by definite portions in definite periods.” He added that, because of “hitches” in these payments, the Russian company had to conduct its work on credit, “which was not in its plans.”

In order to resolve the dispute, Iran has been holding negotiations with representatives of Atomstroiexport. In regard to these talks, Iranian Foreign Ministry Spokesperson Mohammad Ali Hosseini told reporters July 8 that “announcing the exact date of Bushehr power plant completion needs negotiations.”

Security Council Ends UNMOVIC

Paul Kerr

On June 29, the UN Security Council adopted a resolution officially terminating the mandate of UN inspectors tasked with verifying and monitoring Iraq’s disarmament. The inspectors had not been able to visit Iraq since a U.S.-led coalition invaded the country in 2003. The United States and United Kingdom assured the council that Iraq had been disarmed. Others, however, warned of the dangers posed by the country’s residual weapons capabilities.

Resolution 1762, which was submitted by Washington and London, “decides to terminate immediately the mandates” of the UN Monitoring, Verification and Inspection Commission (UNMOVIC) and the International Atomic Energy Agency (IAEA) in Iraq. The council adopted the resolution 14-0, with Russia abstaining.

The Security Council’s action ended a years-long debate regarding the inspectors’ fate. The United States and the United Kingdom had been pushing to end the inspectors’ mandate since shortly after the invasion, but other council members, particularly Russia, had opposed such a move. Moscow had argued that the inspectors should be given a more prominent role in assessing the fate of Iraq’s former weapons of mass destruction programs. (See ACT, June 2007.)

UN Security Council Resolution 687, which was adopted after the 1991 Persian Gulf War, tasked the UN Special Commission and later UNMOVIC with inspecting and supervising the destruction of Iraq’s chemical and biological weapons, as well as missiles exceeding ranges permitted by the United Nations. The IAEA had a comparable role for Iraq’s nuclear weapons programs.

The UN withdrew all of its inspectors in December 1998, but in September 2002, Iraq allowed them to return. UNMOVIC and the IAEA withdrew their inspectors in March 2003 just before the U.S.-led invasion. In May of that year, the Security Council adopted Resolution 1483, which stated the council’s “intention” to “revisit the mandates” of the inspectors.

A U.S.-British letter contained in an annex to Resolution 1762 states that “all appropriate steps have been taken to secure, remove, disable, render harmless, eliminate, or destroy” Iraq’s illicit weapons and related programs. The United States and United Kingdom pledged in a May 2003 letter to the Security Council that they would take these steps.

The more recent letter also referred to a 2005 report from Charles Duelfer, the special adviser to the Iraq Survey Group (ISG), which stated that Iraq had destroyed its nuclear, chemical, and biological weapons and had not restarted any of the related programs at the time of the invasion. The ISG was the task force charged with coordinating the U.S.-led search for prohibited Iraqi weapons.

Despite these assurances, both Russia and UNMOVIC expressed concern about possible dangers from Iraq’s past weapons programs. For example, Moscow’s permanent representative to the UN, Ambassador Vitaly Churkin, said that Russia abstained from voting for the resolution because UNMOVIC had not officially certified that Iraq was free of illicit weapons. Churkin also expressed concern about the fate of some Iraqi missiles that were not destroyed by the inspectors.

Similarly, Acting UNMOVIC Executive Chairman Demetrius Perricos warned about the uncertainty concerning Iraq’s past weapons programs in a June 29 briefing to the council. For example, he reiterated that more than 350 missile engines may remain in Iraq, which inspectors had not been able to destroy by the time of the invasion. Additionally, Perricos said, other weapons-related “capabilities…may still remain” in the country. These include “scientists and technicians” with weapons-related expertise, as well as “more than 7,900 dual-use items” that could be used in weapons programs.

Perricos also noted that, “[i]n the present security environment of Iraq, the possibility should not be discounted that nonstate actors may seek to acquire toxic agents or their chemical precursors in small quantities.” A May UNMOVIC report raised similar concerns. (See ACT, July/August 2007.)

Although Resolution 1762 terminates the inspectors’ mandate, it also “[r]eaffirms Iraq’s disarmament obligations under relevant resolutions.” Past Security Council resolutions imposed restrictions on Iraq, such as a prohibition on missiles with ranges exceeding 150 kilometers. This resolution does not specifically name those restrictions, but they are still in place, a knowledgeable British official told Arms Control Today Aug. 1..

Previous Security Council resolutions provided for international monitoring to ensure that Baghdad would not reconstitute its illicit weapons programs. However, no comparable mechanism is now in place.

Ambassador Emyr Jones Parry, the United Kingdom’s permanent representative to the UN, indicated that the Security Council should "move forward and focus on ensuring" that Iraq carries out its obligations. He did not elaborate, however.

Currently, no international inspections regimes would apply to Iraqi missiles or biological weapons programs. However, Resolution 1762 does urge Iraq “to adhere to all applicable disarmament and non-proliferation treaties and related international agreements” and “invites” Baghdad to “report to the Security Council within one year” on its progress in this regard. In particular, the resolution mentions the Chemical Weapons Convention (CWC) and an additional protocol to Iraq’s IAEA safeguards agreement.

IAEA safeguards agreements, which are required under the nuclear Nonproliferation Treaty, allow the agency to monitor non-nuclear-weapon states-parties’ declared nuclear activities. An additional protocol augments the agency’s ability to discover undeclared nuclear activities.

Ambassador Hamid Al Bayati, Iraq’s permanent representative to the UN, said June 29 that his government would provide the requested report. He reiterated that Baghdad has drafted a law regarding Iraq’s accession to the CWC and said that Baghdad is preparing to conclude an additional protocol.

The resolution also urges Iraq to report on its progress in implementing export controls for goods that have both civilian and military applications. Bayati said that Baghdad “would be committed” to such measures.

Resolution 1762 also requests the UN secretary-general to transfer to Iraq within three months funds from Iraqi oil revenue that had been set aside to cover UNMOVIC’s operating costs.

Going Forward

Resolution 1762 also requests the UN secretary-general “to take all necessary measures to provide for the appropriate disposition of UNMOVIC’s archives and other property.” In addition to electronic and paper documents, the commission has a variety of other items, such as missile engines, artillery shells, and bombs, UNMOVIC spokesperson Ewen Buchanan told Arms Control Today July 24.

The UN still has to decide on the degree of organization and openness of the commission’s future archives, Buchanan added. The archiving process must also maintain control over proliferation-sensitive information, he said, adding that most of the documents are “sprinkled in some way” with such information. The resolution states that the UN should keep “sensitive proliferation information or information provided in confidence by [UN] Member States…under strict control.”

The resolution also requests that the secretary-general “inform the Security Council within three months on steps taken” in the archiving process. Currently, 14 commission employees are left to perform the archiving tasks. These employees have contracts until Oct. 10, but the agreements could be extended, Buchanan said.

UNMOVIC Completes Compendium

On June 27, UNMOVIC issued its full compendium of “lessons learned” from the inspections. Comprised of more than 1,000 pages, it discusses the history of the UN inspections in Iraq as well as Baghdad’s illicit weapons programs. The compendium touts the inspectors’ successes and discusses lessons drawn from their mistakes.

UNMOVIC released a summary of the compendium in June 2006, but Perricos explained that the commission could not publish the full version without first removing “sensitive information” that could potentially aid other countries’ weapons programs.

On June 29, the UN Security Council adopted a resolution officially terminating the mandate of UN inspectors tasked with verifying and monitoring Iraq’s disarmament. The inspectors had not been able to visit Iraq since a U.S.-led coalition invaded the country in 2003. The United States and United Kingdom assured the council that Iraq had been disarmed. Others, however, warned of the dangers posed by the country’s residual weapons capabilities. (Continue)

Arms Issues Divide U.S. and Russia

Wade Boese

Russian President Vladimir Putin’s midsummer visit to President George W. Bush’s seaside family retreat in Maine netted one fish and little else.

To be sure, the two governments took some bilateral nuclear cooperation steps but failed to settle sharp disagreements on U.S. anti-missile plans and a European conventional arms pact. Indeed, Putin subsequently charged Washington with ignoring Russian proposals on missile defenses and announced a possible suspension starting in December of Russia’s participation in the Conventional Armed Forces in Europe (CFE) Treaty. Putin also authorized the resumption of long-range Russian strategic bomber patrols.

Bush acknowledged that the July 1-2 visit did not leave the two leaders seeing exactly eye to eye. “Do I like everything he says? No. And I suspect he doesn’t like everything I say,” Bush told reporters July 2. Still, Bush claimed that he and Putin “made great strides in setting a foundation” for future nuclear security relations.

The Nuclear Agenda

The White House July 3 issued a U.S.-Russian declaration reaffirming the two governments’ commitments to promote nuclear energy expansion worldwide while limiting the spread of nuclear technologies that could be exploited to build nuclear weapons. Underlying this effort are evolving U.S. and Russian projects to provide nuclear fuel and other services to countries to entice them to forgo development of enrichment and reprocessing capabilities, which can be used to produce reactor fuel or bombs. The two countries also declared their willingness to provide or facilitate financial assistance, infrastructure support, and regulatory and technical training for those countries looking to benefit from nuclear power programs.

Washington’s aim is to prevent additional countries from acquiring capabilities to pursue nuclear weapons illicitly under the guise of nuclear energy programs, something it asserts Iran is doing. Tehran denies the allegation.

Briefing reporters July 3, Robert Joseph, U.S. special envoy for nuclear nonproliferation, noted that Iran and North Korea would not be able to participate in the projects, saying, “cooperation, of course, would be with countries with good nonproliferation credentials.” Russian Deputy Foreign Minister Sergey Kislyak, however, quickly added that if those two countries cleared up suspicions about their nuclear programs, “they will be as eligible as anybody else.”

Meanwhile, the Bush administration two weeks later blessed the idea of nuclear-armed India’s construction of a new reprocessing facility. Washington is courting New Delhi as an ally, and part of that effort has included negotiation of a bilateral nuclear cooperation accord, known as a 123 agreement after the section of the Atomic Energy Act of 1954 that requires codifying the terms of U.S. nuclear trade with foreign governments (see page 22 ).

In the U.S.-Russian July 3 declaration, the two governments noted that they also had initialed their own 123 agreement. Bush and Putin endorsed negotiating the pact a year earlier to diminish bureaucratic obstacles to nuclear cooperation and perhaps pave the way for Russia to import U.S.-origin spent nuclear fuel for reprocessing, which is controversial in the United States. (See ACT, September 2006. )

Also on July 3, the United States and Russia pledged to continue to reduce their strategic nuclear forces “to the lowest possible level consistent with their national security requirements and alliance commitments.” The two sides are legally bound by the 2002 Strategic Offensive Reductions Treaty (SORT) to deploy no more than 2,200 operational strategic warheads each by Dec. 31, 2012. That cap expires that same day, freeing both countries to deploy more warheads.

The Kremlin wants a new lower ceiling of reportedly 1,500 warheads or fewer, as well as delivery vehicle limits. It has made these proposals as part of talks with Washington on a successor arrangement to the START accord, which is scheduled to expire Dec. 5, 2009. Concluded in 1991, START obligated Moscow and Washington to cut their deployed strategic nuclear forces exceeding 10,000 warheads each to fewer than 6,000 apiece.

Both sides fulfilled their START reductions several years ago, but they continue to employ the treaty’s extensive verification regime to conduct inspections and exchange data on their deployed strategic nuclear forces. SORT lacks any verification measures, and the U.S. intelligence community reportedly has concluded that it will not have sufficient access to confidently assess Russia’s nuclear forces and compliance with SORT once START expires.

Nonetheless, neither capital has proposed exercising START’s five-year extension option. Instead, the two sides agreed in March to exchange post-START proposals. Russia provided an April draft agreement detailing future arms limits, while the Bush administration, which does not favor new legal caps, supplied a June draft of measures to maintain some nuclear transparency. U.S. and Russian experts are supposed to meet in September to discuss each other’s drafts.

Fearing that a new agreement might not be ready when START expires, some U.S. lawmakers are urging Bush to consider extending the treaty so the next administration will have time to conclude a new accord that “achieves greater, verifiable reductions.” In a July 24 letter, Chair of the House Armed Services Strategic Forces Subcommittee Rep. Ellen Tauscher (D-Calif.) and 27 of her colleagues, including the chairs of the House armed services and foreign affairs panels, also warned that if START lapsed without a follow-on arrangement in place, there would be “greater strategic uncertainty.”

Missile Defense Discord

The Russian government sees another threat to strategic stability: U.S. plans to base 10 strategic missile interceptors in Poland and an associated radar in the Czech Republic.

U.S. officials contend that Moscow is overreacting to an intended defense against an evolving Iranian missile threat, not Russian ballistic missiles. The Kremlin counters that an Iranian long-range missile threat is up to 20 years away and is offering to share radar data and intelligence with the United States to prove that assessment. (See ACT, July/August 2007. )

During his two-day visit with Bush, Putin repeated the Russian ideas. He also volunteered that the two countries might move ahead with building a long-stalled Joint Data Exchange Center in Moscow, as well as a similar facility in Brussels. Originally agreed to in 1998, the Moscow center was envisioned to facilitate real-time information sharing on worldwide ballistic missile launches and flights. (See ACT, June 2006. )

Bush called Putin’s proposals “very sincere” and “innovative.” Yet, the administration shows no signs of shelving its plans. Hosting Poland’s president July 16 at the White House, Bush declared, “[T]here’s no better symbol of our desire to work for peace and security than working on a missile defense system.”

Led by Kislyak, a Russian delegation visiting Washington July 30 supplied a written copy of Moscow’s missile defense positions to U.S. officials. For its part, the U.S. side invited Russian experts to visit existing U.S. bases in Alaska and California where 20 interceptors in total are fielded. Moscow has previously passed on similar offers, although Russian military officials have visited several times the U.S. missile defense operations center in Colorado.

The interceptors slated for emplacement in Europe are a modified and untested version of those deployed in the United States. The current U.S. model had its first and last successful intercept trial in September 2006, although earlier predecessors scored five hits in eight rudimentary intercept tests between 1999 and 2002.

A September meeting is planned so that Washington can respond to the Russian missile defense position paper. That conference and another in early October are preludes to an Oct. 12 Moscow meeting between the U.S. secretaries of defense and state with their Russian counterparts. Missile defense figures to rank high on the agenda.

Russian offers to share radar data and intelligence are conditioned on the United States not deploying anti-missile systems in Europe. Moscow also warns it will militarily target any such capabilities and implies that Russia will feel compelled to burnish its offensive forces. Writing in the August issue of Global Affairs magazine, Russian Foreign Minister Sergey Lavrov noted “nobody can abolish the interrelation between defensive and offensive strategic weapons.”

The CFE Treaty Clash

In his article, Lavrov cited the proposed missile defense deployments as one element of a broader U.S. strategy to contain Russia. He contended that this goal also “clearly manifests itself” in the current impasse over the CFE Treaty.

Negotiated in 1990, the agreement restricts the amount and location of certain major weapon systems, such as tanks and armored combat vehicles, that NATO and the now-defunct Warsaw Pact could station between the Atlantic Ocean and the Ural Mountains. In 1999 the 30 states-parties to the treaty agreed to an “adapted” version of the accord establishing new arms caps for each country, including more lenient sublimits for Russia’s weapons deployments inside its borders. Moscow wants the sublimits scrapped entirely, but NATO objects.

The adapted treaty has yet to enter into force because not all of the original treaty states-parties have ratified the newer agreement. In fact, only Belarus, Kazakhstan, Russia, and Ukraine have taken this step. The United States and its fellow NATO members are tying their final approval of the adapted treaty to Russia withdrawing its military forces from Georgia and Moldova as Moscow vowed to do in 1999. Those pledges occurred in conjunction with conclusion of the adapted treaty, which stresses the necessity of host-party consent to any foreign deployed forces on its territory. (See ACT, November 1999. )

Moscow has repeatedly complained about the NATO linkage, and on July 14 Putin decreed Russia would suspend participation in the CFE Treaty in 150 days if NATO’s stance did not change. The possible suspension, for which there is no provision in the CFE Treaty, would begin Dec. 12.

NATO’s 26 members issued a July 16 press release criticizing the Russian move as “deeply disappointing.” Two days later, NATO spokesperson James Appathurai said the alliance did not intend to overreact, pointing out that Russia has indicated it does not plan “major troop movements” during any suspension. He also added that NATO remained “ready to meet whenever and wherever” with Russian officials to discuss their concerns.

Russia has a raft of complaints stemming largely from NATO’s expansion to include former Warsaw Pact members and U.S. plans to establish training bases in two of those countries, Bulgaria and Romania. But a key gripe is that the newest NATO members and Russian neighbors Estonia, Latvia, and Lithuania are not bound by the original CFE Treaty and therefore have no arms limits. The 1990 treaty lacks an accession clause, so the trio is waiting to join the adapted treaty once it enters into force.

NATO says Russia can speed up this process by accelerating its military withdrawal from Georgia and Moldova. Russian forces are departing Georgia, but the exit from Moldova halted in 2004, leaving approximately 1,300 Russian troops and a massive ammunition depot in the breakaway region of Transdniestria. NATO and Russia could not agree on steps to resume the withdrawal at a special June CFE Treaty meeting. (See ACT, July/August 2007. )

Notwithstanding its looming suspension, Russia has continued implementing the treaty since Putin’s announcement. It has hosted foreign inspections and provided routine reports on its forces.

Russian Military Developments

Russia’s escalating rifts with the United States and NATO coincide with a growing Kremlin military budget that is profiting from high global oil and gas prices. Moscow is using some of this revenue influx to revive strategic programs and practices that slowed or went dormant after many lean years following the Soviet Union’s 1991 collapse.

One beneficiary is Russia’s effort to develop a new nuclear-armed submarine-launched ballistic missile, the Bulava. After a string of test failures last year, the missile reportedly had a successful flight June 28. That success occurred less than a month after the inaugural test of a multiple-warhead version of Russia’s most modern ICBM, the Topol-M.

On another strategic front, Putin announced Aug. 17 that, after a 15-year lull, Russia would resume regular long-range patrols of its strategic bombers. Putin contended that Russian pilots “have spent too long on the ground” and said he hoped that other countries would understand the move. The United States, which regularly conducts similar flights, expressed no concern.

Fixing a Flawed Nuclear Deal

By Daryl G. Kimball

After months of contentious negotiations, U.S. and Indian officials recently concluded a formal agreement for nuclear cooperation that contradicts long-standing U.S. nuclear export policies and threatens the global nonproliferation order.

The proposed agreement endorses undefined “India-specific” safeguards and fails to explicitly state that renewed Indian testing would lead to a termination of U.S. nuclear trade. The pact promises India assurances of nuclear fuel supply and advance consent to carry out sensitive nuclear activities that are unprecedented and inconsistent with legislation approved by Congress last year.

The sum of these and other U.S. concessions could give India—a country that has violated past agreements on peaceful nuclear cooperation by testing a nuclear weapon—terms of nuclear trade more favorable than those for states that have assumed all the obligations and responsibilities of the nuclear Nonproliferation Treaty (NPT), which India has never signed.

Much is at stake. In the coming months, Congress and the 45-nation Nuclear Suppliers Group (NSG) can prevent further damage by using their authority to close the loopholes in the deeply flawed U.S.-Indian agreement.

The pact is based on Prime Minister Manmohan Singh’s July 2005 pledge to “separate” India’s military and civilian nuclear facilities and put eight additional reactors under international safeguards by 2014. In exchange, President George W. Bush pledged to seek an India-specific exemption from U.S. laws and NSG rules that restrict trade with states that do not allow “full scope” safeguards. Congress approved changes to U.S. nuclear export laws with conditions, but it must still approve the U.S.-Indian nuclear cooperation agreement. It may do so only if the NSG agrees by consensus to waive its comprehensive safeguards requirement for India.

While many NSG member states support India’s legitimate nuclear energy goals, they are also deeply uncomfortable with the agreement and for good reason. Partial safeguards in India are hardly worth their estimated $10 million annual cost. Yet, the U.S.-Indian agreement cheapens their value by endorsing the concept of India-specific safeguards and allowing India to take unspecified “corrective measures” if fuel supplies are disrupted. Congress and the NSG should reject any proposal for nonstandard safeguards for Indian reactors.

Unlike other nuclear cooperation agreements, the U.S.-Indian deal fails to clearly state that a resumption of nuclear testing would lead to a termination of nuclear transfers and the return of U.S.-supplied equipment and material. To protect its testing options, India sought and got an unprecedented U.S. commitment to help India amass a strategic reserve of nuclear fuel to guard against any supply disruption. Incredibly, the agreement also commits Washington to help New Delhi secure fuel supplies from other countries even if India resumes testing.

Officials at the Department of State may argue that the fuel supply assurances are political and not legal commitments and are there only to assuage Indian domestic audiences. This is not how the Indian government interprets the agreement. Such ambiguity has no place in international nonproliferation rules. Congress and the NSG should clearly establish that any India-specific exemption from existing nuclear trade rules shall be terminated if India resumes testing.

U.S. negotiators also agreed to allow for possible future trade involving sensitive nuclear technology, including uranium-enrichment and plutonium-reprocessing-related goods. Even if such transfers are destined for safeguarded facilities, they could be replicated and used to support India’s weapons program. The NSG should specifically bar such transfers to India.

Even though India has refused to put existing reprocessing plants under safeguards, India also won long-term consent to reprocess U.S.-origin nuclear fuel. To exercise the right, an additional U.S.-Indian agreement governing a new, safeguarded reprocessing facility is required. Still, the reprocessing concession could allow India to negotiate more favorable terms from less scrupulous suppliers, such as Russia.

Unless the NSG also requires that India halts fissile material production for weapons as a condition for nuclear trade, supplying nuclear fuel to India for power production would free up its limited domestic supplies for bomb production. This would not only contradict NPT restrictions barring assistance to other’s nuclear weapons programs, but it would prompt neighboring Pakistan to increase its fissile material production capacity.

The U.S.-Indian agreement may lead usually sensible states to ignore their legal commitments too. Australia has announced it is ready to sell uranium to India even though its current foreign minister said in 1996 that the South Pacific Nuclear-Weapon-Free Zone Treaty “imposes a legal obligation not to provide nuclear material unless subject to the safeguards required by Article III.1 of the NPT, that is, full scope safeguards.”

Rather than sidestep their own nonproliferation policies and laws, leaders in Congress and other capitals should maintain common sense conditions on nuclear trade that help ensure India meets the same standards expected of other responsible countries. Now is the time to stand up to the White House and the nuclear profiteers and prevent further erosion of the already beleaguered nonproliferation system.

After months of contentious negotiations, U.S. and Indian officials recently concluded a formal agreement for nuclear cooperation that contradicts long-standing U.S. nuclear export policies and threatens the global nonproliferation order.

The proposed agreement endorses undefined “India-specific” safeguards and fails to explicitly state that renewed Indian testing would lead to a termination of U.S. nuclear trade. The pact promises India assurances of nuclear fuel supply and advance consent to carry out sensitive nuclear activities that are unprecedented and inconsistent with legislation approved by Congress last year. (Continue)

Nuclear Technical Cooperation: A Right or a Privilege?

Jack Boureston and Jennifer Lacey

In November 2006, during its annual meeting to consider technical cooperation applications, the International Atomic Energy Agency’s (IAEA) 35-nation Board of Governors denied Iran’s request for technical assistance for its Arak 40-megawatt heavy-water reactor.[1] Later, in January 2007, in light of UN Security Council Resolution 1737 sanctioning Iran, the IAEA board reviewed all of the technical cooperation projects that it was administering in Iran and found that some should be suspended while others could continue based on the purpose of the project and its proliferation potential.

Although the board has denied or suspended requests in the past, this action is significant because the board in effect used the agency’s Technical Cooperation Program to penalize a state that it found to be in breach of its safeguards agreements.

The Technical Cooperation Program serves as the practical implementation of Article IV of the nuclear Nonproliferation Treaty (NPT) and of Article III of the IAEA’s founding statute. That 1957 IAEA agreement calls on the agency to promote the application of atomic energy for peaceful purposes; make provisions for materials, services, equipment, and facilities; and coordinate the exchange of scientific and technical information on the peaceful uses of nuclear energy.[2] The Technical Cooperation Program, begun in the late 1960s, is the vehicle by which the IAEA implements one of its guiding principles, to “accelerate and enlarge the contribution of atomic energy.”[3]

The IAEA also plays the crucial role of ensuring that cooperation granted under NPT Article IV is not misused to help develop nuclear weapons. Article IV asserts that countries are eligible to receive nuclear assistance as long as they are “in conformity” with Articles I and II of the treaty, that is, the nuclear-weapon states agree not to provide assistance to non-nuclear-weapon states on the manufacture of nuclear weapons and explosives and the non-nuclear-weapon states agree not to receive the transfer or assistance on the development of nuclear devices. The IAEA helps in this respect by verifying that states have complied with their NPT obligations through its annual safeguards conclusions. The IAEA’s Department of Safeguards assesses the correctness and completeness of state declarations on fissile materials and technology, and prevents their diversion to weapons programs.

The IAEA Technical Cooperation Department, with more than 190 staff members, administers hundreds of technical assistance projects each year. Such assistance is provided in the form of expert advice, consultations and visiting professionals, fellowships, scientific visits, training courses, and transfers of equipment and supplies. Under these types of assistance, a broad array of projects are implemented. These include human health (e.g., nuclear medicine and radiation therapy); agricultural productivity and food security (e.g., radiation-induced mutation and irradiation); water resources management (e.g., isotope hydrology); environmental protection (e.g., nuclear techniques to conduct surveys of pollutants); physical and chemical applications (e.g., radiopharmaceuticals); and sustainable energy development (e.g., nuclear energy for electricity generation, desalination, or research).

At the same time, the department has the challenge of ensuring that these projects stay true to the agency’s nonproliferation mandate. Article III.5 of the IAEA statute maintains that the IAEA must “ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the agency or at its request or under its supervision or control are not used in such a way as to further any military purposes.”[4] The IAEA has designated “sensitive technology areas” whereby safeguards must apply to technical assistance. These areas include:

•  uranium enrichment

•  reprocessing of spent fuel

•  production of heavy water

•  handling of plutonium (including the manufacture of plutonium and mixed uranium/plutonium fuel).[5]

Various types of assistance do not fall into the above mentioned categories but present potential proliferation dangers. These assistance projects are disconcerting, given the dual-use nature of the technologies they encompass. They include applications in some nuclear instrumentation, radioisotope production, and radiochemistry. These technologies, while not sensitive, utilize the same methods and equipment as used in reprocessing, for instance, and therefore could be used later in a military program.

Applying for Technical Cooperation

The first requirement for a state that would like technical assistance is to sign a Revised Supplementary Agreement with the agency. The agreement is a promise of sorts that all activities resulting from provided assistance will be for peaceful purposes and that safeguards are applied to all facilities involved. Currently, 109 states have signed such agreements with the agency.[6]

In considering requests, the Technical Cooperation Department collaborates with the agency’s Safeguards, Nuclear Science and Applications, Nuclear Energy, and Nuclear Safety Departments.[7] Together they examine the potential for the misuse of the nuclear assistance from the time of the project request to the last stage of implementation.[8] In particular, the Safeguards and Technical Cooperation Departments collaborate to ensure that no technologies relating to nuclear proliferation are provided.

After the agency secretariat reviews the submitted project concepts, requests are passed on for evaluation by the board’s Technical Assistance and Cooperation Committee. This committee prepares a report on proposed technical cooperation projects and then recommends the report for board approval.

The Iran Case

The board’s decision to cancel and suspend some technical cooperation projects in Iran clearly shows the importance of nontechnical factors that the board might take into account in making determinations. In this case the board’s action drew quick protests from developing countries, who said the action threatened their rights to peaceful nuclear technology. According to agency sources, during the board’s deliberations, various developing countries, including Cuba, Indonesia, Sudan, Syria, and Venezuela, complained that the Technical Cooperation Program was being manipulated as a political tool. Western diplomats, by contrast, emphasized that the board could not support projects that might lead to proliferation.

In November 2006, Gregory Schulte, the U.S. ambassador to the IAEA, emphasized the proliferation potential of the Arak reactor and stated that the agency would monitor the remaining projects in Iran to ensure that they would not “further Iran’s efforts to develop enrichment, reprocessing, or heavy water projects.”[9] In addition, the European Union declared in a statement that its members “cannot support providing technical assistance to a heavy-water research reactor project that the board has several times asked Iran to reconsider.”[10]

Arak is a 40-megawatt graphite-moderated heavy-water reactor. When fully operational, it is expected to be able to produce about nine kilograms of weapons-grade plutonium, or enough for one to two weapons, per year.[11] The Arak design is similar to heavy-water reactors such as Cirrus in India, and those at Khushab in Pakistan and Dimona in Israel, all of which burn natural uranium and produce high-quality weapons-grade plutonium.[12]

The IAEA board went further two months later. In January 2007, the agency evaluated its technical cooperation projects in Iran in the context of UN Security Council Resolution 1737. The resolution imposed sanctions on Iran to limit its ability to obtain items, materials, equipment, goods, and technology that could aid its proliferation-sensitive nuclear activities. It requires that countries act to block the transfer or supply to Iran of “all items, materials, equipment, goods, and technology which could contribute to Iran’s enrichment-related, reprocessing, or heavy water-related activities, or to the development of nuclear weapons delivery activities.” These restrictions also would apply to proposed nuclear activities for “food, agricultural, medical or other humanitarian purposes.” Exceptions would be permitted by a designated UN committee “in advance and on a case-by-case basis” if it could be shown that the transfer would not aid Iran’s “proliferation-sensitive activities” and Iran agreed to abide by certain conditions.[13]

The IAEA board decided that 40 percent, or 22 of the 55 national, regional, and interregional projects that the agency had with Iran, should be partially or totally withdrawn.[14]

The board said Iran could not proceed with three national projects involving nuclear power generation, the creation of a nuclear technology center, and the development of certain industrial processes that use radiation.[15] It blocked Iranian participation in four regional projects intended to bolster its strategic planning, project design, and development capabilities. It also indicated that three interregional projects aimed at furthering future technical cooperation could not proceed.

The most noteworthy of the interregional projects involved Iranian participation in a forum for information and expertise exchange among developing-country member states actively involved in nuclear power planning and operations, specifically in reactor operation, maintenance, and design. At root, this project was to enable experts to participate in the International Project on Innovative Nuclear Reactors and Fuel Cycles (INPRO) Technical Meetings. Although such projects may not contribute directly to proliferation activities, they could help Iran develop expertise that might support banned programs.

Technical Cooperation: A Tool of The Nonproliferation Regime

Even before the board’s actions with Iran, some board members had argued that technical cooperation should be made conditional on a state’s compliance with the NPT and safeguards obligations. In May 2005, the United States circulated a working paper urging that, in cases where states are in noncompliance, all NPT states ensure that materials supplied to recipient states no longer be used and those items be eliminated or returned to the original supplier.[16] Essentially, the state would be placed on a supplier “black list” and be sanctioned from obtaining any more assistance. This could prevent future transfers, but it is unlikely that a supplier will be able to recover material it provided to a buyer. Therefore, it is incumbent on the IAEA to tighten its procedures to make it more unlikely that projects will be approved with troubled states.

Further, some have advocated that the possibility of ending nuclear cooperation be considered as punishment for states that withdraw from the treaty. Specifically, they recommend that technical assistance be withdrawn if a state invokes the treaty’s Article X withdrawal clause. In this case, the provision of technical assistance could prove to be a motivator for states to remain in good standing with the NPT and a deterrent to those who might consider leaving the treaty regime.[17]

Such proposals have met strong resistance from developing countries. Representatives of these states have argued that decisions to suspend technical cooperation that were based on political instead of technical factors would interfere with the right to develop nuclear energy. As one nonaligned diplomat asserted, “[P]olitical interference in aid programs is not something developing nations will look at positively.”[18]

During a preparatory meeting of NPT states-parties in May, developing countries prompted states-parties to reaffirm the inalienable right to peaceful nuclear energy under Article IV.[19] They reiterated that additional restrictions should not be applied to the peaceful uses of nuclear energy, especially in developing countries or for a political or subjective purpose.

Conclusion

The fact that the IAEA is responsible both for promoting the peaceful use of nuclear energy and ensuring against its misuse inevitably creates tensions. Nonetheless, given the dangers of proliferation, the agency is justifiably cautious about promoting technical cooperation in questionable states. One way the agency may strengthen the technical cooperation process is to move beyond assessing a state’s technical capabilities and also consider controversial measures, such as evaluating a state’s intent in seeking technical assistance. Factors that can be considered to measure intent include the strategic environment of the country or the potential threat of its military and economic capabilities or ideological approach; and the country’s foreign and military policy.[20] Each of these factors should be at least informally factored in the technical-cooperation project evaluation process.

This could be done by the Standing Advisory Group on Technical Assistance and Cooperation (SAGTAC), a group established in 1995 to make recommendations to the IAEA director-general for improving technical cooperation policy and enhancing the effectiveness of such activities.[21] Apparently, the last time the program was reviewed and evaluated was in 2002. The SAGTAC could audit and revise technical cooperation guidelines to state explicitly that countries must fulfill their NPT and their safeguards obligations before they received technical assistance. SAGTAC could also recommend that technical cooperation be conditioned on a requirement that recipient states be parties to the NPT. As it currently stands, the agency’s program does not differentiate between NPT and non-NPT member states. Compliance with the treaty and adherence to verification requirements could be a precondition for receiving technical assistance. Otherwise, the incentives for being a party to and complying with the NPT are lessened significantly.

The agency could also strengthen its process to verify that requested projects are in line with a state’s national priorities and therefore a legitimate technology request. As part of an enhanced review process, it is essential that the Technical Cooperation Department improve collaboration and consultation with the Safeguards Department to yield sounder decisions on the end use of technologies. Stronger cooperation will ensure that the technical assistance that the IAEA provides will not be used for military purposes in the future.

Although Article IV of the NPT provides for nuclear assistance and the right to the peaceful use of nuclear energy, those rights can be and have been taken away when a member state is found to be in noncompliance with its safeguards and NPT obligations. This was the case in early 2007 with the IAEA’s actions regarding technical cooperation with Tehran. Although Iranian officials have stated that the withdrawal of technical assistance will not halt their activities, the actions of the agency’s board stirred a needed debate on the right to nuclear energy.

Just as technical assistance serves as a reward to those states that conform to NPT and IAEA provisions, a withdrawal of technical assistance could serve as a form of punishment and deterrence to those who do not comply with NPT guidelines, despite the misgiving of developing states. If the IAEA as a largely technical organization prefers to avoid becoming involved in such fights, the Security Council could choose to do so, employing the IAEA as an effective instrument for enforcing Security Council sanctions and as a useful deterrent against the diversion of technologies for proliferation purposes.

 


Jack Boureston is managing director of FirstWatch International (FWI), a research group that conducts studies on the nuclear developments of countries. He has worked as a safeguards information analyst at the International Atomic Energy Agency and as a researcher at the Center for Nonproliferation Studies in Monterey, California. Jennifer Lacey is a research associate at FWI.


ENDNOTES

1. “IAEA Compromise Sees Iranian Reactor Request ‘Shelved,’ Not ‘Rejected,’” Agence France-Presse, November 23, 2006.

2. “The Basis for IAEA Activities in Technical Co-operation,” found at www.iaea.org/Publications/Booklets/Tc90s/chpone.html.

3. IAEA, “The Revised Guiding Principles and General Operating Rules to Govern the Provision of Technical Assistance by the Agency,” INFCIRC/267, March 1979 (hereinafter IAEA Revised Guiding Principles).

4. “IAEA Technical Co-operation Activities in the 1990s,” found at www.iaea.org/Publications/Booklets/Tc90s/index.html.

5. IAEA Revised Guiding Principles.

6. IAEA, “Revised Supplementary Agreement Concerning the Provision of Technical Assistance by the IAEA (RSA),” March 21, 2007.

7. N. Halde, “IAEA Technical Cooperation From ‘Nuclear Watchdog’ to ‘Partner in Development,’” July 25, 2007.

8. Paulo Barretto and Ana María Cetto, “IAEA Technical Cooperation and the NPT,” IAEA Bulletin, Vol. 46, No. 2 (March 2005).

9. “Diplomats Say IAEA to Reject Iranian Request for Aid With Arak Reactor,” Agence France-Presse, November 22, 2006.

10. “U.S. Urges Iran to Deny Iran Reactor Aid,” NewsMax, November 20, 2006.

11. David Albright and Paul Brannan, “ISIS Imagery Brief: Further Construction at Arak 40 MW Heavy Water Reactor,” ISIS, March 20, 2007.

12. Robert J. Einhorn and Daryl G. Kimball, “Iran’s Heavy-Water Reactor: A Plutonium Bomb Factory,” Arms Control Association, November 9, 2006 (press release).

13. UN Security Council Resolution 1737, S/RES 1737, December 27, 2006.

14. IAEA Board of Governors, “Cooperation Between the Islamic Republic of Iran and the Agency in Light of United Nations Security Council Resolution 1737 (2006),” GOV/2007/7, February 9, 2007.

15. Ibid.

16. “Strengthening the Implementation of Article X of the Treaty of the Nonproliferation of Nuclear Weapons,” NPT/CONF.2005/WP.59, May 24, 2005 (U.S. Working Paper).

17. “Strengthening the Nuclear Nonproliferation Regime,” NPT/CONF.2005/PC.III/WP.22, May 4, 2004 (French Working Paper); “Strengthening the NPT Against Withdrawal and Non-compliance: Suggestions for the Establishment of Procedures and Mechanisms,” NPT/CONF.2005/PC.III/WP.15, April 29, 2004 (German Working Paper).

18. “Diplomatic Sources Say U.S. Wants IAEA to Make Drastic Cuts in Iranian Projects,” Agence France-Presse, February 5, 2007.

19. “Chair’s Paper: 2007 NPT PrepCom Chair’s Factual Summary,” Reaching Critical Will, May 11, 2007.

20. Annette Berriman, Russell Leslie, and John Carlson, “Assessing Motivation as a Means of Determining the Risk of Proliferation,” Paper presented at the INMM 2004 symposium, Orlando, FL, July 2004.

21. SAGTAC is comprised of up to 20 experts from member states.

Pages

Subscribe to RSS - September 2007