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“It will take all of us working together – government officials, and diplomats, academic experts, and scientists, activists, and organizers – to come up with new and innovative approaches to strengthen transparency and predictability, reduce risk, and forge the next generation of arms control agreements.”
– Wendy Sherman
U.S. Deputy Secretary of State
June 2, 2022
November 2007
Edition Date: 
Thursday, November 1, 2007
Cover Image: 

LOOKING BACK: The Additional Protocol

Trevor Findlay

The theory of punctuated equilibrium posits that life on Earth has evolved not in constant, linear fashion but through long periods of stasis, interrupted by catastrophic events, such as meteor impacts, which suddenly push it in new, adaptive directions. Without stretching the metaphor too far, the evolution of nuclear safeguards can be viewed in this way. It has been characterized by long periods of continuity, interrupted by extraordinary events that have changed its nature and direction.

Notable among these events, welcome and disturbing alike, have been the advent of the 1968 nuclear Nonproliferation Treaty (NPT), the 1974 Indian nuclear test, and the 1991 discovery of Iraq’s violation of the NPT, along with the later cases of North Korea, Libya, and Iran. A significant adaptive outcome of the Iraq case was the strengthened safeguards system, of which the Model Additional Protocol, launched in 1997, is a major component. On the tenth anniversary of the Model Additional Protocol, this article reviews the evolution of nuclear safeguards that led up to it, assesses its achievements and failings, and speculates about the next likely punctuation in the evolution of nuclear safeguards.

Origins

The origins of the nuclear safeguards concept and perhaps the term itself may be found in the 1946 Acheson-Lilienthal report, which concluded that “a system of inspection imposed on an otherwise uncontrolled exploitation of atomic energy by national governments will not be an adequate safeguard” against the production of fissionable material for nuclear weapons.[1] After the Soviet Union rejected the 1946 Baruch Plan for the internationalization of all nuclear capabilities, the safeguards about which Acheson and Lilienthal had been so skeptical became the default concept. They were embodied in the statute of the International Atomic Energy Agency (IAEA), founded in 1957 as both facilitator of the spread of nuclear science and technology and its chief “safeguarder.”

The IAEA was mandated to “establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities and information…are not used in such a way as to further any military purpose.”[2] The agency could review the design of equipment and facilities, including reactors; require the maintenance of operating records for the use of nuclear material; and call for reports from states. Most extraordinarily, in terms of intrusiveness, the IAEA could conduct on-site inspections, giving it “access at all times to all places and data and to any person…as necessary to account for…materials” in order to determine compliance.[3]

In the early years, most IAEA safeguards resulted from the transfer of existing bilateral arrangements to the agency. Based on IAEA document INFCIRC/26, the safeguards applied only to materials and facilities transferred from one state to another, notably small reactors, and have been described as “technically amateurish.”[4] After the Soviet Union became convinced of the security benefits of containing nuclear proliferation, a more elaborate and intrusive model became possible, based on agency document INFCIRC/66/REV.2 of 1965. Some of these early agreements survive, notably those applied to select facilities in the three states still outside the global nonproliferation regime: India, Israel, and Pakistan.[5]

Enter the NPT: Comprehensive or Full-Scope Safeguards

The most dramatic punctuation of this early period was the negotiation and entry into force of the NPT. The treaty formalized a division of the world into nuclear-weapon states and non-nuclear-weapon states, along with the concept of a verifiable division between peaceful and nonpeaceful nuclear programs. The NPT imposed a legal obligation on its non-nuclear-weapon states-parties to place all of their nuclear activities under IAEA safeguards, hence the terms “full-scope” and “comprehensive.” Each state-party is obligated to negotiate a bilateral safeguards agreement with the IAEA based on frameworks and models encapsulated in IAEA document INFCIRC/153.

INFCIRC/153 remains the foundation of modern IAEA safeguards, used not just for the NPT but for nuclear-weapon-free zones, the first of which, established by the 1967 Treaty of Tlatelolco, preceded the NPT by a year. It envisaged the same methods and practices as INFCIRC/66,[6] notably nuclear materials accountancy and inspections, but introduced new concepts to improve effectiveness: subsidiary arrangements to tailor safeguards to each state and protect confidentiality; the focusing of safeguards on strategic points where verification might be most revealing; the use of instrumentation and nonhuman inspection techniques (today, increasingly, continuous real-time remote monitoring using video cameras); surveillance and containment as important complements to material accountancy; and a requirement that states establish state systems of accountancy and control. INFCIRC/153 also placed some limitations on the agency, regulating the designation and right of rejection of agency inspectors by states and setting out dispute resolution arrangements.

The detonation of a nuclear device in May 1974 by non-NPT party India was an unexpected punctuation for this new safeguards regime only four years after entry into force of the NPT. Although India had not violated its IAEA safeguards agreement because it did not have one, the test spotlighted the “peaceful nuclear explosion” loophole in safeguards language relating to “weapons purposes” and led to the establishment in 1975 of the Standing Advisory Group on Safeguards Implementation. That group has been charged with recommending technical improvements to safeguards ever since.

Thereafter, the safeguards system entered a period of equilibrium. The number of states-parties to the NPT increased to near universality, and apart from some relatively minor infractions discovered in the early 1980s, the IAEA was able to declare annually that it had no evidence of the diversion, by any non-nuclear-weapon state-party, of peaceful nuclear material or facilities to nonpeaceful purposes.

The Iraq Debacle and Response

The sharpest of punctuations to this equilibrium came with the revelation, after the 1991 Persian Gulf War, that Iraq had been clandestinely conducting a nuclear weapons program in parallel with its IAEA-inspected peaceful program. The IAEA’s failure to detect such activities, located in some cases just over the berm from where inspectors visited, produced widespread criticism of safeguards, both justified and unfair. It also provided a political window of opportunity for significant strengthening of the system.

The fundamental problem was that the IAEA could only monitor and inspect materials and facilities declared by states-parties. Determined proliferators could develop substantial undeclared nuclear capabilities undetected, either co-located with declared facilities or apart from them. Although a so-called special inspection, the equivalent of a challenge inspection in other disarmament regimes, could be requested, these were politically and practically difficult to launch. After the IAEA board, post-Iraq, reiterated its right to seek special inspections, it found itself peremptorily refused on its first attempt, in North Korea in 1993.

A further difficulty was the reliance on nuclear accountancy as the principal tool for detecting diversion and, in turn, the reliance on safeguards as the key tool in detecting noncompliance with the NPT. The agency lacked the full range of modern tools for such a verification challenge, although even states with satellite imagery and sophisticated intelligence services had missed Iraq’s illicit activities. Nonetheless, the agency demonstrated the continuing utility of safeguards in 1993 by detecting North Korea’s noncompliance with its new safeguards agreement by calculating, using materials accountancy, that declarations of its plutonium production were improbably low.

Together, the Iraq and North Korea crises, along with South Africa’s 1989 revelation that it had secretly produced a small nuclear arsenal,[7] although as a nonparty to the NPT, proved sufficiently punctuating to trigger relatively rapid, adaptive evolution of safeguards in a new direction.

Strengthened Safeguards, Including the Additional Protocol

Jolted by such wanton noncompliance cases, the IAEA board in 1993 mandated that the secretariat propose legal, technical, and financial means of strengthening safeguards. The recommendations resulted in a two-pronged program. Part one comprised measures the agency concluded it already had the legal authority to undertake and that could begin immediately. These included requests for additional information from states on their former and future nuclear facilities; increased use of unattended monitoring devices transmitting data direct to IAEA headquarters in Vienna; expanded use of short-notice and unannounced inspections at declared facilities; and the introduction of environmental sampling. In addition, the agency revolutionized its use of open-source information, including satellite imagery, which is increasingly cheaply available commercially, as well as accepting intelligence information from member states.

Part two involved states providing the agency with the legal authority for further measures by individually concluding a supplement to their comprehensive nuclear safeguards agreements. In May 1997, the board agreed on a Model Additional Protocol,[8] which expanded the verification responsibilities of the agency and each state-party. It increased transparency by extending states’ declaration, reporting, and site access obligations to encompass the range of nuclear fuel cycle activities from mining to the storage of nuclear waste. The protocol also requires states to report on nuclear equipment production, imports and exports, fuel cycle research and development, and future plans for facilities. Parties are required to provide an expanded declaration of their nuclear activities within 180 days of entry into force of their additional protocol.

The IAEA would now aim at a holistic, as opposed to a materials- and facilities-based, view of states’ nuclear activities. It would for the first time seek “credible assurance not only about declared nuclear material in a state but also about the absence of undeclared nuclear material and activities.”[9] Complementary access could be sought by inspectors to resolve ambiguities discerned at declared and undeclared sites.

The power of strengthened safeguards has been demonstrated by the revelation of previously undisclosed nuclear activities in Egypt, South Korea, and, more significantly, Iran. In the case of Iran, the extra information requirements and agency powers, including those under the additional protocol, have proved potent. (Iran has signed but not ratified an additional protocol, and has sent mixed signals about its willingness to comply.) Although Iranian opposition groups first revealed the deception, new safeguards measures have helped uncover the details of 20 years of dishonesty and provided a constant stream of leads for the IAEA to pursue through requests for further information and follow-up inspections. Environmental sampling has proved illuminating.

The new IAEA safeguards capabilities provide increased reassurance that such noncompliance in the future will be detected much earlier. Yet, limitations remain. A major challenge is that concluding an additional protocol is voluntary, making it likely that only states intent on complying will join without pressure, which has been applied in the cases of Libya and Iran. Although there have been calls for the IAEA board to make the protocol compulsory, there is little stomach for venturing so far at this stage. It will probably take another punctuation in the safeguards equilibrium for this to happen.

In the meantime, after a slow start the number of states with additional protocols is growing to the point where it is becoming the norm. As of September 2007, 84 states had such protocols in force. The real surprise is the number of NPT states-parties that have failed to comply with their legally binding obligation to have a comprehensive safeguards agreement in force. As of September 2007, they numbered 30, mostly African states. This partly explains why the adoption of the Model Additional Protocol has been so slow. Without a comprehensive agreement, there is nothing to which the protocol can be attached. Other countries, such as the United States, have a policy of not bringing the protocol into force until their domestic legislative and other mechanisms are in place. Indeed, states without such mechanisms in place risk missing their 180-day declaration deadline under the protocol, which some have. Political and legislative lethargy and a lack of awareness by states not represented in Vienna are added reasons for the slow adherence to the protocol, despite the IAEA’s valiant attempts through regional meetings and other outreach activities.

A further difficulty is that some of the additional powers that the IAEA acquires under the Model Additional Protocol are neutered in states that also have a Small Quantities Protocol (SQP). Introduced in 1971, such protocols hold in abeyance significant safeguards obligations, including declarations and inspections, when nuclear activities remain under a certain low threshold. Controversy over the SQPs arose when Saudi Arabia, a state with evident nuclear energy ambitions, sought one. In September 2005, the board directed the agency to begin renegotiating with SQP states to restore at least some of the IAEA’s powers based on a revised model. States with existing SQPs were invited to exchange letters with the IAEA to trigger implementation of the new model, while all future SQPs will be based on the new one. This would oblige states to submit a declaration on their nuclear holdings, however small, which in turn forces them to institute a national system of nuclear materials accounting and tracking. This should be especially useful in strengthening national measures to avoid theft and illicit transshipments of nuclear material.[10] The initiative is, however, again dependent on the goodwill of the states concerned and is proceeding slowly. Currently, 79 states have old SQPs in force; 13 have the new version in force with five others in process; and one has been rescinded.[11]

Finally, the Model Additional Protocol still leaves the IAEA a long way from the anytime, anywhere verification envisaged in its statute. Complementary access requires at least 24 hours’ notice. If inspectors are already at the site in question, they must give two hours’ advance notice. A demand for a special inspection remains an extraordinary, highly politicized option. There is still a possibility that undeclared facilities could go undetected. A state bent on noncompliance will take active measures to conceal its activities, including disinformation and delaying tactics of the type that Iran has deployed.

Nonetheless, the strengthened safeguards system increases the costs and risks for a potential proliferator. It has also to some extent liberated the IAEA from its past timidity, both mandated and self-imposed, and certainly emboldened current Director-General Mohamed ElBaradei in examining the entire range of signals of a proliferator’s intentions. It is notable, for instance, that the agency has concerned itself with evidence of the links between Iran’s military and its alleged peaceful nuclear program, something it previously would have felt was beyond its official verification remit.

The agency meanwhile has also moved to rationalize layers of safeguards imposed on selected states over the years, thereby increasing efficiency and, it is hoped, effectiveness through a program of integrated safeguards. To date, only a handful of countries, notably Australia, Canada and Japan, have been admitted to this select group. This is partly a reward for punctilious compliance with all aspects of safeguards, including the Model Additional Protocol, as candidate states must undergo rigorous examination and cross-examination before qualifying. An unspoken benefit for the IAEA is that verification resources can in theory be devoted to more problematic cases.

The existing system remains as underfinanced and under-resourced as ever. In addition to a decade of zero budgetary growth that ended in 2003, the agency has been obliged to assume increasingly onerous and numerous verification and safeguards obligations, notably in Iran, Iraq, Libya, North Korea, South Africa, and the non-nuclear successor states of the Soviet Union and Yugoslavia. It is also cooperating with the United States and Russia in repatriating highly enriched uranium from research facilities in vulnerable locations around the world. If the U.S.-Indian nuclear cooperation agreement, which envisages India designating a whole raft of nuclear facilities as peaceful and therefore subject to safeguards, ever enters into force, the cost could be as much as $10 million annually. The strengthened safeguards system is itself more costly and labor intensive, while integrated safeguards have yet to produce significant, if any, savings.

In June 2007, ElBaradei decried the board’s refusal to approve a requested increase of 4.6 percent in the IAEA annual budget of around $275.5 million, revealing that the agency’s safeguards function was being “eroded over time.”[12] He noted that the organization was forced to use an unreliable 28-year-old instrument for environmental sampling and rely on external laboratories for analysis, “which puts into question the whole independence of the agency’s verification system.” Moreover, there has been no general implementation of wide-area environmental sampling due to the projected cost. The threat to safeguards is compounded by what the U.S. Government Accountability Office has described as “a looming human capital crisis caused by the large number of inspectors and safeguards management personnel expected to retire in the next 5 years.”[13]

The recent attempt by the United States to engage IAEA board members in further improving safeguards ended in failure when the Advisory Committee on Safeguards and Verification folded last June after two unproductive years. Although the secretariat proposed at least 18 improvements for consideration, the committee was unable to adopt a work plan. With its membership open to all IAEA members, Iran was able to pursue a wrecking strategy. Even the United States seemed unwilling to devote the necessary political and financial capital into making the committee succeed. Perpetual issues over the relative attention devoted to nuclear safeguards and assistance in the peaceful uses of nuclear energy and nuclear disarmament also contributed to the paralysis.

The Next Punctuation: Future Challenges

Nuclear safeguards remain a work in progress. If the punctuated equilibrium theory is correct, it will require another crisis for significant new improvements to be made. This may occur if the much-heralded nuclear energy revival ever comes to fruition. Increased numbers of research and power reactors, additional nuclear trade and transport, and moves by more states to acquire the full nuclear fuel cycle will require increased IAEA safeguards capacity and spending. It may also awaken a sleeper issue that has long exercised the sharpest critics of safeguards: the fact that the current system cannot provide sufficient assurance of nondiversion of fissionable material from bulk-handling facilities, such as those involved in uranium enrichment, plutonium reprocessing, and fuel fabrication. These facilities handle such large volumes of nuclear material that significant amounts, in terms of the quantities required for an illicit nuclear device, will be unaccounted for, lodged in pipes or other equipment or subject to accounting and measurement errors. The system is also currently unable to verify rapid adaptation of enrichment and reprocessing plants from declared peaceful purposes to production of weapons-useable materials. Moreover, some critics claim that the IAEA’s 30-year-old criteria, suggested by the nuclear-weapon states, for how much nuclear material is needed to make a nuclear weapon (“significant quantity”) and how much time is required to convert such materials into a bomb (“conversion time”) need significant revision downward.[14]

If a nuclear energy revival permits increasing numbers of non-nuclear-weapon states to acquire such facilities, the safeguards system risks losing credibility. Proposals for fuel banks and regional or multilateral enrichment facilities and the phaseout of the use of plutonium for civilian purposes are widely deemed to be appropriate means for dealing with the proliferation implications of these developments, but all of them imply more powerful nuclear safeguards tools beyond even today’s strengthened system. In the meantime, it would be useful for the IAEA to tell its member states frankly where it is unable to achieve verifiability. This will not only help relieve the agency of the perennial burden of overblown expectations but should catalyze radical new improvements in areas where they are feasible.

Faced with such challenges, the future evolution of nuclear safeguards lies in the realization by the international community that this form of verification is a security bargain that deserves openness, hard-headed scrutiny, commitment, finances, and resources commensurate with its significance for international security.


Trevor Findlay is director of the Canadian Centre for Treaty Compliance, Carleton University, Ottawa, and of the Nuclear Futures Project at the Centre for International Governance Innovation, Waterloo, Ontario.


ENDNOTES

1. “Nuclear Safeguards: A Reader,” Congressional Research Service, Washington, DC, December 1983, pp. 46-51 (excerpts from “A Report on the International Control of Atomic Energy,” [Acheson-Lilienthal report]).

2. Statute of the IAEA, art. III.A.5.

3. Ibid., art. XII.A.6.

4. Carlos L. Büchler, “Safeguards: The Beginnings,” International Atomic Energy Agency: Personal Reflections (Vienna: IAEA, 1997), p. 48.

5. In NPT states-parties, they are “suspended” but would be reactivated automatically should NPT-based safeguards disappear.

6. Lawrence Scheinman, The International Atomic Energy Agency and World Nuclear Order (Washington D.C: Resources for the Future, 1987), pp. 153-154.

7. See Jack Boureston and Jennifer Lacey, “Shoring Up a Crucial Bridge: South Africa’s Pressing Nuclear Choices,” Arms Control Today, January/February 2007, pp. 18-21.

8. “Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards,” INFCIRC/540 (Corrected), Vienna, September 1997.

9. Jan Lodding, “Non-Proliferation of Nuclear Weapons and Nuclear Security: IAEA Safeguards Agreements and Additional Protocols,” IAEA, 2002, p. 2 (quoting IAEA Director-General Mohamed ElBaradei).

10. See Jan Lodding and Bernado Ribeiro, “Strengthening Safeguards in States With Limited Nuclear Activities,” Trust & Verify, No. 123 (March 2006-March 2007), pp. 1-4.

11. Safeguards current status as of September 27, 2007. See www.iaea.org.

12. Julian Borger, “Nuclear Watchdog Might Not Cope in Atomic Crisis,” The Guardian, June 22, 2007, www.guardian.co.uk/korea/.

13. U.S. Government Accountability Office, “Nuclear Proliferation: IAEA Has Strengthened Its Safeguards and Nuclear Security Programs, but Weaknesses Need to Be Addressed,” GAO-06-93, Washington, DC, October 2005.

14. See Henry Sokolski, “Falling Behind: International Scrutiny of the Peaceful Atom,” Nonproliferation Policy Education Center, September 2007.

The theory of punctuated equilibrium posits that life on Earth has evolved not in constant, linear fashion but through long periods of stasis, interrupted by catastrophic events, such as meteor impacts, which suddenly push it in new, adaptive directions. Without stretching the metaphor too far, the evolution of nuclear safeguards can be viewed in this way. It has been characterized by long periods of continuity, interrupted by extraordinary events that have changed its nature and direction. (Continue)

Keeping WMD From Terrorists: An Interview With 1540 Committee Chairman Ambassador Peter Burian

Interviewed by Miles A. Pomper and Peter Crail

Since January 2006, Slovakian Ambassador Peter Burian has chaired a UN committee charged with examining the implementation of Security Council Resolution 1540. Unanimously adopted in April 2004, Resolution 1540 requires all states to implement a variety of domestic measures to prevent nonstate actors from acquiring weapons of mass destruction, their means of delivery, and related materials.

In April 2006, the Security Council adopted Resolution 1673, calling for intensified efforts by states to implement Resolution 1540 and extending the committee’s mandate until April 2008.[1] On September 21, Arms Control Today met with Ambassador Burian in New York to discuss the role and activities of the committee in regard to the resolution. His remarks represent the position of the Slovakian government and do not represent those of the committee as a whole.

ACT: What are the responsibilities of the 1540 Committee, and what do you see as the committee’s primary tasks?

Burian: The Security Council Resolution 1540 defines the role of the committee in quite general terms, which is to examine the implementation of Resolution 1540. This task was specified in Resolution 1673 and also in the work program of the committee. Resolution 1673 tasks the committee with intensifying its efforts to promote the full implementation of Resolution 1540 by all states. The work program includes outreach activities, assistance, and promotion and development of international cooperation in support of the implementation of Resolution 1540, so these are the major areas of work of the committee. The committee is also tasked to report to the Security Council on the implementation of Resolution 1540 by member states and also major challenges in this area.

ACT: One of the points you mentioned was outreach. What have been the results of your effort in this area?

Burian: In order to assist the full implementation of the resolution, the committee sought to have a dialogue with states and regions encouraging the sharing of national experiences and facilitating technical assistance and cooperation with international, regional, and subregional organizations. Through its various outreach activities, the committee managed to increase awareness of the importance of implementation of all aspects of Resolution 1540. This was the aim of our outreach activities in 2006, but since we are now concentrating on promoting and supporting full implementation of all aspects of Resolutions 1540 and 1673, there is a slight shift in the focus. Through these outreach activities, we are able to reach out to countries to discuss with them the challenges and problems in the implementation of Resolution 1540 and to identify problems countries are facing in the implementation process, including lack of administrative and technical capacities and capabilities to deal with all aspects of Resolution 1540. The outreach activities also helped us to define ways to help them to cope with the requirements and to create better channels for communication with the member countries, international organizations, and the committee in this area.

ACT: One of the issues that seems to be a problem is that some governments simply do not have the financial resources or technical expertise to implement the resolution. How do you work in making sure that the countries get the kind of help that they need from the international community?

Burian: This is one of the conclusions that resulted from our better understanding of the problems which the member states are facing in implementation. On one side, it’s the lack of capacities, both administrative and technical, to cope with the requirements of Resolution 1540. But on the other hand, it’s the lack of understanding of the resolution’s importance for national and regional security and stability of a country. Some countries are saying, “We are not producing nuclear or other weapons of mass destruction, why should we pay attention or why should we be devoting our efforts to this particular problem when we have some other problems, like small and light weapons trafficking or HIV/AIDS and some other problems?” This is the case especially in developing countries. But we talk to the representatives of those countries and explain to them what is at stake. Their territories might be misused for purposes of trafficking or planning attacks against some other countries or hitting targets in those countries. Tasks connected with the implementation of 1540 might help them to address some other issues more efficiently through improved border controls and export controls, such as the issue of small arms and light weapons trafficking and drug trafficking.

ACT: Some people say the committee should be a little more active in matching donors with recipients.

Burian: Ah, yes, yes, yes. So, this is also a very important priority in our work because we understand that, without major assistance and effort, some countries will not be able to cope with the requirements of 1540. That is why we organized in the beginning of this year quite a comprehensive debate in the committee on assistance strategy, which was followed by a discussion with donor countries on how we can better use the committee as a clearinghouse for assistance and match the requests and offers of assistance. We also discussed how to focus the attention of donors and countries providing assistance on real priorities in the area of implementation of 1540.

ACT: What are the results of that? Is there anything concrete that has come out of that at this point?

Burian: First of all, the committee now better understands the needs. This is one thing. We also took several decisions on how to better manage the role of a clearinghouse through facilitating the understanding of how to better formulate the requests for assistance. From the donor side, it’s very important that they do not only concentrate on some areas, but that they spread their activities into a larger territory or, more precisely, they cover all the countries which need assistance. These meetings with donors helped to increase the awareness and understanding of what the donor countries are doing and in which countries. This also is the result of our discussion. We would like to better use our Web page[2] to inform the countries regarding what individual member states or international organizations are doing in order to help the countries to cope with Resolution 1540 requirements and also identify the programs which exist in those international organizations in various areas to help countries.

ACT: Is there any kind of compiled data that says, for example, “This much money is being spent on 1540 programs by these states”?

Burian: This is quite an interesting question. Some countries do not want to share with us all the details of their national assistance programs and projects. But in this area, the approaches and attitudes are changing. Countries understand that through better transparency and through the provision of information to those who are seeking the information, countries can better use their resources. But we do not have a clear idea of how much is spent on those programs because they are dispersed in various agencies and institutions. Even countries like the United States might not know, actually, how much they spend on various programs helping or supporting implementation of 1540 because they are spread through various agencies. This is the aim, nationally, to bring all of the actors together to coordinate their efforts and to divide internally their focus and labor to cover those areas which are the priority and to remove all kinds of unnecessary duplication.

ACT: One of the legal questions is that the Security Council did not define what “appropriate” and “effective” are in terms of export controls, physical security measures, and so on, that countries were supposed to adopt. How much of a problem was that in assessing the implementation of the resolutions, and would it be helpful to have a specific standard in that regard?

Burian: This is quite a sensitive issue, and the committee doesn’t have a unified approach to so-called best practices because many countries are stressing that there is no unified or uniform model of implementation of 1540 and every country has a specific situation. At the same time, the members of the committee understand the importance of sharing the information on national practices which might serve as a source of inspiration for neighbors or for countries of subregions and regions to speed up the process of implementation by avoiding the mistakes which their neighbors might have made.

Regional organizations have paid quite a lot of attention recently to the implementation of 1540. These include the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States, or the Caribbean Community and so on. We are trying to facilitate the discussion in those organizations on the so-called regional practices on functioning models of implementation or on the legislation.

We already have very good results in this area. The OSCE, first of all, politically supported the implementation of 1540, and they moved to a concrete area by defining the best practices in the region in several areas of implementation of 1540. I think this is an example which might be followed by others. I see quite a bit of progress in this direction in the Organization of American States, and this is something which the committee wants to encourage and support. But we are not going to define the best practices for the member states to follow. We can point to some gaps, to some problems, and then it is the national responsibility of a country to define the best ways how to address the problem.

ACT: You mentioned gaps and weaknesses. Does the committee go and identify particular weaknesses in a particular country’s coverage of these various areas that are supposed to be under 1540, and for instance, does the committee visit states to measure their implementation of the resolution as I understand the counterterrorism committee pursuant to Resolution 1373 does.[3] Is there any equivalent to that?

Burian: Our approach to that is a little bit more general. Based on the information which we are receiving through national reports and based on the available information in public sources, such as Web pages of governments and so on, the committee has designed a matrix which is more or less reflecting the structure of the resolution, of various paragraphs of the resolution, and is covering information about national implementation. This matrix also identifies some existing gaps in the implementation, such as the absence of laws or practical arrangements in dealing with particular problems. So this is the approach we use in the committee. We are trying to avoid using the expression of weaknesses because this might be perceived by the member states as putting some blame on them and we would like to avoid blaming and shaming as a method of work.

ACT: Are there particular areas or gaps that require more attention than others from governments? The resolution is broad. It covers nuclear, chemical, and biological weapons and delivery systems. Are there particular areas that have received less attention or are sort of generally more of a weakness in laws than others, such as in the biological realm?

Burian: It differs from country to country and region to region. The specific situation matters, such as whether the country is producing or storing some materials which are related to weapons of mass destruction. That’s why it’s very difficult to generalize. The conclusions of the report which were presented to the Security Council in April 2006 say that no country is perfect. Some countries might have problems with accounting, with physical protection. Some countries might have problems with unreliable export control systems. Some countries might have problems with laws and mechanisms covering the financing of services connected with the proliferation of weapons of mass destruction or related activities. Accounting, physical protection, shipment and transshipment, and financing of activities and services connected with the proliferation in general terms is something to which we should pay more attention.

You also mentioned enforcement. This is important because even if you have a perfect law, if you are not able to enforce it properly, if you do not have institutions which are trained to detect and deal with these kinds of substances, then, of course, all the laws are not very much helpful in dealing with the concrete problem and situation.

Finally, I agree that we should also pay more attention to the biological area. There is no specialized organization to deal with issues of implementation and verification of measures envisaged by the Biological and Toxin Weapons Convention. At the same time the potential of nonstate actors to misuse this kind of substances for terrorist purposes is growing.

ACT: Understanding that a Security Council resolution is focused on government responsibilities, does the committee foresee engaging in dialogue with industry and its role in carrying out the purpose of the resolution?

Burian: This was actually one of the ideas raised during our outreach activities and meetings with nongovernmental organizations and donor countries. If we want to be efficient, we need to not only reach out to the governments, but also to work with private entities and the civic sector. This area should be a matter or area of responsibility of governments. We can encourage governments to pay attention to cooperation and contact with the private sector and businesses. This is also happening through the involvement of some private entities and through dialogue within the national coordination mechanisms, which is one of the ways to engage and involve the private community.

Another issue which is very important is to spread the awareness that implementation of 1540 is not creating obstacles for trade but, on the contrary, creating a better environment for trade. I will see how this might be worked into future workshops. Businesses also might be interested in this and might encourage their national parliaments to address and pay more attention to it. So really, this is one of the areas for the future that the committee might want to promote.

ACT: The committee has encouraged member states to develop action plans for the implementation of the resolution, but it seems that so far that only the United States has submitted such a plan. What does the committee see as the purpose for the development of these plans, and are there any efforts to encourage their submission?

Burian: Actually, we do not have a very concrete idea which countries do or do not have a national action plan or national implementation plan. We already received feedback from various countries, including some in Africa and other regions, that they have developed national implementation plans. Ghana says that they have a plan. Some countries are in the process of developing national implementation or action plans. This is something, again, that the committee doesn’t impose but encourages as a very important planning tool. It enables a country to identify priorities. Donors might also look how they might help in implementing those tasks that are identified in the national implementation plan.

ACT: The committee is now focused on a report it is going to submit next year. Under Resolution 1673, it says that the committee is going to submit a report on compliance with the implementation of the resolution. How is the committee measuring that compliance?

Burian: Now we are in a process of defining the structure of the report, what will be included, and so on. First of all, it will be a product of the group of experts, and then it will be discussed and amended through the contributions and amendments of the member states, so it is a very difficult process. It’s quite difficult to say how we’ll be approaching this issue. One of the problems here is that not all the members would like to come up with some specific conclusions about particular problems. The feeling in the committee is that we should keep it general, to identify the problems in general terms. The committee will not probably go from country to country to say, “You have these kinds of problems, these kinds of gaps.” This might be reflected in the matrices which the committee is elaborating, but these matrices will not be something which will be used for blaming or shaming this or that country for not fulfilling all its obligations and requirements under 1540 but, on the contrary, to identify the problems where the country needs some additional assistance.

ACT: As you know, the resolutions were adopted under Chapter VII of the UN Charter. Do you foresee the possibility of the committee ever recommending to the Security Council that it penalize or sanction a government for not fulfilling the resolution or willfully ignoring it?

Burian: Of course, if a country violates some international obligations adopted under Chapter VII, then the Security Council should deal with the problem. But it’s not the job or the role of the committee as it’s understood among the committee members. The committee now prefers a more cooperative approach in helping countries to overcome some difficulties in fulfilling the requirements of the resolution.

ACT: Some charge, as in a recent Carnegie Endowment for International Peace assessment,[4] that implementation of the resolutions has not exactly matched the urgency of the threat they are trying to address. Would you say that you share this assessment?

Burian: As the chairman of the committee, I cannot share this assessment. But, as a national representative of Slovakia, we feel that we need to intensify the efforts to address this very urgent and dangerous threat because in case we do not pay enough attention to it, we might wake up one day and realize that it was too late. Then it really will be too late to lament that we could have done more. That’s why our national priority and national ambition is to contribute what we can to implement Resolution 1540. We also encourage regional cooperation within the OSCE and on the global level to find efficient mechanisms which might enable addressing this threat in a more comprehensive and more vigorous manner.

ACT: Last question. You were talking earlier about how you do not want to wake up and have a surprise. Given that it is about three years after Resolution 1540 was adopted, is the world safer now against dealing with the possibility of terrorists using unconventional weapons?

Burian: It’s a good question. One thing which we do not know is how far the terrorists have gone in acquiring access to weapons of mass destruction and related technologies and how much we have come to a situation that we are able to cope with this threat through the implementation of 1540. So this is something which is very difficult to evaluate. I would say that, without Resolution 1540, I am almost sure that based on the experience and based on concrete observations and revelations, like the Abdul Qadeer Khan illicit nuclear black market, that terrorists would already possess weapons of mass destruction at least in those areas which are quite easy to access and build, such as a dirty bomb or chemical weapons which were left in some countries unprotected, or biological substances. This is something of which we are reminded almost every day. As it was the case of involvement of a group of doctors in the United Kingdom in plotting terrorist attacks. It is a worrying phenomenon, since it is very easy to imagine that this group of doctors might use their knowledge for acquiring and misusing the substances which might cause diseases for launching biological attacks on civilians. So really, I would say, without any exaggeration, that the threat of terrorists achieving the capability of producing and using weapons of mass destruction is real and the international community should be very serious in addressing this threat and doing it on a timely basis.

Click here for a complete transcript of the interview.


ENDNOTES

1. Security Council Resolution 1540 originally established a two-year mandate for the committee, which expired in April 28, 2006.

2. See the Web site of the 1540 Committee, found at http://disarmament2.un.org/Committee1540.

3. Security Council Resolution 1373 was adopted September 28, 2001, in response to the September 11 attacks. Just as Resolution 1540 does, it requires a series of domestic legal mechanisms to be adopted to deny funding and safe haven to terrorists and establishes a committee to examine implementation.

4. See Monika Heupel, “Implementing Security Council Resolution 1540: A Division of Labor Strategy,” Carnegie Papers, No. 87 (June 2007).

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