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"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."
– Senator Joe Biden
January 28, 2004
June 2015
Edition Date: 
Tuesday, June 2, 2015
Cover Image: 

The Verification Challenge: Iran and the IAEA

June 2015

By Thomas E. Shea

International Atomic Energy Agency inspectors and Iranian technicians disconnect the connections between cascades at the Iranian uranium-enrichment plant at Natanz on January, 20, 2014, a key step in the November 2013 interim deal between Iran and six world powers. (Kazem Ghane/AFP/Getty Images)On April 2, Iran and six world powers reached agreement on the parameters of a deal that would set limits on Tehran’s nuclear program and remove the sanctions that have been imposed on Iran because of that program.

The six-country group is known as the P5+1 because it comprises the five permanent members of the UN Security Council—China, France, Russia, the United Kingdom, and the United States—and Germany. The April 2 agreement, which was reached in the Swiss city of Lausanne, marks the first time that the five Security Council members have acted collectively to prevent a state from acquiring a nuclear arsenal. German participation makes the effort all the more significant because the negotiating group included as an equal partner a state that does not possess nuclear weapons.

The Lausanne accord is to serve as the basis for a comprehensive agreement, which is to be finalized by June 30. Once it is concluded, the comprehensive agreement would place the International Atomic Energy Agency (IAEA) at center stage with the task of verifying that Iran continues to honor its commitments.

During the negotiations on Iran’s nuclear program, a major question has been what the role of the IAEA will be in implementing the final agreement. Some observers have wondered whether the agency can be effective, given the turmoil in the Middle East, political strains affecting international support for IAEA safeguards, the limitations of verification technology, and the IAEA’s need for continuing financial and technical support. Independent of developments in the coming years affecting security in the Middle East, the IAEA must remain scientific in its approach and diplomatic in how it works. The future of the region, the international nonproliferation regime, and international security demands nothing less.

The Development of Safeguards

In verifying Iran’s compliance with its commitments, the IAEA must assume that Tehran might decide to act to acquire nuclear weapons. Imagining how Iran might evade agreements, the IAEA will organize its monitoring activities to take into account Iran’s past noncompliance and the issues remaining from the 2013 Joint Plan of Action, an interim agreement with specified verification measures to be undertaken by the IAEA.[1] Another key issue is the alleged past weapon activities—the “possible military dimensions” of Iran’s past nuclear work, as the agency refers to them—based largely but not solely on national intelligence information provided by more than 10 IAEA member states.[2]

In a sense, the IAEA has been preparing for this role since it first opened for business in 1957. Today’s IAEA bears little resemblance to that initial version of the organization. In the intervening years, the IAEA had to overcome several major challenges.

First, it had to set up the world’s first international inspection system that required sovereign states to allow foreign inspectors into their nuclear establishments, question national practice, and make independent measurements and observations to verify that specific facilities, equipment, material, or even know-how was not being used to support a military activity. Then came expansions to place safeguards on complex nuclear facilities, including uranium-enrichment facilities, fuel manufacturing plants, and spent fuel reprocessing plants.

Until 1970, however, all safeguards applied by the IAEA were restricted to verifying that specified items defined in each safeguards agreement were not used to further any military purpose. In 1970 the nuclear Nonproliferation Treaty (NPT) entered into force. The treaty imposed additional requirements, including a formal commitment by each non-nuclear-weapon state not to seek nuclear weapons and a requirement for these states to submit all nuclear material and all nuclear facilities to IAEA safeguards. To verify the NPT, the IAEA now would have to consider each state as a possible adversary and conduct its inspections to provide assurance that each state continued to honor its nonproliferation commitments. Through the 1970s and 1980s, the IAEA applied safeguards under the NPT concentrating on declared facilities, attempting to provide a conclusion for the actions of each state on the basis of what it observed.

In the early 1990s, nuclear weapons programs were discovered in Iraq and North Korea in violation of their NPT commitments and their safeguards agreements with the IAEA. Those discoveries forced a fundamental reassessment of the IAEA safeguards system’s ability to cope with states that would violate their commitments and strive to acquire nuclear weapons. NPT states intent on acquiring nuclear weapons would take advantage of their ostensibly peaceful programs, seek foreign support through overt cooperation or false pretenses, make use of black markets, and attempt to obtain critical goods and services from individuals, commercial firms, and government officials by buying, stealing, or subterfuge.

The cases of Iraq and North Korea forced the international community to strengthen the IAEA safeguards system to meet credible threats, including Iran. The changes required IAEA member states to be more forthcoming with information on potential proliferation cases[3] and required the IAEA to take a broader, more forensic approach to verification. This forensic approach involved identifying various actions that a state could take to achieve each step in the process of acquiring nuclear weapons, seeking to identify existing capabilities and new efforts the state might pursue by relying on indigenous and external resources.

Although the IAEA had long-established procedures for protecting “safeguards confidential” information, more-stringent requirements were needed to enable the agency to receive, collate, analyze, and act on information that might reveal proliferation.

Through the past 20 years, the IAEA has continued to develop its capabilities for detecting clandestine programs, teaching inspectors new skills, making use of growing commercial satellite imagery services, and building its own forensic analysis capabilities. These include a new IAEA laboratory for environmental sample analysis, which is supported by a network of affiliated national laboratories available to augment and extend the agency’s in-house efforts.

Iran Task Force

The IAEA staff numbers about 2,500, of which about 800 are involved in the safeguards program. The Department of Safeguards includes three operations divisions, divided geographically; a division of information management responsible for analyzing all information available to the IAEA in support of the operations divisions; a division of technical support responsible for the development, procurement, supply, and maintenance of safeguards equipment used by inspectors in their activities; a division of concepts and planning to carry out threat assessments and devise approaches to counter potential and current threats; and an analytical laboratory to measure samples collected by inspectors from declared facilities and other locations.

The IAEA created the Iran Task Force within the Department of Safeguards, reporting directly to the deputy director-general for safeguards. The task force is responsible for all technical activities that now are carried out under the Joint Plan of Action and presumably will be carried out under the new agreement between Iran and the P5+1 when it enters into force. The task force, whose staff now numbers just under 50, has been authorized to choose the IAEA’s most capable inspectors and analysts.[4]

Legal Authority

To carry out its mission, the IAEA must have clear legal authority allowing it to send inspectors into Iran and enabling the inspectors to complete their assigned activities. Like all countries that have safeguards agreements with the agency, Iran provides diplomatic immunity for IAEA inspectors and must protect them against harm.

Legal authority for IAEA verification includes the existing safeguards agreement and new authority that will be forthcoming with the entry into force of the anticipated final agreement.[5]

Iran has in force a 1974 comprehensive safeguards agreement that is based on INFCIRC/153, the document adopted by the IAEA Board of Governors that provides the model safeguards agreement for all NPT non-nuclear-weapon states.[6] Under its IAEA safeguards agreement, Iran is required to “accept safeguards, in accordance with the terms of the agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.” Further, IAEA NPT safeguards agreements provide “the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”[7]

In the aftermath of discovering the nuclear weapons programs in Iraq and North Korea, the IAEA board determined that the safeguards system needed new capabilities to cope with future threats.  Some of the new capabilities were deemed to be within the legal authority of the existing safeguards agreements based on INFCIRC/153, and those were implemented immediately.  These included starting design-information verification before construction begins on new facilities, and continuing to verify design information over the life cycle of a facility.  Other new capabilities were deemed to require new authority going beyond the safeguards agreements based on INFCIRC/153. These new capabilities are now included in a protocol to the safeguards agreements, to be concluded by states based on the 1997 Model Additional Protocol.[8]  These new capabilities are aimed at enabling the IAEA to detect clandestine nuclear facilities and the misuse of declared facilities by providing easy access to any location within a state when the agency has questions regarding the nature of the activities thought to be under way.[9] Iran had previously allowed its additional protocol to be in force for a two-year voluntary trial period that ended in 2006. As part of the final agreement, Iran is to complete the steps necessary to bring its additional protocol into force.

In addition to these two mechanisms, the parties to a final agreement would arrange for the IAEA to be formally assigned its responsibilities under the agreement. The mechanism providing this formal assignment must extend the IAEA’s rights and responsibilities as necessary to ensure its success, going beyond the activities that are currently allowed under Iran’s safeguards agreement and the additional protocol, when it enters into force. This assignment will likely be in the form of a UN Security Council resolution. The IAEA board would have to endorse the Security Council resolution for it to take effect.

The comprehensive safeguards agreement and the additional protocol, together with new authority given to the IAEA in the final agreement, would provide the legal basis for all verification activities to be carried out while the final agreement remains in force. When the final agreement expires, the agency’s authority will revert to the comprehensive safeguards agreement and the additional protocol. Between now and then, safeguards practices will continue to evolve, and perhaps some of the provisions of the final agreement will be reflected in the manner in which safeguards are applied in all states where comprehensive safeguards agreements and additional protocols are in force.
 
Information

As it plans for its verification activities in Iran, the IAEA will draw on a number of sources of information.[10] Key starting points will be declarations and information provided by Iran and information from the past implementation of safeguards in Iran, including the activities carried out under the Joint Plan of Action. Among the other critical sources are ongoing design-information verification,[11] safeguards inspections and complementary access visits[12] to declared nuclear installations, and ongoing complementary access and other official visits to other locations of interest identified by the IAEA. The Iran Task Force will define its verification activities and evaluate its findings by combining this information with information that the Department of Safeguards obtains from analyzing open-source information, informal reports to the IAEA from commercial suppliers of dual-use equipment and material, other IAEA programs, and information provided by IAEA member states, including intelligence information.

Weapons Acquisition Pathways

IAEA staffers analyze satellite imagery at the agency’s Vienna headquarters on March 19. (Dean Calma/IAEA)The IAEA understands the steps required to make nuclear weapons well enough to detect proliferation. A few staff members worked in nuclear weapons programs before joining the IAEA, and member states provide advice when requested, within the limits of Article I of the NPT and the national laws of the nuclear-weapon states involved. The IAEA is not a nuclear weapons laboratory, and it does not train its inspectors to be bomb makers, but it has the background to do the job. It understands how a state that is intent on acquiring nuclear weapons might acquire a workable warhead design; obtain sufficient amounts of fissile material and other specialized materials; design and produce high-explosive lenses, fuzing and arming systems, detonators, and the neutron initiator; master the manufacturing operations required; and assemble the warhead and mate it to a delivery system.

If Iran were to decide to attempt to acquire nuclear weapons once the new agreement has been concluded with the P5+1, Tehran would most likely begin with a clandestine program. If such a program were detected, Iran would most likely then stop all IAEA inspections and proceed as quickly as it could to acquire one or more nuclear weapons, making use of all existing materials and capabilities in a breakout scenario.

Iran’s past activities are reflected in the verification activities that would be implemented under the final agreement, especially alleged activities having possible military dimensions.[13] Were the alleged activities actually carried out? The extent or nature of past military dimensions of a nuclear weapons program in Iran may never be known. Even a full disclosure by Iran of weaponization activities within its nuclear program would not be accepted as full and complete by skeptics. Yet, measures that are to be put into place by the IAEA to detect possible future clandestine activities have been designed to take account a wide range of possible past activities.

The IAEA has to assume the worst, namely that alleged weaponization activities provided Iran with essentially all the information it needed to build nuclear weapons and that the IAEA should adjust its inspection approaches and planning so that it could detect indications of Iran’s possible nuclear weapons development efforts as early as possible. Such a scenario would require the IAEA to carry out some of its inspections very frequently—daily in some cases—and employ real-time remote monitoring of critical capabilities and nuclear material inventories that could be used in breakout scenarios.

Although the past activities alleged to be part of a weaponization effort will likely remain clouded in ambiguity, any weaponization activity shown to occur after the entry into force of the final agreement would be considered as evidence of an active nuclear weapons program. As a result, establishing a baseline of what took place where and when will be important for the IAEA’s ability to monitor Iran’s continuing commitments.

Taking all possibilities into consideration, the IAEA most likely will organize its verification activities along five lines.

Detecting clandestine nuclear weapons facilities in Iran. The IAEA must detect clandestine nuclear establishments as early as possible.

Iran has mastered centrifuge enrichment technology and has constructed undeclared—that is, clandestine—enrichment plants. It is possible that Iran has other facilities that have not been detected. These facilities could include centrifuge production plants; plants to convert concentrated uranium ore, known as yellowcake, into uranium hexafluoride, the chemical form required for enrichment; one or more enrichment plants; plants to produce highly enriched uranium (HEU) metal; machine shops to produce warhead components; and plants required to produce all of the remaining warhead components. Because natural and depleted uranium are identical to HEU in chemical and metallurgical properties and are relatively easy to acquire, the steps required to produce nuclear warheads from HEU can be rehearsed well in advance so as to be ready when required.

Although the risks of being discovered by Iranian dissidents, national intelligence services, or the IAEA would be substantial, Iran could choose to construct new facilities after the new agreement enters into force, using its experience to conceal the construction and operation of such sites. The expertise developed at its declared enrichment plants and centrifuge manufacturing plants would give it an enormous head start.

Massimo Aparo, center, shown in this November 2013 photo, is the head of the IAEA’s Iran Task Force. (Dean Calma/IAEA)The IAEA has a satellite imagery analysis unit with extensive contracts for commercial imaging services, and further improvements of this capability, including enhanced optical resolution, infrared and radar imaging, automated change detection, and ultra-high definition video streaming, are being pursued through IAEA support programs. The ability of the IAEA, bolstered by national intelligence programs and possibly Iranian dissidents, would make constructing a new enrichment complex like Fordow unlikely.

Given Iran’s knowledge of satellite imagery capabilities, if Tehran were to create new clandestine facilities, it might try to hide them in cities, possibly under industrial facilities, hospitals, or shopping malls, or on military bases[14]9 rather than building them underground in remote parts of the country. National intelligence services employ methods, such as spying and intercepting communications, that are beyond IAEA capabilities. States share their findings with the IAEA in part to allow the agency to pursue inspections on the ground, using its legal authority under the watchful eye of the international community. Combining detection efforts in these ways would increase the chances that clandestine facilities would be detected if Iran were to choose to construct such facilities.

Monitoring declared nuclear installations to detect misuse. Three complementary methods are used by the IAEA to detect the misuse of a declared nuclear facility.

Inspectors verify the facility’s design information frequently to see if there have been any changes that have not been declared. Such changes might alter the capabilities of a facility, make it possible to conceal undeclared activities, or draw into question the validity of the safeguards approach adopted by the IAEA.
Inspectors also observe ongoing operational activities frequently and make use of monitoring systems to ensure that there are no undeclared activities. The monitoring systems might include video surveillance or measurement systems that track activities or plant performance.

In addition, the inspectors collect environmental samples that would show HEU particles within or around declared enrichment plants.

At the Natanz enrichment plant, the IAEA may continue daily inspections, which include environmental sampling. The agency will employ remote monitoring at other facilities to acquire essentially real-time information to determine whether the operations carried out there conform to official declarations.

Detecting diversion of declared nuclear materials from declared facilities. A key goal of IAEA inspections is to verify that no declared stocks of nuclear material are diverted, especially nuclear material that might be quickly converted to weapons-usable forms under a breakout scenario.

The IAEA typically is alerted to the diversion of declared nuclear material in a number of ways. It can detect the removal or alteration of objects containing nuclear materials that the IAEA has sealed or placed under video surveillance, or it can employ accountancy methods to detect shipper-receiver differences and material unaccounted for that exceed limits set by measurement uncertainties. These practices require that IAEA inspectors make independent measurements of the physical inventory at a facility, monitor and measure all shipments into and out of that facility, and close a material balance—that is, an apparent discrepancy with regard to the amount of material that entered the system, left the system, and remains—by another physical inventory at a later time.[15] The actual amounts of shipper-receiver differences and material unaccounted for are compared with the associated measurement uncertainties. When a shipper-receiver difference or material balance shows that some material actually is unaccounted for, a determination is made whether the amount is within the combined measurement uncertainties. If it is not, further investigation is required.

These procedures are well established and, given the current quantities of nuclear material in Iran, would detect diversion of a fraction of the amount necessary to manufacture even one nuclear warhead.

Monitoring potential supply arrangements through which Iran might secure external assistance. Iran might be able to secure assistance from other states or from commercial companies. Such assistance might be overt if the other state or states support Tehran. Iran also may use deception to acquire specialized material, equipment, or know-how. Iran may make use of black markets or front companies. It might offer substantial payments or threaten violence to achieve its aims. Some commercial suppliers of dual-use equipment, such as vacuum pumps used in enrichment plants currently notify the IAEA when they receive suspicious orders for their products.[16]

Monitoring agreed limitations on Iranian capabilities. Under the Lausanne accord, Iran has accepted limitations on existing nuclear capabilities and materials and monitoring of activities beyond those accepted by other states.

Under the existing safeguards agreement and the additional protocol that Tehran has agreed to bring into force, the IAEA will have the authority to verify most of the agreed provisions. Some of these activities can be considered as design information subject to examination and on-site verification. Others, such as monitoring the production of centrifuge machines, go beyond the current scope of IAEA safeguards. Tasking the IAEA with verifying the provisions of the final agreement will likely include a clear authority for these activities.

Breakout

In the negotiations leading to the Lausanne accord, much of the focus was on preventing Iran from building a weapon within a minimum period if Iran were to break its obligations and proceed at full speed in that direction. The IAEA will likely anticipate that if Iran were to pursue nuclear weapons development, it would attempt to avoid or delay discovery and, if it is discovered or decides to announce its intentions, attempt to make as many weapons as quickly as possible using all means available to it. If Iran breaks out, the course it is likely to choose would be a combination of actions chosen to optimize its chances of getting to a position in which it could blunt diplomatic sanctions or military intervention aimed at forcing it to stop. It would most likely build in feints and fallback options, depending on how events would unfold.

Iran may attempt to delay detection, for example, by denying IAEA inspectors access to declared installations. It might claim that access is unsafe due to nuclear accidents, that terrorist activities make it essential to stop all foreign access, or that civil unrest leaves the government unable to guarantee the safety of the inspectors. Little imagination is required to come up with a plausible excuse. The IAEA will need to take steps that provide continuity for its monitoring tasks, relying on human surveillance and installed equipment.

Any breakout would quickly be detected. Therefore, if Iran decided on a breakout plan, it likely would marginalize the IAEA by withdrawing permission for the agency to enter the country. Iran almost certainly would pursue development of HEU weapons at first, at least until it had deployed a number adequate to protect it from military intervention.

Later, Iran might pursue plutonium weapons development, but it would likely not be able to do so for several years because it will take much longer to produce the required quantities of plutonium using the reactor at Arak with its modified design. Creating clandestine copies of that reactor and the associated reprocessing operations would carry a very high risk of detection.

Conclusion

Iran probably has learned everything it needs to know to build a nuclear weapon, and the IAEA should proceed on that assumption. In particular, the agency should assume that Tehran could have  developed and tested all the non-nuclear components needed for a nuclear weapon; mastered all the processes necessary to take highly enriched uranium hexafluoride, convert it to an appropriate metal alloy, and machine the shapes required to complete its weapons; and set aside missiles to await final warhead assembly and installation. In other words, the IAEA should assume that Iran needs only to obtain enough HEU to proceed. This perception will hopefully change for the better as the final agreement is implemented.

If Iran opts for nuclear weapons development, it would have to design a program that would avoid or delay discovery and then proceed at top speed if it is detected. It would have no other options.

If Iran and the P5+1 can resolve their remaining differences and reach a final agreement, that would be a very significant development for Iran and for the nonproliferation regime. Yet, it may not settle all the issues surrounding the country’s nuclear program. It will take many years to determine whether the agreement ultimately contributed to regional security or merely provided an interlude in which Iran covertly advanced its capabilities, biding its time.

Looking ahead, the following futures are possible:

  • Iran continues to meet its obligations and never pursues any activity related to acquiring nuclear weapons. This is the ideal situation and one that should be pursued by all states.
  • Iran considers breaching its obligations, but is deterred because the risk of being detected and the consequences to follow would be unacceptable.
  • Iran breaches its obligations, and its actions are detected, perhaps by the IAEA, in time to allow responses through collective political mechanisms or direct actions by states that would be threatened by a nuclear-armed Iran.
  • Iran violates its commitments and is not detected.
  • Iran waits for the limitations to expire and then continues to pursue a nuclear weapons capability, although that will take a long time and, during that time, detection capabilities may further improve and the political climate could change.

If the IAEA receives the support it needs, which is likely, it will be able to verify Iran’s commitments effectively. Even the skeptics should have confidence that if Iran changes course, IAEA verification will work in time for intervention to prevent Iran from acquiring a nuclear weapon.


Thomas E. Shea, currently an independent consultant, served for 24 years in the International Atomic Energy Agency’s Department of Safeguards, where he was responsible for developing and applying safeguards in a wide variety of nuclear facilities. He later was sector head for defense nuclear nonproliferation programs at the Pacific Northwest National Laboratory. This article draws from work on a longer piece that was sponsored by Search for Common Ground and the Program on Science and Global Security at Princeton University.


ENDNOTES

1. See International Atomic Energy Agency (IAEA), “Communication Dated 28 November 2013 Received From the Permanent Mission of the Islamic Republic of Iran to the Agency Concerning the Text of the Joint Plan of Action,” INFCIRC/856, November 29, 2013; Arms Control Association, “Implementation of the Joint Plan of Action at a Glance,” February 2015, http://www.armscontrol.org/Implementation-of-the-Joint-Plan-of-Action-At-A-Glance.

2. See IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran: Report by the Director General,” GOV/2011/65, November 8, 2011 (hereinafter GOV/2011/65), annex (“Possible Military Dimensions to Iran’s Nuclear Programme”), para. B.13.

3. Article VIII.A of the Statute of the IAEA provides that “[e]ach member should make available such information as would, in the judgement of the member, be helpful to the Agency.” See IAEA, “The Statute of the IAEA,” November 17, 2014, https://www.iaea.org/about/statute.

4. IAEA inspectors are trained scientists and engineers, and many hold advanced degrees. It takes about two years of course work and on-the-job experience before an inspector is ready for field assignments.

5. Entry into force depends on the relevant practices of each state involved. Whether it involves a ratification process or an executive determination by the government, it is common that a state exchanges letters with the other parties to an agreement when the requirements of that state have been satisfied.

6. IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection With the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (Corrected), June 1972 (hereinafter INFCIRC/153). For the text of the Iran safeguards agreement, see IAEA, “The Text of the Agreement Between Iran and the Agency for the Application of Safeguards in Connection With the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/214, December 13, 1974.

7. INFCIRC/153, arts. 1, 2.

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

9. Safeguards agreements based on INFCIRC/153 include a provision for special inspections, which in principle can be implemented at any location within a state or under its jurisdiction. A requirement for consultations with the states makes this provision very cumbersome. A request for a special inspection in North Korea was refused, and the underlying questions that prompted the request remain unresolved to this day.

10. For example, see Matthew Ferguson and Claude Norman, “All-Source Information Acquisition and Analysis in the IAEA Department of Safeguards,” IAEA-CN-184/048, n.d., https://www.iaea.org/safeguards/symposium/2010/Documents/PapersRepository/048.pdf.

11. Safeguards agreements based on INFCIRC/153 require the state to declare every facility and provide information on its design and operation according to a specified design-information questionnaire. IAEA inspectors are allowed to visit the facility during construction and commissioning and throughout its operational lifetime to confirm that the information provided remains valid. When strengthening the safeguards system after detecting clandestine nuclear weapons activities in Iraq and North Korea, the importance of this measure was emphasized as a means to prevent the misuse of declared facilities.

12. “Complementary access” allows inspectors to carry out activities beyond those foreseen in the safeguards agreements based on INFCIRC/153. These visits are carried out frequently to continue to emphasize the transparency needed to provide assurance that no undeclared activities are under way within a state.

13. GOV/2011/65, annex.

14. As for all non-nuclear-weapon states party to the NPT, the additional protocol that Tehran is expected to bring into force in conjunction with the conclusion of a final agreement between Iran and the P5+1 allows for no exclusions for military bases. States may request that managed-access arrangements be employed as a means to prevent IAEA inspectors from gaining information regarding national security concerns. The IAEA has conducted complementary-access visits at military bases in several states pursuant to an additional protocol. See Pacific Northwest National Laboratory, “Foundations of International Safeguards: Safeguards in the Nuclear Age; 3.0 Legal Foundations of Safeguards,” June 2006, http://cgs.pnnl.gov/fois/videos/foundations.stm (interview with Laura Rockwood).

15. A material balance is akin to balancing a checkbook. The amount of money in the checking account should be the amount at the beginning plus any deposits and less any withdrawals. If the bank indicates a different amount, there is a problem. With nuclear material, the balance is complicated because every amount is based on a measurement, and all measurements are subject to random and systematic errors. In some cases, measurements are not possible or are not made, and estimates are used. In case of shipments and receipts, a shipper will measure one value, and the receiver, using different measurement equipment and perhaps procedures, will measure a different value, all subject to measurement errors.

16. Ralf Wirtz, “Role and Responsibility of the Civil Sector in Managing Trade in Specialized Materials,” in Cultivating Confidence: Verification, Monitoring and Enforcement for a World Free of Nuclear Weapons, ed. Corey Hinderstein (Stanford, CA: Hoover Institution Press, 2010). The Lausanne accord anticipates that a dedicated procurement channel will be created to oversee Iran’s trade in certain nuclear-related and dual-use materials and technologies. The final agreement will determine what role the IAEA will play in this effort.

If the International Atomic Energy Agency receives the support it needs, which is likely, it will be able to carry out effective verification of Iran’s commitments under a comprehensive nuclear deal.

A Convention on Nuclear Security: A Needed Step Against Nuclear Terrorism

June 2015

By Kenneth C. Brill and John H. Bernhard

In his 2009 speech in Prague, President Barack Obama declared, “[W]e must ensure that terrorists never acquire a nuclear weapon. This is the most immediate and extreme threat to global security.” To help deal with this threat, he said the world needed “durable institutions” devoted to the problem and announced that the United States would host a global summit on nuclear security in part to address that issue.[1]

Since the speech in Prague, there have been nuclear security summits in Washington in 2010, Seoul in 2012, and The Hague last year. Obama will host what is widely expected to be the last nuclear security summit in the United States next year. The summits and the work that precedes each of them have generated progress on a variety of issues related to diminishing the threat of nuclear terrorism. Yet, they have not produced any “durable institutions” to prevent nuclear terrorism or any clarity on how the nuclear security regime can be sustainably strengthened once the summits end.

This article reviews the reasons for concern about the threat of nuclear terrorism, analyzes the current state of the nuclear security regime, and describes how an international convention on nuclear security could close existing gaps and be the “durable institution” Obama called for to ensure the nuclear security regime is as dynamic as the threat it is meant to prevent.
 
The Threat

President Barack Obama holds a press conference in The Hague on March 25, 2014, at the end of the nuclear security summit in the Dutch city. (Patrik Stollarz/AFP/Getty Images)Some wonder whether the threat of nuclear terrorism exists outside of novels and Hollywood action films. The administrations of President George W. Bush and Obama have made clear the threat is real. Other global leaders, including those from the other 52 countries that have participated in the nuclear security summits, have done the same. Successive U.S. directors of national intelligence have outlined the reality of the threat in testimony to Congress and in their national intelligence strategies. Yukiya Amano, the director-general of the International Atomic Energy Agency (IAEA), and his immediate predecessor, Mohamed ElBaradei, have described nuclear terrorism as a threat that needs urgent attention.

A nuclear terrorist attack, particularly one involving fissionable materials, would produce devastating international political, economic, humanitarian, and environmental consequences. Expert studies have concluded that even a small nuclear explosion in a major city would immediately kill tens of thousands of people and cause even more deaths subsequently. The explosion would destroy infrastructure over a wide area, and radiation would make a larger area unusable for many years. The costs of attending to the human casualties, relocating large numbers of people, and undertaking new construction and the cleanup of land and buildings, combined with the costs arising from bankruptcies, trade dislocations, and the disruption of energy and other supplies, would most likely be in the trillions of dollars.[2]

Terrorists also could make a device from radiological substances, which are used globally for medical, research, and industrial purposes. A radiological dispersal device, or “dirty bomb,” would produce fewer casualties, but could result in significant consequences and costs for health, infrastructure, and the environment. Such a device also could make many blocks in an urban area too contaminated for humans to work or live in without time-consuming remediation. This would be very expensive and very disruptive to people’s lives, the environment, and the economy.

Terrorist use of any type of nuclear device would cross an important psychological threshold for the public, governments and terrorist groups themselves, taking questions of national and international security into uncharted waters.

At least five terrorist groups, including al Qaeda and the Islamic State, have demonstrated an interest in acquiring and using nuclear material or a nuclear weapon. Terrorists do not need to steal a nuclear weapon. An improvised nuclear device, which would have the explosive power comparable to the weapons used in Hiroshima and Nagasaki, can be made from highly enriched uranium or plutonium being used for civilian purposes. The Islamic State indicated its interest in nuclear terrorism with a boast about constructing a dirty bomb after stealing 88 pounds of unenriched uranium compounds from a university laboratory when it overran Mosul, Iraq, in 2014.[3]

The continued loss, theft, and illegal movement of nuclear and other radioactive materials demonstrate that material is available for terrorists to acquire and use as a weapon. Since 1993, the IAEA has logged some 2,500 cases related to the theft, loss of control, unauthorized possession, or illicit trafficking of nuclear and other radioactive material.[4] The insecurity of nuclear and other radioactive material continues, with some 150 cases of theft, loss of control, or illicit trafficking reported annually. At least 18 cases of confirmed thefts or loss of weapons-usable nuclear material have occurred, the latest in 2011.

The growing global demand for nuclear energy for power production and industrial, medical, and research uses means there will be an increasing amount of nuclear material in a growing number of countries that needs to be secured in the future.

The impact of a terrorist nuclear explosion would be felt far beyond the city and country where it occurred. The entire global community would be affected, particularly those least able to afford it. In a 2005 speech, UN Secretary-General Kofi Annan said an act of nuclear terrorism “would stagger the world economy and thrust tens of millions of people into dire poverty” and create “a second death toll throughout the developing world.”[5] Other likely impacts would be an enhanced focus on security to prevent future nuclear attacks. This would affect international trade and investment, development assistance, and quite possibly domestic and international systems of governance.

For all these reasons, nuclear terrorism must be prevented, as no response could undo the pervasive damage an incident would inflict on individuals, societies, and global approaches to governance and security.

The Current Regime

Over time, the international community has constructed a nuclear security regime that is a patchwork of international treaties, organizations, and initiatives that rely largely on voluntary actions. The two relevant treaties—the International Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material (CPPNM), as well as the latter’s 2005 amendment, which is not yet in force—are narrowly focused in what they address and very general in what they ask states to do. UN Security Council Resolutions 1373, 1540, and 1887 require states to take steps to combat terrorism and prevent the proliferation of nonconventional weapons, including to terrorist and criminal groups. These legally binding international documents are useful, but have little relevance in day-to-day operations to secure nuclear and other radioactive material, in part because some of what they cover includes actions to take after a terrorist attack.

In the wake of the September 11 attacks, the IAEA developed a prominent role in nuclear security. It produced a variety of recommendations, standards, and services to help member states improve their systems for securing nuclear and other radioactive material, but it has no legal mandate to require actions by states, which are free to adopt or ignore IAEA advice related to nuclear security. This is different from the IAEA safeguards agreements that are mandated by the nuclear Nonproliferation Treaty, an international agreement. The IAEA, for example, can review but not require changes in a country’s nuclear security practices, and it can conduct such reviews only if it is asked to do so. The inspected country is under no obligation to do anything in response to the agency’s findings. The IAEA has begun to host ministerial conferences on nuclear security, which, to date, have been mainly opportunities for ministerial speechmaking rather than for decisions on concrete actions.

The final element of the current nuclear security regime is initiatives undertaken by like-minded states. These include the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, the Proliferation Security Initiative, and the Global Initiative to Combat Nuclear Terrorism. These initiatives have produced useful recommendations and actions to strengthen nuclear security and prevent nuclear terrorism and proliferation, but all are voluntary in nature. As a result, some states do more than others, and all states do only what they wish, not necessarily what needs to be done.

The summits have taken the nuclear security issue to the highest political level. The three summits that have taken place to date represent an unusual degree of sustained senior-level attention to a complex technical issue. The leaders have agreed on a variety of measures to address the threat of nuclear terrorism that have yielded very useful results. For example, since the summit process began, some 6,000 pounds of vulnerable nuclear material have been secured, states have developed initiatives and proposals to strengthen protection of nuclear and other radioactive materials, and work plans have been agreed that strengthen regional cooperation.[6] At the 2014 nuclear security summit, 35 of the participating 53 states agreed to incorporate the IAEA nuclear security principles into their national legislation.[7]
 
Assessing the Regime

Although the international community has made progress in improving global nuclear security, the regime’s patchwork and largely voluntary nature is inadequate compared to the consequences of failure. It is vitally important to recognize that the essential elements of an effective and sustainable global nuclear security regime to prevent nuclear terrorism are still missing. The current regime has no agreed and binding standards for securing nuclear and other radioactive materials, no process to assess how states are meeting their responsibility to secure these materials, and, perhaps most importantly, no mechanism to provide a sustained review of and promote improvements in the nuclear security regime as a whole.

Many assume the IAEA performs these functions, but it does not. It has no legal mandate to do so, and most of the funding for nuclear security is still provided by the voluntary contributions of a limited number of member states, not the IAEA’s regular budget. As a result, the IAEA’s possibilities to act are limited by the lack of sufficient resources and its restricted mandate.

In the aftermath of a nuclear terrorism incident, there can be no doubt that the current piecemeal approach to global nuclear security would be seen as woefully and probably irresponsibly deficient. There is no legitimate reason to wait for a catastrophe before developing an integrated global regime to secure nuclear materials. With the nuclear security summit process most likely coming to an end in 2016, there is an urgent need to develop a mechanism that can provide a process for sustained review and improvement of the nuclear security regime beyond 2016. This is crucial in an environment in which there is an increasing amount of nuclear material and the terrorism threat is escalating.

Improving Governance

Politically, the first hurdle to address in the process toward a better regime is the traditional concept of national sovereignty, which often restricts the readiness of states to enter into binding international agreements. Because nuclear security is generally linked to important national institutions, intelligence, and confidentiality, the nuclear security regime traditionally has been nationally based.

States have to strike a more appropriate balance between considerations of national sovereignty and international responsibility. This would be in line with the recognized principle in international law that activities on a state’s territory shall be undertaken in a way that does not seriously affect other states negatively.[8] A defective nuclear security situation in one state obviously is a potentially serious transboundary threat.

A balance along these lines has been developed with regard to nuclear safety in part by adopting the Convention on Nuclear Safety. This difference between nuclear safety and nuclear security is not logical because terrorists might create the same threatening situations that an accident or a natural disaster could.

The growing political consciousness of states regarding the threat, consequences, and importance of the matter should be transformed into legally binding international arrangements. As in many other areas of international cooperation, states should realize that the burden of taking on obligations would be balanced by the benefits of other states doing the same. This approach ensures a more coherent, effective, and sustainable international defense against nuclear terrorism.

Another important prerequisite for the development of strong international governance is universal participation. It has been valuable that groups of like-minded states have taken the lead in the nuclear security summit process and elsewhere, but in the long term, agreements on more-effective implementation and stronger commitments cannot apply only to restricted groups. A global threat should be addressed at the global level.

An effective international regime should build on existing relevant instruments and add the critically important missing elements, such as binding common standards, transparency (while protecting sensitive information), cooperation, reviews, and mechanisms that assess how standards and other commitments are implemented and promote continuous improvement of the regime. This would lay the foundation for confidence in the security regimes nationally and internationally. 

There are various ways to achieve the goal of stronger governance. These include continuing efforts to work within current structures and processes, thereby gradually adding more elements or instruments, binding or nonbinding, to the present patchwork of nuclear security commitments. This approach may eventually bring progress, but its success is uncertain. The most reliable, efficient, and direct way forward is to develop an international convention on nuclear security. This approach can complement existing agreements, address the weaknesses of the current regime, and create a mechanism through which parties to the convention can assess the effectiveness of nuclear security governance and develop ways to improve it.

The Virtues of a Convention

On the basis of the analysis outlined above, an international coalition of multisector experts, the Nuclear Security Governance Experts Group, decided in 2013 that a subgroup of its members should start drafting the model text of an international convention. One of the questions considered was whether a new convention on nuclear security should have the already existing documents attached to it, for example, as protocols or annexes. An argument in favor of this model was that it would become a fully comprehensive international agreement in which all relevant documents on nuclear security could be found.

Yukiya Amano, director-general of the International Atomic Energy Agency, delivers remarks on July 1, 2013, the first day of a nuclear security conference at the agency’s headquarters in Vienna. (Patrick Domingo/AFP/Getty Images)On the other hand, many questions would arise in connection with such a model. For example, could a country that was a state-party only to some of the attached documents become a party to the convention? Would the commitments that are not not legally binding become legally binding if attached to a legally binding convention? Could the existing agreements maintain their independent status in areas such as accession, entry into force, review, and amendments if they were to become attached to the convention? Solutions might be found to most of these questions, but the result could be a labyrinth of obligations that would make many states hesitant to join.

The model international convention on nuclear security[9] that the governance group presented at a press conference in Washington on March 24 therefore does not include existing agreements. Likewise, it does not replace or affect any of the existing instruments or processes. Instead, it supplements them and creates a mechanism to develop and strengthen the international regime further without establishing any new international bureaucracy.

The aim of the convention is ambitious but realistic. It is based on the assumption that many states may not be ready to enter into a large number of new international obligations immediately. Therefore, according to the convention, the future development and strengthening of international governance in this field lies in the hands of states, assembled in the conference of the parties.
 
Main Features of the Convention

The most significant substantive element in the convention is that its annex establishes a set of binding standards for national nuclear security regimes against which the performance of states can be measured. These standards have been reproduced from the IAEA publication titled “Nuclear Security Fundamentals: Objective and Essential Elements of a State’s Nuclear Security Regime.”[10] The standards are the result of extensive negotiations among IAEA member states; the IAEA Board of Governors and General Conference endorsed them in 2012. Thus, they are already generally accepted by states.

In their present form, however, the standards are politically but not legally binding, and states therefore may or may not implement them. By being included in the convention, they are converted into legally binding rules.

The second crucial feature of the draft is the establishment of the conference of parties, which will be responsible for devoting ongoing attention to the nuclear security regime and for making improvements to the regime that are made necessary by factors such as changing threats and technologies. Its comprehensive mandate includes overseeing the implementation of the convention and reviewing the international nuclear security regime in general. It also may play a more dynamic role by identifying weaknesses and gaps in the international regime and determining how to address them, such as by adopting protocols to the convention. The conference would be the “durable institution” that Obama called for in his Prague speech and which does not yet exist.

Adoption of protocols to the convention will be a way to improve and develop the international regime over time. The states themselves would be the masters of this process through negotiations and decisions at the meetings of the conference. The convention should be seen as a living document that leaves the responsibility for the further strengthening of the nuclear security regime to the parties. It contains some basic principles, in particular the common standards, but whether there is a need for additional rules is up to the conference of parties to decide.

The convention would require regular reviews of how states implement their nuclear security responsibilities; these reviews would yield practical and timely results. Here again, the role of the conference of parties is decisive. The conference would adopt the procedures and mechanisms that would apply to the review of the reports from states, which are foreseen in the convention. The convention stipulates that the procedures and mechanisms shall protect the confidentiality of sensitive information. The convention calls for the parties to cooperate in improving training and technical support. The conference is to develop mechanisms for provision of financial and other assistance to parties that may request it.

With regard to scope, the convention would apply to all nuclear and other radioactive materials used for civilian purposes and the facilities in which they are contained. To the extent possible, it also would apply to such materials and facilities used for noncivilian purposes. In other words, the degree to which the convention will cover materials and facilities used for noncivilian purposes is left to the states-parties in question, but the possibility clearly is there.

The parties would hold their first conference no more than 18 months after the date of entry into force of the convention, which like the Convention on Nuclear Safety, requires only 22 ratifications. Thereafter, the parties determine the date of the next meeting, but the interval between the meetings shall not exceed three years. In this way, the conferences will act as a regular and timely forum for review and discussion of the state of the nuclear security regime and of the need for further common steps. Normally, the officials attending the conference would be mid-level political representatives, but it is possible for the conference to meet at a high political level when states-parties so decide.

Finally, the convention foresees an important role for the IAEA as depositary and secretariat. This convention thus would strengthen the IAEA’s nuclear security role and work.

How to Produce a Convention

A key question as the nuclear security summit process nears its end is whether the international community will revert to the institutions, voluntary initiatives, and processes that existed before the summits, which appears to be the current trajectory of summit planning, or if it will start something new.

The convention and its conference of parties would replace and build on the summit process by providing the summit process by providing a forum for examining and developing the nuclear security regime in a way that leads to action, not loose commitments to voluntary recommendations. Starting negotiations on the convention after the end of the summit process is a logical follow-up to the 2014 joint statement on strengthening of nuclear security implementation, which became IAEA Information Circular 869 in October 2014.[11]

The convention and its mechanisms differ from the summit process, however, in that they will be open to all states that are ready to contribute to the strengthening of nuclear security. The convention therefore has the potential of eventually becoming a universal instrument.

An objection raised in some quarters is that although the idea of a convention may be an optimal approach in theory, in reality it would be too difficult to achieve and is impractical. On the contrary, the success of the Vienna Convention on Protecting the Ozone Layer and its Montreal Protocol in effectively addressing a complex technical and economic issue with serious global consequences demonstrates the practicality of the convention approach to an issue such as nuclear security. The ozone treaties were negotiated by a relatively small group of states committed to addressing a global problem. Their intention was that the treaties should be open to all states, and indeed, the ozone treaties have virtually universal membership and are widely seen as a success. With active leadership from a few states, this same approach can work for nuclear security. Clearly, there are potential leaders for this process among the 35 states that are part of the 2014 initiative on strengthening nuclear security implementation.

Another objection to a new, legally binding document is that what is needed is better and more complete implementation of existing international agreements. This objection misses the point that the gaps in the regime described above exist precisely because existing instruments do not address them. As a result, no matter how well they are implemented, the international community will remain vulnerable to nuclear terrorism.

Nonetheless, in parallel with negotiations on a convention, it is important to continue efforts to implement and strengthen the current instruments, for example, by bringing the CPPNM and its amendment into effect and by continuing the ongoing work in international organizations, in particular the IAEA. During negotiations and after entry into force, the aim of the convention is to supplement and support the existing regime and the work of the relevant organizations, not to interfere with them.
 
Ambition Required

Former Secretaries of State George Shultz and Henry Kissinger recently made comments about the need to improve global nuclear security.[12] Shultz noted that the late Max Kampelman, a former close adviser, said the global community and the United States tend to focus on the “what is” of difficult problems, rather than the “what ought to be.” Kissinger added that, in the wake of a nuclear explosion, significant changes would be inevitable. He asked whether the international community is smart enough to make the changes before such an event occurs.

It clearly is time to prove the international community is smart and ambitious enough to move the “is” of nuclear security much closer to the “what ought to be.” An international convention on nuclear security is the best way to do that and to do it sustainably. The goal should be to bring such a convention into force by 2020. That time frame would reflect both the complexity of the problem and the urgent need to address it.


Kenneth C. Brill is a former U.S. ambassador to the International Atomic Energy Agency (IAEA) and the founding director of the U.S. government’s National Counterproliferation Center. John H. Bernhard is a former Danish ambassador to the IAEA and the Organization for Security and Co-operation in Europe and a former legal adviser in the Danish Foreign Ministry. They are members of the Nuclear Security Governance Experts Group.


ENDNOTES

1. Office of the Press Secretary, The White House, “Remarks by President Barack Obama, Hradčany Square, Prague, Czech Republic,” April 5, 2009.

2. See Charles Meade and Roger C. Molander, “Considering the Effects of a Catastrophic Terrorist Attack,” RAND Center for Terrorism Risk Management Policy, 2006, http://www.rand.org/content/dam/rand/pubs/technical_reports/2006/RAND_TR391.pdf; Graham Allison, Nuclear Terrorism: The Ultimate Preventable Catastrophe (New York: Henry Holt and Company, 2004).

3. Amre Sarhan, “ISIS Claims Constructing Dirty Bomb After Stealing 40kg of Uranium,” Iraqi News, December 2, 2014, http://www.iraqinews.com/iraq-war/isis-claims-constructing-dirty-bomb-stealing-40kg-uranium/.

4. International Atomic Energy Agency (IAEA), “Incident and Trafficking Database,” December 9, 2014, http://www-ns.iaea.org/security/itdb.asp.

5. Kofi Annan, ”A Global Strategy for Fighting Terrorism” (keynote address at the International Summit on Democracy, Terrorism and Security, Madrid, March 10, 2005), http://summit.clubmadrid.org/keynotes/a-global-strategy-for-fighting-terrorism.html.

6. Office of the Press Secretary, The White House, “Fact Sheet: Advancing Global Nuclear Security,” March 24, 2014, https://www.whitehouse.gov/the-press-office/2014/03/24/fact-sheet-advancing-global-nuclear-security.

7. Nuclear Security Summit 2014, “Strengthening Nuclear Security Implementation,” March 25, 2014, https://www.nss2014.com/sites/default/files/documents/strengthening_nuclear_security_implementation.pdf.

8. See “Trail Smelter case (United States, Canada),” Reports of International Arbitral Awards, Vol. 3 (2006), pp. 1905-1982, http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf.

9. John Bernhard et al., “International Convention on Nuclear Security,” Nuclear Security Governance Experts Group, March 2015, http://www.nsgeg.org/ICNSReport315.pdf.  

10. IAEA, “Nuclear Security Fundamentals: Objective and Essential Elements of a State’s Nuclear Security Regime,” IAEA Nuclear Security Series, No. 20 (February 2013), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1590_web.pdf.

11. IAEA, “Communication Received From the Netherlands Concerning the Strengthening of Nuclear Security Implementation: Joint Statement on Strengthening Nuclear Security Implementation,” INFCIRC/869, October 22, 2014.

12. Nuclear Threat Initiative, “Excerpts: Nuclear Tipping Point,” Vimeo, February 2014, https://vimeo.com/119287564.

The current regime for nuclear security, although better than it was, is largely nonbinding and has many gaps. The most reliable, efficient, and direct way to improve it is to develop an international convention on nuclear security.

Nonproliferation Benefits of India Deal Remain Elusive

June 2015

By John Carlson

In 2005 the Bush administration decided to normalize India’s participation in international nuclear cooperation. In a joint statement with Indian Prime Minister Manmohan Singh, President George W. Bush announced that he would work to achieve full civil nuclear energy cooperation with India.[1] Singh affirmed that India was “ready to assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States,” and announced a number of nonproliferation and disarmament commitments.

The International Atomic Energy Agency Board of Governors convenes in Vienna on August 1, 2008, for a meeting during which it approved a safeguards agreement with India. (Samuel Kubani/AFP/Getty Images)In 2007, India and the United States concluded a nuclear cooperation agreement. The following year, at U.S. instigation, the Nuclear Suppliers Group (NSG) decided to exempt India from the group’s requirement for comprehensive International Atomic Energy Agency (IAEA) safeguards as a condition for nuclear supply. Ten countries have since signed nuclear cooperation agreements with India.[2]

As a result of the U.S. initiative, India is now receiving the benefits of the nuclear Nonproliferation Treaty (NPT) without assuming any of the NPT’s obligations, a situation widely seen as damaging the NPT. Today, as India seeks to join the NSG, it is timely to reflect whether India can be seen as sufficiently “like-minded” for its bid to gain consensus support.

Commitments Undertaken

A key objective for the 2005 U.S. initiative was to encourage India to meet international nuclear norms. If India really did intend to assume “the same responsibilities and practices…as other leading countries…such as the United States,” what might it be expected to do?

India could reasonably have been expected to assume the same obligations and responsibilities as NPT nuclear-weapon states. There is no justification for India to expect to receive more-favorable treatment than these states if it does not accept obligations that are at least as rigorous.[3] Under the NPT, the nuclear-weapon states have pledged to refrain from transferring nuclear weapons to other states or assisting others to acquire nuclear weapons, to require safeguards on nuclear transfers to non-nuclear-weapon states, and to pursue negotiations on cessation of the nuclear arms race and on nuclear and general disarmament.

In addition to these explicit obligations, the NPT contains implicit principles. For example, in the terms of their voluntary-offer safeguards agreements,[4] the nuclear-weapon states implicitly agree to separate their military and civilian nuclear programs. Another implicit obligation, applicable to all NPT states, is effective control of uranium-enrichment, spent fuel reprocessing, and other sensitive nuclear technologies, a commitment that for nuclear-weapon states arises from the NPT Article I prohibition on assisting others to acquire nuclear weapons. This responsibility encompasses acts of omission, such as inadequate control enabling unauthorized transfer of sensitive technology. Similarly, there is an implicit obligation on all NPT parties to maintain effective security for nuclear materials.

The nuclear-weapon states have incurred further obligations and responsibilities by signing the Comprehensive Test Ban Treaty (CTBT) and allowing the installation of CTBT monitoring stations, supporting the negotiation and conclusion of a fissile material cutoff treaty (FMCT), and placing all imported nuclear material under IAEA safeguards.

In the 2005 joint statement, India undertook to identify and separate civilian and military nuclear facilities and programs “in a phased manner,” voluntarily place civilian facilities under IAEA safeguards, conclude an additional protocol to its IAEA safeguards agreement with respect to civilian facilities, continue its unilateral moratorium on nuclear testing, work with the United States for the conclusion of a multilateral FMCT, refrain from transferring enrichment and reprocessing technologies to new states and support international efforts to limit their spread, and secure nuclear materials and technology through comprehensive export control legislation and through harmonization of and adherence to Missile Technology Control Regime (MTCR) and NSG guidelines.

The first three points were reiterated in the 2007 U.S.-Indian nuclear cooperation agreement.

Comparing Commitments

The commitments assumed by India are considerably less than those of the nuclear-weapon states. The analysis below compares the two sets of commitments point by point.

Not transferring nuclear weapons to other states or assisting others to acquire nuclear weapons. India’s commitments not to transfer enrichment and reprocessing technologies to states that do not have them, to establish comprehensive export control legislation, and to adhere to the NSG guidelines and MTCR regime are welcome, but only partially correspond to the obligations impose by NPT Article I. The effectiveness of India’s export control arrangements is not clear at this stage.

Pursuing negotiations on disarmament. India has given no commitment comparable to the one in NPT Article VI. In contrast to the nuclear-weapon states, India has avoided any legal obligation to engage in nuclear disarmament efforts. There is a limit to how far nuclear disarmament can proceed without India. India actually is working in the opposite direction, increasing its nuclear arsenal.

Separating military and civilian programs and accepting IAEA safeguards. India released its separation plan, as the document is known, in 2006.[5] Fourteen of the 22 power reactors that were in operation or under construction at that time have been or will be designated for IAEA safeguards, together with some associated facilities.[6] For the future, India reserves the right to decide which additional facilities, if any, it will place under safeguards.

In the case of foreign-supplied facilities, India is obliged by the suppliers to place these under safeguards. For indigenous facilities, which include enrichment facilities, fast breeder reactors, and other power reactors, the separation plan says India will take into account “the nature of the facility concerned, the activities undertaken in it, the national security significance of materials and the location of the facilities.”

Major parts of India’s civilian program remain outside IAEA safeguards and evidently will remain so in the future. The relationship among civilian safeguarded facilities,[7] civilian unsafeguarded facilities, and military facilities is opaque, especially in view of the provisions of the Indian-IAEA safeguards agreement. This agreement allows safeguarded material to be used in normally unsafeguarded facilities and in specified circumstances to produce unsafeguarded plutonium and allows unsafeguarded material to be used in safeguarded facilities. Such flexibility is particularly problematic given that, unlike the nuclear-weapon states, India continues to produce fissile material for weapons.

The scope of the nuclear-weapon states’ voluntary-offer safeguards agreements varies. The Chinese and Russian agreements designate certain facilities as eligible for safeguards, while the United Kingdom and the United States make all civilian facilities eligible for safeguards. France is in between; all facilities with material under bilateral safeguards obligations are designated for IAEA safeguards. In spite of their variations, however, these agreements are consistent in not allowing the use of safeguarded material in unsafeguarded facilities, or vice versa. Facilities either are designated for safeguards, or they are not.

As for India’s additional protocol, New Delhi has reneged on its commitment, made in the 2005 joint statement and the 2007 cooperation agreement, to apply this to its civilian facilities. India’s additional protocol is the most limited of all. The Chinese and Russian additional protocols apply at least to facilities involved in collaborative programs with non-nuclear-weapon states, while the UK and U.S. protocols apply to all the civilian facilities in those countries. India’s additional protocol, however, does not apply to any facilities. This blatant dishonoring of a specific commitment raises questions about India’s attitude toward commitments.

Safeguards in India have some positive aspects. For example, designation of a facility for safeguards is irreversible. In addition, India has placed a larger proportion of facilities under safeguards than China and Russia have, although nowhere near the examples of the UK and the United States, and the IAEA undertakes inspections at all safeguarded facilities. Nevertheless, the separation between military and civilian programs in India has a long way to go compared with the nuclear-weapon states.

Signing the CTBT and hosting CTBT monitoring stations. Signing the CTBT would be a major step in support of nuclear disarmament. The CTBT requires ratification by 44 specified countries before it can enter into force. Eight of those countries have not ratified the treaty: China, Egypt, Iran, Israel, and the United States, which have signed but not ratified the treaty, and India, North Korea, and Pakistan, which have not signed it.

U.S. ratification depends on gaining the necessary number of votes in the Senate, which the Obama administration is pursuing. The general expectation is that when the United States is able to ratify the treaty, China and most of the others will quickly follow. If India does not ratify the CTBT, however, China could use that as a reason not to do so. India’s position therefore is critical because signing the CTBT will build confidence in its intentions among the other holdouts.

A further negative factor is that late in the CTBT negotiations, India withdrew approval for the four monitoring stations planned for its territory.[8] The absence of these stations detracts from the ability of the CTBT monitoring system to provide effective coverage of a key part of the world—South Asia, China, Central Asia, and the Middle East. India has said it will maintain its unilateral test moratorium, but New Delhi’s refusal to allow these stations can be seen as casting doubt on its commitment to its test moratorium. India should show good faith by allowing the four monitoring stations to proceed and signing the CTBT.

Supporting an FMCT. The effort to achieve a global cutoff of fissile material production for nuclear weapons is another important area in which India could demonstrate its good intentions. Along with North Korea and Pakistan, India is one of only three countries still producing fissile material for nuclear weapons. It is not asking too much for India to seriously consider ceasing production of fissile material now as the nuclear-weapon states did many years ago.[9] Serious moves in this direction would have an immediate effect in reducing tensions with Pakistan. Indeed, India could show leadership by initiating negotiations with Pakistan on a bilateral fissile material cutoff agreement.

Placing all imported nuclear material under IAEA safeguards. Under its agreement with the IAEA, India accepts safeguards on imported nuclear material only if this is required by an arrangement to which India is a party, such as a bilateral nuclear cooperation agreement. Today, all established uranium suppliers are NPT parties obliged to require safeguards on all nuclear transfers to a nonparty. It is not known whether all countries supplying uranium to India are insisting on safeguards; if not, they are in violation of their NPT obligations. It would be regrettable if India were taking advantage of this. It would be a welcome gesture of good faith for India to place all imported nuclear material under IAEA safeguards.

Bilateral Agreements

A number of major suppliers—Australia, Canada, Japan, the United States, and the European Union—apply similar conditions for the supply of nuclear material and other goods. They require the recipient country to accept conditions covering areas such as peaceful assurances, application of IAEA safeguards, and consent rights for reprocessing, enrichment to levels above 20 percent uranium-235, and retransfers. The agreements include accounting and tracking requirements so that material and items subject to the agreements can be identified.

India has refused to allow suppliers to track nuclear material, maintaining that IAEA safeguards are sufficient. The IAEA, however, does not distinguish between materials of different origins. Without tracking, material covered by particular agreements cannot be readily identified, making it impossible to know if bilateral conditions are being met.

Because of India’s refusal to accept tracking, the administrative arrangement required for the 2007 U.S.-Indian nuclear agreement to go into effect still has not been concluded.[10] Following President Barack Obama’s visit to India in January, it seems that officials have finally found a practical solution. It appears that the United States would supply nuclear material only in the form of fuel assemblies for U.S.-supplied reactors. This material would stay in a self-contained U.S. bubble within the Indian fuel cycle. India would provide detailed reactor operational information to enable the United States to calculate plutonium production.

It is difficult to understand why India has been so obstinate on this issue. Once India adopts modern nuclear accounting, a step the IAEA is working to help it achieve, New Delhi could easily generate the information required under bilateral agreements in the same way as every other country with such agreements.

Conclusion

On the basis of the terms set by the 2005 joint statement—that India is ready to assume the same responsibilities and practices as other leading countries, such as the United States—lifting the barriers to nuclear cooperation with India cannot be considered a success. The disparity between the commitments assumed by the NPT nuclear-weapon states and those of India clearly shows the opportunity lost in failing to require more of India. As a result of that failure, India has achieved a privileged position, gaining the benefits of the NPT without any of the obligations.

This situation has been exacerbated by the willingness of some governments to compromise nuclear cooperation standards for short-term political gain. Far from assisting India’s integration into the global nuclear community, such compromises will make integration longer and more fraught. Lifting the restrictions on India was intended to bring India into the nonproliferation mainstream. Yet, India has shown limited interest in meeting international nuclear norms and is instead determined to go its own way. This will not be lost on governments considering whether India is sufficiently like-minded to join the NSG.

At a time when Russia and the United States have made very substantial cuts to their nuclear arsenals and the international community is calling for the other nuclear-armed countries to join in arms reductions, India is working in the opposite direction. Indians see access to imported nuclear material as freeing up indigenous material for their weapons program.[11] With its civilian and military programs closely linked, New Delhi is operating on a fuel cycle model that the nuclear-weapon states abandoned decades ago. Moreover, India is increasing production of fissile material, adding to regional tensions.

It is alarming that New Delhi has not articulated the limits of its nuclear ambitions. Indian leaders believe that their country’s principal adversary is not Pakistan, with which it has broad nuclear parity, but China. This suggests India could be considering increasing its nuclear arsenal by a factor of two or three or perhaps more.
It can be hoped that India’s role in international nuclear affairs will be more positive, but a transition from nuclear outlier to leader will require a major change in India’s attitude toward disarmament and regional security.


John Carlson is a counselor to the Nuclear Threat Initiative and nonresident fellow at the Lowy Institute in Sydney. He was director-general of the Australian Safeguards and Nonproliferation Office and chair of the International Atomic Energy Agency’s Standing Advisory Group on Safeguards Implementation. The views in this article are his own.



ENDNOTES

1. Office of the Press Secretary, The White House, “Joint Statement Between President George W. Bush and Prime Minister Manmohan Singh,” July 18, 2005.

2. In addition to the United States, the countries that have signed and brought into force an agreement with India are Argentina, Canada, France, Kazakhstan, Mongolia, Namibia, Russia, South Korea, and the United Kingdom. Australia has signed an agreement.

3. For more, see John Carlson, “Challenges and Opportunities for Extending NPT-Related Commitments to Non-NPT States,” Policy Brief, No. 15 (September 2014), http://www.a-pln.org/content/policy-brief-no-15-challenges-and-opportunities-extending-npt-related-commitments-non-npt.

4. Under their voluntary-offer safeguards agreements, nuclear-weapon states under the nuclear Nonproliferation Treaty can designate facilities that are eligible for International Atomic Energy Agency (IAEA) safeguards. The IAEA can select from these eligible facilities for conducting safeguards activities. In practice, for reasons of resource limitations, the IAEA conducts safeguards at only a limited number of facilities in nuclear-weapon states.

5. IAEA, “Communication Dated 25 July 2008 Received From the Permanent Mission of India Concerning a Document Entitled ‘Implementation of the India-United States Joint Statement of July 18, 2005: India’s Separation Plan,’” INFCIRC/731, July 25, 2008.

6. Of the 14 reactors designated for safeguards, six already were subject to safeguards because they were supplied by a foreign country. Thus, the net increase for safeguards is eight indigenous reactors.

7. In this context, the term “civilian safeguarded facilities” means the facilities that are listed in the annex to India’s IAEA safeguards agreement.

8. Ramesh Thakur and John Carlson, “How India Can Support the CTBT Before Signing,” Japan Times, April 8, 2015, http://www.japantimes.co.jp/opinion/2015/04/08/commentary/world-commentary/india-can-support-ctbt-signing.

9. France, Russia, the United Kingdom, and the United States have formally declared that they are not producing fissile material for nuclear weapons. China has not made such a declaration, but is believed to be following suit.

10. A further issue, outside the scope of this paper, is India’s nuclear liability laws.

11. See Akhilesh Pillalamarri, “India’s Nuclear-Weapons Program: 5 Things You Need to Know,” The National Interest, April 22, 2015, http://www.nationalinterest.org/feature/indias-nuclear-weapons-program-5-things-you-need-know-12697?page=show.

The lifting of the barriers to international nuclear cooperation with India was intended to bring New Delhi into the nonproliferation mainstream.

The Disarmament Deficit

Over the past 45 years, the nuclear Nonproliferation Treaty (NPT) has put in place an indispensable yet imperfect set of rules for creating a safer world. But to ensure the treaty remains relevant and effective, all states-parties must provide leadership and take action to fulfill the treaty’s lofty goals and aspirations.

The imperfections of the NPT and the divisions among key parties were exposed at the treaty’s most recent review conference in New York, which ended on May 22. In the final hours, states-parties failed to reach consensus on a final conference document due to differences between Egypt and Israel on the process for convening a long-sought conference on a zone free of weapons of mass destruction in the Middle East. 

More significantly, however, states-parties failed to produce an updated, meaningful action plan on disarmament that builds on the commitments they made at the 2010 review conference. These include steps to “to accelerate concrete progress on the steps leading to nuclear disarmament,” including “all types of nuclear weapons,” and action toward entry into force of the 1996 Comprehensive Test Ban Treaty (CTBT).

Since the negotiation of the 2010 New Strategic Arms Reduction Treaty (New START), which modestly reduces U.S. and Russian forces, progress on disarmament has been stalled. Neither Washington nor China, two key treaty holdouts, is any closer to ratifying the treaty. As New Zealand’s delegation noted, progress in other areas has been underwhelming at best.

In response, three-quarters of all states at the 2015 conference argued that the catastrophic humanitarian consequences of nuclear weapons use underscore the need to act with greater urgency to eliminate nuclear weapons dangers. The NPT’s five nuclear-weapon states insisted that the pursuit of disarmament must be step by step, which requires time and the right security conditions. For now, they argued, their security requires nuclear weapons.

Surely, the recent downturn in U.S.-Russian relations and growing U.S.-Chinese tensions make progress difficult, but it does not excuse the nuclear-armed states from their NPT Article VI disarmament commitments. Unfortunately, the nuclear-weapon states came to the NPT conference without new ideas or proposals for overcoming obstacles to further disarmament. 

U.S. Secretary of State John Kerry reiterated a June 2013 U.S. proposal for talks with Russia on a further one-third reduction of their strategic nuclear arsenals. But Russia’s delegation argued that it had reduced to its “minimum level” and that, “[in] fact, it is the U.S. policy” and the “build-up of the global missile defense system” that prevent further progress.

Complicating matters, U.S. President Barack Obama and Russian President Vladimir Putin are pursuing very expensive strategic nuclear modernization programs designed to maintain force levels in excess of plausible deterrence requirements for decades to come. 

For example, the U.S. Air Force wants 1,000-1,100 new, nuclear-capable air-launched cruise missiles, which are a nuclear warfighter’s dream and an arms controller’s nightmare because New START does not cap the number of bombs or cruise missiles that can be carried on treaty-limited strategic bombers. Meanwhile, China is continuing to gradually expand its arsenal and has begun to deploy multiple warheads on its intercontinental ballistic missiles. 

The nuclear-weapon states successfully brushed aside calls for new benchmarks and timelines. The draft final document only would have “encouraged” Russia and the United States to hold talks on further nuclear cuts and the nuclear-weapon states to “engage…with a view to achieving rapid reductions in the global stockpile of nuclear weapons.”

In response, 107 governments joined an Austrian-led initiative known as the Humanitarian Pledge, which calls on states “to identify and pursue effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons.” 

It is in the interest of all states to pursue new and more-effective measures to address the disarmament deficit. The NPT draft conference document suggests a potentially useful path—an “open-ended working group” established by the UN General Assembly to “elaborate effective measures for the full implementation of Article VI of the treaty.”

Some states and civil society campaigners want to begin negotiations on a treaty to ban the possession and use of nuclear weapons. A ban is a necessary step toward a world without nuclear weapons, but will not by itself change dangerous nuclear doctrines or eliminate nuclear arsenals. Nevertheless, pressure for a ban treaty will grow unless the nuclear-armed states accelerate action on disarmament.

Moscow and Washington could announce they will implement New START cuts early and immediately begin talks on a follow-on treaty that would take into account other types of strategic weapons. China could freeze the overall size of its nuclear arsenal as long as the United States and Russia continue to reduce theirs. This would help establish the conditions for a series of high-level summits on multilateral, verifiable nuclear disarmament involving the world’s seven acknowledged nuclear-armed states and leading non-nuclear-weapon states.

Without fresh thinking and renewed action on the 70-year-old problem of nuclear weapons, the future of the NPT will be at risk and the possibility of nuclear weapons use will grow. 

Over the past 45 years, the NPT has put in place an indispensable yet imperfect set of rules for creating a safer world. But to ensure the treaty remains relevant and effective...

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