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International law and nuclear energy: Overview of the legal framework

The global legal order for the atom's safe and peaceful uses is grounded on a mix of binding norms and advisory regulations

by n eaceful applications of nuclear energy — and used in such a way as to further any military Mohamed all the promise they entail for humanity — are purpose". ElBaradei, Edwin paradoxically often perceived in juxtaposition with Over the past three decades, international co- Nwogugu the prospects of nuclear weapons' proliferation and operation in the field of nuclear energy has yielded and John Rames nuclear war. The mixed perception is under- a mix of legally binding rules and advisory stand- standable: the materials, knowledge, and expertise ards and regulations. This article presents an over- required to produce nuclear weapons are often in- view of this global legal framework for nuclear distinguishable from those needed to generate nu- energy's safe and peaceful development. It specifi- clear power and conduct nuclear research. cally addresses areas of nuclear safety, radiation As a result, the focus of the international com- protection, radioactive waste management, the munity has always been to ensure that nuclear transport of radioactive materials, emergency assis- energy is used peacefully and safely. The approach tance and planning, civil liability for nuclear dam- is defined by a complex network of national and age, physical protection of , armed international measures. For while it was accepted attacks against nuclear installations, and IAEA that the primary responsibility for the regulation of safeguards and verification. the use of nuclear energy rests with national authorities, it has been equally recognized that other countries may be affected as well. Conse- The safe use of nuclear energy quently, the regulation of nuclear energy, like so many other human activities which could have Article III.A.6 of the IAEA Statute empow- potential transboundary impacts, necessitates the ers the Agency to establish or adopt standards of endowment of the international community with safety for the protection of health and the mini- residual responsibility, or in certain instances co- mization of danger to life and property. That responsibility, to ensure among other things uni- provision also requires that those standards must formity of standards, co-ordination, pooling of re- be applied to the IAEA's own operations and to sources and services, as well as compliance.* operations making use of materials, services, In this respect, the IAEA, among other interna- equipment, facilities, and information made tional and regional organizations, has served as a focal available by the Agency or at its request or under point. Article II of die IAEA Statute provides that its control or supervision. States which receive "the Agency shall seek to accelerate and enlarge the technical assistance or reactor project assistance contribution of atomic energy to peace, health, and must sign an agreement with the IAEA in which prosperity throughout the world" and to ensure so far they undertake to apply to the assisted operations as it is able, "that assistance provided by it or at its the Agency's safety standards and measures that request or under its supervision or control is not are specified in the agreement. The Statute also authorizes the Agency to apply its safety stand- ards, at the request of States, to any of their operations or activities. Mr. ElBaradei is Assistant Director General and Director of the In fulfilling its statutory function of develop- IAEA Division of External Relations. Messrs. Nwogugu and Rames are senior staff members in the IAEA Legal Division. ing safety standards, the IAEA takes account of This article is based upon more comprehensive information in the two-volume book, The International Law of Nuclear En- ergy: Basic Documents, which the authors edited and was * See generally, "The Role of the IAEA in the Development published in 1993 by Martinus Nijhoff Publishers, P.O. Box of International Law", by Dr. Hans Blix, Nordic Journal of 163, 3300 AD Dordrecht, The Netherlands. International Law, 58 (1989).

16 IAEA BULLETIN, 3/1995 FEATURES the work of relevant international scientific and culture Organization (FAO) of the United Nations, technical bodies, such as the International Com- and the Pan-American Health Organization mission on Radiological Protection (ICRP), the (PAHO). The IAEA Board of Governors approved United Nations Committee on the Effects of the revised standards in September 1994. Atomic Radiation (UNSCEAR), the World The BSS are complemented by other stand- Health Organization (WHO), and the Interna- ards dealing with particular aspects of radiation tional Labour Office (ILO). protection: occupational protection; protection Concern to ensure the safe use of nuclear of the public and the environment; and interven- energy — which includes activities making use tion in case of a nuclear accident or radiological of the by-products of nuclear energy and the use emergency. of radioactive substances in medical, industrial, and agricultural activities — is caused by the capacity of to cause damage to Safety of plants living beings and the environment. The safety objectives strive to protect living beings, society, The IAEA has developed Nuclear Safety and the environment against the adverse effects Standards (NUSS) for nuclear power plants of ionizing radiation. which were prepared by experts from its Member International action in this field began with States. They cover the following five areas: gov- the establishment of the ICRP, which has issued ernmental organization of regulation of nuclear recommendations on since power plants; safety in sit- its inception in 1928. In 1955, the United Nations ing; safety in the design of nuclear power plants; General Assembly established UNSCEAR to safety in nuclear power plant operation; and evaluate doses, effects, and risk from ionizing quality assurance for safety of nuclear power radiation on a worldwide scale. The work of plants. It was considered that formalized safety these two bodies provides the basis for the stand- criteria, covering these areas, in the form of ards elaborated by other international and re- codes of practice and guides, would considerably gional organizations, such as the IAEA, ILO, assist in ensuring that the basic requirements on WHO, Euratom, and the NEA. In developing which the safety of nuclear power plants rest are standards, these organizations have built close understood and met. These basic requirements working relationships. are: an adequate supply of trained personnel at a The need to establish appropriate standards plant and to staff a regulatory agency; the ability designed to ensure the safe use of nuclear energy to conduct a careful and detailed safety evaluation is reflected in the constituent instruments of such of a nuclear power plant project from its inception organizations. The binding nature of the safety and at all stages throughout its life; and, the standards developed pursuant to such interna- ability to conduct an appropriate quality assurance tional instruments varies. Thus, while the safety programme including control and inspection. standards developed by Euratom are mandatory, Codes of Practice relating to each of the five the activities relating to safety regulation of the areas were initially issued in 1978, and have been Nuclear Energy Agency of the Organization for subsequently revised. The Codes are supple- Economic Cooperation and Development mented by more than 60 Safety Guides which (OECD/NEA) and the Arab Atomic Energy detail their implementation. Agency (AAEA) are recommendatory. The Although the international community at IAEA's safety standards are mandatory with re- large is not yet willing to transform these recom- gard to nuclear activities undertaken with IAEA mendations into binding standards, they are assistance, but where such assistance is not pro- widely used in the elaboration of national regu- vided the standards are recommendatory. lations. However, the application of NUSS is Radiation protection. The scientific basis mandatory where assistance is provided by or for radiation protection standards is found in through the IAEA. recommendations made, and periodically re- Nuclear safety convention. In September viewed, by the ICRP which take account of the 1994, the International Convention on Nuclear UNSCEAR studies. Safety was opened for signature at the IAEA The work underlies the International Basic General Conference. Since then, six of the 58 Safety Standards (BSS) for Protection Against signatory States have become parties to the Ionizing Radiation and for the Safety of Radia- Convention. tion Sources by which the IAEA, ILO, WHO, The Convention commits participating and NEA have provided a worldwide basis for States to ensure the safety of land-based civil harmonized and up-to-date standards. The BSS nuclear power plants including such storage, recently were reviewed and revised by those four handling, and treatment facilities for radioactive organizations together with the Food and Agri- materials as are on the same site. States are

IAEA BULLETIN, 3/1995 17 FEATURES

obliged to take within the framework of their In 1990, the IAEA General Conference national laws, the legislative, regulating and ad- adopted a Code of Practice on International ministrative measures, and other steps necessary Transboundary Movement of Radioactive for implementing their obligations under the Waste. The Code's purpose is to provide preven- Convention. Main features include the estab- tive measures against any uncontrolled interna- lishment of a reporting system on the implemen- tional movement and disposal of such waste. tation by Contracting States of the obligations of States and international organizations have the Convention. also been engaged in the regulation of radioac- Notification of a nuclear accident and tive waste. Two examples may be given. The emergency assistance. Following the Three Antarctic Treaty (Article V) prohibits the dis- Mile Island (TMI) nuclear accident in 1979 in the posal of radioactive waste in the Antarctic re- United States, the need to create a framework for gion. Similarly, Article IV of the London Con- reporting and mutual assistance in nuclear acci- vention 1972 regulates the sea dumping of radio- dents was brought home to the international active waste. In February 1994, amendments to community. Under the auspices of the IAEA, the London Convention took effect that prohibit two documents were developed after TMI that the dumping of all types of radioactive waste at set guidelines for States. sea. Further, Article 5 of the Convention on the In the aftermath of the Chernobyl accident in Prevention of Marine Pollution from Land-Based 1986, two conventions — the Convention on Sources obliges Member States to adopt measures Early Notification of a Nuclear Accident and the to eliminate pollution of the marine area by radio- Convention on Assistance in Case of a Nuclear active substances from land-based sources. Accident or Radiological Emergency — were Regional regulation of sea dumping of radio- elaborated and adopted within the framework of active waste has also been undertaken in various the IAEA. The Conventions came into force on parts of the world. In 1977 a Decision of the 27 October 1986 and 26 February 1987, respec- OECD Council replaced the ad hoc and volun- tively. Seventy-four States have become parties to tary arrangements previously in existence with a the early notification convention and 70 States have Multilateral Consultation and Surveillance become parties to the assistance convention. Mechanism for Sea Dumping of Radioactive A number of bilateral and regional arrange- Waste. The decision commits participating coun- ments also exist in these areas. In 1963, the tries to apply the guidelines and procedures Nordic Emergency Assistance Agreement in adopted within the NEA and to subject their sea Connection with Radiation Accidents was con- dumping operations to the system of prior con- cluded between the IAEA and the governments sultation and international surveillance organ- of Denmark, Finland, Norway, and Sweden. ized by the NEA. Other examples of regional ar- Also the Council of European Communities rangements are the Convention on the Pollution of adopted on 11 December 1984 a Decision on the Mediterranean Sea, 1976 and its two Protocols Community Arrangements for the Early Ex- of 1976 and 1980; the Convention on the Protec- change of Information in the Event of a Radio- tion of the Marine Environment of the Baltic Area, logical Emergency. 1974; and the South Pacific Convention for the Protection of the Natural Resources and Environ- ment of the South Pacific Region, 1986. Radioactive waste management The concern of developing countries that ra- dioactive waste is not imported into their territo- In view of the potential hazard to man and the ries was largely responsible for the inclusion in environment posed by radioactive waste, its Article 39 of the Fourth Convention (1989) be- management and disposal have become an im- tween African, Caribbean, and Pacific States and portant issue in considering the nuclear power the European Economic Community of an un- option and in the use of nuclear materials. The dertaking by the Community to prohibit the ex- IAEA has developed safety objectives for the port of such waste from the territory of its Mem- management of radioactive waste. Several IAEA ber States. On the other hand, the African, Carib- documents further have established criteria to bean and Pacific States undertook to prohibit the govern the management and disposal of radioac- import of radioactive waste from the Community tive waste. The IAEA also established the Radio- or from any other country. In conformity with active Waste Safety Standards (RADWASS) this provision, Article 4 of the Bamako Conven- programme in 1991 to prepare a harmonized tion on the Ban of the Import into Africa and the approach to the safe management of radioactive Control of Transboundary Movement of Hazard- waste at the international level. RADWASS will ous Wastes within Africa — which was adopted constitute a hierarchy of documents headed by a by the Organization of African States in January Safety Fundamentals document. 1991 — prohibits the import of all hazardous

18 IAEA BULLETIN, 3/1995 FEATURES wastes including radioactive substances into Af- In 1993, a Joint Working Group of the IAEA, rica from non-contracting parties. IMO, and United Nations Environment Pro- Steps toward convention on radioactive gramme (UNEP) elaborated a draft "Code for waste management. In 1993, the IAEA General the Safe Carriage of Irradiated Nuclear Fuel, Conference requested the Directed General "to Plutonium and High Level Radioactive Wastes initiate preparations for a convention on the in Flasks on board Ships". The Code has re- safety of waste management as soon as the ongo- ceived the approval of the IMO Assembly and of ing process of developing waste management the IAEA's policy-making organs. safety fundamentals has resulted in broad inter- national agreement". At its March 1995 session, the IAEA Board approved the safety fundamen- Civil liability for nuclear damage tals document entitled "The Principles of Radio- active Waste Management". The document will The mitigation of the consequences of a nu- facilitate the work of an open-ended group of clear accident through prompt and adequate technical and legal experts charged with carrying compensation is an important component of the out the necessary substantive preparations for a regime for the safe utilization of nuclear energy. convention on the safety of radioactive waste Today several international conventions regulate management. Toward this end, the group has liability for nuclear damage. held meetings in February and in July 1995. The first is the 1963 Vienna Convention on Civil Liability for Nuclear Damage, concluded under the auspices of the IAEA. This Convention Transport of radioactive materia! is worldwide in scope but only 14 States have become parties. The second is the 1960 Paris The IAEA has taken the lead in developing Convention on Third Party Liability in the Field appropriate regulations for the safe transport of of Nuclear Energy concluded within the frame- radioactive material. It first published Regula- work of the OECD. This Convention, which is tions for the Safe Transport of Radioactive Ma- regional in character and has 14 Western Euro- terials (Safety Series No. 6) in 1961 for applica- pean States Party to it, was supplemented in 1963 tion to all means of national and international by the Brussels Supplementary Convention. transport. The Regulations since then have been Both the Paris Convention and the Brussels Sup- widely accepted and adopted by competent inter- plementary Convention have been amended by national bodies as binding requirements for the Protocols in 1964 and 1982. transport of radioactive materials. The basic features of the Vienna and Paris The transport of radioactive materials has Conventions are identical. Both are based on the also been dealt with through conventions. A well exclusive and strict liability of the operator of a known example is the International Convention nuclear installation, on limitation of liability in for the Safety of Life at Sea (SOLAS), 1974. It amount and in time, and on the jurisdiction of the regulates, inter alia, the transport of dangerous courts of the installation State. Both Conventions goods including radioactive materials. Article 23 provide for a minimum amount of compensation of the United Nations Convention on the Law of and for financial coverage through insurance or the Sea, 1982, regulates the exercise by foreign other financial security and, in the case of the nuclear-powered ships or ships carrying nuclear Brussels Supplementary Convention, through a substances of the right of innocent passage system of state funding. through the territorial sea of States. Two other Conventions deal with the ques- Safety standards for nuclear merchant tion of liability in the context of marine carriage. ships. Action to reconsider the safety standards for The 1962 Convention on the Liability of Opera- nuclear merchant ships, established by the Interna- tors of Nuclear Ships, which is not yet in force, tional Maritime Organization (IMO) in 1981 has and the 1971 Convention Relating to Civil Li- been instituted. In September 1990, the IAEA Gen- ability in the Field of Maritime Carriage of Nu- eral Conference requested the Director General" to clear Materials. Both Conventions are based on consult, ...with the International Maritime Organi- the principle of strict liability of the operator. zation the plans of the international maritime com- Regarding nuclear-related incidents in outer munity regarding civilian nuclear-powered ships, space, liability for nuclear damage is covered by the need to review the Code of Safety for Nuclear the 1972 Convention on International Liability Merchant Ships in the light of existing nuclear for Damage Caused by Space Objects. It would safety technology, and whether the Code at present govern, inter alia, situations where a space ob- applies to all existing and projected civilian nu- ject is either propelled with nuclear power or clear-powered ships, and if not, the implications carries nuclear objects. In 1992 the UN General of extending the Code to all such ships". Assembly adopted a resolution on the principles

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relevant to the use of nuclear power sources in quirements for effective physical protection. outer space. They apply to nuclear material in domestic use, For nuclear power plants, the Chernobyl ac- transport and storage; to nuclear material in in- cident made it clear that the existing liability ternational transport; and to nuclear facilities in regime is not adequate to ensure equitable and a State. Although these recommendations are not rapid compensation, particularly in the event of binding, their application is required by the large-scale damage. This is because of the re- IAEA in agreements with States that receive as- gime's limited territorial application, its narrow sistance from it. An equivalent requirement has definition of damage, and the low level of guar- been included by a number of States in bilateral anteed compensation under it. nuclear co-operation agreements. The existing regime is being strengthened. In The Convention on the Physical Protection of 1988, a Joint Protocol Relating to the Application Nuclear Material was adopted on 26 October of the Vienna Convention and the Paris Conven- 1979 and entered into force on 8 February 1987. tion was concluded. Its basic aim is to extend the Its scope of application is narrower than the rec- scope of application of both Conventions. It also ommendations, in that the Convention applies resolves potential conflicts of law which could primarily to nuclear material while in interna- result from the simultaneous application of the two tional nuclear transport (which necessarily in- Conventions to the same nuclear accident, notably cludes storage incidental to such transport). in the case of international transport. A Review Conference of Parties to the Con- In 1990, the IAEA Board of Governors de- vention was held in Vienna in September 1992. cided to set up a Standing Committee on Liabil- Among other things, the Conference affirmed ity for Nuclear Damage. It was requested to con- that the Convention provides a sound basis for sider international liability for nuclear damage, physical protection of nuclear material during including international civil liability, interna- international transport and is acceptable in its tional State liability, and the relationship be- current form. The Conference also called upon tween international civil and State liability. the IAEA to organize a meeting to examine the The work of the Standing Committee has IAEA physical protection recommendations in shown broad areas of agreement on proposals for IAEA document INFCIRC/225/Rev. 2, and to the revision of the Vienna Convention. Attention consider the incorporation of further guidance on has shifted mainly to the feasibility of elaborat- such issues as irradiated fuel, nuclear material ing a supplementary funding convention. A contained in waste, and other matters. As a result number of proposals have been considered in this of a Technical Committee meeting in June 1993, respect but no general agreement has been revised recommendations were issued in Sep- reached. The Committee has recommended to tember 1993 (as INFCIRC/225/ Rev.3) that re- the IAEA Board that a diplomatic conference be flect the Committees's views in these respects. convened in 1996 to be devoted to the revision of the Vienna Convention and supplementary fund- ing. The Board is expected to act on the recom- Armed attacks against nuclear installations mendation at its meetings in September 1995. Protocols I and II Additional to the Geneva Conventions of 1949* relate to the protection of Physical protection of nuclear material victims of international armed conflicts and of non-international armed conflicts, respectively. Two international instruments provide the Article 56 of Protocol I and Article 15 of Proto- basis for the physical protection of nuclear mate- col II relate to the protection of, among other rial: a set of recommendations and a Convention, things, nuclear electrical generating stations both developed under IAEA auspices. The protection accorded by the Protocols ap- The set of recommendations was first devel- plies only to a limited category of nuclear instal- oped in 1972 and has been revised on three occa- lations. The phrase "nuclear electrical generat- sions since then: 1975,1977, and 1989. The major ing stations" obviously includes nuclear power purposes of the most recent revision were to give reactors. However, it would not include nuclear equal treatment to the concerns relating to un- research reactors, enrichment facilities, fuel fab- authorized removal of nuclear material and sabo- tage of nuclear facilities; to reflect the existence of the Convention on the Physical Protection of Nu- * The four 1949 Geneva Conventions to which the Protocols clear Material; and to strengthen the recommenda- are additional relate, respectively, to: the amelioration of the wounded and sick in armed forces in the field; the ameliora- tions on several points of standard practice. tion of the conditions of wounded, sick and shipwrecked The recommendations reflect a broad con- members of armed forces at sea; the treatment of prisoners of sensus among IAEA Member States on the re- war; and, the protection of civilian persons in times of war.

20 IAEA BULLETIN, 3/1995 FEATURES rication facilities, reprocessing facilities, and graphical locations where nuclear weapons can spent fuel storage facilities. All such facilities, be tested, deployed, and/or used. particularly the last two, could cause substantial The Treaty on the Non-Proliferation of Nu- radioactive releases if attacked. clear Weapons (NPT), the Treaty for the Prohi- Although the need to prohibit armed attacks bition of Nuclear Weapons in Latin America (the on all nuclear facilities and the urgency of con- Treaty of Tlatelolco), and the South Pacific Nu- cluding an international agreement relating clear Free Zone Treaty (the Treaty of Rarotonga) thereto, seems to be generally recognized, the illustrate the requirements applicable to non-nu- establishment of more comprehensive interna- clear weapon States. They are designed primarily tional rules in this area is still in the process of to prevent horizontal proliferation. These three development. Thus, for example, the IAEA Gen- treaties couple the prohibition on the acquisition eral Conference in 1987 adopted a resolution of nuclear weapons with a requirement that the regarding Protection of Nuclear Installations parties thereto accept IAEA safeguards on all against Armed Attacks. In the preamble of that existing and future nuclear activities. resolution, the General Conference recorded that During the early 1970s, two non-treaty initia- it was " aware of the fact that an armed attack on tives were undertaken by a number of States to a nuclear installation could result in radioactive support the non-proliferation regime. The first releases with grave consequences within and be- group of States, known as the "Zangger Commit- yond the boundaries of the State which has been tee", are all parties to the NPT. The Committee's attacked" and was "convinced of the need to aim was to establish a uniform approach to the prohibit armed attacks on nuclear installations implementation of the obligation contained in Ar- from which such releases could occur and of the ticle ni.2 of the NPT, by defining the source and urgency of concluding an international agree- special fissionable material and the equipment or ment in this regard". material especially designed or prepared for the processing, use or production of special fissionable material, the provision of which requires the appli- The peaceful uses of nuclear energy cation of IAEA safeguards. (The results of this initiative are reproduced in IAEA document The impetus to ensure the peaceful use of INFCIRC/209/Rev. 1 and Adds. 1 and 2.) nuclear energy that finds expression in the The second group of States, which include IAEA Statute and the European Atomic Energy participants in the Zangger Committee initia- Community (Euratom) Treaty has been supple- tive, is known as the London Suppliers' Group mented by various non-proliferation conventions. and includes States that are and are not parties to The ultimate objective of the international the NPT. This Group of States has produced a set community is the achievement of general and of guidelines (reproduced in IAEA document complete disarmament. In the context of nuclear INFCIRC/254) for the export of nuclear material, disarmament, avoidance of vertical proliferation equipment, or technology. Consequently, the (i.e. increases in existing nuclear arsenals) is guidelines set forth additional conditions applica- fostered by the adoption of arms reduction agree- ble to the export of nuclear material, equipment and ments between nuclear-weapon States. The pro- technology that, for example: link the duration of hibition of nuclear weapons is also being sought safeguards to the continued existence of safe- through the adoption of requirements applicable guardable material and equipment regardless of the to all States, regardless of whether they possess duration of the safeguards agreement; require the nuclear weapons and through the adoption of re- application of physical protection measures; re- quirements designed to ensure that those States that quire the exercise of restraint in the transfer of do not have nuclear weapons do not acquire them sensitive facilities, technology, and weapons-us- (prevention of horizontal proliferation). able materials; and impose limitations on the re- Examples of requirements applicable to all transfer of certain exported items. The guidelines States are the Antarctic Treaty; the Treaty Ban- are also intended to remove assurances relating ning Nuclear Weapon Tests in the Atmos- to safeguards and non-proliferation from the phere, in Outer Space and Under Water; the field of commercial competition. Treaty on Principles to Govern the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial IAEA safeguards system Bodies; and the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Article III.A.5 of the IAEA Statute author- Other Weapons of Mass Destruction on the izes the Agency "to establish and administer Seabed and the Ocean Floor and in the Subsoil safeguards designed to ensure that special fis- thereof. They are designed to limit the geo- sionable and other materials, services, equip-

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merit, facilities and information made available Safeguards objectives. Safeguards are tech- by the Agency or at its request or under its super- nical means of verifying compliance with legal vision or control are not used in such a way as to obligations relevant to the peaceful uses of nu- further any military purpose; and to apply safe- clear energy. Their objectives are political, that guards, at the request of the Parties, to any bilat- is, to assure the international community of the eral or multilateral arrangement, or at the request peaceful nature of safeguarded nuclear activity of a State, to any of the State's activities in the and to deter the diversion or misuse of safe- field of atomic energy." guarded materials or facilities through the risk of The Agency's safeguards system was thus early detection. conceived as a legally binding scheme of verifi- The system has a number of basic features cation for all IAEA-related nuclear transactions which should be understood. The first is that the which would apply when a State received assis- application of safeguards is primarily but not exclu- tance from or through the IAEA under an sively based on information provided by the State Agency project. Nuclear activities in which the as to the existence of nuclear material or equipment IAEA was not involved would be subject to safe- that should be subject to safeguards. The Agency, guards only on a voluntary and selective basis. however, has a right to undertake special inspec- During the 1970s, the IAEA's safeguards sys- tions to ensure that all nuclear material that is tem underwent a major transformation in character subject to safeguards are in fact safeguarded and for and scope. The change was the result of the devel- that purpose to obtain and have access to additional opment of what is referred to as the "non-prolifera- information and locations to guard against possible tion regime"; that is the set of legal norms and undeclared activities. voluntary undertakings which were developed The second is that safeguards cannot by them- both within and outside of the framework of the selves prevent a violation by a State of its obliga- IAEA to deal with the peaceful uses of nuclear tions not to divert nuclear material from peaceful energy and nuclear weapons proliferation. purposes. The system is designed as an early warn- By virtue of the 1967 Treaty of Tlatelolco ing mechanism to initiate the necessary procedures in Latin America, each party undertakes to use for remedial action in case of violation. Under the exclusively for peaceful purposes the nuclear IAEA Statute, non-compliance with safeguards ob- material and facilities which are under its juris- ligations is to be reported to the United Nations diction and to prohibit and prevent in its terri- Security Council for appropriate action. tory the testing, use, manufacture, production, The third is that safeguards cannot assess the acquisition, receipt, storage, installation, de- future intentions of States. The system can be ployment and possession of any nuclear weap- analogized to a radar device which can only ons. Each party also assumes the obligation to report on the existing situation. negotiate multilateral or bilateral agreements The actual application of safeguards requires with the IAEA for the application of safeguards a contractual agreement between the IAEA and to its nuclear activities. the State in which the system will operate, Of wider significance is the 1968 NPT, which whether the application of the system is the result is of a universal character. It provides that each of a voluntary undertaking by the State, or is in non-nuclear-weapon State party to the Treaty as- fulfilment of a legal obligation under a bilateral sumes a basic obligation not to manufacture, ac- or multilateral agreement. quire, receive or control nuclear weapons or other Safeguards agreements set out the parties' nuclear explosive devices. In addition, such a State basic rights and obligations, relevant to the appli- agrees to accept the safeguards set forth in an agree- cation of safeguards. Detailed implementation ment to be negotiated and concluded with the procedures are found in a technical set of " sub- IAEA in accordance with the latter Statute and its sidiary arrangements", which are tailored to the safeguards system. The exclusive purpose of this specific requirements of safeguarded facilities. agreement is the verification of the fulfilment by Subsidiary arrangements are implementing in- the State of its treaty obligation to prevent the struments that do not require approval of the diversion of nuclear energy uses to nuclear IAEA Board of Governors. They are concluded weapons or other nuclear explosive devices. between the IAEA Secretariat and the State Party Additionally, the parties to the Rarotonga simultaneously with or subsequent to the conclu- Treaty in Southeast Asia and the Pacific and the sion of the safeguards agreement. Subsidiary ar- Brazilian-Argentine Agreement on the Exclusively rangements are considered confidential. They Peaceful Utilization of Nuclear Energy have also are accessible only to the IAEA Secretariat and made a non-proliferation commitment. Thus, for the State Party. They are not available to other States parties to these agreements, acceptance of Member States, except that specific information IAEA safeguards that are comprehensive in scope relating to safeguards implementation may be has become obligatory in character. given to the Board of Governors to the extent

22 IAEA BULLETIN, 3/1995 FEATURES necessary for the IAEA to fulfil its responsibili- mission by a State; or upon the conclusion of a ties in implementing the agreement. supply agreement between two or more States Categories of safeguards agreements. Four that requires the application of IAEA safeguards. categories of safeguards agreements have been Agreements in this category cover only specified entered into by the IAEA. facilities and materials. Assurances by the IAEA The first category is with non-nuclear- are necessarily limited to the safeguarded facilities weapon States that have made a non-prolifera- or materials and do not extend to cover the totality tion commitment, e.g. States Party to the NPT, of the State's nuclear activities. the Treaty of Tlatelolco, the Treaty of Rarotonga, The rights and obligations of the IAEA and the or the Brazilian-Argentine Agreement on the Ex- State under this category of agreements are also clusively Peaceful Utilization Of Nuclear En- based on guidelines adopted by the Board of Gov- ergy. These safeguards agreements cover all the ernors (INFCIRC/66/Rev.2 and its earlier ver- nuclear activities of the State. In Argentina and sions). These guidelines were the first to be devel- Brazil, IAEA safeguards are carried out under a oped for the purpose of concluding safeguards Quadripartite Agreement, which is sui generis in agreements. Unlike those developed later for NPT nature, between the two countries, the IAEA, and safeguards agreements, they deal only with princi- the Brazilian-Argentine Agency for the Ac- ples and procedures of applying safeguards. counting and Control of Nuclear Material The basic undertaking of the State under (ABACC). The other aforementioned agree- these agreements, however, is not to use any ments are standard in nature and are based on material, equipment, facilities or other items un- guidelines (INFCIRC/153) adopted for that pur- der safeguards in such a way as to further any pose by the IAEA Board of Governors. The military purpose. This undertaking, which is guidelines serve as the basis for the structure and based on the language of the Statute, is under- content of these agreements. stood by the IAEA to prohibit the manufacture or Application of safeguards under these agree- possession of any nuclear explosive device, and ments is linked to the safeguarded material. not to permit the withdrawal of any nuclear ma- Safeguards are terminated by the IAEA under terial subject to safeguards. In most of these these agreements upon determination that the agreements, the duration of safeguards and of the material is no longer usable for any nuclear ac- agreement itself is linked to the safeguarded ma- tivity relevant from the point of view of safe- terial and facilities. Safeguards continue to apply guards, or has become practically irrecoverable. as long as the material or facilities can be used for Safeguards are terminated upon transfer of the any nuclear activity which warrant their applica- safeguarded nuclear material out of the State to tion. Safeguards generally follow the nuclear another jurisdiction. material upon its transfer out of the State. Under the Treaty of Rarotonga and the Quad- The third category of agreements is with ripartite Agreement, Parties are not to provide nuclear-weapon States. All five nuclear weapon any State with nuclear material or equipment that States identified in the NPT — China, France, require the application of safeguards, unless sub- the Soviet Union (now its successor, Russia), the ject to the IAEA's safeguards. NPT Parties are United Kingdom, and the United States — have under a similar obligation, but only with regard accepted the application of safeguards on some to supplies to non-nuclear-weapon States. Provi- or all of their peaceful nuclear activities. These sion of nuclear material and equipment to nu- agreements are not designed to verify non-prolif- clear-weapon States does not require the applica- eration, but are meant to broaden the IAEA's tion of IAEA safeguards under the NPT. Under safeguards experience, to affirm that nuclear- the Treaty of Tlatelolco, Parties are under no weapon States are not rewarded by being exempt obligation to require the application of IAEA from safeguards on their peaceful activities and, safeguards on supplies of nuclear material and most importantly, to establish a precedent for equipment to other States. on-site verification in the nuclear-weapon States. The application of safeguards depends Under these agreements, facilities or nuclear equally upon the duration of the safeguards material in facilities notified to the IAEA by agreement. All the above agreements have provi- the State concerned are offered for the applica- sions stating they shall remain in force as long as tion of safeguards. The agreements provide for the State is Party to the respective Treaty. the possibility of withdrawal of such facilities The second category of agreements is with or material from the application of safeguards. non-nuclear-weapon States that have not made a All of these agreements are of unlimited dura- binding non-proliferation commitment. These tion but provide for the right of termination agreements are normally entered into upon the upon six month's notice if the purpose for conclusion of a Project Agreement between the which the agreement was intended can no IAEA and a Member State; upon unilateral sub- longer be served.

IAEA BULLETIN, 3/1995 23 FEATURES

The fourth category is with non-nuclear- The case of Iraq occurred in the aftermath of weapon States which have not made a previous the Gulf war and included the revelation that Iraq non-proliferation commitment but which are had constructed a large undeclared nuclear pro- ready to make that commitment as a part of the gramme, including undeclared enrichment facili- safeguards agreement. No guidelines have been ties. From this case, it became apparent that the developed for this category. One agreement of IAEA safeguards system — though effective this type was concluded with Albania before it with regard to declared activities — is incom- became Party to the NPT. The basic undertaking plete insofar as its ability to detect undeclared under this agreement is not to use any nuclear activities. Since that time, the focus of the IAEA material or facility within the territory of Alba- has been to adopt measures designed to nia, or under its jurisdiction or control for the strengthen the safeguards system and in particu- manufacture of any nuclear explosive device or lar to develop an ability for the system to detect to further any military purpose. Safeguards un- and have access to undeclared activities. Impor- der the agreement continue to apply as long as tant measures already have been taken. such material or facilities can be used for any Following recommendations made by the nuclear activity that can warrant their applica- IAEA's Standing Advisory Group on Safe- tion. Albania is obliged not to transfer nuclear guards Implementation, in April 1993, the material, facilities or relevant technological infor- Agency instituted a safeguards development pro- mation to another State before the IAEA has con- gramme (Programme 93+2) to consider the fea- firmed that it has made appropriate arrangements to sibility of further measures to strengthen and apply safeguards. The agreement has an initial du- improve the cost-effectiveness of safeguards. At ration of 25 years. Termination of the agreement, its March 1995 session, the IAEA Board en- however, does not affect the continuing application dorsed the general direction of the Programme of safeguards on material and facilities subject to and requested specific proposals, which were safeguards at the date of termination. submitted to the Board in June 1995. In June, the Technical features and measures. The Board took note of the Agency's plan to imple- IAEA's safeguards system under any of the four ment at an early date the measures identified by categories of agreements has three basic features: the Secretariat as being within the scope of exist- material accounting, containment and surveil- ing legal authority of comprehensive safeguards lance, and on-site inspection. based on INFCIRC/153 (corrected), with the un- Material accounting establishes the quanti- derstanding that elaboration of the implementa- ties of nuclear material present within defined tion arrangements for, and clarification of con- areas and the changes in those quantities that take cerns about, them would require consultations place within defined periods of time. Contain- between the Secretariat and individual Member ment and surveillance measures are designed to States. The Secretariat intends to submit specific take advantage of physical barriers such as walls, proposals relating to those measures that require containers, tanks or pipes, to restrict or control complementary authority for their implementa- the movement of or access to nuclear materials. tion to the IAEA Board in December 1995. Such measures help to reduce the probability that undetected movements of nuclear material or equipment take place. Surveillance is used to IAEA verification under the UN Charter detect undeclared movements of nuclear materi- als, tampering with containment, fabrication of The IAEA's nuclear inspections in Iraq were false information or interference with safeguards undertaken in accordance with resolutions of the devices. The aim of on-site inspection is verifica- UN Security Council. Following the cessation of tion of the IAEA's information. The intensity and hostilities in the Gulf War, the Security Council frequency of inspections are usually specified in — acting under Chapter VII of the United Na- the safeguards agreement and vary with the type of tions Charter — adopted Resolution 687 on 3 facility inspected. April 1991. Paragraph 12 of that Resolution re- Reporting to the UN Security Council. Arti- quired Iraq to unconditionally agree not to ac- cle XII of the IAEA 'Statute requires, among other quire or develop nuclear weapons or nuclear- things, that the Board of Governors report to the weapons-usable material or any subsystems or UN Security Council and General Assembly as components or any research, development, sup- well as to all IAEA Member States any non-com- port or manufacturing facilities related thereto; pliance with an IAEA safeguards agreement which to provide a declaration of the locations, it finds to have occurred. In two instances, Iraq and amounts, and types of all items referred to above; the Democratic People's Republic of Korea, the to place all of its nuclear-weapons-usable mate- Board of Governors has adopted resolutions re- rials under the exclusive control, for custody and cording its finding of non-compliance. removal, of the IAEA, acting with the assistance

24 IAEA BULLETIN, 3/1995 FEATURES and co-operation of a Special Commission to be mation obtained from seismological monitoring established pursuant to the Resolution; to accept (and from other monitoring — e.g., of radionu- on-site inspection and the destruction, removal clides in the atmosphere — that may be agreed to and rendering harmless of all the above-men- be included in the CTBT). It is possible that the tioned items; and to accept a plan, to be prepared CTBT will assign a number of the verification by the IAEA Director General, for the future activities under the Treaty to the IAEA. ongoing monitoring and verification of its com- Secondly, consideration is being given to the pliance with these undertakings. development of a treaty that would ban the future Operative paragraph 13 of the Resolution re- production of plutonium and highly enriched quested the IAEA Director General, with the for use in nuclear weapons (the so- assistance and co-operation of the Special Com- called "Cut-Off Treaty"). Last year, the General mission, to carry out immediate on-site inspec- Assembly of the United Nations adopted resolu- tion of Iraq's nuclear capabilities based on Iraq's tion A/Res/48/75 L, which, among other things: declarations and any additional locations desig- " Recommend[ed] the negotiation in the most nated by the Special Commission; to develop and appropriate international forum of a non-dis- carry out a plan for the destruction, removal, or criminatory, multilateral and internationally and rendering harmless of all items referred to in effectively verifiable treaty banning the produc- operative paragraph 12; and to develop a plan for tion of fissile material for nuclear weapons or the future ongoing monitoring and verification of other nuclear explosive devices; Iraq's compliance with operative paragraph 12, "Requested] the International Atomic En- including an inventory of all nuclear material in ergy Agency to provide assistance for examina- Iraq subject to the IAEA's verification and inspec- tion of verification arrangements for such a tion to confirm that IAEA safeguards cover all treaty as required; and nuclear activities in Iraq. " Call[ed] upon all States to demonstrate their These provisions of Resolution 687 were sup- commitment to the objectives of a non-discrimi- plemented by Security Council Resolution 707, natory, multilateral and internationally and ef- adopted on 15 August 1991, which imposed further fectively verifiable treaty banning the production restrictions on permissible nuclear activities in Iraq. of fissile material for nuclear weapons or other In carrying out its inspections in Iraq, the nuclear explosive devices". IAEA had more extensive verification rights The third initiative relates to the possibility than it has under safeguards agreements. This has that the plutonium and highly enriched uranium been outlined in an Exchange of Letters between that was formerly contained in nuclear weapons the United Nations and Iraq on the rights and but is no longer required for that purpose will be privileges necessary for the IAEA and the Spe- submitted to IAEA safeguards by some or all of cial Commission to perform their activities under the nuclear-weapon States. Resolution 687. The various plans required by Resolution 687 were approved by Security Council Resolutions 699 and 715. It should be A changing progressive picture noted that the plan for on-going monitoring also contains extensive rights and privileges for the The international legal order for nuclear en- IAEA in comparison with safeguards agreements. ergy is characterized by a mix of legally binding rules and agreements and advisory standards and regulations. This mix is constantly changing. Other verification initiatives What were recently non-binding standards are today binding commitments. The conventions in The international community is currently the area of physical protection and for the notifi- considering three arms control/non-proliferation cation of a nuclear accident and emergency assis- initiatives with potential impact on the IAEA's tance are but some examples. verification activities. First, a Committee of the The fact that many regulations are still non- UN Conference on Disarmament (CD) is in the binding should not be a matter for concern. Many process of developing a Comprehensive Nuclear States have accepted such standards as a basis for Test-Ban Treaty (CTBT). Although the work of their national legislation. By doing so, they have, the CD Committee is still in progress, it seems in effect, voluntarily undertaken to comply with likely that the CTBT being developed by it will international norms that they formally view as include seismological monitoring, on-site in- recommendations because of their belief that it is spections to ascertain the nature of events that in their best interest to do so. have not been satisfactorily explained, on-site Long at the centre of the process, the IAEA monitoring of large non-nuclear explosions, and will remain actively engaged in the progressive an International Data Centre to process the infor- international development of nuclear law. •

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