Dealing with Non-Compliance under the NPT Beyond the lessons learnt

1. Dealing with Non-Compliance under the NPTBeyond the lessons learnt Bruno Pellaud, Switzerland Former Deputy Director General of the IAEA and head of its Department of Safeguards

2. Blix’sBasic Trilogy For a strong non-proliferation regime, the IAEA needs: • Access to information • Access to facilities • Access to the Security Council The first two: verification of compliance The last one: enforcement of compliance

3. Verification vs. enforcement • Verification should be professional, factual, independent, as well as non-political; • Enforcement follows a qualitative assessment of non-compliance, a process that is much more political, be it under the NPT in the Board of Governors of the IAEA or ultimately in the Security Council; • Perceptions of non-compliance can differ radically - and other national interests play a dominant role.

4. IAEA Verification Tools • IAEA nuclear inspectors have a broad range of high-tech tools at their disposal to collect information. They collect dust, liquid and soil samples on various sites for fuller analysis in laboratories. Analysis can determine "nuclear fingerprints" and reveal indicators of past and current activities. Images obtained by commercial satellite imaging sensors can now greatly help inspectors track activities. Intelligence services help. • In 1997, the IAEA introduced the Additional Protocol to strengthen information access, but above all, access to facilities.

5. IAEA Levels of violations • Anomaly: an abnormal situation, which is rapidly addressed by the Inspectorate, i.e. Department of Safeguards alone. • Breach: activities that clearly or repeatedly violate the Safeguards Agreement, and presented as such by the Director General to the Board of Governors. • Non-compliance: if further investigations and the information provided by the State do not resolve the suspicion, the IAEA Board of Governors may make a determination of non-compliance, which triggers UN Security Council referral. The Board decides when to cross the threshold between “breach” and “non-compliance”.

6. Non-compliance in North Korea • In 1992, the IAEA found the country to be in non-compliance. • In 1993 North Korea withdrew from the NPT . Yet, the Security Council did nothing. The USA dealt with the issue. • In October 1994, North Korea and the USA signed in Geneva a bilateral “Agreed Framework”, with sticks and carrots, a deal that was imposed on the Board of Governors through arm-twisting. • Because the Agreed Framework removed some of its inspection rights, the IAEA was unable to confirm that North Korea’s initial declaration was correct and complete. Since then, every year, North Korea has been declared to be in non-compliance with its safeguards agreement by the IAEA Board . Yet, no serious penalties were ever imposed by the international community as a result of these declarations of non-compliance – even after the nuclear test.

7. Non-compliance in Iran • The receipt in 1991 of some 1’800 kilograms of uranium compounds was not declared to the Agency for more than a decade. Even though the amount was small in safeguards terms, Iran failed to report import, subsequent processing and use, and to declare the facilities where the material was stored and processed. This was clearly a breach of agreement. • Subsequently, Iran declared and made accessible “all” facilities involved in its nuclear programme. The remaining bones of contention relate to the activities performed previously. • The pursuit of enrichment activities at Natanz does not violate the Safeguards Agreement, but is inconsistent with the IAEA Board of Governors’ decision requesting a suspension of all enrichment activities. • These two elements – breach of agreement and non-respect of a Board decision – led to a decision of non-compliance.

8. Enforcement: lessons learnt, bluntly.. • Iraq: In 1998, the Security Council failed to adopt proper actions when Iraq restricted UN-IAEA inspection access, a weakness that led to the removal of international inspectors and to war. • North Korea:The non-compliance was not addressed in due time and firmly enough by the Board of Governors and by the Security Council, a passivity that led to further instances of non-compliance and to the explosion of a nuclear device in 2006. • Iran: While less severe than Iraq and North Korea, the non-compliance of Iran is being addressed by the Board of Governors and by the Security Council acting collectively. • Pakistan: Centrifuge designs, sample centrifuges, high-enriched uranium and weapon designs were peddled the world over. Pakistan is not a signatory of the NPT, but it perpetrated an aggression on the NPT. The criminal behaviour of Pakistan was not sanctioned by the Board of Governors and by the Security Council.

9. Enforcement of the NPT: the weak link • The absence of a sanctioning authority dedicated to the cause of non-proliferation leaves the Treaty parties without an effective and representative voice to address incidents, suspicions, withdrawals and non-compliances. Meeting every five years, the NPT Review Conferences are more “legislative” than “executive” in nature; • The IAEA Board of Governors plays de facto the executive role, even though the IAEA is no more than a tool of the NPT, no part of it; • The Security Council is the highest authority, albeit non-NPT dedicated. Going to the Security Council does not always help; non-proliferation business get second priority in the pattern of world power politics. This ambiguity weakens seriously the NPT; • Instead of creating a new NPT Board, the strengthening of the compliance mechanisms above the IAEA Inspectorate would do a lot for the effectiveness of safeguards (in terms of detection and deterrence). Distribute and strengthen enforcement at the three levels: Director General, Board of Governors, UN Security Council.

10. Enforcement: strengthen at the IAEA • The Director General should have broader scope of authority, for example to suspend immediately IAEA nuclear services and technical assistance in case of breach. Lower layers and categories of breaches could remain under his sole authority; • The adoption of guidelines for the handling of safeguards implementation issues in the Board of Governors. These guidelines would cover definitions and related sanctioning measures in case of breaches. A number of indicative thresholds would be formulated for going from “breaches” to “non-compliance”. Political compromises would of course remain reality. But such guidelines would drastically strengthen the IAEA verification function and send powerfull signals to deter would-be violators.

11. Enforcement: strengthen at the UNSC Adoption of guidelines for the handling of non-proliferation issues in the Security Council, in particular among the five permanent weapon States members. They would: • Cover non-compliance issues coming from the IAEA, as well as broader proliferation matters, such as NPT withdrawals. • Specify actions to be undertaken in case of non-compliance and allocating responsibilities within the Council for dealing with some topical or regional issues, etc. Political compromises would of course always prevail, but guidelines would help bringing some order in the process, and most importance have a proliferation-deterent impact on would-be violators.

12. Pierre Goldschmidt (former IAEA DDG): “The UN Security Council should adopt a generic and binding resolution that would automatically authorise three steps if a State is found in non-compliance by the IAEA Board: • IAEA’s inspectors to have immediate and unfettered “access at all times to all places and data and to any person” as foreseen in the IAEA’s Statute; • The State would be requested to conclude within sixty days of such finding of non-compliance an INFCIRC/66-type safeguards agreement for all nuclear facilities, to block a noncompliant State from withdrawing from the NPT and claiming the right to do whatever it wants with its nuclear material and equipment, as North Korea did and Iran threatens to do; • The right of the State to undertake sensitive nuclear fuel cycle related activities would be suspended (not terminated) for a period of ten years. “

13. In a nutshell... • The strengthening of the NPT regime involves first of all a streamlining of enforcement mechanisms, at the IAEA Board of Governors and at the Security Council. By contrast, verification is no weak point. • Such strengthening requires no reinterpretation, no rewriting of the NPT itself. The Special Committee of the Board could address the task for itself – and formulate recommendations for the 2010 NPT Review Conference and for the Security Council.