NUCLEAR SAFEGUARDS REGIMES: HOW VOLUNTARY IS THE ADDITIONAL PROTOCOL (INFCIRC/540

NUCLEAR SAFEGUARDS REGIMES: HOW VOLUNTARY IS THE ADDITIONAL PROTOCOL (INFCIRC/540

NUCLEAR SAFEGUARDS REGIMES: HOW VOLUNTARY IS THE ADDITIONAL PROTOCOL (INFCIRC/540

Energy security is the bedrock of every successful nation; the securer the energy, the more successful a nation could be. Today, with the ongoing unfavorable-worldwide-campaign against fossil fuel-energy and the growing awareness and concerns about climate change, it has become imperative on every forward thinking nation to shift its large dependency on the fossil-fuel-energy to other alternative sources of energy. This situation and drive have drawn unprecedented interest and attention to nuclear energy as a major and competitive alternative to crude-energy. Many have even argued that nuclear energy renaissance is imminent.

However, nuclear energy just like other sources of energy is not devoid of any blemish or concerns. Amongst others, one of the major concerns about nuclear energy is the diversion of nuclear materials and activities into military/weaponization program, thus, creating nuclear weapons or nuclear explosives. This concern led to the establishment of the safeguards regimes. The IAEA safeguard agreements have been one of the major effective international mechanisms that have contributed immensely to the success of non-proliferation regime for over 40 years.

Historically, the idea of nuclear safeguard was introduced as an international measure to verify that states comply with their obligations under the Treaty on the Non-proliferation of Nuclear Weapons (NPT) though the introduction of IAEA safeguards system goes back to 1961. Generally speaking, states have right to engage on unrestricted legitimate nuclear programs and have unhindered access to nuclear knowledge and uses of nuclear energy for economic and developmental purposes but subject to international monitor (safeguard system) and cooperation to ensure that no fissionable material is diverted to military uses or for making nuclear explosives. In essence, nuclear safeguard was created to enhance and build trust and openness amongst states and also allow states to run their independent nuclear programs.

Under the NPT, all non-nuclear-weapon-states members (NNWS) are mandated to enter into safeguard agreement with the IAEA. The IAEA safeguard system extends to NWS and non-NPT states on the basis of bilateral agreements, but this article will largely focus only on NNWS under the NPT.

Originally, implementation of IAEA nuclear safeguard was based on states' nuclear materials accountancy measures and reports and later included declared information on designs and nuclear facilities. This was the order of the day until the Gulf War of 1990s when the loopholes and weaknesses in the then existing comprehensive safeguard agreements (CSA) was internationally exposed. Iraq which at the time had existing comprehensive safeguard agreement with the IAEA was found to be pursuing clandestine nuclear weapon program. This revelation became a catalyst and prompted immediate need for strengthened safeguard system. This led to the creation of Additional Protocol to the existing safeguard agreements. States with existing comprehensive safeguards agreements were/are highly encouraged to bring the Additional Protocol into force in their various jurisdictions. Some states have ratified the Additional Protocol, but unfortunately, not all parties, particularly NNWS, to old safeguard agreements have brought the AP into force in their various states. Some NNWS have signed the AP and ratified it, some others have signed it but yet to ratify it, some others have even voluntarily chosen to apply it provisionally while some others have neither signed nor ratified it.

There is no much disputing debate on the voluntarily nature of the AP when it comes to initial application of AP in the territory of NNWS under the NPT. The initial application of AP is neither obligatory nor a direct mandatory requirement under the NPT for NNWS, though it's a supplementary instrument to the CSA which itself is a mandatory instrument for NNWS under the NPT. So, all NNWS are at liberty to bring AP into force in their territory as a mark of building trust and confidence and to show its commitment to non-proliferation. Therefore, bringing AP into force is more of a moral than a legal obligation. However, the question that eludes most people's mind almost all the time is "when and at what time does the voluntariness-nature of the AP cease?" I have been to many forums where I heard representatives of some states argued that AP is a voluntary instrument and that a state can withdraw from it anytime and would still not be bound by it. Their argument is that NPT mandates them to enter into the CSA and not the AP. Going by their argumentative submission, it implies that AP is voluntary in perpetuity, thus allowing states to hire and fire it at will, thereby undermining or defeating the purpose the AP was brought to achieve. This is a contentious issue that I will prefer to address later in this article.

NPT

In 1961, the UNGA resolution calls for Non-Proliferation treaty. Thereafter, negotiations and drafting of NPT was done by a designated committee. In 1968, NPT draft was opened for signature. With an unprecedented speed of response by states to any international treaty; two years later, the NPT came into force. The treaty aims to prevent spread of nuclear weapons, nuclear explosive devices and nuclear war. There are many elements under the NPT, but for the purposes of this work, only safeguard is the focus.

Under the treaty, NWS undertake not to transfer to any recipient any nuclear weapon or other nuclear explosive device, and also not to assist, induce or encourage any non nuclear states to manufacture or acquire nuclear weapon or nuclear explosive device. On the other hand, NNWS undertake not to receive from any transferor any nuclear weapon or nuclear explosive device, and not to seek or manufacture, or acquire any nuclear weapon or nuclear explosive device. Furthermore, Article III (1) of the NPT mandates each NNWS to accept IAEA safeguard in accordance with the Statute of the IAEA and the IAEA's safeguard system for the purposes of verification of its obligations under the NPT toward prevention of diversion of peaceful nuclear uses to military uses. But interestingly though unfortunate, the last sentence on Article III (1) NPT forecloses or focuses only on safeguard on all source and special fissionable materials which the present author see as self-stabbing or that the drafters of NPT were not visionary enough, because, by narrowing safeguard to only source and special fissionable materials it opened the whole idea of safeguard to systematic legitimate abuses. With the provisions of NPT as it is, it means that nuclear facility without any source or special fissionable materials in it or nuclear facility under construction need not be under any international safeguard. This absence of legal requirement of safeguard on certain nuclear activities has been exploited by Iraq, Iran and DPRK.

NUCLEAR SAFEGUARD

As already mentioned above, the concept of nuclear safeguard was introduced for verification purposes. Generally speaking, it could be argued that this concept clashes with the concept of states sovereignty under the International Law, because it does require states to partially subject their independent activities to international scrutiny and monitor. However, this argument, though sustainable to an extent, cannot be held in isolation without due regard and consideration of the historical evolution of nuclear energy and the associated risks and concerns. Hence, the necessity of a watchdog was almost generally perceived albeit reservations which later led to creation of IAEA nuclear safeguards system to balance the concerns and consequences with the benefits and trust.

Nuclear safeguard is an international initiative designed to limit proliferation of nuclear weapons. Its effectiveness-tool depends largely on the intensity and vibrancy of the associated international pressures and mix and balance between diplomatic and economic measures. It is one of the major elements of NPT regime and is backed up by threat of collective international sanctions against a defaulting state.

The initial IAEA safeguards focused on accounts and control of nuclear materials, although several amendments and improvements were made over the years. But the most important point is that at the early stage states were trusted to account and declare their transacted nuclear materials, facilities connected with nuclear materials under safeguard and operating records of principal nuclear facilities. As at that time, it was the job of IAEA to verify that those declared materials are in continuing use for peaceful nuclear programs which could be done through inspections (sampling and analysis of nuclear materials), containment seals, commercial satellite photos and surveillance cameras. In essence, the aim and focus of the initial safeguard was on early detection of diversion of nuclear materials. More particularly, under the NPT regime, all NNWS are expected to accept full-scope safeguards (comprehensive safeguard agreement), while NWS under the NPT and non-NPT states are expected to enter into facility specific safeguard agreement with the IAEA.

There is no doubt whatsoever that the IAEA safeguards system have been largely successful in curbing the spread of nuclear weapons technology around the world for over 40 years. Today, apart from the 5 NWS recognized under NPT, India, Pakistan and Israel are non- NPT nuclear weapon states. DPRK (North Korea) though was a party to NPT later withdrew and has finally claimed to have nuclear weapons capacity.

However, the weaknesses of the international safeguards, particularly INFCIRC/153, came to full-light with the revelations of undeclared nuclear activities in Iraq, Iran and North Korea, though no diversion took place. Majority of the revealed undeclared activities were largely indigenously sourced, thus, no legal obligation to account or declare such materials, activities and facilities. This situation, as already mentioned above, led to the creation and approval of Additional Protocol by the IAEA Board of Governors in 1997.

TREATY

Before I move on to address the additional protocol question, I would like the reader to understand what a treaty is. According to online Oxford Dictionaries, Treaty is a formally concluded and ratified agreement between states'. But, according to Article 2 (1) of the VCLT, treaty is defined as:

"an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation"

The above definitions represent the position of the customary international law. But in the context of this work, treaty would be given its broad and modern meaning under the international law as envisaged under Article 3 of the VCLT. This view is shared by renowned international law scholars like Vierdag, McNair, Seidl-Hohenveldern, and particularly by Aust when he said, VCLT is extremely flexible and can accommodate departures from normal practice'. A treaty under the modern International law is an agreement with inherent obligations entered into by actors in the international law. The actors are states, regional bodies and international orgainsations (IAEA in particular). Treaty could be bilateral or multilateral. A party' is a state (though combined interpretation of provisions of Article 3 and 81 of VCLT envisages non-state parties) which has consented to be bound by a treaty and for which the treaty is in force. Two distinct steps are necessary to be party to a treaty consent to be bound by the treaty and the treaty coming into force. Article 11 of the VCLT enumerates methods of consent to be bound by a treaty. They are:

Signature

Exchange of instruments constituting a treaty

Ratification

Acceptance

Approval or Accession

By any other means if so agreed.

From the foregoing authorities it is unequivocally correct to conclude that both NPT and Safeguards Agreements are deemed as valid treaties binding on the contracting parties.

ADDITIONAL PROTOCOL

Additional Protocol (IAEA INFCIRC/540) is a model safeguard document designed by IAEA for states having existing safeguard agreements with the IAEA in order to strengthen effectiveness and improve the efficiency of the safeguards system for global non-proliferation goal. According to the Foreword to Model Protocol Additional to the Agreements between states and the IAEA for the Application of Safeguard, AP is

"a legal document granting the IAEA complementary inspection authority to that provided in underlying safeguards agreements. A principal aim is to enable the IAEA inspectorate to provide assurance about both declared and possible undeclared activities. Under the Protocol, the IAEA is granted expanded rights of access to information and sites."

Additional Protocol brings all nuclear materials, activities and facilities in the territory or under the control of a contracting state under the IAEA safeguard. It ensures and enhances completeness and its provisions override the provisions of the preceding safeguards agreements. But however, AP only becomes binding on a state upon express intention to be bound by it and it enters into force on the date the IAEA receives written notification that state's statutory/constitutional requirements for entry into force has been met or by signature by representatives of a contracting state if the state's internal law recognizes such requirement or if the state declare to apply AP provisionally. Mere signature alone without internal law requirement do not place any legal obligation on the state under the AP or under any international law, though it could be argued that it does create moral obligation on the state to not act in any way against the spirit of the AP and does speed up its internal law requirements to bring the AP into force. However, it has been argued in some quarters that each NNWS under the NPT is under obligation to sign and ratify AP, but legally speaking, I can't see any legal provision under the NPT or any international law which suggest so.

However, where a state has voluntarily brought the AP into force using either of the two options provided for under Article 17 of the Model Protocol Additional to the Agreements between states and the IAEA for the Application of Safeguard bringing AP into force, can such state for some reasons later turn back and withdraw the application of AP without first withdrawing from the NPT and CSA? A perfect example in this scenario is Iran's withdrawal from application of AP after voluntarily applying it provisionally pending ratification.

IRAN AS A CASE STUDY

Iran nuclear program was established during the Shah regime with the assistance of US. Iran signed the NPT in 1968 and ratified it in 1970, subjecting itself to IAEA safeguards regime as a NNWS. Iran safeguards agreement under the NPT (INFCIRC/214) with the IAEA came into force in 1974. But the 1979 Revolution and the consequent change of regime in Iran affected adversely the nuclear program as many western countries and other foreign countries withdrew their assistance and cooperation or were reluctant to assist the new regime in Iran in its nuclear program. The consequent cancellation of contracts, accusations and counter-accusations of non-performance and refusal to return investments worsened and deteriorated relations and germinated suspicion and lack of trust between Iran and the western countries.

In 2003, undeclared nuclear fuel cycle activities (enrichment facilities and heavy water facility) were officially discovered in Iran which Iran says began in 1985. This failure of early declaration on the part of Iran amounts to non-compliance with its obligations under Article 8, 42 to 48 of the INFCIRC/214. Iran also failed to declare receipt of natural uranium in 1991. However, provision of Article 42 do not define what is early enough though the IAEA Board of Directors (BOD) later decided and requested in 1992 that facilities should be declared at planning stage. Notwithstanding the BOD 1992 request, the existing subsidiary arrangements in force in Iran from 1976 to 16 February, 2003 included early reporting of design information at least 180 days before introduction of nuclear material into the facility.

Consequently, to address the concerns raised by this discovery and to promote confidence, the E3/EU and Iran entered into agreement (Tehran Declaration) In October 21, 2003, where Iran promised to sign AP, commence ratification procedures and voluntarily (not legally binding) suspend its enrichment and reprocessing activities. Iran signed AP in December 2003. Subsequently, a second agreement was reached in Paris on 15th of November, 2004 (deposited with the IAEA - INFCIRC/637), where Iran also voluntarily agreed to implement AP pending ratification. Shortly thereafter there were accusations of delay and breach of Paris Agreement between Iran and the E3/EU, and resultantly, on February 4, 2006, the IAEA BOD decided to report Iran to UNSC for non-compliance with its safeguards agreement (INFCIRC/214-CSA) based on facts reported in 2003. On February 27, 2006, Iran withdrew its voluntary implementation of AP. The UNSC Resolution 1696 of July 31, 2006, amongst other things, called upon Iran to act in accordance with the provisions of AP, while UNSC Resolution 1737 of December 27, 2006 called upon Iran to promptly ratify AP. In response, Iran has argued, amongst other things, that voluntary implementation of AP is a confidence building measure, thus, not binding. Also, Iran argued that based on provisions of International Law on Treaties and AP, Iran is not bound by AP until its ratification and that the IAEA DG report of Feb. 28, 2008 stated that the additional information provided by Iran is similar to the information provided under the AP. The differing opinions on whether Iran is legally bound to implement AP might linger on for sometime and may not have immediate solution.

However, the present author have took out time to closely and critically look at the provision of Article 17 (b) of Model AP which provides that AP will enter into force on the date a state declares it will apply Additional Protocol Provisionally. Iran met this requirement on November 26, 2004 when it voluntarily implemented AP. Surprisingly; there is no provision for withdrawal under the Model AP which Iran voluntarily adopted. There is no doubt that AP is not an independent instrument rather it is a complementary/supplementary document to the CSA. This by virtue of the provision of Article 1 of the Model AP takes the whole arguments to the provisions of INFCIRC/214 which Iran ratified and Article 1 of the VCLT. Based on the authorities of Article 1 of the VCLT and the provision of Article 26 of INFCIRC/214, the safeguard agreement (including complementary/related agreement) will remain in force as long as Iran remains a party to NPT. Therefore, the present writer believes that Iran is not just a mere signatory to the AP, Iran went further to bring AP into force by voluntary implementation thereby fulfilling the provision and spirit of Article 17 (b) of Model AP, thus binding. Iran cannot later validly withdraw from AP without first withdrawing from NPT.

CONCLUSION

From the foregoing facts, analysis and positions, it has been legally demonstrated, using the authorities of the VCLT, NPT, CSA and AP, that once AP has entered into force it cannot be withdrawn in an isolation. This means that the voluntary-nature of the AP ceases at the point of entering into force. Therefore, for a valid withdrawal to exist the withdrawing state has to first withdraw from the mother instruments (NPT and CSA) because AP is not an independent or stand-alone instrument, rather, it is a supplementary instrument to the CSA. And its (AP) provisions override the provisions of the CSA to the extent of its conflict with the CSA, but however, in the absence of any provision under the AP on any particular issue in contention, then the provision of the CSA will apply.

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