Pursuing Possible Noncompliance with NPT Safeguards Agreements: IAEA Legal Authorities and their Use in Practice

1. Pursuing Possible Noncompliance with NPT Safeguards Agreements: IAEA Legal Authorities and their Use in Practice International Safeguards Policy and Information Analysis Course • James Martin Center for Nonproliferation StudiesMonterey, California, June 4-8, 2012 • Celia Reynolds

2. States for which the IAEA determined non-compliance reportable to the Security Council • Iraq (1991) • Romania (1992) • DPRK (1993, 2003) • Libya (2004) • Iran (2005) • Syria (2011) • Other cases where States’ failures to meet safeguards obligations have been specifically reported to the Board • Republic of Korea (2004) • Egypt (2005)

3. Outline • Scope of the Agency’s noncompliance mandate • Key legal provisions – a quick review* • IAEA’s legal authority • States’ obligations • Practice *Note: Because none of the noncompliance cases to date has involved a Statewith an Additional Protocol in force at the time of the noncompliance, this presentation does not discuss authorities that derive exclusively from the AP.

4. Scope & key legal provisions

5. Scope of the IAEA’s noncompliance mandate • Noncompliance as concept in a safeguards context • Originated in the IAEA Statute (1957) at a primarily abstract level • Evolved with changes in the Agency’s safeguards system and with application to actual cases • Agency’s mandate • Has the right & obligation to determine if a State is complying with its IAEA safeguards agreement(s) • Specifically INFCIRC/153 in the context of this presentation • Does not have an explicit right or obligation to determine if a State is complying with the NPT

6. Statutory provisions related to the IAEA’s legal authority • The Statute has provisions that relate to the IAEA’s legal authorities to: • Ensure that Agency safeguards are being implemented accordingly • Report findings of noncompliance to the broader international community • Article XII A.6: Ensuring Safeguards Implementation • It establishes broad inspection rights for ensuring the implementation of safeguards • States that Agency inspectors will have access at all times to all places, data, people, materials, equipment, and facilities that it deems necessary for ensuring that a State is complying with its IAEA safeguards agreements • Serves as the foundation for a more detailed elucidation of safeguards application guidance as embodied in the IAEA’s safeguards agreements

7. Statutory provisions related to the IAEA’s legal authority • Article XII.C: Reporting Noncompliance • Describes the process that the IAEA follows when it encounters instances of noncompliance • Specifies measures the Board can take if a State fails to take corrective action in a timely manner

8. Relationship between IAEA & UNSC • They are not just linked by the noncompliance reporting process • Article III.B.4 also mandates reporting to the UNSC if, in connection with Agency activities, questions arise within the competence of the Council as the organ with primary responsibility for international peace & security • There is also a mutually reinforcing element to their relationship • The UNSC can & has affirmed that actions required of a State as specified in the Board resolutions are binding • The Agency is obligated to cooperate with the UNSC as the Council exercises its responsibility to maintain international peace & security

9. INFCIRC/153: “Big Picture” Provisions

10. INFCIRC/153: Meeting ¶8’s Information Provisions (More detailed reporting requirements are specified in the Subsidiary Arrangements) • Providing information directly related to NM that is subject to safeguards • ¶34(b): Declare imports of nuclear material (even ore and ore concentrate) • ¶34(c): Declare & place under safeguards material that reaches starting point of safeguards • ¶36, 37: Before exempting material as allowed in small quantities or for non-nuclear use, must first declare material and request exemption • ¶62: Provide an initial report of all nuclear material required to be safeguarded • ¶63-67: Provide material accountancy reports • ¶49-50: Provide information on nuclear material in locations outside facilities • ¶69: Provide amplification and clarification of reports as requested

11. INFCIRC/153: Meeting ¶8’s Information Provisions (More detailed reporting requirements are specified in the Subsidiary Arrangements) • Providing information related to the design of facilities • Applicable to the State: • ¶42-45: Provide design information, including advance notification as specified in Subsidiary Arrangements • Example: Abiding by Modified Code 3.1 and its calls for the early provision of design information

12. INFCIRC/153 ¶3 obligates States to cooperate with the IAEA to facilitate Safeguards implementation, including the IAEA’s exercise of its access rights IAEA’s access rights include: • ¶48: Verification of design information • ¶70-77 : Right to make inspections: • ¶71: Ad hoc inspections to verify information contained in the initial report, to identify and verify changes in the situation, and to identify and verify international transfers • ¶72: Routine inspections for independent verification of material accounting reports and to investigate discrepancies (details specified in Facility Attachments to the Subsidiary Arrangements) • ¶73: Special inspections that are additional to routine inspection effort or that involve access to information or locations in addition to the access specified for ad hoc and routine inspections

13. INFCIRC/153: Special Inspection Provisions IAEA’s access rights include: • ¶73(b): The Agency may make special inspections, subject to the provisions of ¶77, “if it considers that the information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.” • ¶77: In circumstances which may lead to special inspections, the State and the Agency shall consult forthwith. As a result of such consultations the Agency may . . . obtain access in agreement with the State to information or locations in addition to the access specified for ad hoc and routine inspections. • Any disagreement concerning the need for additional access shall be resolved in accordance with ¶20-21 (arbitration tribunal) • In case action by the State is essential and urgent, ¶18 shall apply(The can Board decide to require the State to grant prompt access)

14. INFCIRC/153: Provisions related to verifying non-diversion

15. Use in practice

16. Summary of noncompliance findings (Derived from information in IAEA Board of Governors resolutions and DG reports to the Board) *Articles 41, and 42 of INFCIRC/407

17. How IAEA actors have engaged their legal authorities (Derived from information in IAEA Board of Governors resolutions and DG reports to the Board)

18. Summary of reports to the Security Council (Derived from information in IAEA Board of Governors resolutions)

20. Other tangential legal authorities issues • Authority under Security Council resolutions, negotiated agreements, etc. • Related to notification and design verification of facilities: • Continuing right of access for design verification of facilities once they are notified to the Agency, even if they were notified earlier than required. • Inability of a Member State to unilaterally modify its CSA, for example by asserting that it is reverting to original Code 3.1 after agreeing to Modified Code 3.1 of the Subsidiary Arrangements to its CSA. • Right to report to the Security Council regarding a State’s fulfillment of actions required of it by Security Council Resolutions. (Note Article III.2 of the Relationship Agreement and Article III.B of the Statute) • Right of the Board to require measures “beyond the CSA”: Note Article 18, which allows the IAEA to require actions that are urgent and essential to ensure non-diversion. What is Agency’s authority to require measures to “restore confidence?” • Authority to use/hire expert consultants • Questioning the abuse of de-designation of inspectors (¶ 9)