It has been a while since I wrote here. Since I am too busy, or perhaps too lazy, to write my own updates, I thought it would be nice to forward something Hugh Chalmers wrote on the recent adoption, by consensus, of the safeguards resolution.
Some of you will know that the last year was difficult for those working in the safeguards community. The so-called State Level Concept (SLC) was under attack.
Now, ever since the Agency adopted the Additional Protocol, it has worked to streamline safeguards implementation and make it more cost-effective. One way in which the secretariat has aspired to do so is by introducing “integrated safeguards.” This work started in 1998. As the Agency itself puts it, the “term refers to the optimum combination of all safeguards measures available to the Agency, including those from the Additional Protocol, to achieve maximum effectiveness and efficiency within the available resources.” The state level concept is part of this overall effort.
So the state level concept is not news. One can find references to it dating back to the mid-2000s. Despite this, the concept was challenged by a minority of member states over the last year. The principal concern for some states appears to have been that the SLC risked introducing additional rights or obligations for the member states or the Agency, going beyond already adopted regulations (in particular the Comprehensive Safeguards Agreement and its Additional Protocol). The IAEA Secretariat has made it clear that it does not, and the General Conference has welcomed this in their annual resolution.
Anyway, this is what Hugh Chalmers will put up on the VERTIC website tomorrow:
The 58th General Conference (GC) of the International Atomic Energy Agency (IAEA) concluded last week having successfully passed a safeguards resolution that may have secured the future of a previously contentious element of the Agency’s safeguards system, namely the so-called state level concept. The Conference also avoided a controversial resolution over Israel’s nuclear capabilities. Some IAEA member states have argued that the resolution, if passed, could have jeopardised Israel’s engagement with a conference on a Middle East Weapons of Mass Destruction Free-Zone (MEWMDFZ). This conference has been viewed as a key step towards a successful review of the Nuclear Non-Proliferation Treaty (NPT) in 2015.
Israel’s Nuclear Capabilities
With the 2015 NPT Review Conference looming over the horizon, and with the November deadline for P5+1 talks with Iran fast approaching, delegates may have been keen to establish constructive and convivial atmosphere. After three years of stalled progress towards a conference on a MEWMDFZ, a series of meetings between Israel and Arab states held at the Hotel Victoria in the mountain resort of Glion, Switzerland, had generated an air of almost cautious optimism. Sustained momentum and continued dialogue could lead to an agreed agenda, and perhaps even a conference itself—which Middle Eastern states would then find diplomatically difficult to avoid. Punishing Israel’s actions in Gaza by singling out their nuclear capabilities at the GC would, as Israel made it clear in its statement to the plenary, have ‘serious implications’ for this burgeoning dialogue. Fifty-eight states were unwilling to take this risk, compared to 45 who were, and the resolution on ‘Israeli Nuclear Capabilities’ was rejected. The last time a version of this resolution passed was on 17 September 2009, with 49 votes in favour, 45 against and 16 abstentions. It has been defeated every year since.
The State Level Concept
The Agency’s efforts over the past year to clarify the ‘state level concept’ at the heart of its safeguards system also paid off. The term was first introduced to the Board of Governors in 2004, but came under unexpected scrutiny in 2012 when Russia led a number of states in expressing concern over its implications. The Agency published two reports; ‘The Conceptualization and Development of Safeguards Implementation at the State Level‘ in 2013, and the 61-page Supplementary Document to the 2013 report in August this year in response to lingering concerns in the Board. This latter report is the result of an intense consultation process between the Agency and its members, which included six technical meetings throughout 2014, and gives a highly detailed account of the state level concept and its implementation.
The state level concept aims to give consideration to the state as a whole. As highlighted by Director General Yukiya Amano in his introductory statement to the Board of Governors on 9 September 2013, it ‘does not change, or go beyond, the existing legal framework for safeguards. It does not alter any State’s legal obligations with respect to safeguards.’ He noted that it ‘enables [the IAEA] to concentrate [its] in-field verification efforts in a State on areas of greater safeguards significance and results in better use of Agency resources.’
After the shortcomings of the Agency’s traditional approach to safeguards were laid bare in the 1990s by the revelations of Iraq’s clandestine nuclear program, the Agency adopted a more holistic approach to planning its safeguards activities. The state level concept allows the Agency to use state-specific factors (such as total nuclear fuel cycle, technical capabilities, and the safeguards agreement itself) to plan safeguards activities, with the aim of improving both their effectiveness and efficiency.
Importantly, the extent to which the Agency can ‘tweak’ its safeguards activities depends upon the range of activities made available to it through individual safeguards agreements with its members. Those with only a Comprehensive Safeguards Agreement (CSA) in force would find that very little changes are made to verification efforts in their state from one year to the next, with the original safeguards criteria still providing the primary basis for determining these efforts. In the case of states whose CSA is augmented by an Additional Protocol (AP), the Agency may be able to draw a broader conclusion ‘that all nuclear material in a State has remained in peaceful activities’, and subsequently streamline the implementation of the many activities afforded to it by this augmented agreement.
Trust in the Agency
While the exact nature and origins of the concerns raised in 2012 and 2013 are unclear — state level approaches have been discussed by the General Conference since 2006 without giving rise to similar concerns — the safeguards resolution adopted last week can shed some light. As various drafts of the resolution were released it was clear that while the conference generally welcomed the Agency’s work in clarifying the concept, states felt it necessary to highlight five aspects of this clarification as particularly noteworthy. By emphasising that the Agency is not abusing the concept to acquire the same rights and powers offered by the Additional Protocol, nor is it using information on state level factors for any purpose other than safeguards, the resolution reveals the surprisingly deep level of mistrust held by a vocal minority of member states.
In some cases, this mistrust may have emerged from genuine concern over the manner in which the state level concept was developed and communicated to member states. The Agency’s consultation process seems to have addressed these, and while the conference welcomed continued engagement with the Agency on this issue, it is unlikely that the IAEA will have to make such a concerted outreach on this topic again. In other cases, this mistrust may have emerged from a more general fear over the future direction of safeguards. A former section head of the Agency’s Office of Legal Affairs highlighted this when she associated disputes over the state level concept with a challenge to the Agency’s obligation to verify both the correctness and completeness of a state’s declarations, no matter what agreement they are reported through.
The resolution adopted last week gives little opportunity for such a challenge to take hold within the General Conference. Preambular language stresses the importance of verifying both the correctness and completeness of state declarations, and notes that the Agency’s ability to do this should be increased. Any attempt to mount a challenge to this by objecting to ambiguities or uncertainties in the state level concept will be very hard now that most of these ambiguities and uncertainties are explicitly addressed in the resolution. Nevertheless, the acceptance of the Agency’s approach to safeguards may be tested more at the coalface than in the conference hall. The Agency’s long-running investigation into Iran’s nuclear programme will continue to be a very visible test of the IAEA’s safeguards system. If this system fails to resolve this investigation in a manner that neither compromises a potential diplomatic solution nor tarnishes the Agency’s apolitical status, more questions may be raised in the future as to its suitability.
The safeguards resolution adopted at the General Conference also goes a long way to cementing the importance of maintaining the Agency’s capabilities to verify any disarmament or arms control agreement it is asked to monitor. While language related to this capability has long been supported by many member states, it has either been rejected for expediency or relegated to the preambular paragraphs. By ‘noting that the Agency must remain ready to assist […] with verification tasks under nuclear disarmament or arms control agreements’, this issue will remain worthy of detailed consideration in many conferences to come.
What happens now remains to be seen. The best outcome would be that member states now feel that they have the assurance that they desired. This would enable the Agency to continue to develop this important safeguards measure in a way that is efficient and adaptive to changes in technology, but above all in a way that effectively builds assurance that member states have comprehensively declared their stockpiles of source and special fissionable material.