American University International Law Review Annual Conference
The Nuclear Non-Proliferation Treaty:
A Legal Framework in Crisis?
Panel on Iran and Article IV of the Non-Proliferation Treaty
February 9, 2006

Limits of the Non-Proliferation Regime-
And why Multilateralism is the Only Solution

Michael Spies, Program Associate
Lawyers’ Committee on Nuclear Policy

Compliance assessment under the NPT is a flawed process, as I will explain. The problem of Iran is therefore a problem inherent in the NPT framework. And, as I will conclude, only effective multilateralism will be sufficient to solve the crisis we face now and will successively face in the future.

Accountability under the NPT

The Nuclear Nonproliferation Treaty places two non-proliferation requirements on the non-nuclear weapon states. Article II obliges non-nuclear states in part “not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”

There is no compliance assessment or enforcement mechanism to address suspected violations of Article II. This is because states believe verification of this provision would require an unrealistically intrusive inspection regime. Instead the verification component of the NPT is focused on the disposition of nuclear material, which can be more easily monitored and detected.

Article III thus requires the non-nuclear states to accept safeguards, implemented by the IAEA, for the purpose of “preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.”

Critical to the Iran issue, the objective of the NPT mandated safeguards, as stated by its Safeguards Agreement, is limited to “the timely detection of diversion of … nuclear material from peaceful nuclear activities” to unknown use or use in weapons.[1] This restricted scope of safeguards effectively places non-nuclear material-related components of a potential nuclear weapons program outside the purview of the Agency, thus limiting access to non-declared facilities of a purely military nature. The Additional Protocol, approved by the IAEA Board in 1997, grants to IAEA an expanded inspection capability that allows the Agency to reasonably certify that there are no undeclared nuclear material-related activities and that no nuclear materials have been diverted for prohibited activities.

Compliance Assessment

Much the momentum propelling the current crisis has revolved around the word non-compliance. What is non-compliance? The word does not appear in the Safeguards Agreement, yet is referred to in the Agency Statute. Non-compliance, as it is defined under Article XII.C. of the Statute, requires a finding that nuclear material provided for an Agency project (for example a IAEA supplied reactor to produce medical isotopes operated with the assistance of the Agency) has been diverted for military purposes,[2] or that there are violations of health and safety regulations[3] or other violations of conditions of an Agency project.[4] This narrow definition does not include activities a state undertakes under its own initiative, such as the operation of power plants and fuel cycle facilities.

The verification mechanism of the NPT Safeguards is also somewhat narrow in scope. Per its authority under the Safeguards Agreement, the IAEA Board of Governors may report a state to the Security Council if it finds that, based on the report from the Director General, it cannot be assured that a state has not diverted nuclear materials to non-peaceful purposes. The purpose of preventing diversion is also highlighted in Article III of the NPT. If we take “non-compliance” with the NPT Safeguards to mean diversion of nuclear material, then, for the purpose of satisfying the reporting requirement under Article XII.C., such a finding would require the Director General to report either evidence or uncertainty regarding such diversion.[5] This was the basis for the IAEA Board referral of the North Korean situation to the Security Council in 2003.[6]

In the case of Iran, the IAEA’s nearly three year old investigation uncovered a vast and undeclared program involving all aspects of the nuclear fuel cycle going back nearly two decades. However, the IAEA concluded in November 2004 that all declared nuclear materials had been accounted for in Iran and therefore none had been diverted to military purposes. The IAEA states that it is not yet in a position to determine the presence or absence of additional undeclared nuclear materials or activities. The Iranian failure to declare various activities violated the Safeguards Agreement. But there is no finding of non-compliance in the sense of diversion of nuclear materials.

The September 24, 2005 IAEA Board resolution, adopted by a divided vote with many abstentions, accordingly used vague language. Based on Iran’s failure to declare nuclear activities and facilities over an extended period, the resolution made a finding of non-compliance in the “context of Article XII.C.” The most recent resolution adopted by the Board on February 4, which requests the Director General to report the Iran file to the Security Council, refers to this finding.

Separately, Article III.B.4 of the Statute empowers the IAEA to submit a report to the Security Council, "as the organ bearing the main responsibility for the maintenance of international peace and security... if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council."[7] The September 24 resolution also referenced this provision of the Statute as a basis for stating that the situation is within the jurisdiction of the Council. While this provision does not require a finding of non-compliance with safeguards, its proper application would naturally be interpreted in light of the Safeguards Agreement and other provisions of the IAEA Statute. Thus any basis other than diversion or uncertainty about diversion would require justification.

Enforcement of Safeguards

Also important is to consider is authority for enforcement measures, or the lack thereof:

1) The IAEA Board has only limited authority to take enforcement measures. It can deprive a state of privileges and cooperation under the IAEA Statute. But it does not have the authority to require that a state suspend or terminate nuclear fuel cycle activities.

2) There is no NPT governance structure, like an Executive Council. In theory, a review conference or other meeting of states parties could take action. Though not provided for by the NPT, if there was sufficient consensus, it probably would be viewed as legitimate. The United States has shown a marked lack of interest over the last decade in proposals to enhance NPT governance mechanisms, which would require a multilateral negotiating process. The U.S. is unlikely to support such a process as it would inevitably face widespread criticism for its abrogation of the disarmament commitments it agreed to in 2000.

3) This leaves the Security Council. In general, the Council is plagued by a growing lack of legitimacy in much of the world, due to the lack of global representation among the permanent members, otherwise known as a “democracy deficit”. With regard to NPT-related matters, the Council is not really authorized to enforce the treaty. Rather, in order to impose requirements on a state, and to back those requirements by sanctions, it must find there is a threat to international peace and security under Chapter VII of the UN Charter. Especially given the central U.S. role in the Council, this obviously carries the potential for confrontation and counterproductive outcomes. This is why many notable figures, including Hans Blix, have urged that solutions be found outside the Council. It is true that the Council has the discretion to make recommendations under Chapter VI of the Charter, or to impose requirements without immediately resorting to sanctions. This could be a more fruitful course to follow. Closure of the IAEA investigation into Iran’s past breaches of its Safeguards Agreement and related matters going to its intentions is within sight, assuming Iranian cooperation. But the problem of Iran’s pursuit of enrichment capabilities is best dealt with separately.

The Pursuit of Enrichment Capability

When Iran’s pattern of concealment of nuclear activities came to light three years ago a reasonable case could have been made that Iran should have been denied the right to pursue enrichment or reprocessing capabilities until it had regained the trust of the world. However, that was not the path taken. Instead the EU undertook negotiations with Iran pursuant to the Paris Agreement negotiating framework. The agreement intended to provide “objective guarantees that Iran's nuclear programme is exclusively for peaceful purposes” and to “equally provide firm guarantees on nuclear, technological and economic cooperation and firm commitments on security issues.” Under the agreement “the E3/EU recognize Iran's rights under the NPT exercised in conformity with its obligations under the Treaty, without discrimination,” a phrase which is generally to allow for uranium enrichment. Such activities would have been resumed in Iran following the final outcome of negotiations. Last spring, the EU3 changed its bargaining position, declaring that the only objective guarantee would be the absence of enrichment. This change precipitated a damaging chain of unilateral responses from Iran, leading to our present situation. Moreover, the EU demanded very firm commitments from Iran on forfeiting aspects of its nuclear program in exchange for a weak and nebulous package of incentives. Notably, there were no security guarantees of any weight, not surprisingly since the United States was not directly involved in the discussions.

Given this history, it is difficult to go back to square one, and say Iran must be deprived, full stop, of the right to pursue enrichment capabilities. There are other options that could be acceptable to both sides:

1) the proposal for a facility located in Russia is one;

2) Another is Iran’s proposal, made in the course of negotiations with the EU, for limited enrichment capability in Iran, subject to continuous, in-person IAEA monitoring.

3) A third is for global or regional arrangements to produce or at least to guarantee the supply of nuclear fuel, as proposed by ElBaradei. Whether or not this option can be brought into play in time to help with resolving the Iran situation, it is needed for the future; otherwise, the dilemmas posed by Iran will be faced again.

Conclusion

The Iranian dilemma highlights a core deficiency and contradiction in the formulation of the NPT, specifically its absolute position on the dissemination of nuclear technology. The development of nuclear fuel cycle technologies represents an inherent proliferation risk wherever they are located, leading to mistrust and decreased security for all states. However, the right to peaceful nuclear technology is viewed by many states as at the core of the nonproliferation regime.

During the recent extraordinary meeting of the IAEA Board, the members of the Non-Aligned Movement issued a statement in which they “recognize that any rightful nuclear activity under the Agency’s safeguard does not constitute any concern.” While the Iran nuclear program is not a particular matter of concern for many developing states, the potential for the curtailment of their rights under Article IV is. Accordingly, to preserve the non-proliferation regime, the problem of nuclear fuel cycle technology must be approached multilaterally together with progress on the nuclear disarmament required by Article VI of the NPT.

Lackluster progress on the nuclear disarmament commitments made at the 2000 NPT Review Conference undermines global support for nonproliferation efforts. The breakdown of the 2005 NPT Review Conference signals that the non-nuclear weapon states are increasingly unwilling to accept de facto concessions of their right to develop nuclear technology without tandem progress on the total elimination of nuclear arsenals. The abandonment of language on nonproliferation and disarmament in the 2005 World Summit outcome document illustrates that nonproliferation efforts will be weakened unless the nuclear weapon states live up to their unequivocal undertaking to disarm and implement in good faith commitments already made.

In a recent talk UN Secretary General Kofi Annan stated that:

“we cannot continue to lurch from crisis to crisis, until the regime is buried beneath a cascade of proliferation. Twice last year, Governments had the chance to strengthen the foundations of the NPT regime, by agreeing on more robust IAEA inspections; incentives and guarantees for countries to forgo enrichment and reprocessing of fissile materials; and energetic steps to meet disarmament commitments. Both times they failed. We cannot afford any more such squandered chances.”[8]

1. International Atomic Energy Agency Model Comprehensive Safeguards Agreement, Document INFCIRC/153, Paragraph 28.
2. IAEA Statute, Article XI.F.4.
3. IAEA Statute, Article XII.A.2.
4. IAEA Statute, Article XII.C.
5. The safeguards agreement grants the Board some discretion in it ability to respond to actual and suspected cases of diversion of nuclear materials to non-peaceful purposes:

“If the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under this Agreement is not diverted to nuclear weapons or other nuclear explosive devices, the Board may call upon the State to take the required action without delay…” (Information Circular 153, paragraph 18)

However, neither the Statute nor the Safeguards Agreement grant the Board additional authority to enforce or otherwise take further action on such a call. If a state elects not to heed a call to take immediate action, the Board would be left to its own judgment to determine whether or not it is “able to verify that there has been no diversion of nuclear material.”

6. IAEA Board of Governors Resolution on Safeguards in North Korea, February 12, 2003, http://www.iaea.org/NewsCenter/MediaAdvisory/2003/med-advise_048.shtml:

"Decides to report, as provided for in Article XII.C. of the Statute, through the Director General, the DPRK's non-compliance and the Agency's inability to verify non-diversion of nuclear material subject to safeguards, to all Members of the Agency and to the Security Council and General Assembly of the United Nations"

7. IAEA Statute, Art. III.B.4.
8. UN Secretary-General Kofi Annan, Address to United Nations Association of the United Kingdom, Central Hall, Westminster, United Kingdom, January 31, 2006, http://www.un.org/News/Press/docs/2006/sgsm10332.doc.htm.

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