Survival: Global Politics and Strategy, vol. 51, no. 1, February–March 2009, pp. 143–164
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The nuclear non-proliferation regime, so vital to maintaining international peace and security, is under increasing threat, particularly from countries that deliberately violate their non-proliferation obligations. Experience with North Korea and Iran has demonstrated that non-compliance must be addressed promptly and effectively. Iran has sought to exploit inconsistencies in how the International Atomic Energy Agency (IAEA) reports violations, including its own case and that of Libya, as well as the less worrying but still significant cases of South Korea and Egypt. Clarifying the technical and statutory basis by which the IAEA exposes non-compliance is one immediate way the non-proliferation regime can be strengthened.
It is hard to believe that, more than 35 years after the adoption of the model Comprehensive Safeguards Agreement, the meaning of ‘non-compliance’ is still uncertain and subject to debate.
Over the last few years, several questions have been repeatedly raised: What is non-compliance? How does one distinguish non-compliance from ‘minor reporting oversights’? What happens if the ‘mistake’ is a one-time incident? Who decides that a state is in non-compliance? Were South Korea and Egypt found to be in non-compliance in 2004 and 2005, and if so, why were they not reported to the UN Security Council? It is time for the IAEA Board of Governors to address these questions, set the record straight, and assure that any future non-compliance is recognised and responded to consistently and effectively.
There is a broad consensus that states which violate or withdraw from the Non-Proliferation Treaty should not be allowed to benefit from the nuclear-energy assistance they received (under Article IV) while and because they were a party to the treaty, or to profit from their violation with impunity. It has therefore been recommended that the Security Council should adopt a generic (non state-specific) and legally binding resolution, under Chapter VII of the UN Charter, stating that if a state notifies its withdrawal from the treaty after being found by the agency to be in non-compliance with its safeguards undertakings, such withdrawal notice constitutes a threat to international peace and security and the state in question would have to surrender all materials and equipment it received under its safeguards agreement(s).
I have also suggested that the Security Council should adopt another generic resolution providing that, if a state is found to be in non-compliance and does not fully and proactively cooperate with the IAEA in resolving the issue and taking the necessary corrective actions, the non-compliant state would be obliged to temporarily suspend all sensitive nuclear-fuel-cycle activities (in particular those related to uranium enrichment, spent fuel reprocessing and the separation of plutonium).
These generic resolutions would not affect states in good standing with their non-proliferation undertakings. It is therefore essential to be clear about what constitutes non-compliance and how the IAEA is to identify and deal with such cases.
Reporting non-compliance
According to Article XII.C of the IAEA Statute, reporting a state to the Security Council for non-compliance with its safeguards undertakings can be seen as a process comprising the...
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Pierre Goldschmidt is Non-resident Senior Associate at the Carnegie Endowment for International Peace, and former Deputy Director General of the International Atomic Energy Agency, Head of the Department of Safeguards.
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