1. INTRODUCTION

It is surprising that although there have now been five cases where the Board of Governors (Board) of the International Atomic Energy Agency (IAEA) has determined that a state has been in non-compliance with its NPT safeguards agreement – involving Iraq, Romania, DPRK, Libya and Iran – there is no established definition of "non-compliance".

The process of determining non-compliance is not only an important aspect of the IAEA safeguards system, but is also the only established mechanism for determining non-compliance with the NPT itself: non-compliance with an NPT safeguards agreement will constitute non-compliance with Article III of the NPT – to accept safeguards on all nuclear material – and, depending on the circumstances, possibly also Article II – not to acquire nuclear weapons.

Some forms of non-compliance – such as refusal to allow IAEA safeguards inspections – will be clear cut. More difficult are circumstances involving ambiguity – e.g. if inspectors discover undeclared nuclear material or activities, does this necessarily indicate an intention to produce nuclear weapons? Inadvertent safeguards breaches do occur – and it is necessary to be able to distinguish between breaches that have significant safeguards implications and those that may be of a less serious, "technical" nature.

Lack of a definition may be seen as advantageous – allowing the Board flexibility to deal with complex cases – but this comes at a cost. Lack of clarity and consistency in this vitally important area could have adverse consequences for the integrity and credibility of the IAEA's safeguards system. This paper suggests that guidelines could be helpful to the Board's deliberations, and could assist all parties in their understanding of the issues.

2. LEGAL CONTEXT

IAEA Statute The term "non-compliance" in the safeguards context was introduced in the IAEA's Statute, which entered into effect in 1957, i.e. some 13 years before the Nuclear Non-Proliferation Treaty (NPT). Article XII.A of the Statute outlines the Agency's rights and responsibilities with respect to arrangements where the Agency is requested by the parties concerned to apply safeguards. Article XII.C provides that the IAEA's inspectors shall have "the responsibility of … determining whether there is compliance with … conditions … prescribed in the agreement between the Agency and the State … concerned" (underlining added).

Article XII.C further provides that "The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors" (underlining added). Article XII.C requires the Board to report non-compliance to the Security Council[1].

Nuclear Non-Proliferation Treaty The entry into force of the NPT in 1970 introduced a range of new obligations for non-nuclear-weapon state (NNWS) Parties, especially to accept IAEA safeguards on all their nuclear material[2].

Under the NPT, a NNWS undertakes the fundamental obligation "not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices"[3]. The fulfilment of this obligation is to be verified, through the obligation to "accept safeguards, as set forth in an agreement to be … concluded with the [IAEA] … and the Agency's safeguards system, … with a view to preventing diversion of nuclear energy (underlining added) from peaceful purposes to nuclear weapons or other nuclear explosive devices. … The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere"[4].

It can be seen these provisions contain a number of elements pertinent to the issue of compliance. The reference to diversion of nuclear energy is particularly interesting. Commonly the term "diversion" is thought of as relating to nuclear material, but in the NPT the term is given a much broader meaning – here the sense is the misuse of nuclear processes. Also interesting is the reference to prevention, which underlines the timely warning aspect of safeguards – safeguards must be forward-looking, drawing inferences from known facts.

Comprehensive safeguards agreement The safeguards agreement required of NNWS under the NPT – now termed a comprehensive safeguards agreement[5] – has been standardised through the model agreement published as IAEA document INFCIRC/153. In terms of the IAEA Statute, an NPT safeguards agreement is an "arrangement where the Agency is requested by the parties concerned to apply safeguards" (Article XII.A).

The basic obligation in an INFCIRC/153 agreement, reflecting the language of NPT Article III.1, is "to accept safeguards … on all source or special fissionable material … for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices"[6]. Also of fundamental importance is the obligation to cooperate with the IAEA in facilitating the implementation of safeguards pursuant to the safeguards agreement[7].

3. DETERMINING NON-COMPLIANCE

Procedural aspects A non-compliance finding may be reached through the process set out in Article XII.C of the Statute, outlined above, or through paragraph 19 of INFCIRC/153.

Paragraph 19 of INFCIRC/153 provides that if the Board "upon examination of relevant information reported to it by the Director General finds that the Agency is not able to verify that there has been no diversion of nuclear material … to nuclear weapons or other nuclear explosive devices" (underlining added), the Board may make the reports provided for in Article XII.C of the Statute.

While INFCIRC/153 does not use the term "non-compliance", the effect of the reference in paragraph 19 to Article XII.C is to bring the concept of non-compliance into INFCIRC/153. The cases mentioned at the beginning of this paper demonstrate it is firmly established practice that the Board may reach a specific finding of non-compliance with respect to INFCIRC/153 agreements.

A way of understanding the relationship between Article XII.C and paragraph 19 is to see the former as applying to unambiguous non-compliance, such as detection of diversion or refusal to allow inspections. The "inability to verify" formulation of paragraph 19 could also apply to some such situations, but in addition could apply to circumstances that are less clear-cut, or where the IAEA's investigations are inconclusive.

Distinguishing non-compliance from less serious breaches A judgment on non-compliance is made first by the "the inspectors" in deciding what should be reported to the Board, and then by the Board in deciding whether it finds that non-compliance has occurred. Once the IAEA inspectors have decided that a breach is sufficiently serious to report to the Board, how does the Board determine whether the breach is sufficiently serious to constitute non-compliance?

The drafting of Article XII.C ("compliance with … all … conditions of the … agreement") could be read as indicating that non-compliance is a failure to observe any condition in a safeguards agreement. But clearly not every safeguards breach constitutes non-compliance – otherwise the agendas of both the Board and the Security Council would be taken up with safeguards cases. There needs to be a way of distinguishing serious from less serious breaches.

Some guidance can be found in the Statute, and by reflecting on the purpose behind the Statute's provisions for reporting to the Security Council. Looking at e.g. the indication in Article XII.A.1 that items under safeguards should not further any military purpose, and the close link between Article XII.C and Article III.B.4, which deals with "questions that are within the competence of the Security Council … as the organ bearing the main responsibility for the maintenance of international peace and security" (underlining added), it can be inferred that non-compliance involves safeguards breaches that have an actual or potential proliferation significance.

What kind of breaches are of actual or potential proliferation significance? This is a judgment that needs to be made on the facts of each case, but obvious considerations would include:

• Is there diversion of nuclear material to nuclear weapons, to purposes that could be related to production of nuclear weapons, or for "unknown" purposes (see below) that could include nuclear weapons?
• Where undeclared nuclear activities have been discovered, do these involve fissile material or production of fissile material[8] – i.e. enrichment or reprocessing? If so, are the quantities involved significant, or is there indication of an intention to scale up the undeclared activities to produce significant quantities?
• What is the context of the safeguards breaches: is there a systematic pattern of breaches; are the nuclear materials and the activities involved of a nature that could be relevant to nuclear weapons; might they be part of an overall program aimed at acquiring nuclear weapons?
• Is the IAEA being obstructed in carrying out its safeguards activities – e.g. inadequate cooperation with inspections, failure to produce records, interference with safeguards equipment, etc. – so that the IAEA is not able to exclude the existence of diversion or undeclared nuclear activities?
• What is the overall record of the state on performance of safeguards and non-proliferation commitments?

Diversion There are two elements todiversion: action and purpose. Regarding action, diversion is commonly taken to mean removal of nuclear material from safeguarded activities. More correctly, however, the term encompasses both removal of nuclear material from safeguards and failure to declare nuclear material for safeguards. The state's basic obligation is to accept safeguards and apply safeguards procedures on all nuclear material – any significant departure from this obligation could indicate diversion.

The other element of diversion is purpose – diversion is stated to be "to nuclear weapons or other nuclear explosive devices" (INFCIRC/153 paragraphs 1, 2, etc.) or to "purposes unknown" (INFCIRC/153 paragraph 28). The reference to "purposes unknown" is of critical importance, indicating that the standard of proof is set at a practical level, not one that is unrealistically high. This point is discussed further below.

Undeclared nuclear material/activities Although the NPT and INFCIRC/153 express the obligation to accept safeguards in terms of nuclear material, under INFCIRC/153 the obligation to declare nuclear material also extends to an obligation to declare nuclear facilities[9]. In addition, INFCIRC/153 requires reports on the processing of nuclear material, which necessarily involves reporting of relevant activities. The Additional Protocol (INFCIRC/540) also requires reporting on – and provision of complementary access to – specified nuclear-related activities even if nuclear material is not present, on the basis that knowledge of such activities will assist the IAEA in drawing conclusions concerning nuclear material.

The discovery of undeclared nuclear material or activities does not necessarily indicate an intention to produce nuclear weapons. It is necessary to make a judgment on implications and significance, e.g. whether the failure to declare might be inadvertent, and the possible consequences if the failure had remained undetected, e.g. how might the material concerned be used?

In assessing whether particular failures can be accepted as inadvertent, relevant factors might include the following:

• Whether there is evidence of deliberate falsehoods or concealment efforts, indicating that the failures were intentional rather than inadvertent;
• The nature of the nuclear material involved – particularly whether fissile material;
• The nature of the nuclear activities involved – whether these are related to production of fissile material (i.e. enrichment or reprocessing) or to processes that could be relevant to nuclear weapons.

4. STANDARD OF PROOF

Whether governments have confidence that a state's nuclear program is exclusively peaceful is a matter of judgment made, not on the basis of certainty but on the balance of probabilities. A judgment on non-compliance cannot wait until the state has succeeded in acquiring nuclear weapons. If the standard of proof is set too high, the IAEA is bound to fail in its responsibility to provide the international community with timely warning.

To "prove" the existence of a nuclear weapon program is unrealistic: a state having a nuclear weapon or nuclear weapon components, or conducting weaponisation experiments with nuclear material, is unlikely to be caught red-handed. More likely, a state facing obvious exposure would deny inspectors access to the location concerned, preferring to argue whether lack of cooperation constitutes non-compliance, maintaining some ambiguity about its actions.

Depending on the circumstances, the existence of undeclared nuclear material/activities should be enough to raise a presumption of diversion – especially if fissile material, enrichment or plutonium separation are involved. The NPT requires acceptance of safeguards on all nuclear material, for the purpose of verifying the fulfilment of obligations assumed under the Treaty, namely, not to produce nuclear weapons. Where it is found that a state has not declared nuclear material, apparently intentionally, the initial presumption must be that non-peaceful purposes are intended. The "smoking gun" is the failure to declare nuclear material.

If undeclared nuclear material/activities are discovered, an immediate challenge is to try to establish whether there are further undeclared nuclear material/activities – the IAEA's ability to do this might depend on having a non-compliance finding from the Board with increased authority from the Board to carry out additional verification activities.

The more additional information the IAEA can gather the better – this will help to make the judgment whether a weapon purpose is plausible in the circumstances. Detection of apparent weaponisation activities could be very important, and the IAEA needs to investigate such activities to the extent it is able, but discovery of weaponisation activities is not essential to support a finding of diversion/non-compliance[10].

The drafters of INFCIRC/153 recognised the importance of avoiding an unrealistically high standard of proof. This is shown by the use of qualitative language – "purposes unknown"[11] and "not able to verify"[12] – that allows for application of judgment to deal with ambiguous or inconclusive situations.

INFCIRC/153 takes a practical approach – it is sufficient for the IAEA to show:

• Failure to declare nuclear material and/or a nuclear activity – or that nuclear material has been removed from safeguards;
• The failure is considered to be significant – e.g. because of the nature of the nuclear material and/or activity; and
• The purpose of the use of the nuclear material or the nuclear activity is not clearly exclusively peaceful – it could be military, or it could be uncertain, i.e. "unknown".

In these circumstances, the onus is then on the state to show that non-peaceful purposes are not intended. It can attempt to do this through full cooperation with, and transparency to, the IAEA, as discussed in the following section.

5. REMEDYING NON-COMPLIANCE

As discussed above, a non-compliance situation may well be one of ambiguity rather than conclusive evidence. Once inspectors find they are unable to verify that there has been no diversion to nuclear weapons – or that there has been diversion to purposes that are uncertain or unknown – it is for the Board and governments to consider the implications and what is necessary to rebuild confidence.

Article XII.C provides that the Board "… shall call upon the … State to remedy forthwith any non-compliance which it finds to have occurred", and paragraph 18 of INFCIRC/153 provides that where the Board "decides that an action by the State is essential and urgent in order to ensure verification that nuclear material … is not diverted to nuclear weapons … the Board shall be able to call upon the State to take the required action without delay …".

An essential issue for the IAEA to determine is the range of verification activities needed for effective investigation of the non-compliant state's nuclear activities. It is most unlikely that verification under the INFCIRC/153 agreement alone will suffice. At the least, the IAEA is likely to require access and information in accordance with the Additional Protocol (AP), so if the state doesn't have an AP in place the Board may need to require equivalent measures. Indeed, there are arguments whether the standard AP is sufficient to deal with non-compliance, or the IAEA may need further measures – what has been termed "the AP plus" – possibly under authority from the Security Council[13].

When is non-compliance resolved? This comes down to an issue of what the Board requires before it can conclude that the non-compliance has been fully remedied. It is not simply a matter of making good the specific safeguards violations that have been discovered. Discovery of acts of non-compliance raises the question whether the state may have more, as yet undiscovered, safeguards violations. A substantial ongoing program of verification, requiring continuing cooperation by the state, may be required before there can be confidence that there are no other instances of non-compliance, and that non-compliance is not likely to recur. It could be some time before the Board is able to reach a positive conclusion, and before there can be confidence on the part of the international community.

6. CONCLUSIONS

Reinforcing confidence in, and commitment to, the non-proliferation regime depends not only on proficient verification but also, where necessary, on effective action to uphold treaty compliance. Well-functioning procedures for determining non-compliance are essential to this.

It is not appropriate to apply a rigid approach to determinations of non-compliance. The facts are likely to be complex, and a case-by-case approach will be required. The terms of Article XII.C of the Statute and paragraph 19 of INFCIRC/153 provide the Board with appropriate scope for the exercise of judgment. This is not to say, however, that the Board's discretion should be unlimited. Consistency and predictability are essential if the Board's decisions are to be credible and maintain confidence in the integrity of the IAEA's processes. It is essential that the approach taken by the Board is understood and accepted by the Member States.

Clarification of the issues involved in non-compliance determinations is important for all parties – states and the IAEA Secretariat as well as the Board. The development of guidelines to assist the Board, and indeed the Secretariat, could be very helpful. This paper has suggested some of the considerations that could inform the development of such guidelines.