LEGAL INSTRUMENTS RELATED TO THE APPLICATION
OF THE SAFEGUARDS
Ms. Laura Rockwood

The legal framework of IAEA safeguards consists of a number of elements, not all of which are documents. These elements include the Statute of the IAEA, treaties and supply agreements calling for verification of non-proliferation undertakings, the basic safeguards documents (INFCIRC/66/Rev.2; INFCIRC/153(Corr.); INFCIRC/9/Rev.2; GC(V)/INF/39), the safeguards agreements themselves, along with the relevant protocols and subsidiary arrangements, and finally, the decisions, interpretations and practices of the Board of Governors.

I would like first of all to discuss each of these elements with you. I will then outline the major differences between the various types of IAEA safeguards agreements, and finally describe the procedures involved in the initiation, negotiation, conclusion and amendment of safeguards agreements.

I. LEGAL FRAMEWORK

A. IAEA Statute

The IAEA’s safeguards system is grounded the provisions of the Agency’s Statute. As originally contemplated, the IAEA was to be a sort of broker of controlled nuclear assistance and trade. It was anticipated that the majority of the safeguards arrangements would be a function of the Agency’s responsibility under Article II to “ensure, as far as it is able, that assistance provided by or through it, is not used in such a way as to further any military purpose". However, the Statute was drafted in such a way as to permit growth and flexibility in the system.

Article III.A.5 authorizes the Agency to establish and administer safeguards designed to ensure that projects in the field of nuclear energy carried out or fostered by the Agency are not used in such a way as to further any military purpose (a requirement with respect to which Article XI.F.4 sets out in more detail: the assistance provided shall not be used in such a way as to further any military purpose, and the project shall be subject to the safeguards provided for in Article XII to the extent the Agreement specifies particular controls to be relevant). In addition, Article III.A.5 authorizes the IAEA to apply safeguards to any bilateral or multilateral arrangement, at the request of the parties, and to any of the nuclear activities of a State, at that State’s request.

Article XII of the Statute sets out the fundamental features of Agency safeguards in three paragraphs:

1. the rights and responsibilities that the Agency has when carrying out safeguards, to the extent relevant to the specific situation:

- to examine the design of specialized equipment and facilities;
- to require the maintenance and production of operating records to assist in ensuring accountability for and control of source and special fissionable materials;
- to require the submission of reports;
- to send into the State inspectors, designated by the Agency after consultation with the State or States concerned, who shall have access at all times to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities which are required by this Statute to be safeguarded, as necessary to account for nuclear materials and to determine whether there is compliance with the undertaking against use in furtherance of any military purpose and with any other conditions prescribed in the agreement;
- and impose certain sanctions.

2. the requirement that the Agency establish a staff of inspectors, whose general functions are specified in the Statute (including right of access)

3. the steps to be taken by inspectors, by the Director General and by the Board of Governors in the event a State is found to be in violation of its safeguards agreement, including calling upon the State to remedy the non-compliance, reporting such non-compliance to the Member States of the Agency and to the Security Council and the General Assembly of the United Nations, and imposing certain sanctions.

B. Treaty and Supply Agreement Obligations

1. Assistance Provided by the Agency

Article III.A.5 of the Statute contemplates the application of Agency safeguards to assistance provided by the IAEA. As provided for in Article XI.F of the Statute, Agency assistance is provided under project and supply agreements concluded between the IAEA and its Member States. These projects, which are administered by the Department of Technical Co-operation, entail the conclusion of a supply agreement between a supplier State, the recipient State and the Agency, and a project agreement between the Agency and the recipient State which, among other provisions, requires the application of Agency safeguards where relevant. That is so, for example, where the project involves the supply of nuclear material or facilities.

2. Multilateral and Bilateral Treaties

a. The first such global treaty was the Treaty on the Non-proliferation of Nuclear Weapons (the NPT), which entered into force 5 March 1970. Article III. 1 of the NPT requires each non-nuclear weapon State¹ (NNWS) to accept safeguards, as set forth in an agreement to be concluded with the IAEA in accordance with its Statute, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

In addition, Article III.2 of the NPT requires each State Party to the NPT not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to a NNWS for peaceful purposes unless the source or special fissionable material is subject to Agency safeguards.

Negotiation of the NPT resulted in accommodation of a number of States’ interest in retaining the right to use nuclear energy for non-explosive military purposes, specifically, nuclear naval propulsion. In addition, the Treaty contemplates availability to NNWSs of the potential benefits of peaceful applications of nuclear explosives, although not necessarily access to the nuclear explosive devices themselves or to the relevant technology.

b. The first regional treaty on non-proliferation and a nuclear weapon free zone was the Treaty for the Prohibition of Nuclear Weapons in Latin America, which was opened for signature in Tlatelolco, Mexico on 14 February 1967. It entered into force in 1969 after eleven States had ratified the Treaty and had waived the other requirements for its entry into force. Article 1 of the Treaty requires all parties to use exclusively for peaceful purposes the nuclear material and facilities which are under their jurisdiction, and to prohibit and prevent in their respective territories (a) the testing, use, manufacture, production or acquisition by any means whatsoever of any nuclear weapons, by the Parties themselves directly or indirectly, on behalf of anyone else or in any other way, and (b) the receipt, storage, installation, deployment and any form of possession of any nuclear weapons, directly or indirectly, by the parties themselves, by anyone on their behalf or in any other way.

Articles 12-18 of the Tlatelolco Treaty establish a control system for the purpose of verifying compliance with the obligation under the Treaty to use nuclear energy exclusively for peaceful purposes, including the conclusion by each party of multilateral or bilateral agreements with the IAEA for the application of its safeguards to its nuclear activities. It also requires the conclusion of a safeguards agreement by each party to Protocol I of the Treaty which has de jure or de facto responsibility for territories in the zone of application of the treaty. The Tlatelolco Treaty also contemplates the possibility of peaceful applications of nuclear explosions. Unlike the NPT, the Tlatelolco Treaty does not include a requirement of safeguards as condition of nuclear supply.

c. The South Pacific Nuclear Free Zone Treaty (the Rarotonga Treaty) entered into force on 11 December 1986. Article 8, which establishes the control system under the Treaty, requires the application to peaceful nuclear activities of safeguards by the IAEA pursuant to an agreement required in connection with the NPT, or equivalent in scope. Unlike the NPT and the Tlatelolco Treaty, no nuclear explosives or nuclear explosive devices are permitted within the zone of application of the Treaty. With regard to exports, Article 4 of the Rarotonga Treaty requires each party undertakes not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purpose to any NNWS unless subject to IAEA safeguards, and to support the continued effectiveness of the international nonproliferation system based on the NPT and the IAEA safeguards system.

d. The Southeast Asia Nuclear-Weapon Free Zone Treaty (the SEANWFZ Treaty) was opened for signature by all States in Southeast Asia, namely Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam, on 15 December 1995, in Bangkok. Under this Treaty, each State Party undertake to use exclusively for peaceful purposes nuclear material and facilities which are within its territory and areas under its jurisdiction and control, and to conclude an agreement with the IAEA for the application of full-scope safeguards to its peaceful nuclear activities. The Treaty also prohibits the export of source or special fissionable material, or specially designed or prepared equipment or material, to any NNWS except under a comprehensive safeguards agreement, and to NWSs, in conformity with applicable safeguards agreements with the IAEA. The Control System set up under the SEANWFZ Treaty also has a mechanism permitting a State Party to request a fact-finding mission to another State Party in order to clarify and resolve a situation which may be considered ambiguous or which may give rise to doubts about compliance with the provisions of the Treaty. As in the Tlatelolco Treaty and the Pelindaba Treaty (see discussion below), the SEANWFZ Treaty contains a Protocol open to signature by the nuclear-weapon States, whereby such States undertake not to use or threaten to use nuclear weapons against any State Party to the Treaty or within the Southeast Asia Nuclear Weapon-Free Zone.

e. The African Nuclear-Weapon-Free Zone Treaty (the Pelindaba Treaty) was opened for signature in Cairo, Egypt on 11 April 1996. Pursuant to this Treaty, each Party undertakes not to conduct research on, develop, manufacture stockpile or otherwise acquire, possess or have control over any nuclear explosive device by any means anywhere; not to seek or receive any assistance in the research on, development, manufacture, stockpiling or acquisition, or possession of any nuclear explosive device; and not to take any action to assist or encourage the research on, development, manufacture, stockpiling or acquisition or possession on any nuclear explosive device. The parties also undertake to prohibit the stationing of nuclear weapons on their territory and to prohibit the testing of any nuclear explosive devices on their territory. As regards safeguards, each State Party undertakes to conduct all activities for the peaceful use of nuclear energy under strict non-proliferation measures to provide assurance of exclusively peaceful uses, to conclude a comprehensive safeguards agreement with the IAEA, and not to export source or special fissionable material, or specially designed or prepared equipment or material, to NNWSs except subject to a comprehensive safeguards agreement. Associated with the Treaty are three Protocols: one open to signature by the NWSs and binding the States not to use or threaten to use a nuclear explosive device against a Party to the Treaty or in the African nuclear-weapon-free zone; one also open to signature by NWSS, in which they undertake not to test or assist or encourage the testing of a nuclear explosive device within the zone; and one open to all States with de jure or de facto international responsibility situated in the zone, requiring, inter alia, the application of safeguards to such territories.

f. The Governments of Argentina and Brazil entered into an agreement in 1990 calling for the establishment of a bilateral inspectorate and for the conclusion of a comprehensive agreement with the IAEA for the application of safeguards to all nuclear material in nuclear activities in Argentina and Brazil. Tentative steps in this direction are being taken elsewhere in the world, regrettably with somewhat less success.

3. At the Request of a State

As indicated above, the drafters of the Statute anticipated the requirement of Agency safeguards as a consequence of bilateral or multilateral arrangements. In the early days, however, safeguards were applied almost exclusively as a condition insisted upon by suppliers who wanted assurance that nuclear-related trade was not used for military purposes. IAEA safeguards were also applied in lieu of bilateral safeguards arrangements which had been concluded before the development of the system of international safeguards under the IAEA (safeguards transfer agreements).

C. Basic Documents

1. INFCIRC/66/Rev.2

The first Safeguards Document (INFCIRC/26) was worked out by interested Governments and the Secretariat in 1959 and 1960 and approved by the Board of Governors on 31 January 1961. It contained the principles and procedures for the application of safeguards to small reactors. This document was extended to larger reactors by decision of the Board on 26 February 1964. In 1964 and 1965, a completely revised Safeguards Document was worked out by a group of government experts and approved by the Board after unanimous concurrence by the General Conference in September 1965 (INFCIRC/66). Annex I to INFCIRC/66, which contains provisions for reprocessing plants, was approved by the Board in 1966, and Annex II, which contains provisions for safeguarded nuclear material in conversion and fuel fabrication plants, was adopted by the Board in 1968. With its two annexes, the Safeguards Document is now referred to as INFCIRC/66/Rev.2. Its provisions are incorporated by reference in the Safeguards Agreement.

In June 1961, the Board of Governors adopted a document referred to as the Inspectors Document (GC(V)/INF/39,Annex), worked out with the help of Government experts, which covers four different areas of the inspection activities, including designation of Agency inspectors, notification of inspections, the conduct of inspection and rights of access and the privileges and immunities of inspectors. This document is also incorporated by reference in INFCIRC/66-type agreements (the comparable provisions in comprehensive safeguards agreements are included in the text of the agreements themselves). Hence, the Inspectors Document is of relevance only to agreements pursuant to INFCIRC/66/Rev.2.

2. INFCIRC/153 (Corr.)

In 1970, the Board of Governors established a Safeguards Committee to advise it on the contents of safeguards agreements to be concluded between the NNWSs party to the NPT and the IAEA. Participation in the Committee was open to all Member States of the Agency, and included, in addition to many States party to the NPT, such non-parties as Argentina, Brazil, China, France, India, Pakistan and South Africa. The Safeguards Committee developed a document entitled “The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons”, which the Board approved in 1972, and requested the Director General to use as the basis for negotiating safeguards agreements under the NPT. The document was published by the Agency as INFCIRC/153(Corr.).

INFCIRC/153 has also served as a basis for the structure and content of comprehensive safeguards agreements concluded pursuant to the Tlatelolco Treaty, and is considered the standard for safeguards agreements under the Rarotonga Treaty, the African NWFZ Treaty and the SEANWFZ Treaty. In addition, it provided a basis for the negotiation of the first unilateral comprehensive safeguards agreement with Albania, a non-NPT comprehensive agreement with Ukraine, and the quadripartite safeguards agreement concluded with Argentina and Brazil.

3. Privileges and Immunities

Agency safeguards inspectors are entitled to certain privileges and immunities while carrying out their responsibilities. These are grounded in Article XV.A of the Agency statute, which provides that the staff of the Agency shall enjoy such privileges and immunities as are necessary in the independent exercise of their functions in connection with the Agency, and are spelled out in the Agreement on the Privileges and Immunities of the Agency (INFCIRC/9/Rev.2). The relevant provisions of this Agreement are incorporated by reference into the safeguards agreements. They include immunity from legal process in respect of words spoken or written and all acts performed by an inspector in his or her official capacity, immunity from personal arrest or detention for non-official capacity, immunity from personal arrest or detention for non-official as well as official acts occurring during a mission, inviolability of papers and documents and freedom from seizure of personal baggage.

These privileges and immunities are to be extended to inspectors not only by the country in which an inspection takes place, but also by those Member States through which inspectors are transitting on their way to and from that country. It bears noting that the Agency has consistently taken the position that the Statute creates an obligation for Member States to grant immunities as specifically defined in INFCIRC/9/Rev.2, and that non-acceptance of that agreement does not reduce the obligation of a Member State to accord inspectors immunities adequate to enable them to efficiently complete their missions.

D. Decisions and Practices of the Agency’s Board of Governors

The legal framework of Agency safeguards is formed not only by legal instruments, such as the documents referred to above, but by the decisions and practices of the Agency’s Board of Governors as well. The following are among the more significant actions taken by the Board in the context of interpretation of the Agency safeguards agreements.

1. Duration and termination of INFCIRC/66 agreements (GOV/1621)

Paragraph 16 of the INFCIRC/66/Rev.2 makes reference to the “desirability” of providing for the continuation of safeguards with respect to produced special fissionable material and to any materials substituted therefor. In 1973, the Board expressed concern about the need for safeguarding such material after the expiry of a safeguards agreement. As a consequence, since 1974, the duration of 66-type agreements has been tied to the actual use in the recipient State of supplied material or items, rather than to fixed periods of time. Under these agreements, safeguards are required to continue on all safeguarded items, including subsequent generations of produced nuclear material derived from safeguarded material or facilities, until safeguards are terminated on in accordance with the revisions of INFCIRC/66/Rev.2.

2. Nature of the “no military” use undertaking

The safeguards agreements concluded in accordance with INFCIRC/66/Rev.2 contain an undertaking by the State not to use safeguarded items for “any military purposes”. In 1974, the Director General proposed, and the Board accepted, an interpretation of that undertaking as precluding the use of safeguarded items for any nuclear explosive device, whether intended for peaceful or non-peaceful ends, owing to the technical impossibility of distinguishing between a nuclear explosive device for peaceful uses and one for military uses. Although a small number of States expressed reservations about this interpretation, all INFCIRC/66/Rev.2 safeguards agreements since 1975 have incorporated a basic undertaking which expressly precludes the use of safeguarded items for the manufacture of any nuclear weapon or to further any other military purpose or for the manufacture of any other nuclear explosive device.

Although the comprehensive safeguards agreements concluded along the lines of INFCIRC/153 do not prohibit all military uses of nuclear material, they, like INFCIRC/66 agreements, also expressly prohibit the use of nuclear material for nuclear weapons or other nuclear explosive devices.

3. Coverage of transfers of technology, non-nuclear material

Although originally limited in applicability to nuclear material and certain types of nuclear facilities, the scope of INFCIRC/66-type agreements over the years has been expanded with the approval of the Board. These agreements now include provisions for the safeguarding of such items as non-nuclear materials (such as heavy water and zircaloy), non-nuclear facilities (heavy water production plants), and transferred technology.

4. Containment and surveillance

Although originally not expressly included in INFCIRC/66-type safeguards agreements, specific provisions for the application of containment and surveillance measures have routinely been included in such agreements.

5. Policy in implementation of financial clauses in safeguards agreements

While all Agency safeguards agreements reflect the basic principle that the expenses of safeguards are to be shared between the Agency and the State concerned, with each party bearing the expenses of carrying out its own responsibilities under the agreement, questions have arisen over the years as to the responsibility for particular expenses associated with certain safeguards activities. In 1990, the Director General presented to the Board a uniform policy with respect to the allocation of such expenses under INFCIRC/66/Rev.2-type agreements and INFCIRC/153 agreements, (GOV/INF/577). Although some reservations were expressed by two members of the Board, the Board expressed its support for the uniform interpretation of financial clauses. The Secretariat has, since that time, included in the Subsidiary Arrangements to all Safeguards Agreements the provisions presented to the Board.

6. Interpretation of provisions related to the early provision of design information

On 26 February 1992, the Board of Governors adopted a recommendation of the Director General related to the early provision of design information. In so doing, the Board interpreted paragraph 42 of INFCIRC/153, which stipulates that such information shall be provided “as early as possible before nuclear material is introduced into a new facility”, as requiring the provision of design information as soon as the decision to construct, to authorize construction or to modify a facility has been taken and, on an iterative basis, as the designs are developed. At the direction of the Board, steps are being taken to adapt Subsidiary Arrangements accordingly.

7. Approval of measures under Programme 93 + 2, Part I

As part of the effort by the Agency and its Member States to strengthen the Agency’s safeguards system, Programme 93 + 2, the Secretariat tabled for the Board’s consideration a set of measures (GOV/2807) for application in States with comprehensive safeguards agreements concluded along the lines of INFCIRC/153. These measures provided for greater access to information, more extensive physical access to locations, and maximizing the efficiency and cost-effectiveness of the existing system. The measures were divided into two parts, those which could already be implemented under existing authority and those which would require complementary legal authority. At its meeting in June 1995, the Board took note of the Director General’s plan to implement at an early date those measures which fell within existing authority, thus indicating the Board’s concurrence with the Secretariat’s legal interpretation of the Agency’s existing rights of access to information and locations, and urged States party to comprehensive safeguards agreements to co-operate with the Secretariat to facilitate such implementation.

II. INITIATION AND PROCESS OF THE NEGOTIATION OF SAFEGUARDS AGREEMENTS

While the IAEA is not a nation or a State under international law, it is an entity having an “international personality”. That is to say, governments have recognized the Agency as an entity which has some of the powers and privileges normally associated with a sovereign State. One of the Agency’s recognized powers is to become a party to treaties. In simple terms, a treaty is an agreement between two or more entities, usually governments, having international personality. Thus, the IAEA’s safeguards agreements, which are negotiated and concluded between the IAEA and governments of States or other non-governmental entities with international personality (such as EURATOM or ABACC) are treaties.

The process of concluding a safeguards agreement is begun with a request by the State [or States concerned] that the Secretariat prepare a text in accordance with the particular underlying obligations and commitments of the State [or States]. The Secretariat then prepares a draft text and submits it to the State or States for consideration. If necessary, negotiations are held between the Agency and the State authorities with a view to agreeing ad referendum to a text which provides for adequate safeguards. In conducting these negotiations, the Secretariat is guided by the policies and practices previously approved by the Board of Governors. Upon conclusion of the negotiations, the safeguards agreement is presented by the Secretariat to the Board of Governors for its approval.

Upon approval of the text, the Director General is authorized to sign and implement the safeguards agreement. Depending upon the State and its own national legislation, the agreement then enters into force upon signature or upon receipt by the Agency of notification from the State that its statutory and constitutional requirements for entry into force of the agreement have been met.

III. CONTENTS, COMPARISON AND IMPLEMENTATION OF THE SAFEGUARDS AGREEMENTS

The safeguards agreements concluded by the IAEA may be categorized generally as those item-specific agreements concluded in accordance with INFCIRC/66/Rev.2, comprehensive safeguards agreements concluded in accordance with or along the lines of INFCIRC/153(Corr.) and safeguards agreements applicable to all or part of the civil nuclear fuel cycles of nuclear weapon States (the so-called “voluntary offer agreements”).

The basic goals of all safeguards agreements are identical: to verify compliance with the undertakings of the States Parties not to use safeguarded items for proscribed purposes. Moreover, the basic technical aspects of the implementation of safeguards are applied in all States subject to safeguards: each agreement provides for Agency review of design information, reporting and record-keeping by the State, inspection activities to be carried out by the IAEA, including rights of access and notification of inspections, and provisions related to the exemption and termination of safeguards. To the extent practical and legally permissible, efforts are made to standardize the Agency’s safeguards approaches, taking into account technical variations among the States’ nuclear programmes.

However, the specific terms of the agreements vary, as I will outline below.

While INFCIRC/66/Rev.2 serves as a guideline, INFCIRC/153 is a standardized model. Hence, agreements concluded pursuant to INFCIRC/66/Rev. 2 reflect a greater degree of variation than do agreements concluded pursuant to INFCIRC/153. The agreements concluded with the NWSs (all of which are party to the NPT) more closely resemble in format the latter, with substantive variations reflecting the more limited scope of the agreements. This latter category of agreements is often referred to as “voluntary offer agreements”, owing to the fact that the NPT does not impose on NWSs a requirement similar to that assumed by NNWSs party to the NPT to conclude safeguards agreements with the IAEA.

A. Scope

The most significant distinction between the agreements concerns the scope and basic undertakings of the States.

Safeguards agreements concluded pursuant to INFCIRC/66/Rev.2 Agreements are designed to cover only specified items, such as certain facilities, equipment, supplies of nuclear material and non-nuclear material. Therefore, they must describe in detail their scope of application. This is usually done in the basic undertaking provision, as well as in the provision on the inventory. Agreements with NNWSs along the lines of INFCIRC/153 cover all source and special fissionable material in all peaceful nuclear activities of the State party. Hence there is no elaborate provision on the scope of the agreement and or on the inventory. The scope of the so-called “voluntary offer agreements” varies from agreement to agreement. However, while some provide for the application of safeguards to all of the State’s civil nuclear activities and others to only some of the State’s civil programme, all provide for the selection by the Agency of a sub-set of facilities or material from that which is offered by the State concerned.

B. Basic Undertaking

Safeguards agreements under INFCIRC/66/Rev.2 prohibit the use of safeguarded items be used in such a way as to further any military purpose, which includes a proscription against their use for any nuclear explosive device or any other military purpose (including nuclear naval propulsion). Agreements with NNWSs party to the NPT prohibit the diversion of nuclear material from peaceful nuclear activities to nuclear weapons or other nuclear explosive devices. There is, however, no prohibition of non-explosive military applications of nuclear material. Accordingly, agreements with NNWS parties to the NPT contain provision for the withdrawal from safeguards of nuclear material for use in non-proscribed military nuclear activities (see para. 14 of INFCIRC/153). As regards NWSS, the undertaking is limited to a commitment not to withdraw material or facilities from safeguards except in accordance with the terms of the relevant agreement, which provide in each case for withdrawal for national security reasons (i.e., for use in the military fuel cycle).

C. Subsidiary Arrangements

The nature and content of Subsidiary Arrangements are discussed below under Section V.

D. Design Review and Inspections

All safeguards agreements require States parties to submit to the Agency information on the design of facilities where safeguards are applied. They also provide for Agency access to review the design information. All of the agreements contemplate a three tier approach to inspections (as distinguished from design information verification visits), consisting of those carried out prior to entry into force of detailed arrangements for routine inspections (ad hoc inspections), routine inspections, and special inspections.

Safeguards agreements concluded in accordance with INFCIRC/66/Rev.2 incorporate the Agency’s statutory right of access to all persons, places and information relevant to the implementation of safeguards. INFCIRC/153 agreements, on the other hand, limit the Agency’s access to carry out routine inspections to strategic points identified in the Subsidiary Arrangements (as do the voluntary offer agreements). However, it should be noted that this limitation does not apply to ad hoc inspections carried out before entry into force of the Subsidiary Arrangements, nor does it apply to special inspections.

INFCIRC/66 limits the maximum number of routine inspections annually at nuclear facilities based on the inventory or throughput of nuclear material at the facility in question, while providing for a right of access at all times to facilities with an inventory or annual throughput in excess of 60 effective kilograms of nuclear material. INFCIRC/153, on the other hand, limits the Agency’s “inspection effort”, permitting the Agency to distribute its inspection activities within categories of facilities in the State.

E. Privileges and Immunities

As referred to above, each of the safeguards agreements contains a provision obliging the State or States party to extend to IAEA inspectors while on mission certain privileges and immunities. It must be pointed out that these privileges and immunities are granted to inspectors in the interest of the Agency and not for the personal benefit of the inspectors. Therefore, the IAEA has the right and duty to waive immunity in any case where, in the Agency’s opinion, the immunity would impede the course of justice and can be waived without prejudice to the interest of the Agency.

Before an inspector begins to travel for the Agency, he or she must apply for a Laissez Passer through the Visa Section. The Laissez Passer, which is honoured by all Member States except the United States, Russia and Saudi Arabia, must be stamped with the appropriate visas prior to departure on official business. Visas must be secured where required by the State concerned not only for the State of ultimate destination, but also for any States in which the inspector may be stopping over (although generally not for those through which the official is simply transitting). For travel to those countries not honoring the Laissez Passer, and for personal travel, an inspector must use his or her national passport, including visas where appropriate.
F. Duration

The duration of INFCIRC/153 agreements is generally linked to the State’s adherence to the NPT, to the Tlatelolco Treaty or to other underlying treaties or agreements. There is no provision for the survival of safeguards on produced special fissionable material upon expiry of such an agreement. However, as noted above, recent safeguards agreements concluded on the basis of INFCIRC/66/Rev.2 include a provision requiring continuation of the agreement until safeguards are terminated in accordance with the provisions of the Safeguards Document.

G. Safeguards on exports

INFCIRC/66/Rev.2 contains provisions requiring in general the application of safeguards as a condition of re-transfer of safeguarded items. INFCIRC/153 contains no such condition, as it was considered unnecessary in light of the requirement in Article III.2 of the NPT prohibiting the transfer of nuclear material to NNWSs unless the material will be subject to safeguards in that State. However, INFCIRC/153 does contain a provision requiring notification to the Agency if safeguards will not be applied in the importing State, a provision included to address the circumstance of transfers to NWSS.

H. Disputes resolution

Because safeguards agreements are treaties, the principles of international law, rather than the rules of domestic national law, are used in the interpretation and application of safeguards agreements. While the court systems of most countries are available to resolve differences between private parties to a contract, for sovereign States, the International Court of Justice (ICJ) is available to resolve disputes concerning treaties if the requirements of the Statute of the Court are met.

The IAEA, however, is not subject to the jurisdiction of national courts, nor under the Statute of the ICJ is it eligible to be a party to an action before that tribunal. Thus, there is no court or established judicial tribunal which has competence to resolve a dispute between the IAEA and a State relating to the interpretation and application of a safeguards agreement.

For this reason, all safeguards agreements contain a provision for submitting disputes concerning the interpretation and application of the agreements to binding arbitration. Although several versions of these provisions have been developed, they all basically provide for the establishment of an arbitration panel (or arbitral tribunal) composed of one member selected by each of the parties to the dispute, plus one or two members designated by the panel members chosen by the parties to the dispute, plus one or two members designated by the panel members chosen by the parties. The arbitration provisions are designed to ensure that the panel is always composed of either three or five members to avoid the possibility of a tie vote.

No recourse to arbitration has been made to date in the course of implementing safeguards.

I. Compliance and enforcement

Because a safeguards agreement is a treaty, the responsibility to fulfill the obligations of the agreement rests with the Government of the State that is party to the agreement. For example, if the operator of a privately-owned facility subject to safeguards refused to allow IAEA inspectors to conduct a properly scheduled inspection, the IAEA would request the Government of the State concerned to take whatever steps are necessary to ensure that Agency inspectors have adequate access to the facility. If the Government did not or could not obtain adequate access for the inspectors, then the Government, not the operator, would have violated the agreement unless the failure to do so was excused. It is the Government’s responsibility to ensure that persons under its jurisdiction act in accordance with the treaty obligations assumed by that Government.

The information that safeguards inspector is likely to uncover, however, is such that, rather than demonstrating a clear violation of the agreement it would raise doubts as to whether the State is fulfilling its obligations under the agreement. Regardless of the type of agreement, the IAEA has the right and the duty to try to resolve these doubts through the examination of the information assembled and the obtaining from the State of additional information and/or access to additional locations.

If such doubts cannot be resolved to the satisfaction of the Director General, the Director General would report, under an INFCIRC/153 agreement, to the Board of Governors that action by the State concerned is essential and urgent to ensure the verification of non-diversion or report to the Board the Agency’s inability to verify that nuclear material required to be safeguarded has not been diverted, or, under an INFCIRC/66/Rev.2 agreement, that the State is in non-compliance with the agreement.

Any actions considered by the Board to be “essential and urgent” are required to be implemented by the State without delay. If the State does not take the required action, the Board may conclude, on the basis of the information reported to it by the Director General, that the IAEA cannot fulfill its obligation under the agreement to verify non-diversion; the Board may also find that the State is in further non-compliance with its safeguards agreement.

The nature of non-compliance by a State with its safeguards obligations may vary. Noncompliance could derive, for example, from the unaccounted for presence or absence of nuclear material, from misleading and/or falsified records or reports, from the denial of access to Agency inspectors, or from the tampering with Agency instruments or seals, or, as indicated above, from failure to carry out actions determined by the Board to be essential and urgent. Upon report by the Director General to the Board, the Board is to call upon the Sate concerned to remedy forthwith any non-compliance which the Board finds to have occurred. The Board is also required to report such non-compliance to all Members of the IAEA and to the Security Council and General Assembly of the United Nations. Since the inception of safeguards, the IAEA has reported to the Security Council cases of non-compliance under three agreements.

Under the Statute of the Agency, failure by a State to take fully corrective action within a reasonable time with respect to non-compliance could subject the State to curtailment or suspension of assistance provided by the Agency or by a Member State, to the recall of material and equipment, and to the suspension of the privileges and rights of Agency membership. Non-compliance may also trigger measures by the Security Council within the framework of the United Nations Charter.

IV. PROTOCOLS TO SAFEGUARDS AGREEMENTS

A number of protocols to INFCIRC/153 agreements have been concluded by the Agency.

Protocols for cooperation and coordination with multinational or national inspectorate have been concluded with Euratom, with the newly-established Argentine-Brazilian Agency for Accounting and Control of Nuclear Material (ABACC) and with Japan. In each case, the IAEA’s ability to reach independent conclusions concerning compliance with the agreement is an indispensable element.

In addition, paragraph 24 of INFCIRC/153 requires the suspension of the application of safeguards under other agreements with the State or States concerned while a comprehensive safeguards agreement is in force. Accordingly, the IAEA has concluded protocols giving effect to this article in cases where States have had pre-existing safeguards agreements with the Agency. In cases where a State concerned had concluded a trilateral agreement for the application of safeguards, the third party to the trilateral agreement is also a party to the suspension protocol.

The standardized text for INFCIRC/153 agreements also provides for the conclusion of protocols with States having no nuclear activities. Such protocols provide that implementation of most of the provisions of Part II of the agreement shall be held in abeyance, with the exception of those relating to the starting point of safeguards, subsidiary arrangements, design information and international transfers, until such time as the quantity of nuclear material in the State exceeds certain prescribed limits or the State has nuclear material in a nuclear facility.

Finally, in developing Part 2 of Programme 93 + 2, the measures requiring complementary legal authority, the Secretariat has been asked by the Member States to prepare a draft legal instrument for the granting of such authority by States party to comprehensive safeguards agreements. As currently contemplated and proposed to the Board of Governors, this new legal instrument would be in the form of a protocol. At such time as the Board approves the draft document, the Secretariat will proceed to the conclusion of protocols with the State or States concerned.

V. SUBSIDIARY ARRANGEMENTS

INFCIRC/153 agreements expressly require the conclusion of Subsidiary Arrangements between the State and the Agency detailing how the procedures in the agreement are to be implemented. These Subsidiary Arrangements consist of a General Part and Facility Attachments, as well as an Attachment for locations outside facilities, where applicable. Although INFCIRC/66/Rev.2 does not speak in terms of a formal document such as “Subsidiary Arrangements”, most recent agreements based on INFCIRC/66/Rev.2 do include a specific reference to them. However, this only formalizes the Agency’s practice of making detailed arrangements for the implementation of safeguards in all States with such agreements. Subsidiary Arrangements are also concluded with NWSs in implementation of their voluntary offer agreements.

The procedures for concluding the Subsidiary Arrangements are not the same as for the conclusion of the safeguards agreements. The process is generally initiated by the Secretariat before or shortly after the entry into force of the relevant agreement with the provision of draft Subsidiary Arrangements based on standardized texts. Efforts are made to maintain the standardization of these documents in the interest of non-discrimination, while taking into account the technical differences and circumstances of the individual States. The negotiations are conducted both in writing and in meetings with the State authorities. Agreement to the texts of the Subsidiary Arrangements are reflected in exchanges of letters, not, as is the case with the safeguards agreements, by formal signature. Nor do they normally require review or approval by the Board of Governors. They may be amended at any time upon agreement between the Agency and the State. The Subsidiary Arrangements are treated as confidential documents and are not published by the Agency.

VI. AMENDMENT AND RENEGOTIATION

The parties to an agreement concluded pursuant to INFCIRC/66/Rev.2 are required to consult, at the request of either party, on the amendment of such an agreement. If the Board modifies the Safeguards Document, the Inspectors Document, or the scope of the safeguards system, the agreement shall be amended if the Government(s)party to the agreement so request(s). Amendments to INFCIRC/66/Rev.2 safeguards agreements usually made for the purpose of extending the duration of the agreement, and occasionally, the scope.

INFCIRC/153 agreements provide that either party (the State or the IAEA) may request consultations on the amendment of the agreement. Any amendment would require the agreement of all parties to the agreement. Entry into force of such an amendment would be subject to the same conditions as entry into force of the agreement. To date there have been no amendments to the substance of INFCIRC/153 agreements, except to add parties to the agreement.


1 Article IX.3 of the NPT defines a nuclear weapon State (NWS) as one which had manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967, of which there are five: the United States, the Soviet Union, France, the United Kingdom and China.

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