Out of control: Why mandatory international reporting is needed for radioactive sources and materials

Abstract

No international agreement currently requires reporting the loss of control of even the most dangerous radioactive sources and materials. Rising concerns about the potential use of these materials by terrorists or criminals (for example, by using explosives to disperse radioactivity with a “dirty bomb”), as well as the potential for international movement of materials, makes the loss of control of strong radioactive sources and materials a vital concern to all countries. This article makes the case for a binding international agreement that would mandate international reporting of the loss of control of the two highest-strength categories of sources and materials, as defined by the International Atomic Energy Agency. No current agreements meet the need for mandatory reporting, although the underlying basis for an agreement already exists. The burdens of such an agreement on any state would be minimal, and all states should be interested in pursuing such an agreement. Agreement to a binding international convention would be an ideal state “gift” for the final Nuclear Security Summit, scheduled to take place in Washington in 2016.

The December 2013 theft in Mexico of a medical-use cobalt-60 source classified as a Category 1 radioactive material—the most dangerous of five categories ¹ —illustrates the threat of losing control of this type of material, and the concerns that states may have regarding a loss of control in another state (Moore and Pomper, 2013). Stolen on its way to disposal, the radioactive source was removed from its shielding and may have delivered a life-threatening dose to the thief or thieves who removed it. The Mexican government promptly reported the loss to the International Atomic Energy Agency (IAEA), although it was under no obligation to do so. The report caused US officials and media to focus immediate attention on the theft, and they responded to the potential that the material would move from Mexico to the United States and be used in a criminal manner (Bielefeld, 2014). Fortunately, the device and its source capsule were recovered before that could happen.

Although the Mexican government quickly reported the incident, there is no binding international instrument that requires states to report the loss of regulatory control over hazardous radioactive sources or significant amounts of radioactive materials. A binding agreement is needed because these sources and materials pose a global threat as potential fuel for radiological dispersion devices (RDDs) such as “dirty bombs,” or for radiological exposure devices (REDs) that do not disperse materials but expose people and animals to harmful doses of radiation. The financing, speed of transport, and global connections available to groups that might use one of these devices make the loss of control in any state a potential threat to the people, property, and environment in all other states. Providing for mandatory notice of loss of control, while not eliminating the threat, would provide advance warning of potential RDD or RED activity and thereby increase the chances that any such use would be unsuccessful. A mandate for reporting loss of regulatory control of significant amounts of radioactive material would therefore enhance global security.

Similar arguments apply to the need for reporting of loss of control over nuclear material (typically considered to be uranium or plutonium), which can be the fuel for improvised nuclear devices and can also be used as fuel for an RDD. However, the combination of the Nuclear Non-Proliferation Treaty, the IAEA’s Safeguards Agreements, and monitoring in non-nuclear weapon states at least partially satisfies the need for mandatory reporting of loss of control over nuclear material—although the loss of control of nuclear material might not always result in mandatory reporting. ²

However, despite the threat posed by out-of-control radioactive sources and materials, there is only one binding international agreement—the Convention on Early Notification of a Nuclear Accident (IAEA, 1986)—that might arguably require reporting of the loss of control of some of these sources and materials, and then only under a very limited set of circumstances. It is important to understand how this international lack of agreement has evolved, in order to address the potential ways to reach an international agreement on mandatory reporting that would provide the baseline for a minimal international nuclear security regime.

State perceptions of security requirements

In the post-9/11 world, the threat of nuclear and radiological terrorism has become an issue of increasing concern for the international community. Without belaboring the point, it should be apparent that if radioactive material goes out of control—whether it is stolen or is simply lost or missing—it may appear anywhere else in the world. Dangerous radioactive sources have already been lost or stolen on one continent and then appeared on another. ³ Thus far, such movements appear to have been via inadvertent scrap transport or possibly for criminal resale rather than for criminal use in a terrorist act.

While states and international organizations have expressed an interest in combating nuclear terrorism ⁴ and in establishing laws relating to possession and use of weapons of mass destruction, ⁵ they have generally considered issues relating to the physical security of nuclear material and other radioactive material to be state responsibilities. They have not indicated a strong willingness to establish binding international norms that would intrude on what they consider to be sovereign domestic issues. IAEA recommendations and guidance documents in the Nuclear Security Series explicitly address the issue of state responsibility—stating, for example, “The responsibility for the establishment, implementation and maintenance of a nuclear security regime within a State rests entirely with that State” (IAEA, 2011a: 6).

The Convention on the Physical Protection of Nuclear Material—the only legally binding international instrument involving the physical security of nuclear material—and its 2005 Amendment provide further indication of the reluctance of states to bind themselves on security issues. States participating in the Convention have agreed to physical security measures when nuclear material is in international transport (IAEA, 1980), but thus far they have shown a reluctance to extend this agreement to the domestic arena, which will happen only if the 2005 Amendment comes into force. The amendment extends binding physical security requirements to domestic civilian use of nuclear material and domestic facilities, but it has languished for almost 10 years despite calls for ratification at each of the biennial Nuclear Security Summits since 2010 (Washington in 2010, Seoul in 2012, and the Hague in 2014). ⁶

While there may be hope that the 2005 Amendment will eventually come into force, there are currently no analogous proposals for extending the concept of binding physical security agreements beyond nuclear material to include radioactive materials and sources. The non-binding Code of Conduct on the Safety and Security of Radioactive Sources (IAEA, 2004) has “security” in its title; and its purpose, as described in its foreword, is to “help national authorities to ensure that radioactive sources are used within an appropriate framework of radiation safety and security” (IAEA, 2004: Foreword). However, it only deals tangentially with security issues. Its focus is on establishing a regulatory framework, within which security is one component. States following the Code of Conduct do not commit to any specific physical security requirements.

In addition, the code covers far fewer radioactive materials than its title might suggest—only a limited subset of radioactive materials that are encapsulated in sealed sources. Even within this sealed-source subset, the code covers only the strongest radioactive sources (Categories 1 through 3 in the IAEA’s classification scheme). Thus the code is not a basis for a mandatory reporting requirement, even when the subset of radioactive material covered by the code is out of regulatory control.

Whether states consider reporting requirements for loss of control the same way that they do security requirements for “guns, guards, and gates” is an open issue. The general absence of agreement on reporting requirements probably indicates that states consider any intrusion in the security area that mandates a state action, even reporting, to be something that they agree to do only with great reluctance. The brief history of international agreements on nuclear and radioactive material perhaps indicates that it may take a criminal event involving radioactive material, with a broadly based international impact and concern level approaching that of the Chernobyl accident, for states to come to an initial agreement on reporting.

The Convention on Early Notification: Binding but limited

Arguably the only binding international instrument that might require reporting of the loss of regulatory control over radioactive materials and radioactive sources is the Convention on Early Notification of a Nuclear Accident. The Convention provides the world with some assurance that states will be promptly informed of any accident “which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State” (IAEA, 1986: 2). The covered activities and facilities are set forth in Article 1 of the Convention and include accidents at nuclear power plants, nuclear fuel cycle facilities, and radioactive waste management facilities.

Unfortunately, the Convention does not contain definitions of any of the terms involved. Is a “release” synonymous with a loss of control, or is it only, as most would assume, a situation in which radioactive material has entered or will enter the environment? Further, what is a transboundary release of “radiological safety significance”? Is it a release that has been, or may be, detectable across an international border, or must it be a release that is capable of delivering a dose to another state that is above some threshold? In order for the Convention to apply to a transboundary release or potential release, a state must determine, in its opinion, that an incident meets these somewhat arbitrary triggering conditions.

The Convention came into being as the result of the Chernobyl reactor accident, and it is likely that most states consider it applicable only to situations involving reactor accidents, such as the tsunami-induced releases from the Fukushima reactors. However, among the facilities and activities covered by the Convention are those involved in “the manufacture, use, storage, disposal and transport of radioisotopes for agricultural, industrial, medical and related scientific and research purposes; and the use of radioisotopes for power generation in space objects” (IAEA, 1986: 2). Therefore the Convention might apply to a subset of loss-of-regulatory-control situations: specifically, those in which radioactive material is released in a manner that would clearly cause significant safety concerns if there was an environmental transport mechanism to carry it to another state. If a state were to make a triggering determination in a loss-of-regulatory-control situation, the Convention requires the state to notify other potentially affected states either directly or through the IAEA, and to provide information about the incident.

What types of situations might be interpreted by a state to meet these criteria? A theft of radioactive material followed by its use in a “dirty bomb” might fit the criteria, as might the sabotage of a food irradiation facility followed by a radioactive release to the environment. Would these necessarily be reportable? Arguably not. A state would have to first make a determination that any release would cross into other states, and then would use its discretion to determine whether or not the release would have radiological safety significance in other states. The international community should have serious concerns about whether reports would actually be forthcoming or whether, as with the Chernobyl accident, the first indication of a problem would be the detection of radiation outside the state where the accident occurred—the type of situation that the Convention is designed to prevent.

While the Convention on Early Notification could apply to some loss-of-control situations, it is by no means an instrument that requires reporting of all such situations, even when massive amounts of material are involved. Reporting of loss of control is required only when the state, in its sole discretion, determines that there is a potential for some level of transboundary release and that the release might have significant consequences in other states.

It would be a stretch to claim that the Convention requires that a state losing regulatory control of a significant radioactive source or a significant amount of radioactive material must report the loss merely because the material might subsequently be used for criminal purposes in another state. But given the current level of terrorist threats and the potential for criminal use of such materials, mandatory reporting is a desirable goal for the international community.

The Incident and Trafficking Database: A voluntary effort

As discussed above, the non-binding Code of Conduct on the Safety and Security of Radioactive Sources does not address the issue of mandatory reporting, but what about the IAEA’s Incident and Trafficking Database (ITDB; formerly the Illicit Trafficking Database) or other IAEA reporting mechanisms or guidance? Furthermore, what about other international organizations such as Interpol and Europol?

The ITDB is arguably the best-known reporting institution in the nuclear and radioactive area. It is a voluntary effort by about two-thirds of the IAEA member states, collectively referred to as the ITDB member states. The ITDB collects information on loss-of-control incidents involving nuclear material and other radioactive material. This data is for the official use of its member states, but a limited amount of information about the ITDB is made public annually (IAEA, 2014).

The ITDB collection effort is not limited to those sources covered by the Code of Conduct. The ITDB generally follows a philosophy of collecting data using as broad a scope as possible, and it collects information on all categories of radioactive sources and materials and also on nuclear materials. In distinguishing “nuclear material” (uranium and plutonium, for example) from other radioactive materials, the ITDB uses a definition of nuclear material that is based on special fissionable material and source material as set out in Article XX of the Statute of the IAEA (1989).

The ITDB member states have volunteered to enhance the global security regime by collecting information for analysis by the IAEA staff. ITDB member states may also use the data for their own analysis. However, it must be understood that the reporting is voluntary, and the states can opt to restrict distribution of what they may, in their sole discretion, determine to be in their national security interests. Even when the ITDB receives a report of an incident of loss of control, states that participate in the ITDB may withhold some or all of the information about the incident. Some states may have a policy not to report an incident of theft or loss while the state’s investigation is ongoing—a point in time when other states might be most threatened by the incident. Although ITDB member states are encouraged to report incidents promptly, there is no requirement to do so.

ITDB procedures and practices are established by the member states, not by the IAEA. The member states’ unwillingness to adopt mandatory reporting requirements is consistent with the observations above, that this is a sensitive issue touching on aspects of state sovereignty.

Do these restrictions by its member states on the ITDB’s collection ability, and limitations on the openness of its reporting, damage its efforts? Certainly many groups, such as the academic and journalist communities and other nongovernmental groups with an interest in nuclear security, might want a shift to a more assured and transparent product. The ITDB has an almost 20-year record of being the only international collection effort for reports of loss-of-control incidents, and it unquestionably provides a valuable service to the global nuclear security regime. ⁷ However, its lack of transparency makes it vulnerable to criticisms and speculation about its reliability and comprehensiveness, and can arguably make it a less authoritative voice than if its collected data were to be available for open analysis. A transparent system might also encourage better reporting, allowing nongovernmental actors to examine noncompliant reporting.

Other reporting schemes—such as the Project Geiger database maintained by Interpol and Project Rutherford maintained by Europol—are, like the ITDB, based on voluntary reporting. Both Geiger and Rutherford, which are closed systems intended for the use of their member police agencies, contain information voluntarily provided by their members and also may contain information from the ITDB.

In addition to the formality of the ITDB, other IAEA nonmandatory guidance may encourage states to report loss of control over radioactive sources and materials. Probably the most relevant is a Nuclear Security Series document that recommends international cooperation when material is out of regulatory control but stops short of suggesting mandatory reporting (IAEA, 2011b).

Although the ITDB system is not a mandatory reporting system, it is a well-established program that could easily be incorporated into a system requiring mandatory reporting of loss-of-control incidents. Similarly, the IAEA’s International Nuclear and Radiological Event Scale (INES), which was developed to communicate with the public about nuclear events, including radioactive material out of control, could be easily incorporated into a mandatory reporting scheme.

In its publication on the event scale, the IAEA lists examples of events involving radioactive sources, starting with the theft of a moisture density gauge (rated as Level 1, an “anomaly”) and escalating to the 1987 Goiania incident in which four people died in Brazil after being exposed to an abandoned cesium-137 source (rated as Level 5, an “accident with wider consequences”). The scale continues to Level 7, a “major accident” such as Chernobyl (IAEA, 2013: 153). However, reflecting the general aversion of IAEA member states to subjective assessments that they may find uncomfortable, “the scale is not intended for use in rating security-related events or malicious acts to deliberately expose people to radiation” (IAEA, 2013: 4). Nevertheless, like the Incident and Trafficking Database and the Convention on Early Notification, INES is an existing system that could be usefully incorporated into a mandatory reporting system.

In summary, none of the non-binding international instruments or organizations provide direct guidance for, or even suggest, mandatory reporting of the loss of regulatory control of radioactive sources and materials. Even if they were to become binding for their current members and users, without significant changes in either their scope or practices these non-binding instruments would still be inadequate.

The best solution: A new legal instrument

Given that there is no current binding or non-binding international instrument that requires, or even suggests, mandatory reporting of loss of control over radioactive material or radioactive sources, what should and can (these are two separate issues) be done?

It is tempting to believe that some modification to the Convention on Early Notification would be the easiest route to follow. The advantages might be that modification of an existing instrument could be a “softer” sell to some states, making a successful outcome more likely. It is also tempting to think that reporting for both nuclear reactor events and loss of radioactive control should be tied together, and that the result would be synergistic improvement in the global security regime. Despite these potential benefits, a modification might open the door to a weakening of the current requirements, particularly if the situation should play out like the 2005 Amendment to the Convention on the Physical Protection of Nuclear Material, languishing on the international scene and generally out of the public’s awareness.

A better proposal would be to examine the feasibility of a new legal instrument that would mandate states to report the loss of control of Category 1 and 2 materials, ⁸ which are defined by the IAEA to include materials that are “extremely dangerous to the person” or “very dangerous to the person” (IAEA, 2005: 32). Development of such an instrument could be initiated by the IAEA, with its Board of Governors calling for an initial feasibility study by the newly renamed Division of Nuclear Security (formerly the Office of Nuclear Security) which is the organization responsible for the IAEA’s Nuclear Security Series of publications.

Why only Category 1 and 2 materials? No one knows exactly how many items are in the five categories, but estimates start with approximately 100,000 Category 1 sources and increase by about a factor of 10 at each step down from Category 1 to Category 5. Therefore the potential task would not place too great a burden on states and could be sold as a significant improvement in security and safety that would come with little additional burden. ⁹ An analysis of the ITDB’s almost 20-year history indicates that there are only a few reports each year of the loss of control of Category 1 and 2 materials.

An advantage to an IAEA-sponsored proposal is that pre-existing IAEA methods—such as the already-developed ITDB system (removing, however, the discretion to withhold information on Category 1 and 2 reports), the INES scale, and the involvement of the IAEA’s Incident and Emergency Centre—could be easily incorporated into an instrument, providing a workable and transparent system at little additional cost over current levels of expenditure.

The support of major nuclear powers—in particular, the weapon states as defined by the Nuclear Non-Proliferation Treaty and the common-sense extension of that status to post-treaty nuclear weapons developers—is essential for convincing other states of a quid pro quo advantage to all states in supporting a mandatory reporting proposal.

Support by the Nuclear Security Summit process could also provide a significant boost to such a proposal. A tradition of attending states providing a “gift basket” of committed actions in support of nuclear security has developed at past summits. A commitment to mandatory reporting of the loss of control of Category 1 and 2 sources would make an ideal “gift” to improve the global nuclear security regime. States could even “road test” the concept by conveying, in pre-summit activities, what reports would have been made since 2000 had such an agreement existed.

A low-burden, low-cost international instrument requiring all states to promptly and transparently report the loss of Category 1 and 2 radioactive materials would offer significant benefit to the global nuclear security regime. Such an instrument might also provide benefits to the nuclear security culture in a number of states. It could promote awareness that the reporting of loss-of-control incidents is indicative of a good nuclear security system and culture, not an act that indicates a weakness on the part of a state. Like Mexico’s example in the 2013 incident, reporting promptly and transparently would indicate that states have a safety and security consciousness, and that they accept a duty to other states. Even those states that might not see the benefit of reporting should see the benefit to their own self-interest of receiving reports that might aid them in protecting their own population, property, and environment.

While the Convention on Early Notification provides a good example of how an instrument can be developed to address a problem that has already happened, states should not wait for a tragic incident to provide motivation. Agreement on reporting the loss of control of hazardous radioactive materials need not wait for the next Chernobyl or Fukushima.