On Compliance with Nuclear Non-Proliferation Obligations

1 Article VI of the NPT provides that `Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control'. Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS/61 (1970).

2 Article IV of the NPT states that `1. Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty. 2. All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other states or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.'

3 Article II of the NPT provides that `Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.'

4 Events in Iraq in 1990 and the discovery of a clandestine nuclear programme in that country demonstrated in a glaring manner the serious limitation of the ability of the IAEA safeguards system to detect possible undeclared nuclear activities. Information available to the IAEA was essentially limited to that provided in a state's declarations or acquired in the course of safeguards inspections, which meant that information was limited to declared activities. Whatever information states might have had about possible undeclared activities in other states was not shared with the Agency. The routine access rights of the Agency were limited to specified locations in nuclear facilities (strategic points), with a right of special inspection to additional information and locations which could hardly be exercised in the absence of information about where and what to inspect. Furthermore, the Security Council, the body entrusted under the IAEA Statute and under IAEA safeguards agreements with ensuring compliance with non-proliferation obligations, seemed somewhat remote, in general terms, from arms control and non-proliferation questions. A combination of factors - including revelations about Iraq's clandestine nuclear programme, the end of the Cold War, and the emergence of new democracies with new security perceptions - made it possible for states to recognize the need to shore up the system and remedy its weakness. The first phase of efforts to strengthen safeguards was devoted primarily to developing a capability to detect undeclared activities through increased access to information and increased physical access to locations and sites. It consisted of a number of elements, such as the establishment of a comprehensive Agency database of relevant information — composed not only of safeguards data, but also of information from open sources and information obtained from states in the form of satellite pictures and other data; the re-affirmation of the Agency's right of special inspection to be used, with regard to safeguards implementation, for access to locations and sites; a refinement in the interpretation of certain clauses of safeguards agreements by which states were to provide the Agency henceforth with design information on existing and planned nuclear facilities much earlier than previously; the establishment of a reporting scheme, covering exports and imports of nuclear material and the export of relevant non-nuclear material and specified equipment; and activation of the relation between the Security Council and the IAEA through, inter alia, periodic reporting and briefings by Agency officials. Efforts to improve the system have yielded surprisingly quick results. By the end of 1992, the Agency was able to alert the international community to the possibility of undeclared reprocessing of nuclear material in the Democratic People's Republic of Korea (DPRK). Whereas the case of Iraq was a case of late detection by the IAEA of undeclared activities and prompt action by the international community, the case of the DPRK showed the reverse: prompt detection of undeclared activities and a somewhat protracted process of compliance. The IAEA Secretariat is currently engaged in a second phase of further strengthening the Agency's verification system and increasing its efficiency. The new measures are similarly based on increased access to information, including the use of new verification techniques such as environmental monitoring, and increased physical access to sites and locations. They include two key elements. The first element is increased transparency of a state's nuclear programme, through an expanded declaration covering a state's nuclear programme and all the relevant present and planned nuclear activities. The expanded declaration seeks to obtain, in addition to information about nuclear material, information on all other nuclear and nuclear-related activities of the state. The second element is broader access to locations and sites as a key to a strengthened safeguards system. Access being sought under such arrangements involves access to a number of different types of locations, e.g. access to any location on a site containing a `nuclear facility', or access to locations which are not nuclear facilities and do not contain nuclear material, but which are nevertheless relevant to nuclear-related activities. Some of these new measures would extend beyond the limits of the existing legal authority of the Agency and would require the consent of the relevant state to become binding upon it, e.g. through a protocol, additional to the safeguards agreement. On the IAEA efforts to strengthen its safeguards see `Strengthening the Effectiveness and Improving the Efficiency of the Safeguards System', IAEA Doc. GC XXXIX/17 (1995). See also Mohamed ElBaradei, `Verifying Non-Proliferation Pledges: The Evolution and Future Direction of the IAEA Safeguards System', Leiden Journal of International Law vol. 8, no. 2 (1995).

5 For the inability of the Conference to adopt a final declaration on the review of the operation of the Treaty see 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. Final Document NPT/Conf. 1995/32 (1995).

6 See statement by Ambassador H. L. De Silva, Permanent Representative of Sri Lanka to the United Nations at the 1995 NPT Review and Extension Conference, New York, 19 April 1995.

7 See Decision on Strengthening the Review Process for the Treaty, NPT/Conf. 1995/32 (1995).

8 See Confronting the Proliferation Danger: The Role of the UN Security Council. A Report of the UNA-USA Project on the Security Council and Non-Proliferation (New York, 1995).

9 See UN Security Council Doc. S/1995/567 (1995).

10 See Statement of the Group of 21 on the Draft Resolution Circulated by Argentina in the United Nations Security Council (S/1995/567). Conference on Disarmament Doc. CD/1337 (1995); see also letter dated 12 July 1995 from the Permanent Representative of India to the United Nations addressed to the President of the Security Council. UN Security Council Doc. S/1995/564 (1995).

11 Resolutions and Decisions of the Security Council 1992 at 65, Doc.S/Inf./48 (1993).

12 See note 10 above.

13 `The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security'. UN Charter art. 34.

14 `The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security'. Ibid. art. 39.

15 `In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments'. Ibid. art. 26.