When the participating governments of the Nuclear Suppliers Group (NSG) convene in June under the chairmanship of the Netherlands, they will face an especially difficult and thorny agenda. The primary task will be to reach consensus on new Guidelines for transfers of enrichment and reprocessing technology, the negotiation of which has dragged on since 2007. But several other issues loom on the horizon, including identifying ways and means to possibly accept non-NPT states as members of the group;1 deciding whether China should pursue an NSG waiver before building two additional nuclear power reactors in Pakistan, or at least seek the NSG’s agreement on the validity of grandfathering the new contract; and considering possible NSG responses to enrichment and reprocessing technology transfers by non-NSG members to states that do not meet the Guidelines. All of these issues will require careful discussions, but given the stresses on the nonproliferation regime this is no time to compromise existing principles. Particularly on transfers of sensitive technology, NSG members need to lead by example.

There are two major concerns the NSG needs to consider regarding proposed changes to its Guidelines governing trade in enrichment and reprocessing technology. First, it is vital to ensure that International Atomic Energy Agency (IAEA) safeguards on sensitive nuclear fuel cycle facilities do not lapse if a State withdraws from the NPT. And second, it is essential to make clear that a regional arrangement such as ABACC2can in no way meet the objective of the Additional Protocol (AP)3 and cannot be considered as a substitute for the latter. In addressing these two issues, NSG participating governments should demonstrate that they have no intention to seek commercial advantages at the expense of nonproliferation requirements. 

Continuity of IAEA Safeguards on Sensitive Fuel Cycle Facilities

The NSG Guidelines require a recipient of nuclear technology to have brought into force a comprehensive IAEA safeguards agreement that covers all nuclear material.  Should that safeguard agreement be terminated, the recipient:
   
"Will bring into force an agreement with the IAEA based on existing IAEA model safeguards agreements requiring the application of safeguards on all trigger list items or related technology transferred by the supplier or processed, or produced or used in connection with such transfers (emphasis added)."4

This requirement is akin to attempting to bridle a horse as it bolts from the barn. If a Non-Nuclear Weapon State (NNWS) withdraws from the NPT, its Comprehensive Safeguards Agreement (CSA) with the IAEA will lapse and it is exceedingly unlikely it would agree thereafter to bring into force an agreement with the IAEA as required by the NSG.5 From a practical point of view, it would make far more sense for the NSG to require the recipient NNWS to have in force before any transfer of relevant items a facility-specific INFCIRC/66-type safeguards agreement, which would be subsumed to its CSA. This could be easily accomplished without any additional cost to the state or the IAEA.

In fact, UN Security Council Resolution 1887 (24 September 2009) “Urges States to require as a condition of nuclear exports that the recipient State agree that, in the event that it should terminate its IAEA safeguards agreement, safeguards shall continue with respect to any nuclear material and equipment provided prior to such termination, as well as any special nuclear material produced through the use of such material or equipment.”6

Continuity of safeguards in case of NPT withdrawal is an important principle that should be strengthened, in particular for sensitive fuel cycle technology transfers. The NSG Guidelines should stipulate that, in addition to the present conditions, suppliers should transfer items listed in INFCIRC/254/Parts 1&2 (especially if they are related to sensitive fuel cycle facilities) only if they are used in a facility subjected to an INFCIRC/66-type safeguards agreement with the IAEA as a back-up in the event that the recipient state withdraws from the NPT. Such an agreement would be subsumed to the CSA and come into operation only in case the CSA is terminated.

As a matter of policy and in order to lead by example, all NNWSs members of the NSG presently operating enrichment and reprocessing facilities (in particular Germany, the Netherlands, Japan, Brazil and Argentina) should conclude with the IAEA such 66-type safeguards agreements.

The Additional Protocol (AP) as a Criteria for Sensitive Technology Transfers

NSG deliberations are conducted behind closed doors. However, a November 2008 draft of proposed changes to the Guidelines that became public contains some language that is cause for concern. This draft proposes criteria for “Special Controls on Sensitive Exports” which, among others, require that the recipient
 

"Has signed, ratified and is implementing a comprehensive safeguards agreement with the IAEA, and has in force an Additional Protocol or has signed, ratified and is implementing a regional arrangement approved by the IAEA which operates to achieve the same objective by providing confidence in the peaceful nature of civilian nuclear programs (emphasis added)"7

The purpose of the AP is to give the IAEA the tools necessary to draw a credible conclusion that a state’s declarations to the IAEA are correct and complete and that there are no undeclared nuclear material and activities in that state. John Carlson, an Australian safeguards expert, recently published an analysis on the Additional Protocol in which he argues
 

"Refusal to accept the most effective form of safeguards, of which the AP is an essential component, erodes confidence in the peaceful intent of the states involved. […] The IAEA Board, representing the organization’s membership, has determined that the procedures under the AP are essential for the IAEA to meet its responsibilities under the NPT to ensure that all nuclear material in NNWS remains in non-explosive use […], but for those states without an AP it cannot. This situation does not meet the terms of the NPT. It would be an affront to the great majority of states who have accepted the AP for this situation to continue indefinitely."8

A regional arrangement in this context would have to provide the IAEA with the same access and tools provided under the AP in order to meet the same objective. This ambiguous language is likely intended to satisfy Argentina and Brazil, but without an AP in force in either state, notwithstanding the existence of ABACC (and the Quadripartite Agreement),9 the IAEA will not be able to draw the abovementioned conclusion and therefore the NSG’s stated objective would not be met.

NSG participating governments should endeavour to lead efforts to comply with the recommendations contained in UN Security Council 1887, in which the Security Council “Calls upon all States to sign, ratify and implement an additional protocol, which together with comprehensive safeguards agreements constitute essential elements of the IAEA safeguards system.”10 The wish of the large majority of NSG members is to reach a consensus that no enrichment and reprocessing facilities, and thus corresponding equipment and technology, should be transferred to a recipient state which doesn’t have an Additional Protocol in force. Negotiations to reach that goal should continue. Members of the NSG could consider supporting the suggestion recently made by Dr. G. Gonzalez (Ministry of Foreign Affairs, Chile)11  to encourage states from Latin America that have already signed and ratified the AP to invite those states of the region without an AP to meet and discuss, with the support of the IAEA, the benefits of the AP. It is worth recalling that an AP is in force in Chile, Columbia, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Jamaica, Nicaragua, Panama, Paraguay, Peru, and Uruguay, and has been signed by Costa Rica, Honduras and Mexico.

In the meantime, members of the NSG should delete any ambiguous language from the draft Guidelines that could be interpreted as unduly equating a “regional arrangement approved by the IAEA” (such as the ABACC Quadripartite Agreement) with an Additional Protocol. It is important not to create a precedent that would further diminish the credibility of the NSG and the global non-proliferation regime, which has been severely undermined by the adoption of the so-called “special case of India.” It is therefore important to reject any attempt to create other “special cases,” despite the impatience of many NSG participating governments to reach consensus.

While trying to persuade the few NSG members still resisting the adoption of the Additional Protocol as an export condition for enrichment and reprocessing technology, the other members should formally commit to adopt it under their national law, thereby demonstrating that they have no intention to weaken nonproliferation requirements in order to possibly gain some commercial advantage.
 

1. See Pierre Goldschmidt, “NSG Membership: A Criteria-based Approach for Non-NPT States”, http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=44147.

2. ABACC is the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials.  The Quadripartite Agreement (signed in 1991 and entered into force in 1994) between the two Governments, ABACC, and the International Atomic Energy Agency gives the IAEA the responsibility of applying full safeguards in both countries.

3. IAEA INFCIRC/540 (Corrected).

4. INFCIRC/254/Rev.9/Part.1, November 2007 (paragraph 4.a).

5. Under Article 26 of CSA (INFCIRC/153 corrected) the agreement remains in force only as long as the State is party to the NPT.

6. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/523/74/PDF/N0952374.pdf?OpenElement.

7. See page 61 at http://belfercenter.ksg.harvard.edu/files/MTA-NSG-report-color.pdf.

8. John Carlson, “Is the Additional Protocol Optional?” Trust & Verify (January-March 2011) Issue No. 132,
http://www.vertic.org/media/assets/TV/TV132.pdf.

9. IAEA INFCIRC/435.

10. UNSCR 1887 Op. Cit.

11. IAEA Symposium on International Safeguards; Vienna, 1-5 November 2010.