Chemical terrorism: prevention, response and the role of legislation

January 11, 2011

In November 2010, a table-top exercise was held in Warsaw, Poland, to gauge the preparedness of states parties to the 1993 Chemical Weapons Convention to prevent and respond to chemical terrorism. The table-top exercise or ‘TTX’ was a good example of one way in which to test the procedures, evaluate the operational capabilities and clarify the responsibilities and legal authority of national, regional and local authorities. Running the TTX served to identify any legal and administrative gaps that could impair response, coordination and information-sharing efforts between relevant authorities, as well as any that might undermine investigations and prosecutions.

Participants for the TTX were drawn from relevant national agencies from states parties to the CWC, other states, and representatives from the chemical industry, scientific communities, NGOs, media, and international organizations. In total, representatives of 27 states, 16 international organisations and two NGOs—including VERTIC’s Senior Legal Officer, Scott Spence—took part in the exercise.

In the first section of this article, VERTIC—with consent from the Organisation for the Prohibition of Chemical Weapons (OPCW)—describes the scenario used in the TTX. The second section draws from VERTIC’s presentation in Warsaw and examines how countries can use effective legislative frameworks to prevent and respond to terrorist attacks using chemicals. Though the Chemical Weapons Convention is not an anti-terrorism instrument, implementation of its requirements through laws and regulations can create obstacles for terrorists attempting to use chemicals to cause harm and damage.

Scenario setting
A terrorist attack scenario was developed for the TTX so that participants could identify how countries could prevent and respond to such an incident. To do this, the scenario sketched out the main political and geographical characteristics of a fictional country and drew up a detailed chain of events leading to a terrorist attack on a chemical plant within the state. The scenario comprised events starting from the identification of a planned attack, tracking of suspects and interdiction of one group of terrorists, first response to the incident committed by a second group, crisis management, request for international assistance, and cooperation with a neighbouring country affected by the attack.

The broad set of circumstances and details provided in the scenario allowed exercise participants to explore important questions on the type and scope of security arrangements and crisis management measures that countries would need to deal with such situations.

In the scenario, the fictional state belongs to a regional cooperation union and is politically active on the international scene, being considered a close ally to one of the world superpowers. At the time in question, it is hosting a major international sporting event taking place in four locations around the country. A regional town and nearby chemical works are described in some depth by the scenario. The chemical works manufactures cyanogen chloride by chlorinating hydrogen cyanide with gaseous chlorine (the properties and significance of these chemicals are discussed in the second section of this article). Hydrogen cyanide is manufactured on the spot, without intermediate storage, from methane and ammonia in the presence of oxygen and a platinum catalyst (Andrussow process). The chemical works import their chlorine stock in rail tanks from a manufacturer located in another region, around 130 km away. Apart from holding chlorine for its own production, the company also stores the chemical for use in a regional drinking water facility.

The chemical works are described in the country’s national industrial safety plans as a high-risk plant (HRP). The facility therefore has an internal response operations plan for emergencies, and district fire fighters have rescue procedures prepared for the plant. The scenario supposes that it is early summer and there is a large increase of sports fans in the country due to the sporting event reaching its climax. The state’s national security agency obtains warnings from partner intelligence services about plans for a possible terrorist attack somewhere on its territories. The sources indicate that a terrorist organization based in a neighbouring country is facing being disbanded due to a lack of funds—the consequence of freezes on certain financial transfers instigated by international counter-terrorism measures. The organization is therefore planning to conduct a major attack in order to attract more funds and maintain its operationality. However, the presence of a peacekeeping mission in the country where the group is based makes staging attacks there difficult. The terrorist organization instead targets the neighbouring country since they object to its foreign policy, and it offers increased visibility for the attack since it is hosting an international sporting event.

A week before the attack, the ‘Cooperating State Party Intelligence Service’ spots individuals interested in facilities located on its territory. Simultaneously, the national security agency obtains information on unidentified individuals taking an interest in small companies using chlorine. At this point, the authorities believe they have confirmation of the suspected terrorists’ intention to stage an attack on a chemical storage or production plant. The time and location of the attack are, however, unknown, but a very likely target is a chlorine storage or production plant. The national security agency undertakes operations to track the suspected terrorists’ movements, in cooperation with intelligence services of neighbouring countries.

One group of terrorist suspects is caught and detained by border guards and anti-terrorists operatives at a railway border check point while en-route by train to the target country. Another group, however, manages to enter the country, gain access to the chemical works and succeed in detonating an explosion. The scenario describes meteorological conditions and outlines the state of activities in the nearby town as well as the local road traffic situation. It also provides information on the volumes of chemicals on-site at the facility at the time of the incident. Two tanks together hold 28t of chlorine (one larger vessel holds 20t while a smaller unit holds 8t). There are also two empty vessels. The plant is operating at its regular capacity of 0.7 tons per hour of cyanogen chloride and 0.28 tons per hour of hydrogen cyanide.

The scenario supposes that the terrorists break into the site and eliminate all the guards and control room personnel. However, they fail to correctly identify the storage tanks containing cyanogen chloride —which they want to target—and instead place an improvised explosive device on the largest storage tank which contains chlorine. After securing an escape route they detonate the explosives remotely. The chlorine tank breaks releasing all of its content into a dike. About 5t of chlorine evaporates in a very short time as a result of quick evaporation; the remaining 15t evaporates at a slower rate. The chlorine plume reaches the first settlement after 13 minutes and the town centre after 25 minutes, resulting in several deaths and injuries among the local population.

Legislation for preventing terrorist attacks involving chemical weapons
Results from running the table-top exercise highlighted the need for states to have various types of prevention and response measures for criminal or terrorist attacks using chemicals. It is also crucial that states have comprehensive legislation in place to enable and facilitate these prevention and response procedures for chemical attacks. Though the discussion below focuses on legislation solely to address chemical terrorism, it should be noted that, increasingly, many states are also considering comprehensive legislation to prevent and respond to attacks involving biological, radiological or nuclear weapons. Many states are also combining their actions to tackle chemical, biological, nuclear or radiological (CBRN) terrorism with strategies to prevent and respond to accidents during the production, storage or transport of CBRN materials—be they the result of human error or natural disaster. Indeed, the process of building state capacity to prevent and respond to CBRN attacks inevitably helps countries to reduce the risk of accidents involving CBRN materials, and to be better prepared if they do happen.

In the scenario described in the first part of this article, the country’s intelligence services had confirmed early on that a terrorist attack on a chlorine storage or production plant was likely. For dealing with such situations, governments will need to consider whether they have legislation in place which enables them to investigate suspected preparations for a terrorist attack involving CBRN materials, including laws to enable electronic and physical surveillance of suspected terrorists. Governments would also need to be enabled by law to gather intelligence and analyze it, which would require a level of technical expertise that differs from terrorism involving more conventional materials. Intelligence services in neighbouring countries in the scenario were able to share useful information about an imminent terrorist attack, most likely on a chlorine production or storage plant. This suggests that governments will need to consider whether they have legislation in place to allow co-operation with intelligence and law enforcement agencies in other countries, including their customs and port authorities.

Certain terrorist threat situations may require a rapid collaborative response between states that do not have a history of co-operation with one another. So it may not be sufficient for a country to have only bilateral agreements; they could also need authority for co-operation with law enforcement officials in other countries. International co-operation also needs to encompass financial surveillance. This technique could be particularly useful for detecting and monitoring criminal and terrorist groups planning CBRN attacks. These typically require significantly more money, so groups may resort to money laundering and other forms of illicit financing for their activities. Many governments have set up Financial Intelligence Units for this purpose and in many countries a number of financial entities must comply with regulations to prevent money laundering and terrorist financing.

Adequate legislation is also needed to restrict access to chemical production or storage facilities, particularly those sites holding any chemicals that are listed in one of the three schedules of chemicals annexed to the CWC, which are subject to monitoring by the OPCW. Background checks, access authorization procedures and personnel monitoring will be needed, along with measures for the physical protection of chemical facilities. Finally, though not relevant to the TTX scenario, governments should also consider whether they have measures in place to criminalize unauthorised activities involving Schedules 1, 2 and 3 chemicals, including international transfers by terrorists. These chemicals have historically been used as either precursors or as chemical agents for the production of chemical weapons.

Legislation for responding to terrorist attacks involving chemical weapons
Should a terrorist or criminal group succeed in carrying out an attack using chemicals, governments will need appropriate legislation in place to respond to the incident. In the TTX scenario above, the terrorist group had intended to blow up tanks containing cyanogen chloride (a Schedule 3 chemical subject to monitoring by the OPCW). Instead, they confused storage tanks and released chlorine, which is a particularly deadly chemical if released into the air in large quantities. Indeed, chlorine has been used as a chemical warfare agent but it is not a scheduled chemical under the CWC (because of its ubiquity) and is therefore also not subject to OPCW monitoring.

Governments would need to have several measures in place to respond to an attack of this kind. Their most important priority will of course be tending to casualties, which may require a legislative basis for co-operation among officials from law enforcement, public health and crisis and media management. First response will then be followed by investigation. In the case of incidents involving CBRN materials, investigative techniques, including collection of evidence and sampling, will necessarily be different to techniques in more conventional contexts, and most states will require regulations to facilitate these kinds of investigations, as well as training for the investigators. Governments will need to consider whether they have relevant terms defined in law to enable prosecution of any suspects identified through the investigation phase. These would include terms such as ‘chemical weapon’, ‘toxic chemical’ and ‘purposes not prohibited under the Chemical Weapons Convention’. The definitions could be incorporated into CWC implementing laws, penal codes, counter-terrorism or other similar laws. When taken together, these definitions would characterize the intentional use of chlorine to kill or harm humans or animals, as the use of a chemical weapon. It is largely irrelevant whether the terrorists in the scenario blew up a tank containing cyanogen chloride or chlorine—in either case their intention was to commit a terrorist act using chemicals in order to harm or kill humans. By definition, they used a chemical weapon. In addition to definitions for relevant terms, a state party’s legislation must include the CWC’s Article I prohibitions, which include a complete ban on any use of chemical weapons by state or non-state actors. Without specific criminal provisions and stiff penalties, it may be harder to secure a satisfactory court judgment. A government should also be able to exercise extraterritorial jurisdiction over any violations involving chemical weapons, since terrorists may flee the territory where the attack occurred, or there may have been preparatory events that took place elsewhere.

Conclusion
All parties to the CWC are required by Article VII to implement the convention through national laws and regulations. States that are not party to the convention are under no legal obligation to implement it but are required, like all UN members, to implement measures to prevent the proliferation of chemical weapons to non-state actors under UN Security Council Resolution 1540. Though the CWC is not an anti-terrorism instrument, an effective legislative framework which implements the non-proliferation obligations of the CWC will greatly facilitate the prevention and response to criminal or terrorist attacks involving chemicals. It will also greatly facilitate the monitoring of routine commercial or state activities involving scheduled chemicals, including their production, use and transfer, to ensure that they are being used legitimately and not for terrorist purposes.

Scott Spence,
Senior Legal Officer, VERTIC


Building confidence in India and Pakistan

January 11, 2011

For the past two years, VERTIC has been running a project on South Asia under a grant from the Norwegian Ministry of Foreign Affairs. This project was set up to identify confidence-building and transparency measures that the two countries could explore and perhaps undertake in the arms control field. It has involved several trips to the sub-continent, as well as engagement in several other meetings with participation from across the region. This article summarizes the outcome of our consultations.

Politics on the sub-continent is mired down in a dangerous cocktail of strategic competition, neighbourly misgivings, resource shortages, and qualms about Western intentions. Policy seems entangled in ways that inhibit prospects for effective arms control. While exchanges between India and Pakistan are happening at the political level, their respective military establishments are not communicating nearly as much, or as effectively, as they should.

While India and Pakistan are still struggling with the legacy of their 1947 partition, the rising strength and influence of China increasingly complicates matters even further. It comes as no surprise, therefore, that the people of India and Pakistan are witnessing a slow and steady acceleration of ‘a regional arms competition’, to quote Michael Krepon of the Washington-based Stimson Center. Fuelled by decades of wars, suspicion and mistrust, both India and Pakistan have chosen to develop nuclear weapons. In the process, both countries have developed an extensive nuclear industry. Some of it is dedicated to producing nuclear weaponry; other parts are devoted to electricity production.

The SIPRI Yearbook 2010 estimates India’s nuclear arsenal as comprising of around 60-80 weapons. The Pakistani nuclear arsenal is estimated to comprise some 70-90 weapons. These estimates, however, are conservative. It is impossible to determine how much weapons-usable heavy metal each country has produced to any degree of exactness. What is known is that both countries have produced material for decades, and that they have possessed nuclear devices for at least 20 years.

While the arsenals of the two countries have matured, their policies have remained tainted by brinkmanship. Indeed, both India and Pakistan may even have considered using their nuclear weapons during the last few decades. At the height of the bloody Kargil conflict during the summer of 1999, Pakistan’s then foreign secretary, Shamshad Ahmad, reportedly said that his country reserved the right to use ‘any weapon’ in its arsenal. But former Pakistani President Pervez Musharraf later wrote in his memoirs that Pakistan’s nuclear weapons were not ready at the time. His country would have been at an immediate disadvantage in a nuclear exchange, he argued. Nonetheless, whatever actually happened, many in the region feel that the recurrent conflict between the two has on occasion been pushed right to the edge of the nuclear abyss.

Both countries have a rough idea of the other’s nuclear capabilities. This is intentional. Military establishments on both sides of the border know that there are benefits to be had from hiding their true capabilities and misleading their opponents. As Musharraf hinted in his memoirs, India might have deployed its own arsenal had they conclusively known that their opponent was weak. Even if strength is lacking, both sides have an interest in faking it.

The introduction of nuclear weapons in the region has given rise to intense speculation that strategic stability—the impossibility of full-scale war—has fuelled smaller conflicts. If this interpretation is true, increased transparency in nuclear capabilities might not be so desirable because any confirmation that the countries have strategic parity could escalate smaller-scale conflicts. And, of course, if transparency measures reveal that one state or the other is vulnerable to a first strike, the other may be tempted to go on the nuclear offensive. On the other hand, the inherent uncertainty that results from low levels of transparency inevitably forces politicians to base assumptions on worst case scenarios. Production of fissile material—the critical ingredient of nuclear weapons—will only stop when the two countries feel confident that they have more than enough material to satisfy their defence needs. Increased transparency could contribute to hastening an end to fissile material production in the region.

A number of transparency arrangements are already in place between the two countries. The Stimson Center maintains a well-populated webpage detailing these instruments, which include a number of ‘hotline’ and notification agreements. The idea behind these initiatives is to clearly communicate intentions in times of military tension. However, none of these agreements have the potential to significantly reduce these pressures. And none of these agreements, moreover, allow the other party to increase their knowledge of the other’s strategic capabilities. Decision-makers on both sides of the border are left to plan and react largely on the basis of conjecture and worst-case assumptions.

The availability of fissile materials
India and Pakistan have carried out research on military and civilian uses of nuclear energy since the 1950s. In addition, both countries have several decades experience in manufacturing fuel for use in nuclear weapons. Despite this, it is difficult to find reliable information on their weapons manufacturing capabilities in the public domain. All estimates of how much fissile material each country possesses, and how much of that is used for military purposes, are therefore subject to considerable degrees of uncertainty.

In India, fuel for weapons was produced in the 40 megawatt-thermal CIRUS reactor. This reactor went critical on 10 July 1960 and was operational for over 50 years. It was shut down between 1997 and 2005 for refurbishment, and shut down again on 31 December 2010. Presently, there are no plans to permanently decommission it. The reactor could have produced up to around 15kg of weapons-usable plutonium per year (enough, it is generally thought, for one nuclear device at least), although anecdotal evidence suggests that it has not operated optimally throughout its lifespan.

In addition, India has operated its 100 megawatt-thermal DHRUVA reactor for since 1985. How much plutonium this reactor produces is uncertain. Any estimate will depend on several factors, such as availability and burn-up. Conservative estimates put the reactor’s production capacity at about 16-26kg a year.

India also operates a uranium enrichment plant at Mysore. According to the Institute for Science and International Security, this plant, referred to as the ‘Rare Materials Project’, is believed to have become operational around 1997. This plant is known to be undergoing expansion. But, in general, great uncertainty surrounds India’s enrichment programme.

The International Panel on Fissile Materials estimates the Indian stockpile of weapon-usable uranium to be around 600 kilograms, with a 50 per cent uncertainty. It is not entirely clear what this estimate, or the uncertainty, is based on. Likewise, the Indian stockpile of weapons-usable plutonium is estimated at around 700 kilograms, with a 20 per cent uncertainty.

Pakistan is running one unit for the production of weapons-grade plutonium, the 50 megawatt-thermal heavy water moderated Khushab-I reactor which went critical some time in 1998. This reactor reportedly may produce some 10kg of weapons-usable plutonium per year, and has been operating for 12 years.

Pakistan has also been running a uranium enrichment plant in Kahuta since the early 1980s. According to some sources, the country produced enough material for its first nuclear device by 1984. It is widely assumed that Pakistan upheld a moratorium on the production of fissile materials for weapons purposes during the 1990s (although this was never verified). It is likewise assumed that production started again after India’s second round of nuclear testing in 1998. All production estimates on this plant are old, however, and exceptionally uncertain. To add to the confusion, it is not known if the plant was damaged by the earthquake that struck the country in October 2005. Pakistani officials claim that it escaped unharmed.

The International Panel on Fissile Materials estimates that the Pakistani stockpile of highly enriched uranium stands at some 2.1 tonnes of material. The Pakistani plutonium stock is estimated at 100 kilograms. Both estimates are, according to the panel, 20 per cent uncertain. Again, it is not clear what these estimates, or the uncertainties, are based on.

Using these numbers, SIPRI estimated in 2010 that Pakistan possesses 70-90 nuclear weapons that can be delivered by aircraft or ballistic missiles. It estimates India’s arsenal to be 60-80 weapons.

State of verification
Neither India nor Pakistan are members of the 1968 Nuclear Non-Proliferation Treaty (NPT). They are therefore not bound by the treaty’s prohibition on the development and manufacture of nuclear weapons. Nor are they required to sign comprehensive safeguards agreements with the International Atomic Energy Agency (IAEA), as Article III of the NPT requires. In addition, there are few restrictions on their ability to conduct nuclear tests. India joined the 1963 Partial Test Ban Treaty in October 1963, and is thus prohibited from conducting surface tests. Pakistan joined the same treaty in March 1998. But since neither country has signed the 1996 Comprehensive Nuclear-Test-Ban Treaty, let alone ratified it, they are not restricted by this agreement from conducting underground tests should they so desire.

Both countries have, however, joined the IAEA—in 1957—and are bound by the organization’s statute. Both have also agreed to a number of facility-specific safeguards arrangements. IAEA safeguards in Pakistan cover the country’s two power reactors (Chasnupp-1 and KANUPP) as well as two research reactors (PARR-1 and 2). In 2007, Pakistan also entered into agreement with the IAEA to apply safeguards on a 325 megawatt-electric pressurized light water reactor supplied by China (Chasnupp-2). This reactor may start up some time in 2011.

IAEA safeguards in India are applied to three power reactors, three fuel fabrication facilities, and, in addition, the Power Reactor Fuel Reprocessing (PREFRE) facility, dedicated to reprocessing CANDU reactor fuel. In 2010, India offered a larger selection of facilities to be safeguarded. As a result, IAEA safeguards are now applied on the majority of India’s civilian nuclear infrastructure.

Confidence-building in South Asia
Some progress has, therefore, been made in placing more of each country’s nuclear fuel cycle under international safeguards. This is a good development, as it verifiably excludes these facilities from India or Pakistan’s weapons efforts. As noted, however, several key facilities remain devoted to the military-industrial complex, and continue to stand outside the safeguards system. What further efforts can be made to promote stability between these two adversaries?

In recent years, the relationship between the two countries has been tainted by outbreaks of violence and terrorism. Any diplomatic effort between the two faces an uphill struggle, and one weighed down by a complex, and often interconnected, set of issues. Even suggestions of relatively simple, purely technical, collaborations are met with acute unease, sometimes even ridicule and scorn. To some degree, this is a matter of attitude. As Michael Krepon wrote in August 2010:

‘Indian strategic analysts tend to be extremely confident, which often results in a dismissive attitude toward Pakistan. Indian government leaders have been proud about their ambivalence toward the Bomb, while being optimistic about the benefits of minimal nuclear deterrence. In Pakistan, on the other hand, deterrence pessimism reigns. This helps explain why India has been so relaxed about nuclear weapon-related issues, while Pakistan takes them so seriously’

In June 2008, VERTIC staff travelled to Islamabad, Pakistan, for a workshop on confidence building measures in the region. The seminar was hosted by the South Asian Strategic Stability Institute and featured prominent members of Pakistan’s nuclear industry, both military and civilian. The meeting was informative, and highlighted the difficulty of getting the two countries to agree on further steps. Nevertheless, a number of possible areas where confidence can be built were raised:

• Proposals that increase the strategic warning time. Strategic warning cannot be ignored in nuclear warfare, and especially so in South Asia. There, flight times are short, which means that officials will have to reach a decision on any counter-strike in a very short space of time (if they have any time at all). Proposals that enable the strategic warning time between the two countries to be increased may help reduce the risk that decision-makers launch a nuclear counter-strike in response to false alarms or miscommunications.
• Non-deployment of nuclear weapons. Any forward deployment of nuclear weapons will increase the psychological strain on decision-makers. Measures that ensure short-range weapons are not deployed within striking range may decrease tension.
• Nuclear risk reduction centres. These could help to increase communications between the two countries’ military establishments, and may also help to increase the strategic warning time.
• A force limitation zone. Any such zone along the border would lower armament levels in forward positions and eliminate the threat of surprise attack, thereby reducing the danger of miscalculation.
• Other qualitative restraints, such as on missile technology, could also be explored.

The majority of participants at the Islamabad meeting felt that India and Pakistan can cooperate on the civilian applications of nuclear energy. Both countries face acute energy supply problems. Both countries are planning far-ranging investments into nuclear power. Participants thought, however, that attempts at bilateral fissile material control—perhaps along the lines of the bilateral arrangement between Argentina and Brazil—would be a step too far for the two countries.

If Pakistani officials were cautiously optimistic, Indian officials were pessimistic about the prospects for concrete confidence-building measures. Some officials were even outright dismissive of the idea.

In November 2009, VERTIC staff travelled to New Delhi, India, for discussions with senior Indian officials. The meeting was hosted by the United Service Institute of India. The discussion was frank. Many participants agreed that there was practically no good faith between the two countries, and that the fragile security dialogue attempted between the two was not working. ‘Pakistan’s nuclear weapons are used to shield the country’s terrorist activities,’ said one senior former official, illustrative of the deep mistrust felt toward the country.

There was quite some animosity toward the West also, especially the way in which the West had handled Pakistan’s illicit nuclear procurement network. ‘It only stopped when [the West] wanted to stop it’, argued one former senior official, adding that, ‘the lesson to be learned is that one first needs the permission of the US to be proliferative’. Some participants claimed that Pakistan’s nuclear programme receives active support from China. One senior participant, associated with India’s intelligence apparatus, even claimed that ‘India has evidence of Chinese transfers of [weapons-grade] uranium to Pakistan’.

In February 2010, VERTIC again travelled to New Delhi, this time to participate in a meeting organized by the Institute for Defence Studies and Analyses. The meeting focused on broader Indian foreign policy. At present, India has very little interest in confidence-building measures, as their strategic orientation is more toward China. From an Indian perspective, any proposed confidence-building measure ‘has to be pitched very low’.

In June 2010, VERTIC staff travelled back to Islamabad to participate in an International Pugwash meeting, for which VERTIC provided part funding. This meeting confirmed many of the impressions gathered in the previous two consultations. For instance, that both countries lack a solid definition of what constitutes a minimum deterrent. They also have differing threat perceptions. Pakistan’s main concern is India, whereas India’s main strategic concern seems to be directed toward China. Some participants highlighted fears that a low intensity arms race may be occurring in the region, with the development of low-yield nuclear weapons, the further development of new types of tactical nuclear weapons and, worryingly, the introduction of submarine-based weapons systems. Among suggestions raised at the conference were those to the effect that:

• India and Pakistan should have a meaningful dialogue on the consequences for the two countries of a fissile material cut-off treaty;
• India and Pakistan could both reaffirm that they have no intention to conduct future nuclear tests;
• peaceful uses of nuclear energy could further be discussed by the two countries;
• progress on limiting or eliminating short range systems could also be discussed as a confidence-building measure;
• greater transparency on nuclear doctrines should be pursued;
• non-deployment and/or de-alerting agreements should be explored;
• that the consequences of potential nuclear use should be explored also;
• that further confidence-building could be arranged for nuclear risk reduction and nuclear crisis management.

Conclusion
At present, there is no room for ambitious confidence-building measures between India and Pakistan. Any proposals on bilateral fissile material controls, for instance, are likely to be rejected outright. For the foreseeable future, both countries are likely to consolidate their military nuclear fuel cycle, and continue the production of fissile materials. Since neither country has a clear view of what constitutes, in their mind, a minimum credible deterrent, such production may continue for many more years.

This does not mean, however, that exploratory talks on confidence-building measures and other issues cannot be held. In particular, both countries should, at least internally, start to discuss how a fissile material cut-off will affect their defence needs. More urgently, they may also need to discuss whether signing up to the Comprehensive Nuclear-Test-Ban Treaty will, in fact, be detrimental to their security. Once the five major nuclear-weapon states have signed up to the test ban, India and Pakistan will be left outside. This development may be damaging to both countries’ relationships with the other nuclear-weapon states.

Non-deployment of delivery vehicles is an especially interesting concept, particularly if such an arrangement could be found for the retirement of short-range ballistic missile systems. Most of these systems are ageing, and will be withdrawn from active service anyway. Withdrawing the weaponry under bilateral supervision would increase confidence that the systems are indeed out of active service. It could also act as a platform for future arms control and disarmament measures.

Andreas Persbo
Executive Director, VERTIC


A civil society response to the challenges of regulating biosecurity

January 11, 2011

In November of last year, VERTIC Senior Legal Officer, Scott Spence, travelled to Italy to deliver a statement to the Landau Network-Centro Volta—an NGO supporting a global network of international experts on security, disarmament and cooperation.

The statement examined legal implementation challenges in the biosecurity field and discussed how VERTIC’s National Implementation Measures (NIM) Programme is providing assistance in this area. It concluded with views on how civil society can contribute to the ongoing development of a global network dedicated to ensuring dual-use biological materials and technology are only used for peaceful purposes.

The observations on implementation challenges are drawn from the NIM Programme’s wide field-experience in assisting governments with strengthening their legislative frameworks for implementation of the 1972 Biological Weapons Convention (BWC) and UN Security Council Resolution 1540. This version of the statement has been abridged and edited for Trust & Verify.

VERTIC statement

Implementation challenges
One of the main challenges to effectively regulating biological materials is the absence of an intergovernmental organization to oversee and support comprehensive coordinated implementation of the BWC. This absence stands in contrast to the presence of well-established intergovernmental organizations supporting implementation of agreements on chemical weapons and nuclear non-proliferation. An important component of this support is legislative assistance. These organizations’ legal offices, for example, have prepared guidance materials and carried out legal drafting workshops and follow-up activities for governments around the world, with the power of stable budgets and dedicated staff behind them.

An Organisation for the Prohibition of Biological Weapons (OPBW) was not meant to be, however, for the BWC. A few months before the 2001 Fifth Review Conference for the Convention, the United States indicated that it would no longer continue to support negotiations, which had been underway for several years, for the development of a protocol to the BWC. This protocol would have had several objectives, including the establishment of an OPBW. Instead, a resumed Fifth Review Conference in 2002 agreed to the launch of a new initiative—known as the ‘intersessional’ process—devoted to examining, among other topics, national implementation of the convention. This process was extended after the Sixth Review Conference in 2006 through to 2010. As well as saving the BWC regime from uncertainty and irrelevance, the annual sets of Meetings of Experts and States Parties since 2003 have engaged civil society in novel and exciting ways. They have also provided an opportunity for civil society actors to engage with states more directly on activities that have normally been associated with intergovernmental organizations.

But implementation of the convention is not only complicated by an institutional deficit, it also faces:

• a lack of universality in BWC membership;
• a perception among parties and non-parties alike that they do not have to implement effective controls on biological materials if they do not possess biological weapons;
• a lack of awareness in governments of the BWC and Security Council Resolution 1540 and their requirements and obligations, as well as a lack of political will to implement these instruments;
• limited or no technical, human or financial capacity for drafting implementing laws and regulations, training relevant officials, or enforcement;
• difficulty maintaining momentum in the implementation process due to turnover in staff, elections and changes in government, or internal or external conflicts; and
• competing legislative, parliamentary, budgetary or economic priorities.

Challenges to legal implementation of the BWC and regulation of biological materials also vary in and among regions. In order to give effect to the BWC, states should adopt penal measures criminalizing the development, production, manufacture, stockpiling, acquisition, retention, transfer and use of biological weapons. Preparatory measures to carry out such activities, including assistance, encouragement, or inducement, should also be penalized.

States should also adopt appropriate biosafety and biosecurity measures. These should include procedures to account for and secure the production, use, storage and transport of particularly dangerous pathogens, as well as measures to control activities involving human, plant or animal pathogens where infection may pose a risk. Licensing procedures will be needed too, as will safety and security measures for laboratories; containment measures; and genetic engineering regulations. Import and export controls should also be adopted, including export licenses for particularly dangerous toxins and pathogens, and measures should be in place ensuring general oversight on transfers. An official body should be designated to effectively enforce these measures. Enforcement measures will be needed to facilitate ongoing monitoring of life sciences activities and compliance with the convention, and to prosecute and punish offenders. Finally, other measures may be necessary to facilitate domestic and international cooperation and assistance.

These measures are important for several reasons. First, with effective legislation, states can investigate, prosecute and punish any offences, including preparations, associated with biological weapons activities committed by non-state actors, including terrorists. Second, it will strengthen their ability to monitor and supervise any activities, including transfers, involving especially dangerous pathogens and toxins. Third, states will enhance their national security and public health and safety. Fourth, they will send a strong signal to potential investors that they are a safe and responsible location for biotechnology and research. Fifth, their obligations under Articles III and IV of the BWC and UNSCR 1540 will be satisfied. And, finally, states will be able to comply effectively with international reporting requirements (BWC Confidence Building Measures, UNSCR 1540, etc.) if they have fully adopted effective legislation to implement the BWC.

In South and Central Asia, some states have little or no legislation to control even the most basic activities involving biological agents and toxins, while other states in the region have more robust biosecurity regulatory frameworks. These differences appear to be the result of two predominant factors: the negative impact of conflicts on a state’s ability to develop and maintain a fully functioning and comprehensive legal system, alongside a legacy of Soviet ‘anti-plague’ stations and biological weapons programmes which necessitated legal measures to protect personnel and the environment.

In the Middle East and North Africa (MENA) region, there is some movement towards a more robust biosecurity regulatory environment, but the progress is slow and uneven. In East Asia and the Pacific, some larger countries are developing more robust biosecurity regulatory frameworks. However, the smaller, lightly populated Pacific Islands nations perceive the vulnerability resulting from having weak biosecurity frameworks and the risk of proliferation in biological weaponry to be negligible or at least, less urgent than other, competing priorities.

In sub-Saharan Africa, South Africa has very good legislation, in comparison to countries in the region and globally. There is progress in some other countries in the region. However, most have little or no law in place to prevent the proliferation of biological weapons including laboratory biosecurity measures and export/import controls. A small number of sub-Saharan countries do, however, criminalize terrorist offences involving biological agents. In general, it seems that many African countries are more concerned about the impact of genetically modified organisms (GMOs) on their agricultural sectors and so have given less priority to laboratory biosecurity and other measures to control pathogenic agents.

As might be expected, given the European Union’s strong role in biological weapon non-proliferation efforts, there is significant movement toward a more robust biosecurity regulatory environment throughout most of Europe and Eurasia. Nevertheless, many countries in both regions appear to require additional laboratory biosecurity measures, including some of the most advanced European economies.

Across the Atlantic, progress is somewhat uneven. Countries that have progressed the furthest in the Americas include Argentina, Brazil, Canada, Cuba and the US. Although other countries in the region have not advanced as far, they nevertheless have some controls over activities involving microorganisms and related biological products. These regulations—which include measures on laboratory biosafety and transfer controls— provide a platform on which stronger legislative frameworks could be built.

Some of the Caribbean states, in particular, have adopted short and simple, but effective, laws to implement the BWC. This may suggest that they have a higher degree of awareness of the need to counter the threat of biological weapons proliferation through effective legislation. On the other hand, there are still several states across the Americas that do not have adequate legislation since they lack provisions criminalizing biological weapons and basic controls over micro-organisms.

Building a global network
This statement began by noting the difficulties arising from the lack of an international organization for the BWC and other, regional, challenges. These issues are being responded to in a number of ways. For its part, VERTIC set up its National Implementation Measures or ‘NIM’ Programme to assist states in understanding what measures are required to comply with their international obligations, and how to implement them.

The NIM Programme was developed to work with states on a range of nuclear, biological and chemical weapons treaties and certain UN Security Council resolutions. Currently, it is largely—but not completely—focused on the BWC. The NIM Programme has four principal activity areas. Programme staff prepare comprehensive analyses of countries’ existing legislation for implementing the BWC and related provisions of UN Security Council Resolution 1540. Based on these ‘gap analyses’, the programme provides direct legislative drafting assistance, or other forms of assistance such as remote reviews of draft legislation, legal advice, and information exchanges.

To facilitate this work, the programme has developed an ‘Implementation Kit’ for BWC implementation consisting of fact sheets, a sample act for national implementation, and regulatory guidelines (available in several languages). The sample act and regulatory guidelines devote considerable space to biosecurity including licensing, inspections, enforcement mechanisms and transfer controls for particularly dangerous biological agents, toxins and dual-use biological equipment. The NIM Programme also engages in outreach at workshops and conferences, including at the BWC Meetings of Experts and States Parties.

VERTIC is one of many organizations and initiatives working to fill the BWC’s institutional deficit. Intergovernmental organizations such as the World Health Organization, the World Organization for Animal Health, the UN Food and Agriculture Organization, the World Customs Organization and Interpol engage in their respective fields. The BWC Implementation Support Unit (BWC ISU) provides a coordinating role. And members of the BioWeapons Prevention Project (BWPP) network provide outreach and research activities. The BWPP is a global network of civil society actors dedicated to the permanent elimination of biological weapons. It was launched in 2003 by a group of non-governmental organizations concerned at the failure of governments after 2001 to fortify the norm against the weaponization of disease.

There are numerous other projects being undertaken by civil society actors in this field. These provide education for scientists on the BWC; skills development for laboratories, universities and governments; industry engagement; and training on law enforcement. There are also projects on public health co-operation, disease surveillance, and development and implementation of codes of conduct.

The BWC Implementation Support Unit has often observed that implementation of the convention in its fullest sense is a global network activity in which civil society actors play a major role. But there are both strengths and weaknesses to this network approach. The strengths are that civil society action can be nimble and certainly more affordable than a large secretariat for an international organization. Due to funder requirements, civil society projects are increasingly tightly goal-oriented and time-bound. Many of those engaged in these activities have worked and been trained in government or in the treaty organizations and therefore have a deep understanding of the treaties, issues, and the people involved in their implementation.

Nevertheless, there are several weaknesses in the network approach: funding cycles for civil society can be unpredictable and the loss or shrinkage of an important civil society actor can disrupt new assistance activities, delay crucial follow-up, and curtail information and outreach exchanges and activities. Additionally, some governments may simply be unwilling to work with civil society actors for historical or political reasons. I am confident, however, that the non-proliferation community—and this includes intergovernmental organizations; international, regional and subregional organizations; and governments—is becoming increasingly comfortable and familiar with the elevated level of involvement of civil society actors in the implementation of the BWC. This comes with the responsibility, however, for civil society to be highly competent and effective, discrete and professional, and aware of the limits of what it can reasonably accomplish with states.

Delivered by Scott Spence, November 2010


Open Skies review

October 1, 2010

Representatives of the 34 states parties to the Treaty on Open Skies met in Vienna 7-9 June 2010 for the second five yearly Review Conference. At the opening of the meeting, which was chaired by the United States, Secretary of State Hillary Clinton expressed strong support for the Treaty in a video address (www.osce.org/conferences/open_skies_2010.html). The contrast to the May 2010 NPT Review Conference was striking since there were no controversies which might have questioned the regime itself. The focus was rather on past and future implementation. Here the main challenges are the replacement of ageing aircraft and the transition from using film-based to digital aerial cameras. This transition is overdue and market driven, since some major companies have begun to terminate production of some aerial films, as well as the chemicals used for developing them.

Going digital
Over the last five years, the Informal Working Group on Sensors (IWGS) of the Open Skies Consultative Commission has developed detailed procedures for certifying digital aerial cameras and thermal infrared imagers with digital readout. The conference’s Final Document—which was adopted unanimously—emphasized the need for this transition, which, however, is confronted with budgetary constraints in many countries (see http://www.osce.org/documents/sg/2010/06/44736_en.pdf). The difficulty of funding this modernization is indicative of the political status of the treaty in many of its member states. While the treaty was initially promoted by heads of government, high level support—crucial for committing additional funding—is now dwindling in many countries. Open Skies implementation is executed by the (often small) arms control verification units of the respective defense ministries. In times of tight budgets, arms control and military confidence building often struggle to be seen as priority areas in the defense establishments’ security considerations and plans. Nevertheless, the transition to digital sensors will go ahead. Norway, for instance, intends to equip its newly assigned Open Skies aircraft, a P3 Orion, with digital sensors by 2011/12. Russia has firm plans to go digital. Meanwhile, states like the US, Sweden, Turkey and a group of nine other states (from Western and Southern Europe, and Canada), which use a common sensor pod, are studying the technical and budgetary feasibility.

Three types of digital sensors are envisaged:

  • Digital aerial cameras in the wavelength range from 0,3 to 1,1 micrometers (optical and near infra-red) at a ground resolution (ground sampled distance GSD) of 30 cm (these cameras are referred to as digital video sensors in treaty language);
  • Thermal infrared imaging sensors in the wavelength range from 7 to 15 micrometers at a ground resolution (GSD) of 50 cm;
  • Imaging radar, Synthetic Aperture Radar (SAR), at a ground resolution of 300 cm. (For a detailed explanation of Thermal and SAR sensors in the context of Open Skies see VERTIC Brief No.8, by Hartwig Spitzer, 2009)

Just a few weeks before the conference, the Open Skies Consultative Commission adopted a decision (OSCC/DEC/6/10) on the specifications and certification procedures for digital aerial cameras drawn up by the IWGS. The decision allows for cameras with up to four spectral channels (blue, green, red, near infra-red) as well as panchromatic capabilities. Such cameras offer enhanced capabilities for recognizing military objects, infrastructure and camouflage when compared to the black-and white film cameras currently used. The new sensors could also support the study of land use, vegetation, and water pollution in order to monitor effects of military activities or for purposes of general transparency. On the insistence of the Russian Federation, the decision also contains certain provisions to impede hyperspectral capabilities which would enable identification of specific chemical substances (such as minerals) by their spectral reflection properties (spectral lines of a few nanometers width). The above specifications for digital cameras for Open Skies use are now met by most commercial digital aerial cameras which dominate the market for non-military aerial remote sensing. Cameras with a so-called Bayer filter, which collect images in three spectral bands on one sensor matrix, are allowed as well.

When introducing new sensors into Open Skies, determination of the ground resolution is a key issue. For digital cameras and thermal imaging sensors, ground resolution depends on flight altitude: the lower the altitude, the better the resolution. Consequently, in order to ensure that images are at a resolution allowed by the treaty, the corresponding flight altitude has to be determined in advance. To do this, a target which contains groups of bars of increasing width is over flown at different altitudes. Targets for digital aerial cameras consist of alternating black and white bars. Targets for thermal sensors consist of alternating warm and cold bars. Observers from different states parties can then analyse images of the target taken during the flights to determine the group of narrowest bar width discernable by the sensor (a process known as ‘resolution reading’). This enables the appropriate flight altitude to be established and the corresponding camera configuration to be certified. The procedures of resolution reading from digital images are specified in decision OSCC/DEC/8/10.

Since a ‘certification event’ is limited by treaty to seven days, time constraints and bad weather can hamper the (statistical) accuracy of the result. The decision on certification seeks to mitigate this constraint by requiring states parties to establish an extensive database of resolution values at different flight altitudes for each particular camera configuration in advance and to communicate the results at least 60 days before the multinational certification event. The one week certification event would then only be used to cross check the results with a small number of flights and to establish the minimum allowed altitude for observation missions.

A further decision of the OSCC specifies the formats for data exchange between parties (OSCC/DEC/9/10). Raw image data must be erased once they have been processed and distributed in the official exchange format in order to make sure that all parties have access to the same kind of images.

Other issues
During the conference, a number of other issues were discussed, including the so-called ‘other applications’ and also the accession of additional member states. The preamble of the treaty envisages the ‘possible extension of the Open Skies regime into additional fields such as protection of the environment’, though this option has never been operationalized in treaty decisions. However, several states have performed disaster monitoring flights on a national or bilateral basis. The US Open Skies aircraft flew extensive disaster-monitoring and disaster-relief support missions in the aftermath of hurricanes Katrina and Rita in 2005, and, most recently, after the earthquake in Haiti earlier this year. However, these were nationally-mandated flights lying outside the treaty’s provisions. There is little chance that post-disaster or environmental monitoring flights will become part of treaty implementation within the present framework of quota flights (which gives each party the right to perform an agreed number of flights over other parties). Disaster monitoring with Open Skies aircraft will remain an exception in view of available national capabilities like radar satellites and other civilian and military observation aircraft.

The most recent accession to the treaty was that of Lithuania in 2005. Cyprus’ application is pending since 2002, due to a veto by Turkey. This situation was one of the few controversial issues at the conference. After all parties had agreed on a final document, an interpretative statement on behalf of 32 states parties was read. The statement expressed explicit support of Cyprus’ application and the hope that consensus on the application can be obtained in the near future. In response, the Turkish delegate expressed ‘dismay that an issue that lies outside the scope, mandate and purview of the Open Skies bodies and of the Review Conference has been brought to the Closing Session’.

The final document mentions also ‘that the Treaty might serve as a model for aerial monitoring regimes in other regions of the world in order to promote security and stability.’ The document states that the states parties are ‘prepared to enter into dialogue with interested parties in order to share experience, to exchange general information about the Treaty and its benefits and to provide advice on cooperative aerial observation’. In practice, there has been little activity lately in this direction. Between 1996 and 1999, the United States undertook various initiatives by displaying its Open Skies aircraft in Japan, China and in South America and by briefing governments on the Open Skies treaty in Eastern and Southern Asia as well as in South America. These activities were not followed up under the Bush administration. Currently, the Obama administration and governments of other states parties are open to exchanging general information about the treaty worldwide. It remains to be seen to what extent governments in other parts of the world come to appreciate the Open Skies model as a strong confidence-building measure supporting regional transparency in security matters—and to what extent they consider applying a similar arrangement in their own regions.

In summary, the conference proceeded fairly harmoniously, especially in comparison with the 2005 Review Conference (which failed to reach consensus on a final document due to a Turkish veto on the Cyprus accession issue). Open Skies officials and practitioners have learned to work with each other. In addition, it is clear that both the US and Russia, as well as the other parties, adhere to the treaty`s objectives and substance, and see it as an asset. There was, however, no discussion of the larger political environment of Euro-Atlantic security in which the Open Skies Treaty operates. The treaty will, nevertheless, continue to play a significant part in the monitoring of conventional arms control in Europe as well as in the area of confidence and security building, especially given the enhanced sensor set that can now be used.

Hartwig Spitzer.
Hartwig Spitzer is the spokesperson for the Center for Science and International Security (CENSIS) and an associate member of the Carl Friedrich von Weizsäcker Center for Science and Peace Research at the University of Hamburg, Germany. He is also a professor in the Department of Physics at the University of Hamburg. He has attended the 2005 and 2010 Open Skies review conferences and participated in sessions of the Open Skies Consultative Commission’s Informal Working Group on Sensors since 2005.


The ‘nuclear revival’: taking stock, managing concerns

October 1, 2010

The so-called ‘nuclear revival’ is considered by some observers to be the next major challenge for the nuclear non-proliferation regime. It is considered by some to set in motion the rapid diffusion of nuclear technology to states in volatile regions, namely North Africa, Southeast Asia and the Middle East. It is, some argue, likely to cause these states to engage in ‘nuclear hedging’, that is, the deliberate stockpiling of nuclear capacity and expertise to keep open the option of quickly building a nuclear weapon if security conditions take a turn for the worse. Iran’s behavior, in particular, is seen as the potential catalyst for a nuclear ‘tipping point’, ‘cascade’ or ‘proliferation epidemic’ in the Middle East. The safeguards system of the International Atomic Energy Agency (IAEA) is already financially strained and is said to be incapable of handling the rapid influx of new nuclear facilities that comes with a nuclear revival. The non-proliferation outlook for this predicted revival has so far been, to say the least, rather pessimistic.

The pessimism of some in the non-proliferation community is juxtaposed by the extreme optimism of nuclear energy advocates with regard to the extent of nuclear energy’s resurgence. The IAEA, for example, projects in its high-end scenario that nuclear energy generation will increase from its current 372 gigawatts electric (GWe) to 807 GWe by 2030. The World Nuclear Association’s (WNA) high-end scenario predicts 1203 GWe of nuclear generating capacity by the same year. The Massachusetts Institute of Technology’s (MIT) 2003 study predicted 1,000 GWe of nuclear by 2050, but in 2009 said that this was ‘less likely’ than they initially anticipated.

Historical projections for nuclear power capacity have invariably been overly optimistic. For example, the IAEA projected that during the 1980s—when more reactors were connected to the grid than any other decade—there would be 14 new countries using nuclear power with a combined low-end predicted capacity of 52 GWe by 1989. As it turns out, the actual capacity of these countries by 1989 was just shy of 9 GWe, nearly 6 GWe of which belonged to South Korea alone, with reactors in only 4 of the 14 countries. However, the ability of the IAEA to make accurate projections is dependent on the predictions of its member states, which are often overly optimistic for political reasons. Past predictions, be they from the IAEA, governments or others have almost always been wrong.

The reality is that ten years into the forecasted ‘nuclear revival’ neither the optimistic projections for nuclear energy growth nor the pessimistic predictions for the non-proliferation regime’s ability to cope appear to be accurate. Of course, the lack of any significant increase in nuclear energy production means that the predicted burden on the non-proliferation regime has not materialized, but the pessimism is unfounded regardless. Countries in which new nuclear build is taking place, or is expected to, are generally not considered proliferation threats because they are either existing nuclear weapon states, or already have well established nuclear industries and a demonstrated apathy towards possessing nuclear weapons of their own, like Canada or Japan.

The main proliferation concern—potential new entrants in volatile regions—have shown little rigour in pursuing their nuclear energy ambitions. The Survey of Emerging Nuclear Energy States (SENES) of the Nuclear Energy Futures (NEF) Project—a partnership between the Centre for International Governance Innovation (CIGI) and the Canadian Centre for Treaty Compliance (CCTC), Carleton University—currently lists 34 states pursuing nuclear energy. Of these, only Iran has actually made significant headway in the past decade to connect a nuclear power reactor to its electrical grid, but it began its ongoing quest to do so under the Shah in the 1970s. All states pursuing nuclear power will face some problems of cost, industrial bottlenecks, personnel constraints and nuclear waste, but aspiring states face unique challenges of their own. Since many of these states are poorer, less developed countries, they often lack the institutional capacity, physical infrastructure and finances to support a large-scale, multi-billion dollar nuclear power plant project.

The risk, or concern, is that these new states will obtain the expertise in nuclear engineering and related disciplines that would allow them to go on to eventually develop nuclear weapons, most notably in the form of highly-trained scientists. Though the relationship between nuclear energy and weapons is complex, a nuclear power programme is nonetheless a potential stepping stone toward weapons development, and also a potentially highly effective cover for masking nefarious intent. Many fear that Iran is using its nuclear power programme for exactly that reason.

Despite these fears, if most aspiring nuclear energy states are not making any real progress towards acquiring nuclear energy then it goes almost without saying that the associated proliferation challenges of a nuclear revival are much less likely to materialize. This means that the burden on the IAEA and its safeguards system may not be as profound as many might expect.

IAEA safeguards
That the predicted revival in nuclear energy has not fully materialized, however, should not be taken as an indication that the IAEA, or its safeguards, are any less important. The humbler scale and pace of nuclear energy expansion still means an increase in the number of nuclear power reactors, increased trade and transport and perhaps more states with sensitive nuclear fuel cycle technologies. As new facilities are built, the IAEA will need to expand on its existing safeguards capacity.

The post-Gulf War emergence of the Additional Protocol as the highest standard of verification for the 1968 Nuclear Non-Proliferation Treaty (NPT) has gone a long way to improving the effectiveness of the safeguards system. It is a step closer to the ‘anytime, anywhere’ verification that was envisaged—but not enshrined—in the IAEA Statute. It is only sensible, then, that the first step in improving the current state of safeguards is to try to increase the number of states implementing Additional Protocols, which as of September 2010 stood at 102. Regrettably, those states that do not have an Additional Protocol in force include 18 of the states in the SENES project.

Interest by these states in technical cooperation from the IAEA and from nuclear suppliers may be just the opportunity needed to convince them that an Additional Protocol is both worthwhile and important. The United Arab Emirates (UAE) seems to be setting an example, agreeing to have an Additional Protocol in place as a condition of supply in its nuclear cooperation agreement with the US. However, the Additional Protocol is not likely to become an absolute requirement for nuclear cooperation in the near future. Developing countries and particularly prominent non-aligned countries already feel overburdened by safeguards, and many chafe at what they view as an imposition beyond what is already expected of them by the NPT, seeing it as a form of inequality or even as a way of depriving them of technology.

As important as the Additional Protocol is, attempting to make it mandatory may be unproductive. Nuclear suppliers may, however, be able to incentivize the adoption of Additional Protocols through measures such as increased cooperation, assistance programmes and training, rather than through the imposition of punitive steps such as technology denial.

IAEA safeguards and nuclear export controls are an important part of the non-proliferation regime, and are effective in ensuring that states are responsible with their nuclear technology and material. They have proven invaluable in helping deter states that might otherwise consider the pursuit of nuclear weapons. These supply-side measures, though effective non-proliferation measures, are not as important as the reality that most states today simply do not want nuclear weapons The demand, except in increasingly rare instances, is just not there, and the IAEA’s relatively recent changes to its safeguards philosophy is perhaps in part a reflection of that.

For states in which the Agency has sufficient confidence that all nuclear activities taking place are intended for purely peaceful purposes, the IAEA’s ‘integrated safeguards’ system streamlines monitoring activities, thereby allowing it to allocate resources more effectively to states with problematic nuclear programmes like Iran. It is also shifting towards what it calls information-driven safeguards, a more holistic approach to verification that involves analyzing information beyond traditional accounting methods, including undeclared activities and intelligence information provided by states. These two initiatives are exactly the right kind of efforts that the IAEA needs to make in order to cope with potential increases in the number of nuclear facilities it is responsible for safeguarding.

The IAEA itself is a veritable bargain for developed states, which primarily view it as a verification body. The Agency’s 2010 budget was US$444m, with an additional target of US$158m in extra-budgetary contributions. To give an example of the return on investment that states receive for their money, in 2008 the IAEA had 237 safeguards agreements in place with 163 states covering 1,131 facilities, and conducted 2,036 on-site inspections.

The problems currently faced by the IAEA, revival or not, revolve primarily around resources, with the IAEA hampered by budgetary constraints imposed on it by many member states. If the number of new nuclear facilities is to increase even at a gradual pace, the IAEA will struggle to cope financially.

As former IAEA Director-General Mohammed ElBaradei cogently put it to the Board of Governors in 2009: ‘I will be cheating world public opinion to be creating the impression that we are doing what we’re supposed to do, when we know we don’t have the money to do it.’ Dr ElBaradei and a 2008 Commission of Eminent Persons both recommended a doubling of the budget by 2020 to account for the increasing safeguards burden placed on the Agency as new facilities are built. Such a doubling would probably be wise, and will certainly go a long way to assuage any enduring concerns about a possible nuclear revival, if member states can be convinced of its necessity.

Even when the IAEA’s increasingly effective verification system successfully detects cases of non-compliance, international responses to them are not always effective. So far, determining the form that these responses take has been done on a somewhat ad hoc basis and with mixed results ranging from economic sanctions, military strikes and Security Council-mandated decommissioning programmes. Nuclear hedging presents an additional challenge: even if countries are pursuing nuclear power to hedge against regional rivals it is difficult to divine true intent because the technologies involved are inherently dual-use. Iran has done well so far to keep much of the world in doubt about its ultimate aim, despite being recently caught hiding a secret enrichment facility near Qom. Thankfully, Iran’s behavior appears to be the exception rather than the norm.

Implications for non-proliferation
It is probably inevitable that at least a few new states will succeed in their ambitions to acquire nuclear power. The report of the CIGI-CCTC NEF Project, The Future of Nuclear Energy to 2030 and Its Implications for Safety, Security and Nonproliferation details the numerous constraints standing in the way of a substantive nuclear revival. In doing so, it identifies those aspiring states that are most likely to overcome those constraints and succeed in their nuclear ambitions, as Iran is poised to do. Though most aspiring states have so far only taken the easy steps towards acquiring nuclear power, the report identifies several that have the potential to make significant headway by 2030, namely: Algeria, Egypt, Indonesia, Jordan, Kazakhstan, Turkey, the UAE and Vietnam.

The problem with many of the commonly used terms such as ‘tipping point’ or ‘proliferation cascade’ is that they inevitably falter at the level of the individual state. It is simple enough to imagine strategic scenarios in which a domino effect leads to many new nuclear-armed states, but it is difficult to identify individual states that would actually follow such a course in a world increasingly characterized by economic and social integration.

Egypt is a prime example. Not only is it one of the aspiring nuclear energy states that has the potential to succeed in its plans, but it is frequently referred to as a ‘usual suspect’ in the proliferation context because of its long and complicated nuclear history, including a minor reporting failure in 2004 that was eventually put down to a lack of clarity over what was required of it under its IAEA safeguards agreement. Egypt has a poor relationship with the undeclared nuclear-armed state of Israel, including violent clashes in the 1948 Arab-Israeli War, the 1967 Six-Day War and the 1973 Yom Kippur War. Despite this violence, though, Egypt never devoted resources to the serious pursuit of nuclear weapons to counter the Israeli arsenal, nor did Israel threaten to use its own against Egypt. It would be ahistorical to assume that Egypt, or indeed other Middle Eastern states, would automatically follow suit were Iran to acquire nuclear weapons. If this logic applies to Egypt it also applies to the less conflict-prone states in the Middle East and elsewhere as well.

The proliferation problem that the expansion of nuclear energy to new states poses to the non-proliferation regime is essentially unchanged from what it has always been: detecting and dealing with rare cases of NPT non-compliance as they arise. It is not about managing the rapid influx of new nuclear-capable states eager for a nuclear weapons capability. Between the unlikelihood of a significant nuclear revival, increasing recognition of the IAEA’s worth and need for resources, and the genuine apathy that most states feel toward nuclear weapons, in terms of non-proliferation, nuclear energy’s resurgence may not be as alarming as might initially have appeared to be the case.

Justin Alger.
Justin Alger is a researcher at the Canadian Centre for Treaty Compliance (CCTC) at Carleton University, Ottawa, Canada. He has worked on nuclear energy research for the past four years as a primary researcher on the Nuclear Energy Futures Project and as a part of his graduate studies. He holds a Master’s in International Affairs from Carleton University, and an Honours Bachelor’s in History from McMaster University.


Where next for Climate Treaty Verification?

July 1, 2010

Just over seven months ago, the single largest climate change meeting in history finished in division and disappointment. The fifteenth meeting of the Conference of Parties (COP) under the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen was always going to be a dramatic event: two years of preparatory negotiations, 194 states, 115 heads of state and a host of observers would not make for a quiet conference. And it was hoped that with the world ‘holding its breath’, the legitimate expectations of what was coined ‘Hopenhagen’ by some would materialise. But it was not to be. In and amongst the debate between developed and developing nations over who should be doing what about climate change—encapsulated in the Convention’s guiding principle of ‘Common But Differentiated Responsibilities’ and respective capabilities (CBDR)—a relatively new concept rose to prominence: that of measurement, reporting and verification, or MRV. In fact, MRV issues have long been integral to the regime, but took on a marked significance in Copenhagen. Proving in some instances to be a leverage point during the negotiations, indications of increasing clarity from COP 15 and beyond on an MRV framework may help galvanize future negotiations, despite ongoing divisions between parties.

Monitoring and verification systems exist in many agreements as a way of providing transparency, allowing trust to be built through mutual accountability, measuring progress towards treaty goals, and facilitating the review and improvement of the regime. This multiple-functionality is especially important in negotiations on climate change, as the same system which tracks actions also facilitates the negotiation, implementation and evolution of the agreement itself. The design of such a system involves a careful balancing act: it must be strong enough to ensure environmental integrity but not so demanding as to make implementation impossible. Measuring, reporting, and verifying the numerous routes to reducing emissions is, after all, a resource-intensive task which can raise sensitive issues of implied responsibility. As such, the design of a climate change verification system has become a microcosm of the larger disagreements over the Convention’s guiding principle of CBDR, with both groups of countries demanding that the other should show that they are doing more. In the run-up to the next summit (in Mexico this December), it is important to build on areas where advances were made both in Copenhagen and since. This article looks at the development of climate change treaty monitoring before, through and after the Copenhagen summit to examine what progress has been made in this area and to highlight opportunities for achieving consensus on developing a fair and effective regime.

Before Copenhagen

In December 2007, COP 13—in Bali, Indonesia—was held to discuss long-term ways of addressing climate change. Adopting a document known as the ‘Bali Action Plan’ (BAP), the COP initiated a two-year process to ‘enable the full, effective and sustained implementation of the Convention through long-term cooperative action’. Consequently, the ‘Ad-Hoc Working Group on Long-Term Cooperative Action’ (AWG-LCA) was launched to address the ‘four pillars’ of the BAP: mitigation, adaptation, technology transfer and financial support. Regarding mitigation, the BAP intended the process to address ‘Measurable, reportable and verifiable nationally appropriate mitigation commitments or actions […] by all developed country Parties’ and ‘Nationally appropriate mitigation actions [NAMAs] by developing country Parties in the context of sustainable development, supported and enabled by technology, financing and capacity-building, in a measurable, reportable and verifiable manner’. By stating that both developing and developed state actions are measurable, reportable and verifiable (MRV) the plan implicitly called for the reinvigoration of discussions on the treaty monitoring architecture. If the principles of ‘measurable’, ‘reportable’ and ‘verifiable’ are going to be met, some aspects of the existing system may require enhancement and expansion.

The Existing System
The UNFCCC requires all state parties to collect and report both quantitative and qualitative information through two mechanisms: national emissions inventories and national communications. These mechanisms collect, report, and review quantitative and qualitative data. The extent to which states must use these mechanisms, however, is guided by the principle of CBDR and, consequently the requirements for developed and developing states vary considerably.

National Emissions Inventories
Emissions inventories collect and present the calculated greenhouse gas emissions from various sectors to give a picture of aggregate emissions levels over time. According to guidelines adopted by the COP, an ideal national emissions inventory should be ‘transparent, consistent, comparable, complete and accurate’. An inventory should allow for the state of each party’s contribution to GHG emissions to be reliably known, and by comparing inventories both to the guidelines and to each other, allow for the gradual refinement of treaty monitoring and, crucially, mitigation activities. But attaining this ideal is not an easy task. Within any particular state there may be many varied emission sources and sinks in a number of diverse sectors; estimating their aggregate effects to a high level of accuracy can be a resource-intensive undertaking. As such, the emission inventory requirements for developed and developing states differ.

Developed states, with institutionalised data collection, and technological and financial resources, are required to submit annual inventories which must adhere to detailed and evolving guidelines specifiying use of agreed methodologies and procedures. Conformity with these guidelines by each inventory submission is examined by international reviews assessing the report’s consistency, comparability, completeness and accuracy. The final stage of the review process is conducted by an expert review team consisting of qualified nominees from both developed and developing states. As such, developed state inventories provide a good basis for building an MRV system that meets the principles of the Bali Action Plan. As developing states are not bound by specific emission reduction commitments, and because they face a number of challenges in creating national inventories (including insufficient data, infrastructure and resources), their emissions inventories need not be as detailed as those of developed states. Only reporting on half of the identified greenhouse gases, developing states are not required to follow internationally-agreed guidelines—although it is recommended that they do—and they have substantial freedom in what they include in the inventory. Developing state inventories are also much less frequent and regular than those of developed states, and are not considered stand-alone documents but rather submitted within the context of national communications and subject to the review process discussed below. Reflecting their lack of funds, the submission deadlines for developing state inventories and communications are contingent on the delivery of support by developed country parties. According to some observers, the inventory process for developing countries serves in many cases initially to catalyse the development of data collection capabilities. Further support and enhancement of these inventories will be necessary to help them reach higher standards of functionality.

National Communications
National Communications augment national emissions inventories by providing qualitative data on a variety of climate change activities. These include mitigation actions, provision of technological and financial assistance, and (for relevant states) the use of Kyoto Protocol mechanisms. Ideally, National Communications should be complete, consistent, comparable and transparent, but due to the nature of the current reporting format and guidelines, the information provided is not as useful as it could be, and it is difficult—but important—to identify a suitable metric through which to evaluate the information provided. Reporting requirements differ substantially between developed and developing countries. Given that mitigation actions can take a variety of forms, to gain a level of comparability, developed states are required to report on specific aspects of them in a standardised fashion, including their scope, type and level of implementation every two to three years. The UNFCCC requests that developed states quantify the estimated emissions impact of these measures, though this is not required. Due to the diverse nature of mitigation actions, however, there is no set methodology to making these estimates and states are not required to elaborate on the methods used to create them. Reporting on the supply of financial support encounters similar obstacles. The UNFCCC and the Protocol require developed countries to provide ‘new and additional’ finance to meet the ‘agreed full costs’ of a number of developing state activities, but these two terms are rather ill-defined and it is, as such, hard to assess the level of support against a metric, though it is important to resolve this issue as soon as possible. Expert review teams carry out ‘in-depth’ reviews of the communications to evaluate adherence to the reporting guidelines. In the context of the BAP principles, whilst developed state communications assist in tracking action on climate change, refinement of the format would be helpful to improve standardization in reporting (by increasing comparability and consistency) and to facilitate effective verification through increased transparency.

Requirements for developing states’ national communications are less stringent, in line with the CBDR principle. Two national communications are to be submitted (one from 1990 information and the other using information from 2000) with other future submissions determined by the COP. These communications should follow agreed guidelines but report on fewer issues and are not submitted to any individual review process. Developing state communications go some way towards facilitating measuring and reporting of climate change action, but would benefit from further development in aiming for these standards. National Communication preparation is meant to be supported by funding from developed countries. The adoption of specific, legally-binding, quantified emissions reductions targets by developed countries under the Kyoto Protocol led to an enhancement of monitoring, reporting and accounting requirements to allow determinations of legal compliance. ‘Units’ of allowed emissions were assigned to these countries by comparing baseline emissions with targets. Rigorous compliance procedures for states were also introduced, including the establishment of a Compliance Committee, which focus both on adherence to monitoring standards and also on meeting emissions reduction target commitments. A number of mechanisms introduced by the protocol to assist mitigation also rely heavily on having adequate monitoring, reporting and accounting procedures in place. Some of the mechanisms enable project level mitigation activities to generate emissions reduction units. These projects are also obliged to follow specific monitoring and verification standards.

The Bali Plan revisited
To facilitate the development of a treaty MRV system that would meet the requirements of the Bali Action Plan, observers and academics have identified a number of key issues, listed below:

  • What forms will the ‘nationally appropriate mitigation commitments or actions’ for developed states take, and to what extent will the various existing monitoring, review/verification and compliance systems need to be applied or enhanced?
  • How will developing state NAMAs be defined?
  • Will NAMAs take the form of a list of clearly defined activities, or will they be broadly described? These differences will determine what types of qualitative and quantitative information are needed, and the evaluative metrics used.
  • To what extent will developing state NAMAs be verified and how much will a verification system draw on existing review processes?
  • How will the provision of financial and technological support to developing states be measured, reported and verified in a satisfactory way?

Resolution of these treaty monitoring issues will play a central role in facilitating the negotiation and development of the climate change regime. Both developed and developing states may have legitimate concerns regarding each other’s MRV requirements, but while the significance of this issue was recognised ahead of Copenhagen, reaching agreement on it there was far from certain beforehand.

The Copenhagen Conference-COP 15
During the two-year period from 2007, the working groups met nine times to forge a draft document to be tabled at Copenhagen. This involved the analysis and negotiation of hundreds of submissions from state parties, intergovernmental organizations and independent observers. Reflecting the long, complex and tense negotiations, the final draft document produced by the AWG-LCA came to over 150 pages, and contained a large amount of bracketed text representing disagreement. In and amongst the brackets, options and disputed sections, however, some important concepts and mechanisms were introduced, and which, given successful negotiation, could be seen as the first steps towards an enhanced MRV system.

When the AWG-LCA delegates convened to work on the colossal, bracket-riddled text, they split into separate informal drafting groups, and attempted to iron out the creases. But differences persisted. Mutually-exclusive options and brackets remained around the ‘pillar’ issues of mitigation, finance, adaptation and technological support. In particular, the issue of the measuring, reporting and verification of NAMAs undertaken without international support (unilateral NAMAs), which would become a key debate, remained unresolved. The US, Australia, and Canada all reiterated that they believed international MRV of all NAMAs was necessary, whilst most developing states firmly opposed this. With a cloud of other unresolved issues hanging over the heads of delegates, little progress was made at these meetings. Eventually, the AWG-LCA had to submit its work to the COP for further negotiation, with the chair stressing that although significant progress had been made, the text was incomplete and ‘nothing is agreed until everything is agreed’. During COP negotiations, as before, little progress was made as parties continued to adopt entrenched and uncompromising positions. Lacking the political power to forge compromises on key issues, many delegates called for advice from higher-level political representation, and as such a ‘friends of the chair’ negotiating group was created, containing an unprecedented number of high-level political representatives.

Friends of the Chair Meetings
Reflecting on the unsuccessful negotiations that preceded their arrival, some heads of state expressed concern over the lack of progress. In attempting to combine separate tracks of negotiations in a smaller ‘representative group of leaders’, the Friends of the Chair negotiations were lambasted by many of the excluded parties as non-inclusive and undemocratic. On the penultimate day of the conference, an important announcement heralded change: the US declared a $100bn fund from developed states to help developing states adapt to climate change, on the condition that major nations would need to submit their mitigation actions to ‘international verification’. China, which played a leading role in the negotiations as a representative of the developing nations, subsequently stated it was prepared to strengthen its reporting system and submit reports to some type of international review. Following on from this mutual compromise, the high-level negotiations managed, in the eleventh hour of the conference, to thrash out a short new text known as the Copenhagen Accord, informed by ongoing negotiations.

The Copenhagen Accord
When the Copenhagen Accord was introduced to the waiting states, many of whom considered the process to have been undemocratic and unrepresentative, tense negotiations followed culminating in the COP merely ‘taking note’ of the accord. Although the document contains some major gaps and weaknesses, it also outlines a new treaty MRV system, highlighted below, which may point toward a growing political consensus on this issue. Referring back to the issues identified earlier, some important indicators of progress regarding MRV within the Copenhagen Accord are identified below.

MRV of developed state actions
Developed states will commit themselves to economy-wide quantified emissions reductions, which will be measured, reported and verified in accordance with existing and updated guidelines adopted by the COP. To inform the development of COP guidelines for developed states, the text includes the principle that ‘accounting of [targets] and finance is rigorous, robust and transparent’. The frequency with which these MRV provisions will be applied is uncertain and would need to be addressed as part of the updated guidelines.

Definitions of developing state NAMAs
The Copenhagen Accord states that developing countries will implement Nationally Appropriate Mitigation Actions, but that these actions will be voluntary for Least Developed States (LDS) and Small Island Developing States (SIDS) and contingent on the delivery of support. The Accord calls for countries to submit NAMAs to an annex, but does not provide much detail on what form NAMAs should take. Submissions so far demonstrate how varied NAMAs can be. These actions have been expressed in a number of ways, from quantifiable sectoral targets (such as a percentage reduction in emissions per unit GDP), to lists of policy measures. For example, Brazil submitted a document detailing eleven targets and policy measures augmented with estimates of expected emissions reductions, whilst India has so far submitted a document with just one overall emission intensity target.

Verification of developing state NAMAs
The Copenhagen Accord also increases the frequency and stringency of developing state national inventories and communications procedures. Under the Copenhagen Accord, developing states have to submit national communications and inventories once every two years, and to compile them according to internationally-agreed guidelines. NAMAs seeking support are to be placed in a registry detailing their nature in order to facilitate linkages with the appropriate international support. They will subsequently be reported and verified internationally.

In comparison, unilateral NAMAs are only subject to ‘domestic’ MRV, but a compromise was struck so that the results of this MRV will be reported through national communications with ‘provisions for International Consultation and Analysis (ICA)’. It is currently unclear what form ICA will take, but some work has already begun on examining models from other organisations such as the World Trade Organisation and the International Monetary Fund.

Verification of support
Recognising that sufficient financial resources will be required to mitigate and adapt to the effects of climate change (and also to ensure such actions are measureable, reportable and verifiable), the Copenhagen Accord states that ‘scaled up, new and additional, predictable and adequate funding as well as improved access shall be provided to developing countries’. The measuring, reporting and verification of this support is to be achieved through existing and further guidelines adopted by the COP in a way that is ‘rigorous, robust and transparent’. The ability to truly verify the implementation of these requirements will, however, depend upon how new guidelines are informed by interpretations of such concepts as ‘new and additional’.

Half-way house at Bonn and the road to Mexico
Considering the somewhat dubious position that the Copenhagen Accord holds within the negotiating framework, it is unclear to what extent these measures will be incorporated into final treaty provisions. Last month, the AWG-LCA met again along with other negotiating bodies under the UNFCCC in Bonn, Germany, to revisit their complicated negotiating texts and, as the main negotiating text regarding long-term action, it is the AWG-LCA text and not the Copenhagen Accord that forms the current basis of ongoing talks. In any case, some options on MRV presented in the Accord are also included in outgoing COP reports from Copenhagen.

During the Bonn negotiations, many delegates from both developed and developing states expressed their support for a number of options included in the COP text and which closely resembled those contained within the Copenhagen Accord. The outgoing text from Bonn produced by the AWG-LCA chairs also contains some items which present an MRV structure similar to that contained in the Accord. For developing countries, this includes an increased frequency of reporting (every two years) on a selection of core items: inventory information, mitigation actions, receipt of finance and the result of domestic MRV of unsupported NAMAs. International MRV is envisaged of supported NAMAs. Full national communications are envisaged every six years, with International Consultation and Analysis applying to these and the biennial reports.

Provisions for developed countries, on the other hand, may include an assessment of the comparability of efforts by a technical panel, MRV based on current and future guidelines, accounting procedures, annual inventories, biennial progress reports on mitigation action, targets, provision of finance, and use of emissions trading. Full national communications based on current and possibly new reporting elements are required every three to five years. These may be subject to enhanced verification procedures building on current processes, including in-depth reviews by expert review teams. However, as only a representative text this does not necessarily indicate consensus and some parties have expressed dissatisfaction with certain aspects of it.

Meanwhile, Convention parties that are also parties to the Kyoto Protocol have been negotiating over the protocol’s future. Some parties have been calling for those developed country parties that are not parties to the protocol—namely, the US—to nevertheless be subject to the protocol’s provisions on MRV.

Attempting to banish the ghosts of Copenhagen, delegates at Bonn tried to find a balance between ambition and workability. An ambitious approach would suggest that parties at COP 16 should push for the realisation of the complete, comprehensive agreement missed at Copenhagen. A more workable approach might, however, recognise that there is still a considerable amount of work to be done in several core areas and that it might therefore be wiser to first concentrate on the ‘low hanging fruit’ as a positive step toward the realisation of a complete agreement. The development and agreement of an MRV structure in Mexico may well be one such ‘low hanging fruit’. Consensus on an MRV framework can build confidence and provide a solid framework on which to build a comprehensive agreement. The progress made in developing an MRV framework played an important role in unlocking the difficult negotiations at Copenhagen, and finalising this structure may well give a boost to negotiations at COP 16.

Hugh Chalmers
VERTIC Intern (May-July 2010)
Hugh holds a BSc with Honours in Astrophysics from the University of Edinburgh.


The Review Conference: Looking back, looking forward

July 1, 2010

After four weeks of debate and confusion, the eighth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) ended on 28 May 2010 with the adoption of a final document, making this conference only the fourth such meeting to do so since the treaty’s entry into force in 1970.

Most headline-grabbing of all, states parties agreed that a conference to further the goal of a nuclear weapons-free zone (NWFZ) in the Middle East—involving all states in the region—should be held in 2012. Reaffirming the ‘urgency and importance of achieving universality of the treaty,’ the final document also called on the three de-facto nuclear-weapon states of Israel, India and Pakistan to sign up to the pact.

Highlighting ‘the importance of Israel’s accession to the treaty’ elsewhere in the document immediately prompted a critical response from the Netanyahu government in Tel Aviv. Iran was not mentioned in the Final Document (predicably since its presence at the conference meant it could block consensus). ‘Given the distorted nature of this resolution, Israel will not be able to take part in its implementation,’ it said in a statement released shortly after, casting a shadow of doubt over Israeli participation not just at the 2012 meeting but in any other efforts to translate the Middle Eastern NWFZ from a 15-year-old idea into reality.

The last issue of Trust & Verify (no. 128) identified eight issues that could be usefully addressed by the NPT’s 189 states parties during their month-long gathering: universalization of the safeguards-strengthening Additional Protocol; the rights of the International Atomic Energy Agency (IAEA) to investigate suspected weaponization activities in non-nuclear-weapon states (NNWS); funding and staffing of the Agency; information-sharing between states; non-compliance with Article III (the safeguards article) of the NPT; the link between Article III non-compliance and the right to produce nuclear energy; and last, but by no means least, the need for the ongoing development of capabilities to verify compliance in the realm of nuclear disarmament. Which of these, then, made it into the final text?

The Additional Protocol did, for one. The final document noted that the implementation of measures specified in the Model Additional Protocol of 1997 ‘provides, in an effective and efficient manner, increased confidence about the absence of undeclared nuclear material and activities in a state as a whole’. It further noted that numerous states were today of the view that Additional Protocols have become an ‘integral part’ of the IAEA’s safeguards system. All states yet to bring an Additional Protocol into force were encouraged to do so as soon as possible. Howerer, taking that step is a ‘sovereign decision’, the document said, in what essentially amounts to a recognition of the resistance of many firm hold-outs and the difficulty of any attempt to make the Additional Protocol a compulsory obligation on NPT parties.

On weaponization, the final document was silent. But on IAEA finances and human resources, recommendations were more forthcoming. It called on all states parties to ensure that the IAEA ‘continues’ to have ‘all political, technical and financial support’ necessary for it to effectively fulfil its safeguards responsibilities. The conference also encouraged all states in a position to do so to make contributions to the Agency’s Peaceful Uses Initiative, a US-led programme to raise $100m over the next five years. It urged all parties to encourage ‘national, bilateral and international efforts to train the necessary skilled workforce needed to develop peaceful uses of nuclear energy.’

Furthermore, in a statement not far removed from T&V128’s assertion that information-sharing between states and the Agency was ‘essential’ to the proper functioning of the safeguards system, the 2010 conference document recognized ‘the need for enhanced international cooperation and coordination among states parties.’ Highlighted in particular were the collaborative efforts between states and the IAEA in the fight against illicit nuclear trafficking.

T&V128 also raised the issue of non-compliance with Article III of the NPT. At present, the extent to which non-compliance with safeguards equals non-compliance with Article III is not entirely clear, especially since many safeguards violations are seen to be of only minor proliferation concern. However, while welcoming the fact that 166 states parties have to date brought comprehensive safeguards agreements into force, and urging the 18 hold-outs to do so ‘without further delay’, the final document’s tackling of compliance concerns was noticeably more muted. States parties with concerns over safeguards non-compliance ‘should direct such concerns, along with supporting evidence and information’ to the IAEA for it to ‘consider, investigate, draw conclusions and decide’ what action (if any) was necessary.

Far more notable—and significant—was the inclusion of an understanding that the ‘inalienable right’ of NPT parties to develop nuclear energy was dependent on a state being in conformity with Articles I, II and III of the treaty. According to the letter of the NPT, the right to produce nuclear energy—a clause often cited by Iran in relation to its suspect nuclear activities—is contingent on compliance with Articles I and II (which prohibit the development of nuclear weapons). In the final document of the sixth review conference in 2000, however, that right was tied to Article III compliance as well. Were that to have been a legally-binding amendment to the treaty, a state in non-compliance with Article III (not always an unambiguous matter) would lose its right to produce nuclear energy. The reaffirmation of Article III conditionality—as called for in the last issue—is a welcome inclusion to this conference’s final document.

Away from non-proliferation, the final point raised in T&V128—namely, the need for the further development of disarmament verification capabilities—also found its way into the conference document, perhaps unsurprisingly given the revival of serious discussions of nuclear disarmament witnessed over the last few years. ‘All states agree’, it said, ‘on the importance of supporting cooperation among governments, the United Nations, other international and regional organisations and civil society aimed at increasing confidence, improving transparency and developing efficient verification capabilities related to nuclear disarmament.’ And in particular, the conference flagged the joint efforts of the UK and Norway ‘in establishing a system for nuclear warhead dismantlement verification.’ VERTIC—which participated in these efforts as an independent observer—is to release its report on the so-called UK-Norway Initiative later this year.

In all, many of the issues raised in the last edition of T&V featured in some manner or other in the outcome document that nearly didn’t emerge after last-minute disagreements over Israel surfaced between Arab states and the US. And while weaponization went unmentioned, pronouncements on the Additional Protocol, effective support to the IAEA, verified nuclear disarmament and the link between safeguards and nuclear energy are all welcome for the renewed emphasis on verification that they bring.

Effective verification is crucial to the working and continued viability of the NPT; if this final document is anything to go by, that is a point that all parties, large and small, nuclear and non-nuclear alike, recognise as the truth.

David Cliff
Research Assistant
VERTIC

David joined VERTIC’s Nuclear Arms Control and Disarmament Programme as a Research Assistant in May 2010. He holds a BA in Geography and an MA in International Affairs, both of which he studied for at the University of Exeter.