Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-26T07:42:47.621Z Has data issue: false hasContentIssue false
  • English
  • Français

Safeguarding Atoms for Peace

Published online by Cambridge University Press:  28 March 2017

Mason Willrich
Get access Rights & Permissions [Opens in a new window]

Extract

Since 1945 the number of nations possessing nuclear weapons has increased five times and stockpiles of nuclear weapons have increased thousands of times. The enormity of the build-up of capabilities for nuclear destruction has largely overshadowed the remarkable progress that has been made since 1945 in developing the peaceful applications of nuclear science. The take-off point for the economic use of nuclear fuels for generating electricity appears to have now been reached.

Type
Research Article
Information
American Journal of International Law , Volume 60 , Issue 1 , January 1966 , pp. 34 - 54
Copyright
Copyright © American Society of International Law 1966 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Formerly Assistant General Counsel, XT. S. Arms Control and Disarmament Agency. The views expressed herein are those of the author and do not necessarily reflect those of any government department or agency.

References

1 The economics of nuclear power has been the source of many and conflicting predictions, some of which subsequent events have proven to be overly optimistic. For a recent view of where the U. S. stands today, see Joint Committee on Atomic Energy, 88th Cong., 2d Sess., Nuclear Power Economics—Analysis and Comments—1964 (Comm. Print, 1964). For the world view in a nutshell, see the summary highlights of the papers presented at the Third U.N. International Conference on the Peaceful Uses of Atomic Energy, Sept. 8, 1964, by Dr. Glenn T. Seaborg, Chairman of the U. S. Atomic Energy Commission, reprinted in U.S.A.E.C, Atoms for Peace Conference, 1964, A Report by the United States Delegation (1964). A presentation of many of the basic issues underlying the widespread civil use of nuclear energy, reaching less optimistic conclusions on the question of economics is contained in Kramish, The Peaceful Atom in Foreign Policy (1963). For a recent general analysis and appraisal, see Hall, “Atoms for Peace or War,” 43 Foreign Affairs 602 (1965). A mine of both technical and historical information for the period prior to 1960 is contained in Joint Committee on Atomic Energy, 86th Cong., 2d Sess., Eeview of the International Atomic Policies and Programs of the United States (Comm. Print, 1960).

2 On Feb. 25, 1965, the IAEA Board of Governors adopted without dissent a resolution which “approved provisionally” the revised safeguards system and submitted it to the General Conference “for its consideration and appropriate action.” IAEA, GC (IX)/294(1965); 4 Int. Legal Materials 512 (1965). The revised system was noted by the General Conference at its ninth regular session on September 28, 1965, and immediately thereafter put into effect by decision of the Board. In addition, the provisions adopted by the Board relating to the Agency's inspectors should be considered a part of the Agency's safeguards system. IAEA, GC(V)/INF/39(1961). The issues underlying the procedural development of safeguards are discussed by the author in Willrich, ‘ ‘ The Development of International Law by the International Atomic Energy Agency,'’ 1965 Proceedings, American Society of International Law 153. For convenience, the Agency's revised safeguards system and the provisions relating to the Agency's inspectors will generally be referred to in this article as the “Safeguards Document” and the “Inspectors Document,” respectively.

3 See, further, Arangio-Euiz, ‘ ‘ Some International Legal Problems of the Civil Uses of Nuclear Energy,” 107 Hague Academy Eeeueil des Cours 503 (1962, I I I ) ; Hall, “The Safeguards Eole of the International Atomic Energy Agency,” 2 Disarmament and Arms Control 170 (1964).

4 A. standard technical reference work is Glasstone, Sourcebook on Atomic Energy (2d ed., 1958). For a comprehensive glossary see Hogerton, The Atomic Energy Deskbook (1963).

5 The estimates given are derived from Dr. Seaborg's statement, note 1 above. Somewhat more conservative estimates are contained in IAEA, Annual Report by the Board of Governors to the General Conference, 1 July 1984-30 June 1965, pp. 5-8 (GC (IX)/299, 1965).

6 For example, the Yankee Reactor located at Eowe, Mass., which is presently subject to IAEA safeguards, operates at a power level of approximately 185,000 kilowatts electric and is capable of producing more than 100 kilograms of plutonium annually. Statement by Dr. Glenn T. Seaborg, Chairman, U. S. Atomic Energy Commission, before the Joint Committee on Atomic Energy, April 29, 1965 (unpublished).

7 U.S.A.E.C, IAEA Safeguards and Their Technical Basis, p. 9 (unpublished).

8 U. S. Dept. of State, 1 Documents on Disarmament, 1945-1959, p. 393 (I960).

9 The legal antecedents of the IAEA safeguards system, as it presently exists, can be traced to the Joint Declaration by the Heads of Government of the United States, United Kingdom and Canada of Nov. 15, 1945, a few short months after the first atomic explosion. 60 Stat. 1479 (1946), T.I.A.S., No. 1504, 3 U.N. Treaty Series 123; 40 A.J.I.L. Supp. 48 (1946). With respect to civil uses, the parties declared their intention to exchange basic scientific information and research results with other nations and to make such information generally available. However, the decision was taken that the dissemination of information with respect to the industrial applications of nuclear energy must await the development of “ … effective enforceable safeguards against its use for destructive purposes…. “ This decision was enacted into U. S. domestic law in Sec. 10 of the Atomic Energy Act of 1946, 60 Stat. 66-68 (1946).

10 U. S. Dept. of State, 1 Documents on Disarmament, 1945-1959, p. 401 (1960).

11 3 Joint Committee on Atomic Energy, 86th Cong., 2d Sess., Eeview of the International Atomic Policies and Programs of the United States 725 (Comm. Print, 1960).

12 For the history of these negotiations see Bechhoefer, “Negotiating the Statute of the IAEA,” 13 Int. Org. 38 (1959); Stoessinger, “Atoms for Peace: The International Atomic Energy Agency,” Commission to Study the Organization of Peace, Organizing Peace in the Nuclear Age 117 (1959).

13 The bilateral program of co-operation was made possible by the enactment of the Atomic Energy Act of 1954, 68 Stat. 919 (1954), as amended, 42 TJ.S.C. §2011 et seq. (1958), as amended, 42 TJ.S.C. §2014 et seq. (Supp. V, 1964), which superseded by amendment the Act of 1946.

14 8 U. S. Treaties 1093, T.I.A.S., No. 3873, 276 XJ.N. Treaty Series 3, amended 14 U. S. Treaties 135, T.I.A.S., No. 5284 (1961).

15 IAEA, INPCIRC/26 (1961).

16 See note 14 above.

17 Concerning sanctions, the Board of Governors has not ventured beyond references to the relevant statutory provisions in its development of a system of Agency safeguards. Art. XII, par. C, sets forth procedures to be followed in the event of non-compliance. These include: a report by the inspectors to the Director General; the transmittal of the report by the Director General to the Board of Governors; a call upon the state concerned to remedy the situation if non-compliance is found by the Board; a report by the Board to the members of IAEA and to the TT.N. Security Council and General Assembly; and the Board's decision to curtail or suspend assistance in event of failure of the state concerned to take “fully corrective action within a reasonable time,” or to call for the return of materials and equipment made available. Provision is also made for suspension of the non-complying state from membership in the IAEA. Due to the political sensitivity of the problem of sanctions and considering the unlikelihood that a state would agree to safeguards in the first place without a clear intention to observe the commitment for the facility concerned and for the period of the relevant safeguards agreement, it seems unlikely that resort to these procedures will be required in the foreseeable future.

18 Complicated provisions in the Statute of the Agency attempt to strike a delicate balance in the composition of the Board between atomic “ h a v e s “ and “have-nots,” and between East and West, with perhaps some bias in favor of the atomic “ h a v e s” and the West. Under Art. VI of the Statute, the outgoing Board of Governors, by majority vote, makes the following designations of membership for the succeeding Board: “ t h e five members most advanced in the technology of atomic energy“; the member most advanced in the technology of atomic energy, including the production of source materials, not represented by the original five in each of the following eight geographic regions: (1) North America, (2) Latin America, (3) Western Europe, (4) Eastern Europe, (5) Africa and the Middle East, (6) South Asia, (7) Southeast Asia and the Pacific, (8) Ear East; two members from among Belgium, Czechoslovakia, Poland, and Portugal as producers of source material; and one additional member as a supplier of technical assistance. Thus, the outgoing Board has power to designate thirteen out of twenty-five successors. The General Conference elects twelve members to the Board “with due regard to equitable representation,” and so that the Board includes in this category of membership three from Latin America, three from Africa and the Middle East and one from each of the other areas except North America. The five members most advanced in the technology of atomic energy are Canada, Prance, TJ.K., TJ. S. and U.S.S.B. (from North America, Western Europe and Eastern Europe). These five are thus assured, in fact, permanent seats on the Board. The members most advanced in the technology of atomic energy in each of the eight regions, not represented by the original five, are Argentina, Australia, Brazil, India, Japan, and South Africa. Argentina and Brazil share the seat going to the most advanced country in Latin America and one of the seats going to Latin America on the basis of equitable representation. Belgium alternates with Czechoslovakia, and Poland alternates with Portugal on the Board as producers of source materials. The seat reserved for the supplier of technical assistance has traditionally rotated among the Scandinavian countries.

19 See Stoessinger, note 12 above, at 145-146.

20 The General Conference is limited to requesting reports and making recommendations, Art. V, par. F, Sec. 2. The Director General and staff are subject to the control of the Board of Governors, Art. VII, par. B.

21 IAEA, GC (IX)/294 (1965), Annex, pars. 9 and 10. A more specific provision dealing with a related question states that the Agency shall not request the state concerned “ to stop construction or operation” of any nuclear facility “except by explicit decision of the Board.” Ibid, at par. 11.

22 Ibid. at par. 14.

23 Ibid. at par. 12.

24 Ibid. at par. 4.

25 Ibid. at par. 82.

26 Ibid at par. 4; and IAEA, GC (V) INF/39 (1961), Memorandum, par. 3.

27 IAEA, GC (IX)/294 (1965), Annex, par. 55.

28 ibid, at par. 19. The Safeguards Document also permits the exemption from safeguards, at the request of the state concerned, of small quantities of nuclear materials. Ibid, at pars. 21 and 22. The theory is that quantities below those specified have little, if any, military value and that accounting for every gram of nuclear materials in a state would unduly burden the reporting state and unnecessarily complicate the administration of safeguards for the Agency. However, every gram of nuclear material in the state concerned above the quantitative exemption limits for the particular material involved and otherwise subject to safeguards must be accounted for.

29 Ibid.

30 The main question in developing a ‘’ trigger'’ list of equipment and non-nuclear materials which should require atomic energy safeguards as a condition of export is whether the item is uniquely for atomic use. Certain items of equipment and non-nuclear materials are of such a specialized nature that they could only be used in a nuclear reactor. A fuel element charge-discharge machine would seem to fall into this category. On the other hand, concrete is used frequently in the building of reactor vessels. Clearly, exports of commodities of such wide industrial application cannot be subject to atomic energy safeguards. There are many small items of equipment as to which the question of atomic uniqueness is more difficult to decide.

31 One of the problems in this connection is whether the atomic purpose for which financial assistance is given is known to the lender. It would seem that most foreign aid loans would be sufficiently tied to purchases in the lending state so that the atomic purpose of the loan would be readily ascertainable. The question of how many dollars, or some other currency, in relation to the total cost of the project should trigger safeguards on the project may be more difficult to answer.

32 IAEA, GC(IX)/294 (1965), Annex, par. 20.

33 Ibid. at pars. 30-32.

34 Ibid. at pars. 33-36.

35 Ibid. at pars. 34-44.

36 Ibid. at pars. 45-54.

37 Ibid.. at pars. 55-58. Special procedures have also been included for safeguarded nuclear material outside principal nuclear facilities. Ibid, at pars. 59-68. It is doubtful that these provisions mil have a large impact on the implementation of Agency safeguards, in the near future, and discussion has, therefore, been omitted. Distracting footnoting of the ensuing text has been avoided; the reader may simply refer back to the general subject referenced in notes 33-37 for appropriate references to the paragraphs of the Safeguards Document under discussion.

38 IAEA, GC(V)/INF/39 (1961), Annex, pars. 1-3.

39 IAEA, GC(IX)/294 (1965), Annex, par. 57. The maximum frequency of routine inspections is actually determined against whichever is the largest of: (a) facility inventory, including fuel loading; (b) annual throughput; or (c) maximum potential annual production of fissionable material. Thus, if a reactor has a large inventory although its production potential is low, the Agency may have the right of access at all times. The number of routine reports is tied to the frequency established by formula for routine inspections, with a maximum of 12 per year. Ibid, at par. 59.

40 IAEA, GC(V)/INF/39 (1961), Annex, par. 4.

41 IAEA, GC(IX)/294 (1965), Annex, par. 47. The Safeguards Document leaves open the question of whether the Agency would have the right to designate a resident inspector for a facility if it had the right of access at all times. Under the safeguards agreement between the U. S. and the IAEA covering the application of Agency safeguards to four U. 8. reactor facilities, the Agency has the right of access at all times to two of the reactors involved. The agreement provides that the Agency has the right to “designate one or more inspectors to be stationed in the United States of America for the purpose of continuous inspection of such facilities or for the purpose of performing an indefinite number of discrete inspections, including the right to inspect such facilities without advance notice.” IAEA, INFCIEC/57 (1964), See. 14.

42 IAEA, GC(IX)/294 (1965), Annex, pars. 26-28. Other provisions provide for the termination of safeguards in certain contingencies primarily of a technical nature. These include return of safeguarded nuclear material to the supplying state if it was not improved from the point of view of its fissionable qualities, or if, prior to return, any produced fissionable material has already been separated out and has remained subjected to safeguards.

43 Ibid, at par. 26 (d). One exception permits the substitution of 90% enriched uranium for plutonium with respect to irradiated fuel which is transferred for the purpose of chemical reprocessing. This right of substitution of one nuclear material for another is, however, limited to a period of not to exceed six months. Ibid, at par. 25.

44 Ibid. at par. 28 (d).

45 Treaty Establishing the European Atomic Energy Community (ETJRATOM), March 25, 1957, 298 U.N. Treaty Series 167; 51 A.J.I.L. 955 (1957).

46 Convention on the Establishment of a Security Control in the Meld of Nuclear Energy, Protocol on the Tribunal Established by the Convention, and Decision of the Council Establishing a European Nuclear Energy Agency, Dec. 20, 1957, IAEA, Legal Series No. 1: Multilateral Agreements 87 (1959); 53 A.J.I.L. 1018 (1959). For a brief comparative analysis of the statutory provisions regarding safeguards see Wolf, “The Legal and Factual Problems of International Security Control in the Field of Nuclear Energy,” 4 Diritto ed Economia Nucleare 179 (1962). For an extended treatment see Arangio-Euiz, note 3 above.

47 Some areas of overlap exist already. For example, the Eurochemic chemical processing plant in Belgium, being constructed as an ENEA undertaking, is apparently within the safeguards competence of both ENEA and EtTRATOM. The Halden Project in Norway, also an ENEA undertaking, will soon be subject to ENEA and IAEA safeguards.

48 IAEA, GC(IX)/294 (1965), Annex, par. 26 (f).

49 See, for example, Agreement Between the International Atomic Energy Agency, the Government of Japan and the Government of the United States for the Application of Safeguards by the Agency to the Bilateral Agreement Between Those Governments Concerning Civil Uses of Atomic Energy, Sept. 23, 1963, Sec. 26, 4 U. S. Treaties 1265, T.I.A.S., No. 5429. This trilateral safeguards agreement transfers to the Agency the administration of safeguards under the U. S.-Japan agreement for co-operation.

50 For a review of the U. S. program of bilateral safeguards, see Seaborg, “Existing Arrangements for International Control of “War-like Material-5: The United States Program of Bilateral Safeguards,” 2 Disarmament and Arms Control 422 (1964). For an account of the practice of the Soviet Union in its bilateral atomic energy assistance, see Ginsburgs, “The Soviet Union and International Cooperation in the Peaceful Use of Atomic Energy: Bilateral Agreements,” 54 A.J.I.L. 605 (1960). The Soviet Union has in the past made a point of not requiring explicit safeguards in its bilateral assistance agreements, ostensibly in deference to the sovereignty of the recipient and confidence in Soviet relations with the recipient. However, since 1963 the Soviet Union has actively supported the development of safeguards by the IAEA, although it has not placed any of its bilateral agreements or its own civil atomic activities under Agency safeguards.

51 IAEA, GC(IX)/294 (1965), Annex, par. 16.

52 Such a provision for continuing safeguards on produced fissionable materials was for the first time included in the Danish-U-K. Safeguards Transfer Agreement approved by the IAEA Board of Governors in June, 1965. IAEA, INECIEC/63, see. 32. Safeguards undertakings of unlimited duration have interesting financial implications for the Agency. Costs of implementing safeguards are included among “administrative expenses” as a general rule. Statute of the International Atomic Energy Agency, Art. XIV, par. B, sec. 1 (b). Such expenses are apportioned among the arrangements submitted to the Agency, as distinguished from Agency projects, the Board of Governors “shall deduct such amounts as are recoverable” under the terms of the pertinent agreements among the Agency and the states concerned. Art. XIV, par. C. Thus far the costs of administering safeguards have been born entirely by the Agency under all types of arrangements. However, the possibility of reimbursement of some portion of the Agency's costs of administration in connection with member state submissions exists. The method of handling this question over the long run has been a continuing source of controversy in the Board of Governors. Considering the negligible costs involved in relation to the benefits potentially available, it would be unfortunate indeed if the method of financing safeguards with respect to member state arrangements were to become a question on which the political prestige of the contending Board members was committed to such an extent that the wide acceptance of the IAEA system would be endangered.

53 For reference to an account of the procedural side of the development of IAEA safeguards, see note 2 above.

54 IAEA, Annual Beport of the Board of Governors to the General Conference, 1 July 1964-30 June 1965, pp. 40-41 (GC(IX)/299, 1965). As of June 30, 1965, 8 project agreements had been signed with 7 members: Argentina, Congo (Leopoldvile), Finland (2), Mexico, Norway, Pakistan, and Tugoslavia. Trilateral agreements for the transfer to the IAEA of safeguards administration under bilateral arrangements had been signed among the IAEA, the U. 8. and 13 members: Argentina, Austria, China, Greece, Iran, Israel, Japan, Norway, Philippines, Portugal, South Africa, Thailand and “Vietnam; and among the IAEA, the U.K. and 2 members: Denmark and Japan. A safeguards agreement covering the unilateral submission by a member state of certain of its nuclear activities had been signed by one member: the U. S. In addition, in September, 1965, the Board approved a trilateral transfer agreement among the IAEA, Canada and Japan.

55 Ibid, at p. 42. The Board has authorized the use of 14 Agency officials as Agency inspectors.

56 This policy was the result of decisions taken largely on the basis of a review in 1962. See U. S. Dept. of State, Report of the Advisory Committee on U. S. Policy toward the International Atomic Energy Agency, pp. 11-13 (1962). See also Hearing on United States Policy Toward the International Atomic Energy Agency Before the Joint Committee on Atomic Energy, 87th Cong., 2d Sess., p. 14 (Comm. Print, 1962).

57 See note 54 above. IAEA, INFCIBC/57 (1964). An original TT. S. submission covering 4 reactors entered into force June 1, 1962. IAEA, INFCIEC/36 (1962). The express purpose of this agreement was to assist the Agency in the development of safeguards “by providing it with a field laboratory.” One of the reactors under the old agreement has been dropped and a large privately owned power reactor, the Yankee reactor, has for the first time been submitted to Agency safeguards under the terms of the 1964 safeguards agreement. The latter agreement is a full safeguards agreement rather than one more in the nature of a training exercise.

58 See Message of President Johnson to the Conference of the Eighteen Nation Committee on Disarmament, Jan. 21, 1964 (ENDC/120); and statements of the U. S. Eepresentative on Feb. 6, 1964 (ENDC/PV. 164, pp. 5-10), March 5, 1964 (ENDC/ PV. 172, pp. 14-18), and July 27, 1965 (ENDC/PV. 218, pp. 11-12).

59 Through 1964, the AEC had distributed abroad nuclear materials of an approximate total value of $117,500,000. Thirty-nine civil agreements for co-operation with other countries, ETJEATOM and the IAEA were in effect. Annual Report to Congress of the Atomic Energy Commission for 1964, S. Doc. No. 8, 89th Cong., 1st Sess., p. 201 (1965).

60 In short-term extensions of their respective bilateral agreements for co-operation with the TT. S., Brazil and Turkey have agreed to accept IAEA-administered safeguards no later than the termination dates of those short-term extensions. India has agreed to accept IAEA safeguards on the TJ. S.-assisted Tarapur reactor at a suitable time after construction is completed and the reactor is operational. Sweden has informed the Agency of its readiness to enter into consultations with the Agency and the U.K. and the U. S. with a view to transferring to the Agency the safeguards under its bilateral agreements with those countries. On June 3, 1965, the Government of Canada announced that, in the future, export permits covering sales of uranium will be issued only if the uranium is to be used for peaceful purposes, and that an agreement with the government of the importing state to this effect will be required together with “appropriate verification and control.” Statement by Foreign Minister Martin in the Parliament of Canada, June 3, 1965. On June 16, 1965, the United Kingdom announced its intention to invite the IAEA to apply safeguards to two identical civil nuclear power reactors at Bradwell, Essex. This will be the largest nuclear power station yet submitted to safeguards. Statement by Lord Chalf ont in the House of Lords, June 16, 1965.xml