New Paradigms Forum Proliferation Issues and Much More …

19Sep/18Off

Nonproliferation Lessons Learned

Note:

Below follow Assistant Secretary Ford's remarks to the Vienna Center for Disarmament and Non-Proliferation in Vienna, Austria, on September 19, 2018.  They may also be found on the website of the U.S. State Department's Bureau of International Security and Nonproliferation.

Good day, everyone, and thank you for the kind introduction, Laura [Rockwood]. This being the 50th anniversary of the opening for signature of the Nuclear Nonproliferation Treaty (NPT), it’s a big year for thinking about the NPT and its future.

As we all do that thinking, we at the U.S. State Department have emphasized the importance of remembering the benefits that have been provided for so long by the NPT, and by the global nonproliferation regime that the international community has built up around it. Memory and understanding of the past can be a key with which to unlock a better future, and we have stressed the linkage between understanding the NPT’s legacy and the imperative of preserving and strengthening the nonproliferation regime so that it can continue to be of value.

This effort received a boost from the NPT 50th Anniversary Depositaries’ Conference we held in Washington in June, and from the joint U.S., British, and Russian Foreign Ministers’ statement issued at that time, reaffirming the NPT Depositary States’ commitment to the NPT in all of its aspects. In the months ahead – and leading up to the 2020 Review Conference, which will occur upon the 50thanniversary of the NPT’s entry into force – we will continue to emphasize these themes and build upon them.

But remembering the benefits that the NPT provides, and which will be lost if the international community fails to preserve the nonproliferation architecture that is the Treaty’s core, should not be our only lesson from the NPT’s history. I believe we can also learn valuable things from the nonproliferation regime about how international institutions survive and thrive in a complex and changing world – in particular, how the regime has been able to learn from its environment and to adapt as learning occurs. Let me offer three examples of past and ongoing learning, and one case of lessons not yet fully learned:

  1. The regime’s ability to change course in working to ameliorate proliferation risks that the regime itself had inadvertently created by supporting the worldwide construction of research reactors fueled with highly-enriched uranium (HEU);
  2. The regime’s ability to supplement traditional International Atomic Energy Agency (IAEA) safeguards with the Additional Protocol (AP) after it became clear that implementation of Comprehensive Safeguards Agreements (CSAs) was insufficient to provide credible assurances against illicit nuclear activities;
  3. The regime’s development of increasingly effective, flexible, and efficient approaches to implementing safeguards agreements under the State-Level Concept (SLC); and
  4. The regime’s as yet inadequate and incomplete response to a case of announced withdrawal, and the need to adopt principles and put in place measures that discourage future such withdrawals.

The first three are success stories for the regime, demonstrating its ability to learn and adapt – and thus keeping it from being the kind of rigid, static, and brittle institution that would collapse in a prolonged encounter with the real world. Remembering these instances of successful adaptation can help focus us on preserving these gains and ensuring that the nonproliferation regime can evolve in the face of current and future challenges, so that all States Party can continue to benefit from the NPT for another half century and beyond. The fourth example is unfortunately not yet a success story, but the foundation for making it one is there.

I. HEU Conversion and Repatriation

So let me outline each of these success stories in turn. First, HEU minimization. The United States has been a key proponent of spreading peaceful nuclear uses since the beginning of the nuclear age. President Dwight Eisenhower, for one, spoke eloquently about this in his famous “Atoms for Peace” speech at the United Nations in 1953, and Article IV of the NPT itself later incorporated language expressing possessor states’ desire to facilitate nuclear cooperation. In the early years of the nonproliferation regime, supplier states eager to share the benefits of peaceful uses of nuclear energy helped a number of developing countries build nuclear research or experimental reactors that ran on highly-enriched uranium (HEU) fuel.

Not all things done with good intentions and great enthusiasm, however, are always done well or wisely, and in time, it became clear that this HEU-based approach wasn’t such a good idea. One can make a perfectly good research or power reactor with low-enriched uranium (LEU), after all, and it is in the nature of the enrichment process that purifying U-235 above 20-percent levels accomplishes the lion’s share of the enrichment work necessary to take uranium to weapons-usable levels. Spreading HEU around the world increased both the ease with which a host government could divert material for weapons purposes in a “breakout” scenario and the quantity of dangerous material that could be subject to loss or theft.

But this is where regime learning comes in: It’s important to keep a careful eye on the consequences of one’s initiatives, and to be willing and able to readjust them, as necessary, as one’s understanding improves. Thankfully – and thanks, in large part, to U.S. leadership and support from the American taxpayer to the tune of approximately a billion dollars – the nonproliferation regime has been able in more recent decades to help reduce the risks created by early “Atoms for Peace” enthusiasms for HEU.

In light of improved understanding of proliferation risks, extensive work has been done to develop replacement LEU fuel for HEU reactors, to convert HEU reactors and medical-isotope production to LEU operations, and to repatriate both fresh and spent HEU fuel to its country of origin. Since its inception 40 years ago, the U.S. Reduced Enrichment for Research and Test Reactors (RERTR) program, for instance, has helped convert more than 40 research and test reactors from HEU to LEU. Since 2004, moreover, the Global Threat Reduction Initiative (GTRI; now called “Material Management and Minimization” or M-cubed) has managed a broad and intensive effort to support LEU fuel development, reactor conversion, and HEU repatriation worldwide.

GTRI targeted reactors around the world, including over a dozen in the United States, for conversion or shutdown by 2020, and as of today has verified the conversion or shutdown of almost 100 facilities that had previously used HEU – about one-third of them weaning off of HEU since 2009. Fuel repatriation efforts have returned about 4,500 kilograms of HEU to points of origin in Russia and the United States for downblending and disposition. In terms of the U-235 content, the majority of this material has been returned to the United States, but Russia has also done its part, working with 16 countries – and in what I think stands as a good example of how cooperation is possible between Washington and Moscow on shared interests despite broader problems in the relationship. As part of such work, the United States has been taking back irradiated and fresh HEU from U.S.-supplied research reactors and partner countries – as well as assisting with the repatriation of some Chinese and UK-supplied HEU and several hundred kilograms of plutonium that had similarly been used for peaceful nuclear research purposes. In the case of Japan’s Fast Critical Assembly, which no longer had need for HEU and plutonium, Japan sent more than 500 kilograms of these materials to the United States in early 2016, in the form of small metal fuel coupons. In total, more than 40 countries have been cooperating in these repatriation efforts. As a result, 33 countries and Taiwan have now become HEU free, 12 of them by repatriating HEU that had been supplied by Russia.

This has been a very impressive effort – and, while this is a problem that one might wish hadn’t been created in the first place, the nonproliferation regime has had considerable success in reducing the proliferation risks created in past years when its enthusiasm for sharing outran its nonproliferation good sense. Furthermore, it has done all this risk reduction without cutting back on longstanding efforts to share the benefits of peaceful uses of nuclear energy.

We should remember these risk-reduction successes, for they have helped the nonproliferation regime survive and continue to provide benefits to all mankind notwithstanding some dubious nonproliferation choices made in earlier years. Appreciating this story can help the international community remain alive to the need to reassess its own practices on an ongoing basis in the years ahead, and to adjust its approaches, as needed, as our understanding of proliferation risks continues to mature.

II. The IAEA Additional Protocol

Another success story of learning and adaptation by the nonproliferation regime concerns the approval of the IAEA Model Additional Protocol in 1997, and its subsequent emergence as the global standard for nuclear safeguards. The principal catalyst for this learning process was Iraq, which began its own clandestine efforts to develop nuclear weapons in the early 1970s at the direction of the then-head of the Iraqi Atomic Energy Commission – a previously little-known chap by the name of Saddam Hussein. By 1991, Iraq had a robust covert nuclear weapons program that included a complete nuclear weapons design and a supply of HEU in the form of research reactor fuel. Iraq also had a secret effort to enrich uranium using the same calutron-based electromagnetic isotope separation (EMIS) process that the United States had used to enrich uranium for the Hiroshima bomb during the Manhattan Project.

Despite all this work, however, the IAEA continued to draw positive conclusions about Iraq’s safeguards compliance. This was true because the Agency’s implementation of standard Comprehensive Safeguards Agreements (CSAs), including Iraq’s, focused only on verifying what the state had declared to the IAEA rather than looking for indications of undeclared activities. Although the model for such agreements, set out in IAEA document INFCIRC/153, provides some authority to look for undeclared activities, particularly through special inspections, the IAEA had allowed this authority to fall into disuse. Instead, the IAEA only sought to verify the accuracy of what Iraq chose to declare. Naturally, the Iraqis carefully declined to declare their clandestine weapons program and enrichment work, with the result that the IAEA appeared to give Iraq a clean bill of health for many years, thus in effect inadvertently helping provide cover for Saddam’s nuclear weapons effort.

The true nature and extent of Iraq’s secret nuclear weapons program became painfully clear to the international community after Iraq’s military defeat in the 1991 war – as did the manifest inadequacy of the IAEA’s approach to implementing CSAs. And here’s where we return to my theme of regime learning, for in response to revelations about weaknesses in safeguards implementation, the IAEA pursued a two-year review of safeguards implementation, known as Program 93+2, which examined both ways it could better use its existing authority and possible new authorities to improve its ability to detect and deter undeclared nuclear activities.

The first part of this effort led the Board of Governors to reaffirm its guidance that implementation of CSAs should be designed to verify that states’ declarations are both correct and complete, in order to provide credible assurances both that declared nuclear material is not diverted and that there are no undeclared nuclear activities in the state as a whole. This guidance was based on the Agency’s earlier experience not just in Iraq but also in South Africa, where both the Board of Governors and the General Conference had asked the Secretariat to verify the completeness of South Africa’s initial declaration.

The second part of Program 93+2 considered new legal authority the Agency could use to draw stronger conclusions about the absence of undeclared activities, and ultimately led to the negotiation of the Model Additional Protocol (AP). The AP requires states to provide more extensive declarations about nuclear-related activities, and gives the IAEA broader access – including at undeclared locations – to verify declarations or to resolve questions and inconsistencies regarding those declarations. The IAEA has used this tool effectively to investigate indications of possible undeclared activities in response to acquisition of appropriate evidence. This now accepted practice of access not only strengthens the nonproliferation regime by providing the IAEA with valuable information, but also adds a deterrent value, since a would be proliferator now faces a much higher risk of being caught.

Since the development of the AP in 1997, it has become the world’s de facto standard for nuclear safeguards. Not only has it been signed by 148 countries, and brought into force by 132 of them, but it is the basis for the IAEA to draw the so-called “broader conclusion,” a formal determination that credible investigations have found no indications of undeclared activities in the state in question, and a finding on this basis that all nuclear material has been placed under safeguards. Even NPT nuclear weapons states have adopted versions of the AP that apply to some or all of their civilian nuclear sectors, as we in the United States did in 2009. Provisional application of the AP in Iran, moreover, currently provides an essential part of the IAEA’s inspection authorities there, and is a critical tool for monitoring Iran’s compliance with its nuclear obligations and helping increase the chances that the IAEA would detect any resumption of nuclear weapons work.

The AP has thus been a vital addition to nuclear safeguards, and has helped reinforce the nonproliferation regime. Notably, we owe the AP’s existence to regime learning. To be sure, the Additional Protocol’s full story has yet to be written, for a handful of countries still resist it – and not always for creditable reasons. But the AP represents the safeguards “best practices” to which it has been clear for more than two decades that all countries should adhere, and support for the AP today has become something of a litmus test for seriousness and responsible behavior in the realm of civil-nuclear cooperation. As President Trump said his message to the IAEA General Conference, delivered by Secretary Perry on Monday, “we will continue promoting high standards of safety, security, safeguards, and nonproliferation, including an Additional Protocol as the international standard, and call on other nations to do the same.” Consistent with that message, the AP should be universalized, and all supplier states should make adherence to the AP by recipient states a condition for nuclear supply.

The Additional Protocol, then, is another success story of learning in practice – of a problem being recognized and remedial steps being taken by responsible states to help preserve the regime and thereby ensure that all States Party continue to enjoy its benefits.

III. The State Level Concept

Another challenge the IAEA has faced is how best to implement safeguards agreements. How could the IAEA plan, implement, and evaluate its safeguards work – either under traditional CSA authorities or involving the AP as well – without either stretching scarce Agency resources beyond the breaking point or becoming an unwarrantedly intrusive burden upon states subject to safeguards?

The IAEA’s answer to this challenge is something known as the State Level Concept (SLC). The SLC began as an effort to optimize the implementation of safeguards in states where the Agency has drawn the broader conclusion by taking into account the Agency’s enhanced knowledge of the nuclear activities and capabilities of the state, but the concept applies equally to any state with a safeguards agreement. Its implementation represents another success story in the nonproliferation regime’s ongoing struggle to adapt itself to the challenges of doing its job in a complicated world so that the NPT can continue to provide national security and peaceful use benefits to all.

Under its SLC, the IAEA has been developing more systematic ways of addressing investigative resources to achieve safeguards objectives in the service of our collective nonproliferation goals, first and foremost by developing a sophisticated understanding of the nuclear program in each country subject to safeguards. These approaches are more nuanced than I can probably explain here. Central to the concept, however, is something called Acquisition Path Analysis (APA), which closely analyzes all viable pathways by which a given state might acquire nuclear material – whether by diverting it or producing it clandestinely – for a weapon. This analysis is informed by all available safeguards-relevant information, including what is coming to be some really impressive open-source research capabilities – and then uses these insights to target inspection resources as efficiently as possible in the field.

The answer for each country is tailored to that particular country’s circumstances and the terms of each country’s safeguards agreement, and is implemented in a non-discriminatory way based upon objective criteria and information and in very close cooperation with each member state — with the aim of ensuring that safeguards implementation is as effective as possible, optimizes the Agency’s limited inspection resources within each state, and avoids what might otherwise have had to be a rigid system merely of intrusive and burdensome box-checking exercises at every conceivable nuclear location.

The SLC is a sophisticated approach to fulfilling the IAEA’s existing safeguards mandate, one that has been many years in the making, and so far implementation seems to be going well. Fears that it would lead the Agency to exceed its authority or apply it unevenly or unfairly have proven unfounded. There is, in my view, no good reason for any state to oppose it, for it is a critical part of how the IAEA does its job in implementing safeguards agreements in ways that are as effective — and as little a burden upon states — as possible. Efforts to undermine it by calling into question the Agency’s authority or its objectivity are, in fact, a danger to the nonproliferation regime and to its ability to continue to provide peaceful use benefits.

The SLC is, thus, yet another case study in the progress of the nonproliferation regime successfully adapting to the challenges of a complex world, and in the international community’s maturing understanding of how most effectively to provide the nonproliferation assurances that peaceful nuclear sharing requires.

IV. NPT Withdrawal

Let me now turn to a fourth example, a case of a lesson not yet fully learned, and suggest some principles we can apply to learning and adapting from this case as well. In 2003, North Korea formally announced its withdrawal from the NPT. It took this action after it had been found in non-compliance with its safeguards agreement, initially (in 1993) for refusing a special inspection after it made an incomplete initial declaration, and later (in 2003) for expelling IAEA inspectors after U.S. intelligence discovered that Pyongyang was pursuing an undeclared uranium enrichment program. North Korea is the first and only country to announce its withdrawal from the NPT, and its action raised a number of issues that have not been resolved to this day, 15 years and three NPT Review Conferences later. The lessons are broadly recognized, but consensus on concrete responses has proven elusive.

First, the withdrawal of any state undermines the security benefits that all other states derive from the nearly universal adherence to the nonproliferation obligations of the NPT, particularly if, as in the case of North Korea, the withdrawing state goes on to manufacture nuclear weapons. That raises questions within the competency of the UN Security Council, which is responsible for the maintenance of international peace and security. Indeed, the Security Council, in Resolution 1887, decided that it would address without delay any future notice of withdrawal from the NPT.

Second, there are particular implications for enforcing compliance with the NPT. We would live in a much more dangerous world if states could violate their nonproliferation obligations and escape the consequences by withdrawing from the Treaty. Fortunately, it is a basic principle of international law that withdrawing from a treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.” One logical consequence is that a withdrawing state remains responsible under international law for violations of the treaty committed prior to its withdrawal. This principle is widely recognized by NPT Parties, but has not yet commanded full consensus.

A third issue is whether the withdrawing state can divert the nuclear materials, equipment, facilities, and know-how gained through its peaceful nuclear cooperation while a party to the NPT and use them to manufacture nuclear weapons. Will safeguards continue to apply on nuclear material, equipment and facilities supplied by another NPT Party? The existing international guidelines for nuclear export control, codified in the Nuclear Suppliers Group (NSG) Guidelines, address these issues from the perspective of the rights and responsibilities of the supplying state. The NSG Guidelines say suppliers should get assurances from recipient governments that those items will remain under safeguards and not be used for nuclear explosives, or else the supplier may demand their return. If such conditions were applied universally and enforced reliably, they could help prevent states from misusing the withdrawal provision of the NPT in this manner.

It seems that many of the elements needed to address the possibility of withdrawal from the NPT are already in place, and many NPT Parties have sponsored papers supporting concrete action to discourage such withdrawal. Yet NPT Parties have been unable to reach consensus either on the principles or on specific recommendations. Some have objected to actions that would limit the ability of states to exercise the withdrawal provision of the NPT, even though none of the proposals would actually have that effect. Oddly, some have even gone so far as to claim that withdrawal is not a serious issue anyway, seemingly oblivious to the concrete example of North Korea, and Iran’s periodic recent mutterings about the possibility.

On the issue of withdrawal, unlike my previous three case studies, the nonproliferation regime clearly has not yet fully learned or adapted based on the lessons of experience. All the necessary ingredients appear to be present, but despite widespread support for action, consensus has remained elusive. We should not consider this as a failure or a lost cause, but as a task that remains incomplete. This may be an important potential area for progress as we head toward the 2020 NPT Review Conference.

V. Conclusion

There are other stories of successful adaptation to which one could point, but these three success stories – HEU minimization, the Additional Protocol, and the State Level Concept – are my favorites. They demonstrate that the nonproliferation regime is not a brittle, ossified, and static institution, but instead a vibrant and dynamic one that has repeatedly been capable of meeting challenges and learning from past mistakes or omissions. The fourth case – NPT withdrawal – is a cautionary example demonstrating that such learning is not easy or automatic. It shows that we cannot be complacent, and that the resilience of the nuclear nonproliferation regime depends on continued hard work to bring countries together to shore up the regime in any areas of evident weakness. It is this vibrancy that will, I hope, allow the regime to continue learning and adapting so that my successors’ successors at the State Department will be able to tell even more success stories to future audiences like this one.

I want to highlight one important feature of these four cases: Each one provides a concrete example that it is possible to strengthen the nonproliferation regime without impeding the peaceful uses of nuclear energy that are also a key focus of work here in Vienna. Indeed, despite complaints from some developing countries that constantly escalating nonproliferation conditions have the effect of infringing on their rights to benefit from the peaceful uses of nuclear energy, more nearly the opposite is true. Just as backward steps in ensuring that the nonproliferation regime meets the challenges it faces might endanger progress on peaceful uses, each step forward on nonproliferation builds confidence and helps to advance the mission of the IAEA to “accelerate and enlarge the contribution of atomic energy to peace, health[,] and prosperity throughout the world,” and facilitates “the fullest possible exchange” of nuclear material, equipment and technology for peaceful purposes, as called for by the NPT.

The application of nuclear energy, science, and technology for peaceful purposes has been a tremendous boon to people around the world, providing clean, reliable electricity generation, diagnosing and treating cancer and other diseases, controlling disease-carrying pests, and meeting other basic human needs that are too diverse too list. This is possible only because of the controls we have collectively put into place to limit the risks from these technologies, including the risk of proliferation of nuclear weapons. These benefits are, in a very concrete sense, the fruits of the nuclear nonproliferation regime. Ensuring that the regime remains resilient is the best way to preserve and expand these benefits for future generations.

It is exciting to be part of a regime that has provided so much benefit to so many for so long, and that has been able to learn and adapt so well. With apologies to George Santayana, I think it’s important to remember this history precisely so that we can repeat it – in the sense that because we want the nonproliferation regime to continue to provide benefits for all, we should work to ensure that the regime can continue to adapt and evolve in the future as these examples demonstrate it has been able to do in the past. Such regime learning and adaptation, in other words, is something for us to aspire to.

To this end, we should recommit ourselves to preserving these gains. I call upon all of you to repudiate any effort to undermine the advances being made in HEU minimization, in universalizing the Additional Protocol, and in implementing the State Level Concept. Upon this Golden Anniversary of the NPT’s opening for signature and informed by its rich history, we should dedicate ourselves to ensuring that the nonproliferation regime will be able to adapt to future challenges just as successfully as it has to those of the past.

Thank you!

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford took office in January 2018 as the U.S. Assistant Secretary of State for International Security and Nonproliferation. Previously, he served as Special Assistant to the President and Senior Director for WMD and Counterproliferation on the U.S. National Security Council staff, and before that as Chief Legislative Counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. In September 2017, he was promoted by Queen Elizabeth II of England to the rank of Commander in the Most Venerable Order of the Hospital of Saint John of Jerusalem. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect those of anyone else in the U.S. Government.
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