13 February 2004

Senate Asked to Approve U.S.-IAEA Protocol on Inspections

State official urges acceptance of "Additional Protocol"

A State Department official has called on the Senate to approve the "Additional Protocol" between the United States and the International Atomic Energy Agency dealing with IAEA inspections of U.S. nuclear facilities.

Acting Assistant Secretary of State for Nonproliferation Susan F. Burk testified before the Senate Foreign Relations Committee January 29.

The U.S.-IAEA protocol was signed in 1998, and submitted by President Bush to the Senate for its advice and consent in May 2002.

Bilateral IAEA Additional Protocols are designed to strengthen the IAEA's powers to search in non-nuclear weapons states for evidence of nuclear weapons development programs or proliferation of nuclear material or technology.

As a nuclear power, the United States is not obliged to sign an Additional Protocol, U.S. official have noted, but has done so to demonstrate commitment to nuclear nonproliferation and to show that adherence to Additional Protocols will not place other countries at a commercial disadvantage.

The U.S.-IAEA protocol, officials say, is identical to that that non-nuclear weapons states are being asked to accept, with the exception that locations of direct U.S. national security significance are exempt from IAEA inspection.

Burk told the committee the U.S.-IAEA protocol gives the United States "an extraordinary legal means to protect and prevent the transfer of information to the IAEA and exclude inspectors' access in the United States wherever required for the protection of activities of direct national security significance to the United States or to information or locations associated with such activities."

She told the committee that the administration believes that sufficient protections are contained in the protocol "to ensure that its application in the United States will not compromise activities or information of direct national security significance."

During the course of her testimony Burk also commended the IAEA's "tenacious approach" in Iran. She also pointed out that IAEA inspections in Iraq have, in the past, "uncovered an ambitious clandestine nuclear weapons program ... involving a number of undeclared installations."

Following is the text of Burk's prepared remarks to the committee:

(begin text)

U.S.-IAEA Additional Protocol

Susan F. Burk, Assistant Secretary for Nonproliferation, Acting
Testimony Before the Senate Foreign Relations Committee
Washington, D.C.
January 29, 2004


Mr. Chairman, thank you and the Committee for inviting me here today to discuss the U.S.-IAEA Additional Protocol (USAP), an important amendment to our longstanding safeguards agreement with the International Atomic Energy Agency (IAEA). The President strongly believes that implementation of the U.S.-IAEA Additional Protocol is in the best interest of the United States. Senate approval of the Additional Protocol will help sustain our longstanding record of voluntary acceptance of nuclear safeguards and greatly strengthen our ability to promote universal adoption of the Model Additional Protocol, a central goal of the President's nonproliferation policy.

As the number of non-nuclear weapon states adhering to Additional Protocols increases, the international nuclear safeguards system will be strengthened. It will give greater capabilities to provide assurance to the United States and other nations that nuclear activities in non-nuclear weapon states are directed toward peaceful purposes only. Implementation of Additional Protocols will help dissuade potential proliferators from using safeguarded nuclear material for other than peaceful purposes, or engaging in clandestine nuclear activities, because of the increased risk of being caught.

Origin of the Additional Protocol

I would like to begin by underscoring that the United States relies heavily on the IAEA safeguards system to detect and deter the diversion of nuclear material for use in covert weapons programs. The IAEA, as the recognized international nuclear inspection organization, is instrumental in unraveling covert, and often complex, nuclear activities, e.g., the Iraqi and DPRK [Democratic Peoples Republic of Korea: i.e., North Korea] nuclear weapons program. The tenacious approach taken during the last year by IAEA inspectors in Iran is to be highly commended.

Iraq Experience

The process of refining and strengthening IAEA safeguards has been ongoing since their inception. The IAEA, with strong U.S. support, undertook a major strengthening effort in the 1990s, in direct response to discoveries made during IAEA inspections in Iraq following the first Gulf War. These inspections uncovered an ambitious clandestine nuclear weapons program in Iraq, involving a number of undeclared installations. Of particular significance was a covert enrichment facility located adjacent to a declared nuclear facility where the Agency had been applying its safeguards for years. The IAEA had not detected this concealed activity before the war because its Member States only required it to ensure against the non-diversion of declared material. The existing safeguards system was designed almost exclusively for detecting diversion of nuclear material only at declared facilities. Under the then-existing safeguards system, the IAEA had only a limited capability to determine whether Iraq (or any other state) was engaged in undeclared or clandestine nuclear activities. To address this and other deficiencies, the United States and other IAEA member states conducted a review of the nuclear safeguards system. Subsequently, the IAEA Board of Governors decided to make broader use of the Agency s existing authority and to provide the additional authority and tools needed by IAEA inspectors to uncover undeclared nuclear activities.

During the course of this review of the safeguards system, the IAEA identified some meaningful rights whose full use could meaningfully improve the capabilities of the system, e.g., special inspections and environmental sampling. A number of deficiencies in the system were also noted. To fill these gaps in the IAEA's authority, the IAEA Board of Governors created an open-ended negotiating committee of Member States that met 55 times during 1996-1997 to agree upon the text for a Model Additional Protocol. The resulting text for the Model Additional Protocol was approved by the Board of Governors in 1997. The United States worked hard to bring these negotiations to a successful conclusion, and believes that the measures contained in the Model Additional Protocol greatly improve the IAEA's ability to uncover undeclared nuclear material and activities. The United States signed its Protocol on June 12, 1998.

Application of the Additional Protocol to Non-Nuclear Weapon States

The IAEA uses the Model Additional Protocol for negotiation and conclusion of Additional Protocols that amend and strengthen states' existing comprehensive safeguards agreements. As such, Additional Protocols broaden the information states are required to give to the IAEA and provide additional access rights for IAEA inspectors to verify those declarations when necessary. Non-nuclear weapon states must incorporate all the measures in the Model Additional Protocol in negotiating their additional protocols. Nuclear weapon states and countries not party to the NPT, however, are free to chose among or limit the application of the provisions of the Model Additional Protocol, since they have not made a commitment to place all nuclear activities under safeguards.

The United States, consistent with our rights as a nuclear weapon state, has chosen to limit the application of the Protocol's provisions. I will outline briefly for you the provisions of the Model Additional Protocol, then discuss how the Protocol's provisions will be applied in the United States.

Provisions of the Model Additional Protocol

The Model Additional Protocol requires states to declare to the IAEA a number of nuclear and nuclear-related items, materials, and activities that, while they could be part of a peaceful nuclear program, would be required for a covert nuclear weapons program. Specifically, the Protocol requires states to report exports of nuclear-related items controlled by the Nuclear Suppliers Group, confirm imports of such items, and report domestic manufacturing of key items. It also requires states to report exports, imports, and stockpiles of raw uranium and thorium that could be used as feed material for a covert nuclear program, and also report information related to uranium mines, uranium and thorium concentration plants, uses of buildings on the sites of safeguarded nuclear facilities, construction of new nuclear facilities, and certain nuclear-related research and development work not involving nuclear material.

A proliferator having an Additional Protocol in force would have to successfully conceal a much broader range of activities and facilities in its covert nuclear program to escape detection. The IAEA would have more types of information available as triggers for access requests. Import and export reporting would give the IAEA opportunities to compare declarations from different countries to detect suspicious activity, thereby requiring air-tight connivance between regulatory authorities in supplier and recipient counties in order to deceive the IAEA. The requirement that countries declare R&D (research and development) activities, mining and materials stocks, facility construction, and manufacturing and the uses of unsafeguarded buildings at nuclear facilities increases the potential avenues by which information acquired by the IAEA could be used to reveal the existence of covert nuclear programs in their early stages: such revelations would be actionable immediately, since they would be based upon state-provided declarations.

Access to Locations

The Model Additional Protocol does not provide for full IAEA verification of all of the new declarations required. Indeed, it explicitly excludes creation of any system for mechanistically or systematically seeking to verify the new declarations. Verification in detail of all declarations was judged unnecessarily expensive and burdensome for the IAEA and inspected parties. But the Additional Protocol does provides the IAEA with three important types of access rights to enable the IAEA to detect and expose cheating through use of spot checks, as needed:

-- Access to locations declared by the state where nuclear facilities or materials are located on a selective basis in order to assure the absence of undeclared nuclear material and activities;

-- Narrower access rights at other declared locations that could contribute to a nuclear program, to be exercised only in the event of a question or inconsistency related to the State's declarations. Such access is allowed, in general, only following consultation with the state to resolve the question or inconsistency; and

-- Circumscribed access rights at undeclared locations, also available only in the event of a question or inconsistency related to the State's declarations. Again, such access normally follows consultation with the state to resolve the question or inconsistency. In addition, the range of activities that the IAEA may carry out at undeclared locations is narrowly restricted.

Benefit of the Additional Protocol for U.S. National Security

The Model Additional Protocol's provisions regarding declarations and access are aimed at making it harder for cheaters to hide undeclared nuclear activities, either at declared facilities or at other locations. Iraq had co-located clandestine nuclear activities with their declared nuclear facilities in order to mask its covert activities and for reasons of convenience and economy. For this reason, the Protocol gives the IAEA access rights in short time frames at sites of declared nuclear facilities. If an Additional Protocol has been in force, safeguards inspectors at Iraq's Tuwaitha facility could have required access to other buildings at that site within a period as short as two hours, enabling them to detect undeclared activities. In this way, the Protocol seeks to force a proliferator from hiding its covert activities away from its declared nuclear activities rendering it easier to detect.

Iraq and others have also carried out covert activities far from declared sites to avoid IAEA access. This is why the Additional Protocol gives the IAEA the authority to seek access at undeclared locations, based on questions and inconsistencies that arise regarding the State' s declaration. The IAEA can thus act on evidence uncovered in its internal information evaluation efforts or provided by member states or other credible sources.

Having gained access, the IAEA has the ability, particularly through sensitive sampling techniques that detect trace signatures of nuclear activities, to find evidence of covert activities. It was IAEA sampling in North Korea in 1992 that demonstrated significant omissions in North Korea's declarations concerning its plutonium production activities, making clear to the world that the DPRK was cheating on its nonproliferation obligations. More recently, IAEA sampling demonstrated the presence of enriched uranium at certain locations in Iran, despite initial Iranian assertions by Iran that it had not carried out enrichment activities.

Of course, proliferators may also resist IAEA demands for access to the incriminating facilities or information. A refusal of access, however, can be itself significant evidence of non-compliance. It was the DPRK's refusal to cooperate with the IAEA in providing access to sites that ultimately led to the IAEA Board of Governors finding the DPRK in noncompliance with its safeguards agreement. Given the broader IAEA access rights under the Additional Protocol, a state refusing to permit access in order to hide a clandestine nuclear weapons program is likely to raise concerns at an earlier stage of the program, enabling the Board of Governors and the international community to respond sooner.

Perhaps the best example of the benefits of the Protocol is the present situation in Iran. While there have long been grounds for concern about Iran s nuclear activities, the existing safeguards system permitted Iran to carry out many aspects of its program undetected. For example, Iran was not required to declare the construction of key facilities. Moreover, once challenged by the IAEA, Iran, was slow to grant access to a variety of locations, and balked at IAEA use of sensitive environmental sampling techniques at a key location suspected of enrichment-related activities. If Iran had had an Additional Protocol in force, it would have had an obligation to declare many of these and other activities at an early stage in their construction; there would have been no doubt about the IAEA's right to access, and no legitimate grounds for Iran to deny or delay. Resistance to inspection, or discovery of these facilities in advanced stages of construction would have been unambiguous violations of Iran s obligations.

Thus, a key non-proliferation goal of the United States has been to increase non-nuclear weapon state adherence to the Additional Protocol. Entry into force of the U.S.-IAEA Additional Protocol would provide a powerful tool in furthering this goal, and thereby enhance U.S. national security.

U.S.-IAEA Protocol

Experience with IAEA Safeguards

Let me say a few words about our experience since 1980 in implementing our Voluntary Offer Agreement with the IAEA, in force since 1980.

The Treaty on the Non-Proliferation of Nuclear Weapons (the NPT) requires non-nuclear weapon state parties to accept IAEA safeguards on all nuclear material in all of their peaceful nuclear activities. The United States, as a nuclear weapon state party to the NPT, is under no obligation to accept such safeguards. However, beginning with President Johnson's 1967 pledge, it has been the announced policy of the United States since then to permit the application of IAEA safeguards to all of its nuclear facilities, except for those facilities and activities excluded for national security reasons. By submitting itself to the same safeguards on all of its civil nuclear facilities that non-nuclear weapon state parties are subject to, the United States intended to demonstrate that adherence to the NPT did not place other countries at a commercial disadvantage. This offer was critical to gaining acceptance of the NPT by countries such as Germany and Japan.

Pursuant to our Voluntary Offer Agreement with the IAEA, the United States has made eligible for IAEA safeguards inspection over 250 civil nuclear facilities. These include a large number of power reactors and research reactors, commercial fuel fabrication plants, uranium enrichment plants, as well as other types of facilities.

In the case of a non-nuclear weapon state, the IAEA would have an obligation to inspect all of these facilities, as well as many other locations where nuclear material is used. In the United States, in contrast, the IAEA has the right, but not the obligation, to select facilities for inspection. In more than two decades, the IAEA has conducted inspections at only 17 of these facilities, and never at more than five facilities in any one year. These inspections have been carried out on a cooperative basis with the United States. I'm confident this longstanding pattern of cooperation will continue. A fundamental point here is that safeguards in the United States are not directed at uncovering illicit or non-compliant nuclear activities or transfers (as they are in non-nuclear weapon states). Rather, they serve the basically political purpose of underscoring U.S. support for the regime and voluntary cooperation with the IAEA, as well as U.S. willingness to accept for the American nuclear industry a fair share of the economic burden of inspections. As I will discuss in greater detail later, these were key elements of the political bargain that allowed successful conclusion of the NPT. Thus, the IAEA's ability to conduct inspections in the United States plays a valuable role in helping to strengthen the political case for application of IAEA safeguards worldwide.

The IAEA, because of budgetary pressures, discontinued inspections in the United States in 1993. At the request of the U.S. government, the IAEA resumed inspections in 1994 by applying safeguards to several tons of weapons-usable nuclear material, which had been declared excess to U.S. national security stockpiles. The IAEA undertook this effort on the condition that the United States reimburse the IAEA. At present, the IAEA applies safeguards at four U.S. facilities.

U.S. Protocol = Model Protocol + National Security Exclusion

The U.S. Additional Protocol, which would amend the U.S. Voluntary Offer of 1980, includes all the provisions contained in the Model Protocol. However, it includes one other major provision that is unique to our status as a nuclear weapon state: the "national security exclusion." This provision states that the United States will apply and permit the Agency to apply the provisions of the Protocol "excluding only instances where its application would result in access by the Agency to activities with direct national security significance to the United States or to locations or information associated with such activities." Thus, implementation of the USAP will be entirely different in both practice and concept than in non-nuclear weapon states. Similarly, unlike the CWC (Chemical Weapons Convention) the INF (Intermediate-range Nuclear Forces agreement), and other treaties that rely on procedural restraints on inspectors to protect U.S. national security interests, the United States has the right to deny access or exclude inspection activities on the basis of the national security exclusion. Since the national security exclusion makes clear that the United States will have undeclared nuclear material and activities, both the United States and the IAEA, as well as IAEA Member States, recognize that inspections in the United States serve primarily the symbolic purpose of demonstrating U.S. commitment to safeguards and its willingness to accept the burdens their application may entail. In particular, the United States:

-- will not provide to the IAEA information of direct national security significance to the United States or access to activities and locations of direct national security significance to the United States; and

-- will exclude inspector activities that are inconsistent with the national security exclusion at a given location.

The national security exclusion, therefore, gives the United States an extraordinary legal means to protect and prevent the transfer of information to the IAEA and exclude inspectors' access in the United States wherever required for the protection of activities of direct national security significance to the United States or of information or locations associated with such activities.

Because the IAEA will have the legal right to conduct all activities permitted under our Protocol, steps have been taken to ensure that our national security interests are protected if and when the IAEA decides to exercise those rights. At the same time, the United States has important equities in promoting a strong and effective nuclear non-proliferation regime, including the need to avoid disclosure of nuclear weapon information to non-nuclear weapon states, which would violate our NPT obligations.

Philosophy Behind the U.S.-IAEA Additional Protocol

During the negotiation of the Model Protocol, many non-nuclear weapon state parties to the NPT urged the United States, as the strongest proponent, to accept on a voluntary basis the provisions of the Model Protocol. Following the example of the Voluntary Offer, the United States stated during the negotiations that it would accept the provisions of the Model Protocol, subject to a National Security Exclusion. By submitting itself to the same safeguards on all of its civil nuclear activities that non-nuclear weapon state parties to the NPT are subject to, the United States intends to demonstrate that adherence to the Model Protocol does not place other countries at a commercial disadvantage.

The United States took a leading role in the negotiations of the Model Protocol. Several other industrialized states, including close allies, were hesitant to support so substantial an expansion of declaration requirements and IAEA inspection powers. Our success in achieving a strong Model Protocol was critically dependent on our voluntary acceptance of the Model Protocol measures. Similarly, U.S. signature of our Additional Protocol was a significant factor in the early decision by many non-nuclear weapon states to accept the Protocol. A number of our close friends and allies have also relied on our pledge in persuading their legislatures to approve their Additional Protocols.

Nevertheless, implementation of the USAP is fundamentally different in concept from implementation of the Additional Protocol in non-nuclear weapon states. While the fundamental purpose of the Model Additional Protocol is to provide increased assurance that non-nuclear weapon states do not have undeclared nuclear activities, all states understand that nuclear weapon states will have undeclared activities. It is a matter of public record that we have, and are entitled to have, such activities. This has important consequences. References in the U.S. Additional Protocol to the "completeness and correctness" of U.S. declarations or possible "inconsistencies" in them have meaning only in the context of what we need to report; this excludes what we do not need to report, i.e., anything we determine to fall within the "national security exclusion." Thus, the right of the Agency to seek access to undeclared locations in the United States (Article 5.c) is uniquely limited. The IAEA does not have access rights under the Protocol to locations and activities that the United States excludes pursuant to the National Security Exclusion.

Where not excluded on national security grounds, however, the United States will be required to declare certain nuclear-related locations and activities and to allow IAEA access under specified circumstances. While such access will be infrequent in non-nuclear weapon states we believe it is likely to be even more infrequent in the United States, but may nevertheless occur.

The Additional Protocol requires the United States to provide information to the IAEA about locations, such as mines and concentration plants, producing or storing uranium and thorium or other materials that could serve as feed material for the nuclear fuel cycle. There is no provision for routine verification of these declarations, but the IAEA can seek access to these locations on a selective basis in order to assure the absence of undeclared nuclear material and activities.

Certain nuclear fuel cycle-related R&D and industrial activities will also be subject to declaration. IAEA access to these locations is allowed only if needed to resolve a question or inconsistency regarding U.S. declarations, normally only after the IAEA provides the United States an opportunity to clarify and resolve the question or inconsistency. If Agency concerns can be addressed through additional information from the United States, access is not required. If such visits do occur, so-called "managed access" techniques can be used to protect sensitive proprietary or commercially sensitive information from disclosure. Where managed access cannot sufficiently protect information of direct national security significance, the national security exclusion will be applied and Agency access will be denied.

The IAEA will also have the right to request access to locations of its own choosing. The United States, as a nuclear weapon state, has the right to deny access to any location where it deems the risk of disclosing national security information to be unacceptable; U.S. government policy is to exercise this right as necessary.

Protecting Sensitive Information

Throughout the negotiation of the Model Additional Protocol, there was strong interest in giving the IAEA the tools it needed to conduct inspections while protecting the rights of the states inspected. The U.S. Additional Protocol, in addition to the national security exclusion, includes all the protections for commercially sensitive information contained in the Model Protocol. For example:

-- Information on nuclear R&D activities that must be declared to the IAEA are limited to location and general description and does not include details or results;

-- Similarly, the required information on nuclear-related manufacturing is also limited to location and the scale of operation without details;

-- Access is designed to be infrequent;

-- Inspection activities are limited and relevant to detection of undeclared nuclear material and activities;

-- Unlike the Chemical Weapons Convention, there is no provision in the Safeguards Agreement or the Additional Protocol for any other state to request access in the United States.

-- The IAEA is required to maintain a stringent regime for protection against disclosure of commercial, technological and industrial confidential information, and the regime is subject to periodic review and approval by the United States and other Board members;

-- Only those individuals to whom the United States agrees may be assigned by the IAEA to conduct inspections in the United States under the U.S. safeguards agreement or for access under the U.S. Additional Protocol;

-- Whenever requested by the United States, managed access arrangements must be used to prevent disclosure of proliferation-sensitive information, or proprietary or commercially sensitive information;

-- Both the IAEA and its officers or employees may be subject to legal process in the event of unauthorized disclosure of confidential information. The IAEA can withdraw immunity of inspectors in cases of abuse.

Implementing Legislation

The administration has determined that some provisions of the U.S.-IAEA Additional Protocol are not self-implementing. These include:

-- declarations of U.S. civil nuclear activities and related industry;

-- restrictions on disclosure of information; and

-- IAEA access to locations in the United States.

Implementing legislation, therefore, is required in order to give these provisions effect within the United States. The administration was pleased to provide its recommended legislation to the Congress late last year. We look forward to working closely with you on preparation of the final legislation.

In this regard, I would like to reinforce how important it is to the administration that the implementing legislation for the U.S. Additional Protocol restrict appropriately the disclosure of information provided by U.S. entities to the United States government in execution of Protocol obligations. Under the administration's proposal, such information could be disclosed only to U.S. government officials, U.S. government contractor personnel, and officials of the IAEA Secretariat with a clear "need to know." This practice will ensure that the data collected under the Protocol will be used exclusively for the purposes of the safeguards regime. We, therefore, request that the implementing legislation for the Additional Protocol exempt information obtained by the United States government in implementing the provisions of the Additional Protocol from disclosure under the Freedom of Information Act (FOIA).

In conclusion, Mr. Chairman, the administration believes that Senate advice and consent to ratification of the U.S. Additional Protocol will advance the national security interests of the United States by strengthening the global nuclear non-proliferation regime. At the same time, the administration believes that adequate protections have been built into the Protocol to ensure that its application in the United States will not compromise activities or information of direct national security significance.

Thank You. I look forward to your questions.

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(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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