Security affects the nuclear industry in a way that it does not affect other forms of energy generation. This is partly a legacy of the highly secretive nuclear weapons programs from which civilian applications of nuclear energy emerged. It is also due to the strategic nature of the facilities and nuclear materials involved. Large nuclear power plants or other nuclear facilities have, traditionally, been considered tempting targets for military or terrorist attacks or saboteurs, because they often supply large amounts of electricity and because an attack could produce severe radiological effects.
The issue of nuclear security has been thrust to the forefront of international concern by the terrorist attacks of September 11, 2001
(9/11), even though those attacks had no nuclear component.
The audacity of the international conspiracy that led to 9/11 has heightened awareness about two particular threats: the potentially catastrophic effects of a terrorist attack on a nuclear reactor or other nuclear facility, in effect using it as a radiological weapon; and the possibility that a well-organized and well-funded group like al-Qaeda might seize nuclear material from the civilian nuclear fuel cycle for a nuclear weapon or radiological weapon — also known as radiological dispersal devices (RDDs) — and might actually be able to use it for that purpose. Paradoxically, it took a non-nuclear event like 9/11 to raise awareness about both types of threat, without the world having to experience the nuclear security equivalent of Chernobyl.
Nuclear security has assumed a much higher profile in the activities of the IAEA since 9/11. The Agency created its Office of Nuclear Security in 2002 under the Department of Nuclear Safety and Security. In March 2002, the BoG approved in principle its first Five-Year Nuclear Security Plan. Given that this is a relatively new concern for the IAEA, the Agency is still “feeling its way.” There are several reasons for its cautiousness.
The first is the sensitivity of member states concerning their sovereignty and confidentiality, both state and corporate. Since nuclear security and radiological protection measures necessarily
involve key national functions such as law enforcement and control over access to information, states are “understandably reluctant to expose their sovereign security and law enforcement practices to external scrutiny, let alone anything resembling external regulation”
(IAEA, 2003c: 145). Moreover, as Matthew Bunn points out, “any test or assessment that revealed particularly urgent vulnerabilities would be especially closely held” (Bunn, 2009: 115). As the Agency makes clear from the opening paragraphs of its annual “Nuclear Security Report” for 2011, it recognizes that “responsibility for nuclear security rests entirely with each State” (IAEA, 2011u: para. 2). This is not a refrain heard in the nuclear non-proliferation and safety areas.
The Agency’s caution has been heightened by the officially skeptical attitude towards nuclear security adopted by the NAM, which sees the possession of nuclear weapons by states as the greatest threat; worries that an IAEA emphasis on nuclear security might detract from its core mandates; and fears that there will be a consequent reduction in funding for technical cooperation and peaceful uses (Potter and Mukhatzhanova, 2012: 124-125). The developing countries insist that additional activities conducted by the Agency should be funded by voluntary contributions, not from the regular budget. Notwithstanding this, many NAM countries have sought Agency assistance in strengthening their national nuclear security arrangements.
Second, the Agency is also struggling in carving out a prominent role in nuclear security as this requires involvement with a whole new set of stakeholders — comprising the security sector — with which the IAEA has, historically, had no familiarity. Such stakeholders range from international organizations such as INTERPOL, the World Customs Organization, the Police Community of the Americas (AMERIPOL) and the Organization for Security and Cooperation in Europe, to state security organizations, national intelligence organizations, military and paramilitary forces, police, plant operators and commercial security companies.
A third challenge for the Agency is that the global governance regime for nuclear security is nowhere nearly as extensive, advanced or coherent as the regime for nuclear safety; it is more fragmented and not nearly as Agency-oriented. There is no single, comprehensive legal instrument, like the NPT in the non-proliferation realm, but several lesser ones, all of which need to be adhered to and implemented by states if nuclear security is to be ensured. The main concern has been with physical protection (“guards, gates and guns”), rather than nuclear security in its entirety. There are also less detailed and widely accepted sets of recommended security principles and practices than in the nuclear safety field, little collaboration between nuclear plant operators worldwide, as in the case of nuclear safety, practically no peer review and an abiding sense that nuclear security is too sensitive an issue to be subject to global governance. As Roger Howsley puts it, “The pervasive secrecy surrounding nuclear security means that no global mechanism is in place to identify the worst security performers and help them come up to the level of the best performers” (Howsley, 2009: 204).
A final challenge is that other international processes relating to nuclear security are at play outside the Agency’s orbit. In recent years, the major driver of enhanced global governance in the nuclear security field has not been the IAEA, but rather the nuclear security summit process. This was initiated by US President Obama in 2010, at the first summit held in Washington, DC, and followed in March 2012 by a second summit in Seoul, South Korea. A third is to be held in the Netherlands in 2014. Other US-led initiatives such as its various Cooperative Threat Reduction programs, bilateral arrangements, the US/Russia Global Initiative to Combat Nuclear Terrorism and other limited membership multilateral arrangements such as the G8’s Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, have overshadowed the Agency role. This is due to their immediacy, high political profile, headline-grabbing nature and the availability of vastly bigger budgets. Although the IAEA is often invited to these initiatives to either brief participants or to participate, its role is clearly subordinate and secondary. In the non-governmental area, WINS has emerged as a small, but increasingly active, player. Nonetheless, the IAEA clearly has a role to play that no others can, and as the other short-term initiatives fade (it has been suggested that there will not be a fourth nuclear security summit), it may take a more central role.
As in other nuclear matters, the IAEA plays a crucial role in helping to implement the existing legal instruments concerning nuclear security, as well as advise and assist states in fulfilling their international and national obligations, notably, physical protection standards for both nuclear materials and facilities. It also holds conferences and workshops, conducts training, provides legal advice, facilitates research, and even provides equipment. In a 2007 review of the IAEA’s nuclear security program chaired by Roger Howsley, WINS’
inaugural director, it was concluded that “the IAEA security team is doing a fantastic job” (Howsley, 2009: 204). However, compared with its nuclear safety program, the Agency’s nuclear security program is relatively small and, although resources have been increasing, it remains underfunded (Ferguson and Reid, 2009: 59).
iaea role in treaty imPlementation Compared to the NPT and the nuclear safeguards system, the IAEA’s role in the implementation of nuclear security treaties is, on paper, relatively modest. However, as the Agency is the most important multilateral organization in the field, it has considerable potential influence, especially through its promulgation of nuclear standards pursuant to such treaties.
Convention on the Physical Protection of Nuclear Material
The only legally binding multilateral treaty in the nuclear security realm is the 1980 Convention on the Physical Protection of Nuclear Material (CPPNM). It was opened for signature in March 1980 and
entered into force in 1987. As of December 2011, the CPPNM had 145 states parties as well as EURATOM, and 44 signatories (IAEA, 2011h).
The purpose of the treaty is to commit states to ensure that nuclear material for civilian purposes under their jurisdiction is protected during international transport. It does this in three ways. First, it establishes legally prescribed protective levels for nuclear material during such transport. Annex 1 of the treaty sets out three categories of protection in descending order — from Category I (requiring the highest level of protection) to Category III (requiring the lowest).
Second, it seeks to have states criminalize the theft of nuclear material. Third, it promotes international cooperation in prosecuting offences and responding in the event of a breach. The treaty does not apply to nuclear material for military purposes or radioactive sources.
Each party must identify to all other parties, either through the IAEA or directly, a national point of contact with responsibility for the physical protection of nuclear material and for coordinating recovery and response operations in the event of a breach. If an incident occurs, parties are required to cooperate to the maximum feasible extent in the recovery and protection of nuclear material. The IAEA would, presumably, have a “clearinghouse” role in matching offers of assistance to needs, as is the case of the Convention on Assistance in Case of a Nuclear Accident, although this is not specified. Each party is obliged to report to the treaty depositary, presumed to be the IAEA (although strangely, the convention again does not make this clear), the laws and regulations it has adopted to implement the convention, and the depositary is obliged to transmit this information to all other states parties.
While the treaty contains provisions for review conferences every five years, which are organized by the IAEA at its Vienna headquarters, these are aimed at assessing the implementation of the convention as a whole, not the compliance of individual parties.
There is no peer review mechanism for the treaty, as in the case of the CNS, nor does the IAEA have any particular role in this respect.
Monitoring or verification of compliance is completely absent. There is the usual dispute resolution mechanism, involving referrals to the International Court of Justice, but these relate to interpretation of the treaty, not non-compliance. However, the IAEA does provide states, on request, with advisory, review and other services to help them assess and improve their compliance with the CPPNM.
CPPNM Amendment
Not long after the negotiation of the CPPNM, efforts were undertaken to strengthen the treaty, as it did not require states to protect nuclear material while in domestic use, storage or transport (unless transport crossed international waters or airspace). Hence, important aspects of the civilian nuclear industry were not covered by the Convention. In 1998, a group of experts convened by the IAEA to review all Agency programs recommended that consideration be
given to revising the CPPNM to extend it to domestic use, storage and transport.
Negotiations on a CPPNM amendment stretched over many years, but were formally concluded at a diplomatic conference held in Vienna in July 2005. Undoubtedly, the endgame of the negotiations was stimulated by what some considered a nuclear “near miss”
— the events of 9/11. The Amendment created a legally binding regime that requires each state party to the CPPNM to establish and maintain an “appropriate physical protection regime” for nuclear material in use, storage and transport, and for nuclear facilities anywhere under its jurisdiction. Such a national regime should be designed to prevent theft, establish a rapid response capacity to locate and recover missing or stolen nuclear material, protect against sabotage of nuclear material or nuclear facilities, and mitigate the consequences of any successful sabotage. Each party must embed the CPPNM in its legal system, establish a legislative and regulatory framework to govern physical protection, and designate a competent authority responsible for domestic implementation. Details of the point of contact should be imparted to all other parties and the IAEA.
Although the Amendment to the CPPNM was adopted in July 2005, it is not yet in force, as this is contingent on ratification by two-thirds of the original 112 state parties to the CPPNM. As of March 2012, there were 55 contracting states (IAEA, 2011c). Early entry into force is desirable as it will allow the IAEA to begin linking its advisory and expert services to compliance with nuclear security standards domestically, as well as during international transport.
The Agency is actively encouraging more states to become party to the CPPNM in order to speed up entry into force of the amendment.
In November 2011, it held a meeting on Facilitating Adherence to the 2005 Amendment to the CPPNM, which was attended by 55 states and EURATOM. However, the decision to sign the Amendment is the sovereign right of each member state, and the Agency had to acknowledge that “each State faced a different situation with regard to the ratification process” (IAEA, 2011u: 2). Regrettably, the United States, which has led the charge in recent years on nuclear security, has still not ratified the amendment. Canada, France and Pakistan are three other significant absentees.
Code of Conduct on the Safety and Security of Radioactive Sources
Unlike the security of nuclear facilities and nuclear materials, the security of radioactive sources has been considered in combination with safety. The implications of an accident or a terrorist incident involving radiological sources48 became apparent following a fatal accident in Brazil in 1988, resulting from an “orphaned” medical source that killed several people, contaminated thousands more and severely affected the immediate environment (IAEA, 1988). It was not
48 Radioactive sources are used worldwide for a wide variety of peaceful purposes in industry, medicine, research and education, and in military applications. Some of these are securely contained in a suitable capsule or housing, but some are used in an unsealed form.
until a decade later, however, in 1998, that an international conference in Dijon, France impelled the IAEA GC to request the Secretariat to prepare a report on how national systems for ensuring the safety and security of radioactive sources could be operated effectively, and whether international undertakings could be formulated.
The Agency had published the International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources in 1996, but these were binding only on states that chose to adopt them or were receiving assistance from the IAEA.
Clearly, more action was needed. The Secretariat recommended an Action Plan approved by the BoG and GC in March 1999, which covers seven areas: regulatory infrastructures; management of disused sources; categorization of sources; response to abnormal events;
information exchange; education and training; and international undertakings.
In terms of the last item, the major outcome was a non-binding international agreement, the Code of Conduct on the Safety and Security of Radioactive Sources. It provides guidance for ensuring the control of such sources, and for mitigating and minimizing any consequences should control measures fail (IAEA, 2000a). The Code embeds the Agency’s standards and guides into international expectations of proper conduct in the area of radioactive sources, although it does not extend the Agency’s powers beyond the advisory, educational and standard-building role that the Action Plan envisaged for it. In order to support states’ implementation of the Code, although it is also not legally binding, supplementary Guidance on the Import and Export of Radioactive Sources, released in 2003, was developed by the Agency in response to the events of 9/11 (IAEA, 2003g). The new Guidance was seen as necessary to help prevent the malevolent use of radioactive sources, not just the accidental or inadvertent loss of orphaned sources that had been previously emphasized.49
As of January 16, 2012, 107 states had informed the DG of their intention to implement the Code, and 68 had indicated they were intending to implement the supplementary Guidance. The Code was reviewed at a November 2011 IAEA technical meeting to determine, among other things, how it might be enhanced with regard to security, but little resulted from the gathering. The status of the Code is also being reviewed, following calls by some member states for an internationally binding instrument on the safety and security of sources (IAEA, 2011x)
Paradoxically, the Agency’s external auditor has castigated it for failing to insist that member states receiving radioactive sources from the Agency under its assistance programs comply fully with IAEA-recommended standards. The Agency’s own Office of Internal Oversight Services (OIOS) has reported that the Agency does not comply with its own standards and remedial action is required urgently (IAEA, 2011a: 18 and 34).
49 See “Q & A: Safety and Security of Radioactive Sources” at: http://iaea.org/newscenter/
features/radsources/radsrc_faq.html.
International Convention for the
Suppression of Acts of Nuclear Terrorism The second major treaty in the nuclear security area for which the IAEA has some responsibility is the International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT) (UN, 2005). Negotiated at the United Nations between 1998 and 2005 on the initiative of Russia, the treaty was adopted by the UN General Assembly in April 2005, opened for signature in September 2005 and entered into force in July 2007. As of January 25, 2012, there were only 77 states parties and 115 signatories (UN, 2011a).
ICSANT establishes a wide variety of offences in relation to nuclear terrorism. It is an offence for anyone to possess radioactive material with the intent to cause or threaten to cause death, injury or damage to property or the environment, or use radioactive material in such a way that risks such consequences. Each party to the treaty is obliged to establish the offences within its domestic criminal law, ensuring that the penalties take into account the grave nature of nuclear terrorism. ICSANT also obliges parties to cooperate in preventing acts of nuclear terrorism by exchanging accurate information. Each party must establish jurisdiction over the offences, if they are committed on its domestic territory, on board a vessel or aircraft registered by the state, or when the offender is one of its nationals. ICSANT requires parties to either prosecute or extradite an offender, and to provide significant mutual legal assistance to each other in connection with criminal proceedings. ICSANT applies to all nuclear materials and facilities, including those used in civilian nuclear power programs.
Although the treaty names the UN Secretary-General rather than the IAEA DG as depositary and, therefore, it is not considered to be within the IAEA’s “family” of treaties, the IAEA does assume several important treaty functions. Notably, if a state seizes control of any radioactive material, devices or facilities following the commission of an offence, that party must ensure, among other things, that they are held in accordance with IAEA nuclear safeguards and must “have regard” for IAEA “physical protection recommendations and health and safety standards” (UN, 2005: Art. 18.1). In doing so, the state party “may” call on the assistance of the IAEA. In addition, a state party disposing of or retaining seized radioactive material, a device or a nuclear facility is obliged to inform the IAEA DG “of the manner in which such an item was disposed of or retained” (UN, 2005: Art.
18.6).
The only other international nuclear security-related treaty that mentions a role for the IAEA is, oddly enough, the 1986 Treaty of Pelindaba, which creates an African Nuclear Weapon-Free Zone.
The only other international nuclear security-related treaty that mentions a role for the IAEA is, oddly enough, the 1986 Treaty of Pelindaba, which creates an African Nuclear Weapon-Free Zone.