VIENNA (IDN) — Originally scheduled for April-May 2020, due to postponements because of the Covid-19 pandemic, the Tenth Review Conference of the Nuclear Non-Proliferation Treaty (NPT) finally convened in these turbulent times at the United Nations in New York on 1 August and will conclude its deliberations on 26 August.
NPT review conferences are held every five years to assess the implementation of the NPT across its three "pillars": nuclear disarmament, nuclear non-proliferation, and cooperation in the peaceful uses of nuclear energy. [2022-08-08]
In addition to the usually contentious and oftentimes bad tempered discourse in previous review conferences on the failure of the five nuclear-weapon States—China, France, Russia, UK and USA—to eliminate their nuclear arsenals as well on the failure to establish a zone free of nuclear and other weapons of mass destruction in the Middle East; this review conference has a new problematic issue on its agenda.
The problem relates to the 15 September 2021 announcement that the United States would provide Australia eight nuclear-powered submarines (SSNs) fuelled by weapon-grade highly-enriched uranium (HEU), under the AUKUS agreement. On the same date in September, the Director General of the International Atomic Energy Agency, received a communication from the United States concerning "an enhanced trilateral security partnership called 'AUKUS' ”to "support Australia's acquisition of a conventionally armed, nuclear-powered submarine capability".
This programme would seek to exploit a "loophole" or "grey area" in the nuclear safeguards (verification) system of the IAEA in connection with the non-proliferation of nuclear weapons under the NPT. This concerns exempting the nuclear fuel and the nuclear propulsion unit of nuclear-powered submarines from mandatory IAEA safeguards as required for NPT non-nuclear-weapon States such as Australia and Brazil—more information on this matter can be found here and here.
In May this year, Brazil that has had a longstanding indigenous programme to develop nuclear-powered submarines, claimed to use low-enriched uranium (LEU) (below 20% U-235), also informed the IAEA that it too would be seeking to exempt the submarine nuclear fuel from safeguards and initiated discussions with the Agency.
Naval nuclear propulsion at the NPT review conference
Already starting in September last year, China and Russia along with a few other States started to voice concerns over Australia’s planned acquisition of nuclear-powered submarines and resulting exemption of naval nuclear fuel from IAEA safeguards, at the meetings of the IAEA Board of Governors.
These criticisms have been further elaborated on and made public in working papers submitted for discussion at the NPT review conference currently underway by China and Indonesia.
The AUKUS partner States also have submitted their own working paper.
Not to be outdone and taking advantage of the door opened by the AUKUS States, Brazil too jumped into the fray and submitted its working paper.
Thus, the NPT review conference will have to grapple with four working papers on nuclear-powered submarines—two submitted by proponents and two by opponents—in the deliberations in Main Committee II on safeguards.
Australian Case
Senator the Hon Tim Ayres in delivering Australia's National Statement at the NPT review conference made the expansive claim to the effect that, "Australia's acquisition of nuclear-powered, conventionally armed submarines, as is provided for in the NPT, the IAEA Statute, and our own Comprehensive Safeguards Agreement".
Unfortunately, Senator Tim Ayres probably is not familiar with the IAEA Statute which prohibits the Agency’s involvement in the furtherance of "any military purpose". Also, likely it is somewhat of a stretch to claim that the NPT allows for nuclear-powered submarines—the Treaty is silent on this matter, it neither allows nor disallows.
It is correct though that the NPT model safeguards agreement (INFCIRC/153/Corrected) in its paragraph 14 on "Non-Application of Safeguards to Nuclear Material to be Used in Non-Peaceful Activities" provides for "discretion to use nuclear material which is required to be safeguarded thereunder in a nuclear activity which does not require the application of safeguards under the Agreement" to exempt it from [IAEA] safeguards” (highlight by this author).
As regards Australia's claims of impeccable credentials, it should be noted that though the NPT opened for signature on 1 March 1968, Australia only deposited its signature to the Treaty on 27 February 1970 and its instrument of ratification on 23 January 1973. Australia’s NPT- comprehensive safeguards agreement with the IAEA (INFCIRC/217) entered into force on 10 July 1974.
Critics could claim that Australia was slow to sign and ratify the NPT, and also slow to bring into force its NPT safeguards agreement (which should have been the case within 24 months according to Article III.4 of the NPT!) In all fairness, to date, the IAEA has not found nor reported any violations or discrepancies in the implementation of safeguards by Australia.
The three AUKUS States in their working paper claim that they are committed to "the highest possible non-proliferation standards including by providing complete, welded power units so that Australia need not conduct uranium enrichment nor fuel fabrication, and are engaging with the IAEA to find a suitable verification approach … These power units are designed so that removal of any nuclear material would be extremely difficult and would render the power unit, and the submarine, inoperable. Further, the nuclear material inside of these reactors would not be in a form that can be directly used in nuclear weapons without further chemical processing, requiring facilities that Australia does not have and will not seek".
They state further that, "Australia, the UK and the US are working closely with the IAEA to ensure that the precedent set by Australia's acquisition of conventionally armed nuclear-powered submarines strengthens the global non-proliferation regime and closes the door to any potential misuse of these elements of the NPT framework for the purposes of developing a clandestine nuclear weapons programme".
Brazilian Case
Brazil reportedly started its uranium enrichment programme in the early- to mid-1970s by acquiring centrifuge technology from West Germany under IAEA safeguards (INFCIRC/237) and justified it in terms of a nuclear propulsion capability for its Navy. Brazil acceded to the NPT as late as 18 September 1998; but it signed the Treaty of Tlatelolco (Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean) on 9 May 1967 and deposited its instrument of ratification on 29 January 1968.
IAEA safeguards are applied in Brazil pursuant to the 1991 Agreement between the Republic of Argentina, the Federative Republic of Brazil, the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials and the International Atomic Energy Agency for the Application of Safeguards, Quadripartite Agreement, reproduced in IAEA INFCIRC/435 which also serves since 30 July 1999 as Brazil’s safeguards agreement under the NPT (IAEA INFCIRC/435/Mod.3 dated 2 March 2000).
Under Article III of the Argentina-Brazil "Agreement on the Exclusively Peaceful Utilization of Nuclear Energy", IAEA INFCIRC/395, "None of the provisions of the present Agreement shall limit the right of the Parties to use nuclear energy for the propulsion of any type of vehicle, including submarines, since propulsion is a peaceful application of nuclear energy" (highlighted by this author).
Whereas Article 13 of the Quadripartite Agreement, partly mirrors Article 14 of the standard INFCIRC/153/Corr., and provides for "special procedures" for "a State Party … to exercise its discretion to use nuclear material which is required to be safeguarded under this Agreement for nuclear propulsion or operation of any vehicle, including submarines and prototypes, or in such other non-proscribed nuclear activity as agreed between the State Party and the Agency". An excellent detailed discussion on this matter can be found here.
In its National Statement at the current NPT review conference, Brazil stated that, "In May 2022, Brazil submitted to the International Atomic Energy Agency (IAEA) its initial proposal for special procedures to be applied to nuclear material used in naval nuclear propulsion, pursuant to Article 13 of the Quadripartite Agreement. Nothing in the NPT precludes the use of nuclear energy for such purposes, which are fully consistent with the IAEA safeguards regime. In pursuing the legitimate goal of naval nuclear propulsion, Brazil is committed to transparency and open engagement with the IAEA and ABACC, ensuring their ability to fulfil their non-proliferation mandates".
In its working paper submitted to the current NPT review conference, Brazil states that, "Similarly to bilateral comprehensive IAEA safeguards agreements based on INFCIRC/153, the Quadripartite Agreement envisages the possibility of using nuclear material in certain non-proscribed military activities, including nuclear propulsion. In this case, as specifically indicated in its Article 13, special procedures regarding the application of safeguards to nuclear material will apply while the nuclear material is used for nuclear propulsion in submarines and prototypes".
The working paper states further that, "A long-standing objective pursued by Brazil for many decades, the development of nuclear propulsion is a fully indigenous and autonomous project. The submarine, its nuclear reactor and fuel are being designed, developed, built and assembled in Brazil. It will be a nuclear-powered, conventionally armed vessel. Its reactor will use low-enriched uranium (LEU)" (highlighting by this author).
In addition, Brazil notes that, "Article 13 of the Quadripartite Agreement envisages special procedures to be applied in case nuclear material which is required to be safeguarded is used 'for nuclear propulsion or operation of any vehicle, including submarines and prototypes', thus allowing the Agency to fulfil its verification mandate under the agreement … All nuclear facilities of the Brazilian Navy are subject to safeguards under the Quadripartite Agreement and will remain so" (highlighting by this author).
Furthermore, the working paper states that, "Both the Director-General of the [IAEA] and the Deputy Director-General for safeguards have since 2021 visited the facilities associated with the nuclear-powered submarine programme. Continued visits by IAEA safeguards inspection teams will assist in mapping out the details of the special procedures applicable to the nuclear material to be used in naval nuclear propulsion".
And that the, "consultation process underway between Brazil and the IAEA will ensure that such special procedures will be sufficient to enable the Agency to draw the relevant safeguards conclusion on the non-diversion of nuclear material, while protecting sensitive technological and operational parameters related to the nuclear-powered submarine … ABACC's role in the implementation of special procedures will include keeping records of the total quantity and composition of nuclear material used in nuclear naval propulsion”.
Brazil states that the "Naval Agency for Nuclear Safety and Quality (AgNSNQ) is the regulatory body of the Brazilian Navy responsible for licensing and inspecting ships with onboard nuclear plants and overseeing the transport of their nuclear fuels. While nuclear installations operated by the Navy on land will continue to be licensed and supervised by ANSN [National Authority for Nuclear Security], including the prototype on land of the nuclear reactor to propel the submarine, the onboard nuclear plants will be licensed by AgNSNQ … The nuclear reactor on the submarine will therefore undergo a double licensing process: its prototype, by ANSN; and the onboard plant, by AgNSNQ. This double licencing makes the Brazilian case unique in the world. In other countries with naval propulsion capabilities, the licensing of both land-based prototypes and submarines is carried out exclusively by the respective military regulatory bodies" (highlighting by this author).
Comparison and Concerns
Based on the above discussion outlining the claimed procedures to be implemented respectively by Australia (AUKUS) and Brazil; it is clear that Brazil has specified a more elaborated plan than Australia for addressing the safeguards (verification) issues concerning its naval nuclear propulsion programme.
On the other hand, Brazil claims that ABACC shall maintain records of the total quantity and composition of nuclear material used in nuclear naval propulsion while protecting sensitive technological and operational parameters related to the nuclear-powered submarine.
How in practice this will be implemented remains to be described?
Another open question is whether the records maintained by ABACC on the total quantity and composition of nuclear material used in nuclear naval propulsion will be made available to the IAEA? And how sensitive technological and operational parameters related to the nuclear-powered submarine are defined and further by whom?
This discussion clearly shows that the IAEA’s nuclear verification/safeguards system is facing an unprecedented challenge in dealing with the naval nuclear propulsion programmes of Australia and Brazil. Exempting nuclear material and nuclear reactors for naval use from safeguards will result in creating within the NPT/IAEA regime new arrangements under which a State can operate two parallel nuclear programmes, one under and one outside IAEA safeguards.
This would weaken the uniformity of the structure and implementation of comprehensive Agency safeguards in NPT non-nuclear-weapon States (NNWS).
Both Australia and Brazil in exercising relevant provisions for safeguards exemptions would be creating a big gap as regards significant quantities of enriched uranium naval nuclear propulsion use—200 to 250 kg of up to 97.3% HEU per boat for a total to 1.6 to 2.0 metric tonnes that is 1600 to 2000 kg in the case of Australia; the quantities in Brazil’s naval nuclear fuel cycle cannot be estimated given lack of information. Recall, that for safeguards purposes, the IAEA calculates a Significant Quantity (SQ) as 25kg of HEU even though with modern designs a nuclear warhead can be fabricated with as little as 5 kg.
Another important consideration is that the Agency’s Statute prohibits it being involved to "further any military purpose". Now, it could be argued that in exempting significant quantities of enriched uranium naval fuel from comprehensive safeguards for a State’s navy, the Agency would be furthering a military purpose—that of facilitating military operations by nuclear-powered naval ships or submarines.
Thus, there is an inherent tension or contradiction between the Agency’s statutory obligations and the provisions of IAEA/ABACC comprehensive safeguards agreements. The negotiating record on INFCIRC/153/Corr. shows that the drafters and negotiators of the text were blissfully unaware of this tension with the Statute when they were drafting the provisions of paragraph 14 (INFCIRC/153/Corr.).
Should Australia or Brazil, or any other NPT NNWS, be able to exercise exemptions from NPT/IAEA/ABACC comprehensive safeguards without prior understanding of, and agreement on, the modalities involved and prior approval of the Agency's Board of Governors beggars belief.
The only practical and rational way forward is for the IAEA Board of Governors and interested Member States through open-ended working group consultations to arrive at a clear and common understanding on how to interpret and implement exemptions on a non-discriminatory and uniform basis; and further to consider whether to close off this "loophole" for good.
The NPT and Nuclear-powered Submarines
The INFCIRC/153 (Corr.) and ABACC provisions for exemption from safeguards of naval nuclear propulsion are undesirable and defeat the objectives and purposes of IAEA/ABACC safeguards. This adds yet another layer of discrimination to that between nuclear-weapon and non-nuclear-weapon States by creating a new category of NNWS with significant quantities of (weapon-grade) nuclear material out of NPT safeguards.
My recommendations to the States participating in the Tenth NPT Review Conference are as follows:
1. During the deliberations of Main Committee II on safeguards, its Subsidiary Body should be assigned the task of considering naval nuclear propulsion and safeguards, in particular the negative effects on the completeness and correctness relating to safeguards implementation.
2. The Subsidiary Body should consider recommending that the Review Conference make the determination that the exercise of safeguards exemption for naval nuclear propulsion defeats the purpose of NPT safeguards and thus should no longer be made available to States parties. There is an indirect precedent in that at the 2000 NPT Review Conference, States parties decided that NPT Article V on peaceful nuclear explosions should no longer be availed of and that the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT) prohibits all types of nuclear explosions. In 2005, the IAEA Board decided that Small Quantities Protocols (SQPs) should be revised and no longer offered in their original formulation.
3. The Subsidiary Body also should consider recommending that the IAEA Board of Governors establish an open-ended working group to examine in detail the issues in particular, inter alia, definitions of: non-peaceful activities; non-proscribed military activity; period of non-application of safeguards; arrangement for non-application of safeguards; temporal and procedural provisions; reporting arrangements; classified knowledge of the military activity; the use of the nuclear material therein as used in paragraph 14 (INFCIRC/153/Corr.).
And definitions of: special procedures; non-proscribed nuclear activity, the period or circumstances during which the special procedures shall be applied; reporting arrangements; classified knowledge of such activity or relate to the use of the nuclear material therein, as used in paragraph 13 (INFCIRC/435) Quadripartite Agreement.
There are several precedents of the IAEA Board previously having established open-ended working groups on safeguards implementation matters such as on "93+2" strengthened safeguards, additional protocol, SQPs, and the Advisory Committee on Safeguards and Verification (Committee 25) in June 2005.
Now is the time for NPT States parties to grasp the nettle on naval nuclear propulsion and to resolve to further strengthen the effectiveness and improve the efficiency of the IAEA safeguards system; not to weaken it and not drive a fleet of nuclear-powered submarines through it.
*Tariq Rauf was formerly Alternate Head of NPT Delegation and Head of Verification and Security Policy Coordination, Office reporting to the Director General, International Atomic Energy Agency and previously advised Canada’s parliamentary committees on national defence and foreign affairs. In 1987-1990, he was closely involved with analyzing the implications of Canada's plans to acquire a fleet of 10-12 nuclear-powered submarines, in particular the matters of IAEA safeguards and the NPT; in this regard he briefed Canada’s parliamentary committees on national defence and foreign affairs and communicated with the IAEA for the preparation of the co-authored Aurora Papers 8, Opening Pandora's Box? Nuclear-Powered Submarines and the Spread of Nuclear Weapons, published in February 1988 by the-then Canadian Centre for Arms Control and Disarmament (CCACD). In 2003, in his IAEA capacity he briefed the Conference on Disarmament on the matter at an "FMCT Exercise". Personal views are expressed here. In January 2022, he published, Crashing Nuclear Submarines Through IAEA Safeguards. [IDN-InDepthNews — 08 August 2022]
Photo: (Left) Álvaro Alberto, Brazil's first nuclear-powered attack submarine (SSN) concept, courtesy of Serviços e Informações do Brasil; (Right): US Navy Virginia-class SSN, courtesy of General Dynamics Electric Boat Public Affairs, Creative Commons Licence 040730-N-1234E-002)
