1. ESARDA Working Group Training and Knowledge Management 1 Nuclear Material Subject to Safeguards G. Janssens-Maenhout ESARDA Course 23 - 27 March 2015: “Nuclear Safeguards and Non Proliferation” Legal aspects

2. ESARDA Working Group Training and Knowledge Management 2 branches of nuclear law Safety Emergency response and management Radioactive Waste Management and Decommissioning Transportation Environmental Assessment and Protection Non-Proliferation and Safeguards Nuclear Security and Physical Protection Liability and Compensation Trade Control

3. ESARDA Working Group Training and Knowledge Management 3 Safeguards Security Safety

4. ESARDA Working Group Training and Knowledge Management History of nuclear fission

5. ESARDA Working Group Training and Knowledge Management 5 History of Nuclear Non-Proliferation From Einstein to Eisenhower

6. ESARDA Working Group Training and Knowledge Management 6 History of Nuclear Non-Proliferation From Einstein to Eisenhower

7. ESARDA Working Group Training and Knowledge Management 7 History of Nuclear Non-Proliferation Creation of the IAEA, 1953-1957

8. ESARDA Working Group Training and Knowledge Management 8 History of Nuclear Non-Proliferation Creation of the IAEA, 1953-1957

9. ESARDA Working Group Training and Knowledge Management 9 History of Nuclear Non-Proliferation The Treaty on the Non Proliferation of Nuclear Weapons 1970

10. ESARDA Working Group Training and Knowledge Management 10 History of Nuclear Non-Proliferation The Treaty on the Non Proliferation of Nuclear Weapons 1970

11. ESARDA Working Group Training and Knowledge Management 11 History of Nuclear Non-Proliferation

12. ESARDA Working Group Training and Knowledge Management 12 History of Nuclear Non-Proliferation Earlier Proliferation cases

13. ESARDA Working Group Training and Knowledge Management 13 History of Nuclear Non-Proliferation Earlier Proliferation cases

14. ESARDA Working Group Training and Knowledge Management 14 History of Nuclear Non-Proliferation Current Proliferation cases

15. ESARDA Working Group Training and Knowledge Management 15 History of Nuclear Non-Proliferation Current Proliferation cases

16. ESARDA Working Group Training and Knowledge Management 16 History of Nuclear Non-Proliferation Current Proliferation cases

17. ESARDA Working Group Training and Knowledge Management Focus on legal aspects of safeguards: Non Proliferation Treaty Safeguards agreements Additional Protocol Nuclear trade 17

18. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 18 1945-1970: important legal steps

19. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 19 IAEA mandate The IAEA An independent inter- governmental organization Not part of the United Nations Unique relationship with the UN Security Council Has its own 140 Member States Created by the Statute of the IAEA Statute of IAEA authorizes Agency to establish and administer safeguards

20. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 20 IAEA safeguards

21. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 21 Sensitive points in fuel cycle

22. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 22 First safeguards agreements

23. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 23 1970-1990: towards comprehensive safeguards system

24. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 24 1970-1990: towards comprehensive safeguards system NPT Nuclear Weapon States (NWSs): Not to provide nuclear weapons or nuclear explosive devices to NNWSs(Art. I) Non-Nuclear-Weapon States (NNWSs): Not to acquire nuclear weapons or other nuclear explosive devices (Art. II) Accept safeguards on all nuclear material (Art. III.1, 4) All States Parties: Export controls (Art. III.2) Pursue negotiations on nuclear disarmament Fundamental requirements: Comprehensive (or “full scope”) safeguards: Conclude agreement “in accordance with the Statute of the IAEA and the Agency’s safeguards system” Within 6 months of becoming party Controlson exportsto NNWSsof: Nuclear material Equipment and material “especially designed or prepared”(“EDP”) for the processing, use or production of special fissionable material – “single use”

25. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 25 The Structure and Content of Agreements between the Agency and States required in connection with the Treaty on the Non-Proliferation of Nuclear WeaponsINFCIRC/153 (Corr.) (April 1971) …to accept safeguards, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere... INFCIRC/153, para 1 OBLIGATIONS: Establish a State system of accounting for & control of nuclear material (SSAC) Provide information to the Agency Facilitate access by Agency Cooperate with the Agency Information Initial report on nuclear material (par 34, 62) Initial list of all nuclear facilities (par 42, 106) Record keeping of nuclear activities (par 51-58) Report inventory changes (import, export) (par59-69) Access DIV -facility design information verification (par 48) Inspections (par 71-73)

26. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 26 The Structure and Content of Agreements between the Agency and States required in connection with the Treaty on the Non-Proliferation of Nuclear WeaponsINFCIRC/153 (Corr.) (April 1971) …to accept safeguards, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere... INFCIRC/153, para 1 OBLIGATIONS: Establish a State system of accounting for & control of nuclear material (SSAC) Provide information to the Agency Facilitate access by Agency Cooperate with the Agency Information Initial report on nuclear material (par 34, 62) Initial list of all nuclear facilities (par 42, 106) Record keeping of nuclear activities (par 51-58) Report inventory changes (import, export) (par59-69) Access DIV -facility design information verification (par 48) Inspections (par 71-73)

27. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 27 1990-2000: strengthening safeguards with the additional protocol

28. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 28 Assurances of Correctness and Completeness of a State’s Nuclear Material Declarations Measures under Safeguards Agreement Agency access to undeclared locations Early provision of facility design information Environmental sampling Use of satellite imagery Measures requiring additional authority Additional information Broader access Simplified inspector designation and visa requirements Model Additional Protocol INFCIRC/540 (May 1997)

29. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 29 Why an Additional Protocol ? Need for increased security and safety of nuclear material, domestically and internationally, as demonstrated by recent events Improve State’s ability to control nuclear material and nuclear-related activities anywhere in the State Improve export controls and help prevent and counteract illicit trafficking Credible assurances of the peaceful nature of the State’s nuclear programme What is new with the Additional Protocol? Additional Information Initial declaration Annual updates Quarterly reporting of relevant exports Complementary Access Short notice (2/24 hours) Mechanism for prior consultations in the event of question or inconsistency Managed access to protect sensitive information Administrative Measures Simplified inspector designation Reduced visa requirements Complementary access

30. ESARDA Working Group Training and Knowledge Management Non-proliferation & nuclear safeguards: legal aspects 30 2000 - : challenges in the last decade

31. ESARDA Working Group Training and Knowledge Management 31 Current challenges: Nuclear black markets–non-State actors Breakout–withdrawal from the NPT Disarmament slowdown–failure to fulfil obligations under Article VI of the NPT Non-proliferation & nuclear safeguards: legal aspects

32. ESARDA Working Group Training and Knowledge Management 32 Nuclear material and technology trade: legal aspects Multilateral non-proliferation regimes

33. ESARDA Working Group Training and Knowledge Management 33 Nuclear material and technology trade: legal aspects Multilateral non-proliferation regimes

34. ESARDA Working Group Training and Knowledge Management 34 Nuclear material and technology trade: legal aspects Multilateral non-proliferation regimes

35. ESARDA Working Group Training and Knowledge Management 35 Nuclear material and technology trade: legal aspects Multilateral non-proliferation regimes

36. ESARDA Working Group Training and Knowledge Management 36 Nuclear material and technology trade: legal aspects Multilateral non-proliferation regimes Principle : International free trade of goods and technologies Within the guidelines/under the conditions defined by WTO (GATT, GATTS, TRIPS) Exceptions: strictly defined, exceptional and ruled by international agreements Article XXI of GATT establishes five exceptions related to: - Information - UN embargoes -War and emergency - Arms and related items - Nuclear materials

37. ESARDA Working Group Training and Knowledge Management 37 Nuclear material and technology trade: legal aspects Guidelines for nuclear transfers and nuclear dual use transfers

38. ESARDA Working Group Training and Knowledge Management 38 Nuclear material and technology trade: legal aspects In EU 28 Council Regulation 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items as amended by the Regulation 1232/2011 and 388/2012. Council Joint Action of 22 June 2000 (2000/0401/CFSP) concerning the control of technical assistance related to certain military end-uses Trade principles by EU/EC But authorisations by Member States The catch-all clause: Possibility for Member States to control not listed itmes: if there is risk that this item might be used in weapons of mass destruction program or if the exporter is aware that an item he intends to export

39. ESARDA Working Group Training and Knowledge Management 39 Rehearsal A.The IAEA is an independent UN organisation with special relationship to the UN SC. B.The NPT divides Member States in NWS and NNWS with different safeguards agreements. C.The AP was strengthening the NPT safeguards with regard to access and information but not with the unannounced inspections. D.The NPT became effective in 1970 when sufficient Parties signed the Treaty and was meanwhile signed up by more Parties, but faced also already the withdrawal of a Party. A.Nuclear trade control extends the nuclear material also with nuclear technology. B.In EU the EC sets the principles of trade control of items and is responsible for the authorisation of the export C.In EU the nuclear material procurement is subject to approval of the Euratom Fuel Supply Agency. D.In Belgium Synatom is the agency dealing with the fuel management, whereas Euratom is dealing with the safeguards of the fuel. Which expressions are incorrect ?

40. ESARDA Working Group Training and Knowledge Management 40 Rehearsal A.Not irradiated fuel is not radioactive. B.Reprocessing of spent fuel needs a highly automised chemical process with remote control. C.Fuel Enrichment is possible by chemical or physical processes (centrifuge, gas diffusion etc.) D.Enrichment of 1 ton fuel requires more energy than the reprocessing of 1 ton spent fuel. A.Each nuclear power plant is subject to safety, safeguards and security regulations B.The fuel in Belgium is state-property and under control of the EURATOM inspectorate. C.Enhancement of safety standards corresponds to an enhancement of safeguards standards. D.Safety of a nuclear power plant is under inspection of a national safety authority. Which expressions are incorrect ?