The foregoing discussion of both international legal framework for nuclear security and for safeguards provided an overview of the main rights and obligations of the parties under the relevant international instruments, as well as described the provisions to be incorporated in national legal frameworks to enable States to fulfil their obligations under these instruments.
The Amendment to the CPPNM was an important recent development in the field of nuclear law. For the first time, an international agreement entails an obligation for States Parties to establish a legal and regulatory framework at the national level for the security of nuclear material and facilities under their jurisdiction. The new obligations under the Amendment have led to consideration of how those requirements fit with existing obligations under comprehensive safeguards agreements. As part of establishing the new framework for nuclear security, several elements and measures have a connection to safeguards, and while the legal basis is different, the resulting synergies should be taken into account. These synergies, which include for instance the role and functions of the regulatory body and nuclear material accounting and control measures, are described below.
Though outside the scope of this article, it bears mentioning that in addition to nuclear security and safeguards, nuclear safety is an integral part of establishing an adequate legislative and regulatory framework to ensure the peaceful uses of nuclear energy and ionizing radiation, and similarly has synergies with the other technical areas of nuclear law. While both nuclear security and safeguards share common objectives related to the control of nuclear material, some important differences may be observed. Therefore, before discussing the synergies in more detail, it is useful to mention the general differences.
One of the differences is the role of the IAEA. Under the CPPNM and its Amendment, the IAEA’s role is primarily that of depositary, for which it serves as a repository and conduit of information made available by Parties and, where applicable, to be circulated to Parties, as well as convener of meetings pursuant to the treaty, including the aforementioned review conference to take place in 2021 pursuant to Article 16 of the CPPNM as amended, though it also fulfils certain other functions related to facilitating international cooperation. The IAEA serves as the main facilitator under the CPPNM and its Amendment, including in encouraging universal adherence. In contrast, the IAEA’s role in the context of safeguards instruments is different as it is authorized by its Statute as an international organization to conclude safeguards agreements with States. In doing so, the IAEA becomes Party to such instruments and, as such, has rights and obligations thereunder. Furthermore, different from nuclear security instruments, the IAEA has a verification role under safeguards agreements and additional protocols. Through safeguards, the IAEA verifies that States implement their obligations under the relevant instruments to use nuclear material and technology exclusively for peaceful purposes and not for the development of nuclear weapons or other nuclear explosive devices.
Another difference is that safeguards are applied in accordance with the terms of each agreement to nuclear material, facilities or other items subject to safeguards, to deter the spread of nuclear weapons through the early detection of diversion or the misuse of nuclear material or technology, whereas nuclear security is broader, covering not only nuclear material, facilities and activities, but also other radioactive material, related facilities and activities, whether used for peaceful or, under ICSANT, non-peaceful purposes. Related to this, safeguards focus on State activities (diversion to non-peaceful activities by States), whereas nuclear security is about misuse of material by non-State actors, which is why criminalization of certain offenses is a key element of the nuclear security instruments. The conduct of non-peaceful activities involving nuclear material may also be criminalized in the national legal framework to enable the State to fulfil its international obligations to use nuclear material and technology exclusively for peaceful purposes.
Notwithstanding these differences, this chapter looks at areas in which nuclear security and safeguards converge. The synergies are shown by the fact that certain provisions and approaches in the comprehensive nuclear law are of relevance to both nuclear security and safeguards, therefore enabling the States to fulfil their obligations under the respective international instruments. This is particularly the case with regard to the functions of the regulatory body, as well as the State systems of accounting for and control of nuclear material, which play a role inter alia in preventing illicit trafficking.
9.4.1. Functions of the regulatory body in relation to nuclear security and safeguards
One of the key elements of the national legal framework for nuclear energy is the establishment of a regulatory body [17]. The regulatory body is essential to ensuring that operators of nuclear facilities and other licensees are using nuclear material in a peaceful, secure and safe manner.
It has been common practice for legal drafters to dedicate a chapter in the comprehensive nuclear law to the responsibilities of the regulatory body. A number of those responsibilities enable States to fulfil their international obligations under the CPPNM and its Amendment, as well as under the comprehensive safeguards agreement and the additional protocol. For example, the regulatory body has the responsibility to establish regulatory measures for the security of nuclear material and other radioactive material, and their associated facilities, including measures for the detection, prevention and response to unauthorized or malicious acts involving such material and facilities. In the field of safeguards, one of the responsibilities of the regulatory body is to provide the IAEA with information on nuclear material and facilities and to provide designated IAEA inspectors with an access to nuclear material and facilities, as required under the comprehensive safeguards agreement and the additional protocol.
In order for those responsibilities to be met, the regulatory body needs to exercise its regulatory authority through certain regulatory functions. Even though they may be exercised differently, those functions are common to nuclear security and safeguards and enable States to meet their respective obligations under the relevant international instruments.
- Licensing
Licensing enables the regulatory body to exercise its authority over regulated persons or entities through a system of licenses (or authorization). Such licenses create responsibilities for licensees which also allow the regulatory body to ensure that all nuclear material and activities are under the State’s regulatory control. Provisions in the comprehensive nuclear law should therefore give the legal authority to the regulatory body to grant, amend, suspend and revoke licenses and to establish prerequisites for granting them and conditions to keep them.
In order for applicants to be granted a license to use nuclear material or technology, they have to meet certain prerequisites. It is important to note that a distinction should be made between the prerequisites to be granted a license and the actual license conditions, which may be imposed to licensees in order for them to keep their license. The prerequisites to obtain a license typically include some of those which are related to nuclear security and safeguards. For example, in the context of safeguards, an applicant would have to demonstrate its capability to conduct physical inventories and perform measurements of nuclear material to obtain a license.
For nuclear security, an applicant would have to demonstrate that certain levels of physical protection are met. Meeting such requirements enables the State to provide the IAEA with the information required under a comprehensive safeguards agreement, and to fulfil its obligation to impose levels of physical protection on nuclear material, as required under the CPPNM and its Amendment.
While it is up to States to decide their approach to licensing, nuclear security and safeguards requirements to obtain and keep a license may be included in separate licenses or in a single license.
- National inspections
Verification by the national regulatory body of the licensees’ performance is central to an effective regulatory system. Establishing a licensing process for the use of nuclear material and technology would be ineffective without the power to determine whether licensees comply with the conditions of the license. For this reason, the regulatory body needs to have an inspection capability and therefore have sufficient legal authority to have access to sites and facilities using nuclear material and technology. Through an inspection programme, inspectors from the
regulatory body verify that conditions provided in the license, including those related to nuclear security and safeguards, are met by the licensees.
While regulatory bodies were originally performing nuclear security and safeguards inspections separately, recent practice shows that more and more States now aim to combine both type of inspections, where possible. This approach has the advantage of reducing the burden of inspections for licensees, as they can disturb the conduct of operations at facilities. Combining nuclear security and safeguards responsibilities is also an approach being applied at the institutional level, as regulatory bodies often group relevant tasks within a single department or office. This has the effect of better using resources by centralizing the nuclear security and safeguards expertise and capabilities. Furthermore, it enables the regulatory body to centralize all coordination matters, therefore also facilitating the communication pertaining to nuclear security and safeguards with licensees, other relevant authorities, as well as with the IAEA.
- Enforcement
The purpose of enforcement is to ensure compliance with the conditions set out in the license, including those pertaining to nuclear security and safeguards. In order for the regulatory body to ensure compliance, the comprehensive nuclear law should clearly provide for enforcement measures, whether that be the imposition of monetary fines or penalties or the suspension or revocation of the license. In some States, not meeting the license conditions can also result in the imposition of criminal penalties.
9.4.2. Accountancy and control
The State system of accounting for and control of nuclear material (SSAC) is a key component of the safeguards system and is crucial to nuclear security as well. Paragraph 7 of INFCIRC/153 (Corr.) provides for the obligation for the State(s) “(…) to establish and maintain a system of accounting for and control of nuclear material subject to safeguards (…), and that such safeguards shall be applied in such a manner as to enable the Agency to verify, in ascertaining that there has been no diversion of nuclear material from peaceful uses to nuclear weapons or other nuclear explosive devices, findings of the State’s system” [13]. The IAEA relies on the SSAC findings which are reflected in the reports required to be submitted to the IAEA under the safeguards agreement. Based on the SSAC reports and IAEA independent verification of such reports at the Headquarters and in the field, the IAEA can ascertain that there has been no diversion of nuclear material from peaceful purposes. To that end, an SSAC requires, for example, the maintenance of accounting records by the operators and the submission to the IAEA of accountancy and material balance records and reports on a regular basis. The obligation for States to establish and maintain an SSAC is commonly implemented in the national legal framework by making it one of the responsibilities of the regulatory body to ensure the effective implementation of safeguards by establishing and maintaining an SSAC.
Protection as well as control of nuclear material is also essential for the purpose of nuclear security, and while the CPPNM and its Amendment do not contain a specific obligation for States parties to establish and maintain such a system, in effect such measures are often included in a State’s nuclear security framework. Also, such an obligation may be found in UN Security Council resolution 1540 (2004), requiring States to “(…) develop and maintain appropriate effective measures to account for and secure [nuclear-related material] in production, use, storage or transport”. The resolution does not, however, provide further specifications related to such measures. The role and recognized contribution of the State’s of nuclear material accountancy and control to the State’s nuclear security regime are noted in the IAEA guidance, including in NSS No. 13, where existing material accountancy and control measures in a State
are considered as being supportive to the State’s nuclear security framework, inter alia, when it comes to measures to detect unauthorized removal of nuclear material in use and storage.
In other words, nuclear material accountancy and control measures in a State that are part of the States’ SSAC, in addition to being necessary to fulfil the State obligations under a comprehensive safeguards agreement, contribute to a State’s ability to deter and detect the unauthorized removal of nuclear material, an objective shared by nuclear security and safeguards. This synergy enables an efficient use of accounting and control measures at the national level. For instance, inspectors of the regulatory body, when performing nuclear material verification activities at a facility, have an opportunity to look at the accounting and control measures in place at the facility from the perspective of both security and safeguards.
In addition, there is a possibility for the regulatory body to develop security and safeguards regulations which support each other when it comes to accounting and control provisions, while limiting the risk of contradictions between those regulations. For example, this would help avoid that the collection of information under nuclear security regulations contradicts or interferes with the collection of information required under comprehensive safeguards agreements or State safeguards regulations.