Foreign Relations of the United States, 1969–1976, Volume E–2, Documents on Arms Control and Nonproliferation, 1969–1972

52. Document Adopted by the Board of Governors, International Atomic Energy Agency¹ ²

Vienna, April 20, 1971

Structure and Contents of IAEA Safeguards Agreements Under the Nonproliferation Treaty, April 20, 1971¹

PART I

basic undertaking

1. The Agreement should contain, in accordance with Article III.1 of the Treaty on the Non-Proliferation of Nuclear Weapons,² an undertaking by the State to accept safeguards, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

application of safeguards

2. The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, 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, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

co-operation between the agency and the state

3. The Agreement should provide that the Agency and the State shall co-operate to facilitate the implementation of the safeguards provided for therein.

implementation of safeguards

4. The Agreement should provide that safeguards shall be implemented in a manner designed:

(a) To avoid hampering the economic and technological development of the State or international co-operation in the field of peaceful nuclear activities, including international exchange of nuclear material.³

(b) To avoid undue interference in the State’s peaceful nuclear activities, and in particular in the operation of facilities; and

(c) To be consistent with prudent management practices required for the economic and safe conduct of nuclear activities.

5. The Agreement should provide that the Agency shall take every precaution to protect commercial and industrial secrets and other confidential information coming to its knowledge in the implementation of the Agreement. The Agency shall not publish or communicate to any State, organization or person any information obtained by it in connection with the implementation of the Agreement, except that specific information relating to such implementation in the State may be given to the Board of Governors and to such Agency staff members as require such knowledge by reason of their official duties in connection with safeguards, but only to the extent necessary for the Agency to fulfill its responsibilities in implementing the Agreement. Summarized information on nuclear material being safeguarded by the Agency under the Agreement may be published upon decision of the Board if the States directly concerned agree.

6. The Agreement should provide that in implementing safeguards pursuant thereto the Agency shall take full account of technological developments in the field of safeguards, and shall make every effort to ensure optimum cost-effectiveness and the application of the principle of safeguarding effectively the flow of nuclear material subject to safeguards under the Agreement by use of instruments and other techniques at certain strategic points to the extent that present or future technology permits. In order to ensure optimum cost-effectiveness, use should be made, for example, of such means as:

(a) Containment as a means of defining material balance areas for accounting purposes;

(b) Statistical techniques and random sampling in evaluating the flow of nuclear material; and

(c) Concentration of verification procedures on those stages in the nuclear fuel cycle involving the production, processing, use or storage of nuclear material from which nuclear weapons or other nuclear explosive devices could readily be made, and minimization of verification procedures in respect of other nuclear material, on condition that this does not hamper the Agency in applying safeguards under the Agreement.

national system of accounting for and control of nuclear material

7. The Agreement should provide that the State shall establish and maintain a system of accounting for and control of all nuclear material subject to safeguards under, the Agreement, 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. The Agency’s verification shall include, inter alia, independent measurements and observations conducted by the Agency in accordance with the procedures specified in Part II below. The Agency, in its verification, shall take due account of the technical effectiveness of the State’s system.

provision of information to the agency

8. The Agreement should provide that to ensure the effective implementation of safeguards thereunder the Agency shall be provided, in accordance with the provisions set out in Part II below, with information concerning nuclear material subject to safeguards under the Agreement and the features of facilities relevant to safeguarding such material. The Agency shall require only the minimum amount of information and data consistent with carrying out its responsibilities under the Agreement. Information pertaining to facilities shall be the minimum necessary for safeguarding nuclear material subject to safeguards under the Agreement. In examining design information, the Agency shall, at the request of the State, be prepared to examine on premises of the State design information which the State regards as being of particular sensitivity. Such information would not have to be physically transmitted to the Agency provided that it remarked available for ready further examination by the Agency on premises of the State.

agency inspectors

9. The Agreement should provide that the State shall take the necessary steps to ensure that Agency inspectors can effectively discharge their functions under the Agreement. The Agency shall secure the consent of the State to the designation of Agency inspectors to that State. If the State, either upon proposal of a designation or at any other time after a designation has been made, objects to the designation, the Agency shall propose to the State an alternative designation or designations. The repeated refusal of a State to accept the designation of Agency inspectors which would impede the inspections conducted under the Agreement would be considered by the Board upon referral by the Director General with a view to appropriate action. The visits and activities of Agency inspectors shall be so arranged as to reduce to a minimum the possible inconvenience and disturbance to the State and to the peaceful nuclear activities inspected, as well as to ensure protection of industrial secrets or any other confidential information coming to the inspectors’ knowledge.

privileges and immunities

10. The Agreement should specify the privileges and immunities which shall be granted to the Agency and its staff in respect of their functions under the Agreement. In the case of a State party to the Agreement On the Privileges and Immunities of the Agency⁴, the provisions thereof, as in force for such State, shall apply. In the case of other States, the privileges and immunities granted should be such as to ensure that:

(a) The Agency and its staff will be in a position to discharge their functions under the Agreement effectively; and

(b) No such State will be placed thereby in a more favourable position than States party to the Agreement on the Privileges and Immunities of the Agency.

termination of safeguards

Consumption or dilution of nuclear material

11. The Agreement should provide that safeguards shall terminate on nuclear material subject to safeguards thereunder upon determination by the Agency that it has been consumed, for has been diluted in such a way that it is no longer usable for any nuclear activity relevant from the point of view of safeguards, or has become practicably irrecoverable.

Transfer of nuclear material out of the State

12. The Agreement should provide, with respect to nuclear material subject to safeguards thereunder, for notification of transfers of such material out of the State, in accordance with the provisions set out in paragraphs 92–94 below. The Agency shall terminate safeguards under the Agreement on nuclear material when the recipient State has assumed responsibility therefor, as provided for in paragraph 91. The Agency shall maintain records indicating each transfer and, where applicable, the re-application of safeguards to the transferred nuclear material.

Provisions relating to nuclear material to be used in non-nuclear activities

13. The Agreement should provide that if the State wishes to use nuclear material subject to safeguards thereunder in non-nuclear activities, such as the production of alloys or ceramics, it shall agree with the Agency on the circumstances under which the safeguards on such nuclear material may be terminated.

non-application of safeguards to nuclear material to be used in non-peaceful activities

14. The Agreement should provide that if the State intends to exercise its 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, the following procedures will apply:

(a) The State shall inform the Agency of the activity, making it clear:

(i) That the use of the nuclear material in a non-proscribed military activity will not be in conflict with an undertaking the State may have given and in respect of which Agency safeguards apply, that the nuclear material will be used only in a peaceful nuclear activity; and

(ii) That during the period of non-application of safeguards the nuclear material will not be used for the production of nuclear weapons or other nuclear explosive devices;

(b) The State and the Agency shall make an arrangement so that, only while the nuclear material is in such an activity, the safeguards provided for in the Agreement will not be applied. The arrangement shall identify, to the extent possible, the period or circumstances during which safeguards will not be applied. In any event, the safeguards provided for in the Agreement shall again apply as soon as the nuclear material is reintroduced into a peaceful nuclear activity. The Agency shall be kept informed of the total quantity and composition of such unsafeguarded nuclear material in the State and of any exports of such material; and

(c) Each arrangement shall be made in agreement with the Agency. The Agency’s agreement shall be given as promptly as possible; it shall only relate to the temporal and procedural provisions, reporting arrangements, etc., but shall not involve any approval or classified knowledge of the military activity or relate to the use of the nuclear material therein.

finance

15. The Agreement should contain one of the following sets of provisions:

(a) An agreement with a Member of the Agency should provide that each party thereto shall bear the expenses it incurs in implementing its responsibilities thereunder. However, if the State or persons under its jurisdiction incur extraordinary expenses as a result of a specific request by the Agency, the Agency shall reimburse such expenses provided that it has agreed in advance to do so. In any case the Agency shall bear the cost of any additional measuring or sampling which inspectors may request; or

(b) An agreement with a party not a Member of the Agency should in application of the provisions of Article XIV.C of the Statute⁵ provide that the party shall reimburse fully to the Agency the safeguards expenses the Agency incurs thereunder. However, if the party or persons under its jurisdiction incur extraordinary expenses as a result of a specific request by the Agency, the Agency shall reimburse such expenses provided that it has agreed in advance to do so.

party liability for nuclear damage

16. The Agreement should provide that the State shall ensure that any protection against third party liability in respect of nuclear damage, including any insurance or other financial security, which may be available under its laws or regulations shall apply to the Agency and its officials for the purpose of the implementation of the Agreement, in the same way as that protection applies to nationals of the State.

international responsibility

17. The Agreement should provide that any claim by one party thereto against the other in respect of any damage, other than damage arising out of a nuclear incident, resulting from the implementation of safeguards under the Agreement, shall be settled in accordance with international law.

measures in relation to verification of non-diversion

18. The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.

19. The Agreement should provide that if the Board upon examination of relevant information reported to it by the Director General finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under the Agreement to nuclear weapons or ether nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute and may also take, where applicable, the other measures provided for in that paragraph. In taking such action the Board shall take account of the degree of assurance provided by the safeguards measures that have been applied and shall afford the State every reasonable opportunity to furnish the Board with any necessary reassurance.

interpretation and application of the agreement and settlement of disputes

20. The Agreement should provide that the parties thereto shall, at the request of either, consult about any question arising out of the interpretation or application thereof.

21. The Agreement should provide that the State shall have the right to request that any question arising out of the interpretation or application thereof be considered by the Board; and that the State shall be invited by the Board to participate in the discussion of any such question by the Board.

22. The Agreement should provide that any dispute arising out of the interpretation or application thereof except a dispute with regard to a finding by the Board under paragraph 19 above or an action taken by the Board pursuant to such a finding which is not settled by negotiation or another procedure agreed to by the parties should, on the request of either party, be submitted to an arbitral tribunal composed as follows: each party would designate one arbitrator, and the two arbitrators so designated would elect a third, who would be the Chairman. If, within 30 days of the request for arbitration, either party has not designated an arbitrator, either party to the dispute may request the President of the International Court of Justice to appoint an arbitrator. The same procedure would apply if, within 30 days of the designation or appointment of the second arbitrator, the third arbitrator had not been elected. A majority of the members of the arbitral tribunal would constitute a quorum, and all decisions would require the concurrence of two arbitrators. The arbitral procedure would be fixed by the tribunal. The decisions of the tribunal would be binding on both parties.

final clauses

Amendment of the Agreement

23. The Agreement should provide that the parties thereto shall, at the request of either of them, consult each other on amendment of the Agreement. All amendments shall require the agreement of both parties. It might additionally be provided, if convenient to the State, that the agreement of the parties on amendments to Part II of the Agreement could be achieved by recourse to a simplified procedure. The Director General shall promptly inform all Member States of any amendment to the Agreement.

Suspension of application of Agency safeguards under other agreements

24. Where applicable and where the State desires such a provision to appear, the Agreement should provide that the application of Agency safeguards in the State under other safeguards agreements with the Agency shall be suspended while the Agreement is in force. If the State has received assistance from the Agency for a project, the State’s undertaking in the Project Agreement not to use items subject thereto in such a way as to further any military purpose shall continue to apply.

Entry into force and duration

25. The Agreement should provide that it shall enter into force on the date on which the Agency receives from the State written notification that the statutory and constitutional requirements for entry into force have been met. The Director General shall promptly inform all Member States of the entry into force.

26. The Agreement should provide for it to remain in force as long as the State is party to the Treaty on the Non-Proliferation of Nuclear Weapons.

[Omitted here is Part II of the document.]

1. Source: Documents on Disarmament, 1971, pp. 218–244.
2. This document entitled “The Structure and Contents of IAEA Safeguards Agreements Under the Nonproliferation Treaty,” outlined the objectives and applications of the agreement, including policies on cooperation, implementation, accountability, and finance.
1. The Structure and Content of Agreements Between the Agency and States Required in Connection With the Treaty on the Non-proliferation of Nuclear Weapons (INFCIRC/153). This document was adopted by the IAEA Board of Governors on Apr. 20, 1971.
2. Documents on Disarmament, 1968, pp. 461–465.
3. The italicized terms are defined at the end of the paper
4. INFCIRC/9/Rev. 2.
5. American Foreign Policy: Current Documents, 1956, pp. 915 ff.