U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" ! SENATE 107TH CONGRESS

2d Session

TREATY DOC.

2002

107–7

THE PROTOCOL TO THE AGREEMENT OF THE INTERNATIONAL ATOMIC ENERGY AGENCY REGARDING

SAFEGUARDS IN THE UNITED STATES

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE PROTOCOL ADDITIONAL TO THE AGREEMENT BETWEEN THE

UNITED STATES OF AMERICA AND THE INTERNATIONAL ATOMIC ENERGY AGENCY FOR THE APPLICATION OF SAFEGUARDS IN

THE UNITED STATES OF AMERICA, WITH ANNEXES, SIGNED AT

VIENNA JUNE 12, 1998

MAY 10, 2002.—Protocol was read the first time, and together with the

accompanying papers, referred to the Committee on Foreign Relations

and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, May 9, 2002.

To the Senate of the United States:

I submit herewith, for Senate advice and consent to ratification,

the Protocol Additional to the Agreement Between the United

States of America and the International Atomic Energy Agency for

the Application of Safeguards in the United States of America, with

annexes, signed at Vienna June 12, 1998 (the ‘‘Additional Protocol’’). Adhering to the Additional Protocol will bolster U.S. efforts

to strengthen nuclear safeguards and promote the nonproliferation

of nuclear weapons, which is a cornerstone of U.S. foreign and national security policy.

At the end of the Persian Gulf War, the world learned the extent

of Iraq’s clandestine pursuit of an advanced program to develop nuclear weapons. In order to increase the capability of the International Atomic Energy Agency (the ‘‘Agency’’) to detect such programs, the international community negotiated a Model Additional

Protocol (the ‘‘Model Protocol’’) to strengthen the Agency’s nuclear

safeguards system. The Model Protocol is to be used to amend the

existing bilateral safeguards agreements of states with the Agency.

The Model Protocol is a milestone in U.S. efforts to strengthen

the safeguards system of the Agency and thereby to reduce the

threat posed by clandestine efforts to develop a nuclear weapon capability. By accepting the Model Protocol, states assume new obligations that will provide far greater transparency for their nuclear

activities. Specifically, the Model Protocol strengthens safeguards

by requiring states to provide broader declarations to the Agency

about their nuclear programs and nuclear-related activities and by

expanding the access rights of the Agency.

The United States signed the Additional Protocol at Vienna on

June 12, 1998. The Additional Protocol is a bilateral treaty that

would supplement and amend the Agency verification arrangements under the existing Agreement Between the United States of

America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America of November 18, 1977 (the ‘‘Voluntary Offer’’), which entered into force on

December 9, 1980. The Additional Protocol will enter into force

when the United States notifies the Agency that the U.S. statutory

and constitutional requirements for entry into force have been met.

The Treaty on the Non-Proliferation of Nuclear Weapons (the

‘‘NPT’’) requires non-nuclear-weapon states parties to accept Agency safeguards on their nuclear activities. The United States, as a

nuclear-weapon state party to the NPT, is not obligated to accept

Agency safeguards on its nuclear activities. Nonetheless, it has

been the announced policy of the United States since 1967 to perVerDate 11-MAY-2000 06:36 May 11, 2002 Jkt 099118 PO 00000 Frm 00003 Fmt 7633 Sfmt 7633 E:\HR\OC\TD007.XXX pfrm04 PsN: TD007
IV

mit the application of Agency safeguards to its nuclear facilities—

excluding only those of direct national security significance. The

Additional Protocol similarly allows the United States to exclude

its application in instances where the United States decides that

its application would result in access by the Agency to activities

with direct national security significance to the United States or

access to locations or information associated with such activities. I

am, therefore, confident that the Additional Protocol, given our

right to invoke the national security exclusion and to manage access in accordance with established principles for implementing

these provisions, can be implemented in a fashion that is fully consistent with U.S. national security.

By submitting itself to the same safeguards on all of its civil nuclear activities that non-nuclear-weapon states parties to the NPT

are subject to, the United States intends to demonstrate that adherence to the Model Protocol does not place other countries at a

commercial disadvantage. The U.S. signature of the Additional Protocol was an important factor in the decisions of many non-nuclearweapon states to accept the Model Protocol and provided significant

impetus toward their early acceptance. I am satisfied that the provisions of the Additional Protocol, given our right to manage access

in accordance with Article 7 and established implementation principles, will allow the United States to prevent the dissemination of

proliferation-sensitive information and protect proprietary or commercially sensitive information.

I also transmit, for the information of the Senate, the report of

the Department of State concerning the Additional Protocol, including an article-by-article analysis, a subsidiary arrangement, and a

letter the United States has sent to the Agency concerning the Additional Protocol. Additionally, the recommended legislation necessary to implement the Additional Protocol will be submitted separately to the Congress.

I believe that the Additional Protocol is in the best interests of

the United States. Our acceptance of this agreement will sustain

our longstanding record of voluntary acceptance of nuclear safeguards and greatly strengthen our ability to promote universal

adoption of the Model Protocol, a central goal of my nuclear nonproliferation policy. Widespread acceptance of the Protocol will contribute significantly to our nonproliferation objectives as well as

strengthen U.S., allied, and international security. I, therefore,

urge the Senate to give early and favorable consideration to the

Additional Protocol, and to give advice and consent to its ratification.

GEORGE W. BUSH.

(V)

LETTER OF SUBMITTAL

THE SECRETARY OF STATE, Washington, April 30, 2002.

THE PRESIDENT: I have the honor to submit to you the Protocol

Additional to the Agreement Between the United States of America

and the International Atomic Energy Agency for the Application of

Safeguards in the United States of America, with annexes (the ‘‘Additional Protocol’’). I recommend that the Additional Protocol be

transmitted to the Senate for advice and consent to ratification.

Also enclosed, for the information of the Senate, are a letter the

United States has sent to the International Atomic Energy Agency

(the ‘‘Agency’’) concerning the Additional Protocol; a Subsidiary Arrangement to the Additional Protocol, which specifies particular,

but not all, measures that the United States intends to use to protect information of direct national security significance to the

United States and to manage access under the Additional Protocol;

and an article-by-article analysis of the Additional Protocol, including its annexes. The recommended legislation necessary to implement the Additional Protocol will be submitted separately to the

Congress.

The Additional Protocol was approved by the Board of Governors

of the Agency on June 11, 1998, signed by the United States and

the Agency on June 12, 1998, and will enter into force when the

United States notifies the Agency that the U.S. statutory and constitutional requirements for entry into force have been met. The

Administration intends to put in place the necessary regulatory

and implementation framework before entry into force.

This Additional Protocol is a bilateral treaty that supplements

and amends the Agency verification arrangements set forth in the

existing Agreement Between the United States of America and the

International Atomic Energy Agency for the Application of Safeguards in the United States of America of November 18, 1977 (the

‘‘Voluntary Offer’’), which entered into force on December 9, 1980.

Specifically, this Additional Protocol expands the types of nuclear

and nuclear-related locations and activities the United States will

declare and, by permitting access to these locations and activities

in certain circumstances, expands the Agency’s access rights. As is

the case with the Voluntary Offer, the Additional Protocol permits

the United States to exclude its application in instances where its

application would result in access by the Agency to activities with

direct national security significance to the United States or to locations or information associated with such activities (the ‘‘National

Security Exclusion’’). Consistent with the President’s authority, the

decision by a Federal Agency to use the National Security Exclusion will be guided by principles developed for its application. The

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United States intends to provide information and access to the

Agency in accordance with the terms of the Additional Protocol in

order to assist it in developing the procedures, tools, and techniques that will strengthen the capability of the Agency to detect

undeclared nuclear activities in non-nuclear-weapon states. The

Additional Protocol contains no arms control or disarmament undertakings.

The Treaty on the Non-Proliferation of Nuclear Weapons (the ‘‘NPT’’) requires non-nuclear-weapon states parties to accept Agency safeguards on all nuclear material in all of their peaceful nuclear activities. The United States, as a nuclear-weapon state party

to the NPT, is under no legal obligation to accept such safeguards.

However, beginning with President Johnson’s 1967 pledge, it has

been the announced policy of the United States to permit the application of Agency safeguards to all of its nuclear facilities, except

only those excluded for national security reasons. By submitting

itself to the same safeguards on all of its civil nuclear facilities that

non-nuclear-weapon states parties are subject to, the United States

intended to demonstrate that adherence to the NPT did not place

other countries at a commercial disadvantage, either because of increased costs associated with safeguards or because of the risk of

the compromise of proprietary information. This offer was critical

to gaining the acceptance of the NPT by countries such as Germany and Japan.

At the end of the Persian Gulf War, the world learned about the

extent of Iraq’s clandestine pursuit of an advanced program to develop nuclear weapons. The international community recognized

that the Agency’s international inspection system needed to be

strengthened in order to increase its capability to detect secret nuclear programs. After 4 years of work by the Secretariat of the

Agency, an Agency committee agreed on a Model Additional Protocol (the ‘‘Model Protocol’’) for strengthening nuclear safeguards.

The Model Protocol was approved by the Agency’s Board of Governors in 1997. The Model Protocol was designed to be used to

amend existing safeguards agreements to strengthen such safeguards by requiring non-nuclear-weapon states to provide, inter

alia, broader declarations to the Agency about their nuclear programs and nuclear-related activities, and by expanding the access

rights of the Agency. The new safeguards measures become effective in each state when it brings its protocol into force.

During the negotiations of the Model Protocol, many non-nuclearweapon states parties to the NPT urged the United States, as the

strongest proponent, to accept on a voluntary basis the provisions

of the Model Protocol. Following the example of the Voluntary

Offer, the United States stated during the negotiations that it

would accept the provisions of the Model Protocol, subject to a National Security Exclusion. The United States took a leading role in

the negotiation of the Model Protocol, and the success in achieving

a strong Model Protocol was critically dependent on voluntary acceptance of Model Protocol measures by the United States. The

U.S. signature of the Additional Protocol was a significant factor in

the early decision by many non-nuclear-weapon states to accept the

Protocol. By the end of March of this year, 61 states had signed additional protocols with the Agency based on the Model Protocol.

VII

The Model Protocol requires states to report a range of information to the Agency about their nuclear and nuclear-related activities and about the planned developments in their nuclear fuel cycles. This includes expanded information about their holdings of

uranium and thorium ores and ore concentrates and of other plutonium and uranium materials not currently subject to Agency safeguards, general information about their manufacturing of equipment for enriching uranium or producing plutonium, general information about their nuclear fuel cycle-related research and development activities not involving nuclear material, and their import

and export of nuclear material and equipment.

Such broad-based information makes it substantially more difficult for a state planning a nuclear-weapon program to conceal the

early stages of that program and provides the Agency with a critical reference base for comparison with information otherwise

available to it, including information from other states. The Model

Protocol also provides the Agency with certain rights of access to

declared locations as well as to other locations to investigate the

possibility of undeclared activities. This increased risk of early detection is intended to deter non-nuclear-weapon states that might,

in the future, be tempted to undertake a clandestine nuclear weapon program. With increased transparency of non-nuclear-weapon

states’ nuclear programs, the Agency should be able to provide

greater assurance of both the absence of diversion of declared nuclear material and the absence of undeclared nuclear material and

activities in non-nuclear-weapon states.

Minimizing the burden of safeguards on inspected locations is a

long-standing concern of the Agency and its member states and is

reflected in a number of provisions of existing safeguards agreements, including the Voluntary Offer, and in the Model Protocol.

Existing Agency safeguards agreements specify that safeguards

shall be implemented in a manner designed to avoid hampering

economic and technological development and to avoid undue interference in peaceful nuclear activities, that the Agency shall take

every precaution to protect commercial and industrial secrets and

other confidential information coming to its knowledge, and that

the Agency shall require only the minimum amount of information

and data consistent with carrying out its responsibilities. These

provisions of existing safeguards agreements remain in force and

are expanded by the Model Protocol.

The overall design of the Model Protocol was shaped by the interest of states in establishing an appropriate balance between improving the effectiveness of the safeguards system and the need to

avoid undue interference with legitimate nuclear or nuclear-related

activities. The declaration requirements of the Model Protocol are

of a general character. The Agency is precluded from mechanistically or systematically verifying the declarations. The Model Protocol defines the activities the Agency may carry out at locations

of different types; provides for managed access to protect various

classes of sensitive information; and provides for the negotiation of

subsidiary arrangements as needed to further define how Protocol

measures shall be applied, including at particular locations. The

Model Protocol requires the Agency to maintain a stringent regime

VIII

to ensure effective protection against disclosure of confidential information.

The Department of State, the former Arms Control and Disarmament Agency, the Department of Defense, the Department of

Energy, and the Nuclear Regulatory Commission, with the advice

and support of the Central Intelligence Agency, were primarily responsible for the negotiation of the Additional Protocol. The responsibility for preparing for its entry into force has been undertaken

by an interagency group led by the National Security Council staff

and comprised of representatives of the Department of State, the

Department of Defense, the Department of Justice, the Department

of Commerce, the Department of Energy, the Nuclear Regulatory

Commission, and the Central Intelligence Agency. Based on the deliberations of this interagency group, the Department of State, the

Department of Defense, the Department of Justice, the Department

of Commerce, the Department of Energy, and the Nuclear Regulatory Commission, with the advice and support of the Central Intelligence Agency, support the transmittal of the Additional Protocol to the Senate for advice and consent to ratification.

Acceptance of the Additional Protocol will sustain the longstanding U.S. record of voluntary acceptance of nuclear safeguards

and greatly strengthen the U.S. ability to promote universal adoption of the Model Protocol, a central goal of U.S. nuclear nonproliferation policy. Widespread acceptance of the Model Protocol

will contribute significantly to U.S. nonproliferation objectives, as

well as strengthen U.S. and international security. I therefore recommend that you submit the Additional Protocol to the Senate for

its advice and consent to ratification at the earliest possible date.

Respectfully submitted,

COLIN L. POWELL.

(1)

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