cooperation contain varying degrees of reciprocity in certain undertakings, the United States-Canada agreement[,] as proposed to be amended[,] along with the Australian agreement are the only agreements in which the safeguards undertakings are reciprocal between the parties. Thus, it requires the application of IAEA safeguards in the United States and Canada and provides for bilateral safeguards arrangements in the event IAEA is not or will not be applying safeguards. These provisions apply only to peaceful nuclear energy activities in the United States and do not relate to, or in any way affect, our activities which are of direct significance to national security.

The proposed protocol provides that the implementation of the United States-IAEA agreement for the application of safeguards in the United States will satisfy the requirement for safeguards in the United States. . . .

On April 23, 1980, President Carter approved the Protocol, which was then signed at Ottawa on the same day. On April 28, 1980, the President transmitted the Protocol to the Congress, together with his statutorily required determination, the joint memorandum from Secretaries Vance and Duncan, a summary of the Protocol's provisions, the views of the Nuclear Regulatory Commission, and the view of the Acting Director of the Arms Control and Disarmament Agency, dated April 17, 1980, together with his Nuclear Proliferation Assessment Statement. In his message of transmittal, the President stated:

In my judgment the United States-Canada Agreement for Cooperation, as proposed to be amended, meets all statutory requirements.

I am particularly pleased to transmit such an agreement with Canada, one of the strongest supporters of the Non-Proliferation Treaty and of international non-proliferation efforts generally. The proposed Protocol reflects the desire of the Government of the United States and the Government of Canada to update the framework for peaceful nuclear cooperation between our two countries in a manner that recognizes our common non-proliferation goals as well as the singularly close and extensive relationship between the United States and Canada in the peaceful applications of nuclear energy. The proposed Protocol will, in my view, further the non-proliferation and other foreign policy interests of the United States.

*

H.R. Doc. 96-304, 96th Cong., 2d sess. (Apr. 28, 1980), p. (1). House Doc. 96-304 contains all relevant documents.

For the Protocol Amending the Agreement for Cooperation Concerning Civil Uses of Atomic Energy Between the Government of the United States of America and the Government of Canada, signed Apr. 23, 1980, see TIAS 9759; 32 UST 1079; entered into force, July 9, 1980.

-R.J.B.

International Atomic Energy Agency Safeguards

On July 2, 1980, the United States Senate, by a vote of 90 yeas, with 10 Senators absent and not voting, gave its advice and consent to ratification of the Agreement between the United States and the International Atomic Energy Agency for the Application of Safeguards in the United States, with Protocol, done at Vienna, November 18, 1977, subject to five understandings recommended by the Senate Committee on Foreign Relations (TIAS 9889; entered into force, December 9, 1980).

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), done at Washington, London, and Moscow, July 1, 1968 (TIAS 6839; 21 UST 483; entered into force, March 5, 1970), commits non-nuclear weapon states parties to accept International Atomic Energy Agency (IAEA) safeguards on all their peaceful nuclear activities. Although the United States, as a nuclear weapon state, is under no legal obligation to accept such safeguards, United States policy, announced during negotiation of the Non-Proliferation Treaty, had been to permit the application of IAEA safeguards at United States nuclear facilities, excluding only those of direct national security significance.

The Senate Committee on Foreign Relations reported favorably on the safeguards agreement, but made clear its intent that the Congress have a continuing, "positive and direct" role in reviewing determinations made by the Executive Branch in implementation of the Treaty.

Excerpts from the Committee's report follow:

RELATIONSHIP OF THE TREATY TO U.S. NON-PROLIFERATION, FOREIGN AND NATIONAL SECURITY POLICIES

Non-proliferation policy is a key element of overall U.S. national security and foreign policy. The proposed Treaty is related to the political viability of the non-proliferation regime and of the NonProliferation Treaty (NPT) and to the effectiveness of U.S. support for IAEA safeguards. Fulfillment of U.S. Presidential commitments to accept IAEA safeguards is important to key allies and is required by Canada and Australia as a framework for U.S. import of uranium for toll enrichment or for use in the United States.

The U.S. voluntary offer was made and reiterated by a series of U.S. Presidents in the context of the NPT. Universal participation in the NPT is a central goal of our non-proliferation policy. [Because the safeguards agreements of nuclear weapons states parties to the NPT-the United States, the United Kingdom, and the Union of Soviet Socialist Republics-are not required by the Treaty but undertaken voluntarily, they are often referred to as "voluntary offers".] The entry into force of the U.S./IAEA Safeguards Agreement is important to maintain and increase that

participation. Essentially, it is designed to demonstrate that adherence to the NPT and acceptance of IAEA safeguards does not place other inspected countries at a commercial disadvantage. Several industrialized Western European countries and Japan ratified the NPT in reliance upon our assurance that we would permit the application of IAEA safeguards in the United States. U.S. ratification of this safeguards treaty is considered key to a successful NPT Review Conference-now scheduled for this August 1980 in Geneva. Application of safeguards under the Treaty will be a partial but important answer to concerns of the non-nuclear weapon states over discrimination inherent in the non-proliferation regime.

A parallel offer by the United Kingdom is already being implemented. The NPT safeguards agreement among the IAEA, EURATOM and the EURATOM Non-Nuclear Weapon States entered into force in February 1977. The Japan/IAEA safeguards agreement pursuant to the NPT entered into force in December 1977.

Ratification of the U.S./IAEA Treaty is directly connected with our future nuclear cooperation with Australia and Canada. The Treaty will be the vehicle by which we can meet their export requirements, according to which their nuclear exports will go only to states that have accepted IAEA safeguards on their peaceful nuclear activities. Continued ability to import uranium from these states, perform enrichment services, and then export the fuel under U.S. Agreements for Cooperation contributes to our nonproliferation objectives as well as to improving the U.S. balance of payments. Use of exported uranium in the United States is also an option important to U.S. activities.

The Agreement is also central to U.S. efforts to help the IAEA to improve its safeguards. U.S. credibility in advocating, within the IAEA, implementation of effective measures is directly related to our own acceptance of those measures. As new facility types come under IAEA safeguards, the Treaty will involve the United States in the evolution of safeguards approaches. Application of agency safeguards in U.S. nuclear facilities will provide us an opportunity to obtain a more thorough, first-hand knowledge of the safeguards procedures, thus improving our ability to identify any areas in need of improvement and our ability to gain acceptance of such improvements.

II. SUMMARY OF THE TREATY AND RELATED DOCUMENTS

THE AGREEMENT AND THE PROTOCOL

Part I of the Agreement (Articles 1-26) sets out IAEA and United States commitments and Part II (Articles 27-90) describes the implementing procedures. The Protocol, which is an integral part of the Agreement, describes procedures for facilities selected by the IAEA only to submit reports and not to be subject to safeguards inspection.

Facilities Covered.-Under Article 1(b), the United States will submit to the IAEA a list (the eligible list) of all U.S. nuclear facilities excluding those associated with activities with direct

national security significance. Pursuant to Articles 2(b), 39(b), and 39(c), the IAEA will identify facilities from the eligible list, and for these facilities the United States, under Article 1(a), will permit the application of safeguards provided in the Agreement on all source or special fissionable material (e.g., reactor fuel) in such facilities. The United States and the IAEA under Article 39(a) will prepare Subsidiary Arrangements specifying how procedures in the Agreement will be applied at such facilities. Every effort is to be made to conclude this process within 90 days of entry into force (Article 40(a)). The United States may withdraw any facility from the eligible list whenever it determines that it is associated with activities with direct national security significance; in exceptional cases without advance notice to the IAEA (Article 34(b)).

Facilities Not Subject to Safeguards Inspection.-Pursuant to Article 2 of the Protocol, the Agency may also designate facilities from the eligible list which it will not inspect, but for which inventory and design information must be submitted. Such facilities would provide the same accountancy reports as required by the IAEA for the other facilities. IAEA inspectors may visit such facilities under Article II of the Protocol to verify design information and for other agreed purposes. Transitional Subsidiary Arrangements are to be concluded for these facilities-parallel in form and effect to the Subsidiary Arrangements (Articles 3 and 4 of the Protocol).

Protection of Information.-The IAEA under Article 5 must protect confidential and proprietary information. The operating regulations of the IAEA, in accordance with requirements in the IAEA Statute, provide physical protection to safeguards, confidential information similar to that which the United States provides for classified national security information. The IAEA will require only the minimum amount of information necessary to carry out its responsibilities under the Agreement (Article 8(b)). When sensitive design information is required to be shown to the IAEA, access can be restricted to premises in the United States (Article 8(c)).

Non-Discrimination.-To prevent inequitable treatment, the IAEA must "proceed in a manner which the IAEA and the United States mutually agree takes into account the requirement on the United States to avoid discriminatory treatment as between United States commercial firms similarly situated." (Article 2(c)).

Exempted Material.-Source material in mining and ore processing activities is excepted from any coverage of the Agreement (Article 33). Also, at the request of the United States, the IAEA is required to exempt gram quantities of special fissionable material in sensing components, recoverable nuclear material in nonnuclear uses, and Pu-238 (Article 36); and other specified amounts of nuclear material (e.g., one kilogram of special fissionable material) (Article 37).

Specific Inspection Purposes.-The IAEA may inspect the facilities it identifies on the eligible list to verify design information; initial inventory information; changes that have occurred after the initial report; that reports to it are consistent with the records kept

by the operators; the identity, location, quantity and composition of nuclear material subject to safeguards; and information on the possible causes of material unaccounted for, shipper/receiver differences and uncertainties in book inventory (Articles 48, 69, 70). The United States must also report without delay any unusual incidents or circumstances that may indicate loss of material subject to safeguards or unexpected changes in containment of nuclear material (Articles 66, 71).

Inspection Procedures.-As a general rule, Article 81 provides that IAEA inspections must be announced in advance. However, in accordance with the principle of random sampling, the IAEA, as a supplementary measure, may conduct a portion of the routine inspections without notice (Article 82). All inspections must be performed in such a way as to avoid hampering the operation of the facility. Inspectors may not operate a facility or direct that the staff carry out any operation. Necessary safeguard operations under Articles 72 and 73, e.g., sampling, may be done by facility personnel at the request of an inspector (Article 85).

U.S. Approval of Inspectors.-The United States may object to specific inspectors, whereupon the IAEA would propose others. If the United States repeatedly refuses to accept inspectors, however, the Director General must so notify the Board of Governors, with a view to its taking "appropriate action" (Article 9).

Termination of Safeguards.-Safeguards on nuclear material terminate when the IAEA determines it has been consumed or diluted so that it is no longer useable for any nuclear activity relevant from the point of view of safeguards, or has become practically irrecoverable (Article 11). Safeguards may also be terminated on nuclear material used in non-nuclear activities (Article 13) and further arrangements on termination can be made as mutually agreed (Article 35). In addition, under Article 12, the United States may withdraw nuclear material from activities in facilities on the eligible list and this in effect terminates safeguards on such material.

Dispute Resolution.-Articles 17 to 21 deal with disputes or questions arising under the Agreement. In general, disputes will be settled by binding arbitration. However, if the Board of Governors decides that "an action by the United States is essential and urgent to ensure compliance" with the Agreement, it may call on the United States to take such action. If the Board determines that there has been non-compliance, it may call upon the United States to remedy the non-compliance, and, if the United States fails to take "fully corrective action within a reasonable time," the Board shall report the non-compliance to the Security Council and the General Assembly of the United Nations and take other action provided for by Article XII of the IAEA Statute.

Suspension of Other Safeguards Agreements.-Under Article 22, the United States must initiate steps to suspend the application of safeguards in effect for nuclear material in the United States under other IAEA safeguards agreements. It must be assured that material of like amount and composition is subject to safeguards under the Agreement.

Entry into Force, Duration and Termination.-The Agreement will enter into force when the IAEA is notified by the United