Sunday, 27 December 2020
Nuclear trickery in Brexit deal
The Brexit trade agreement between the UK and EU of 24 December 2020 contains over 1200 pages, including annexes. (https://www.gov.uk/government/publications/agreements-reached-between-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-european-union) It includes an 18 page section on nuclear co-operation (https://ec.europa.eu/info/sites/info/files/draft_eu-uk_civil_nuclear_agreement.pdf) , which is strong on outlining the importance of nuclear safeguards, peaceful uses of nuclear materials and regulatory oversight. Below I have extracted the key sections dealing with nuclear materials. It contains a surprising provision at the end that would render the atomic agreement invalid. Read on… It opens with a Preamble: OBSERVING that the United Kingdom and all Member States of the Community are parties to the Treaty on the Non‐Proliferation of Nuclear Weapons, done at Washington, London and Moscow on 1 July 1968 and which entered into force generally on 5 March 1970, (the “NPT”); REAFFIRMING the commitment of the Parties to ensuring that the international development and use of nuclear energy for peaceful purposes shall further the objective of the non‐proliferation of nuclear weapons; REAFFIRMING the support of the Parties for the objectives of the NPT and their desire to promote universal adherence to the NPT; RECALLING the strong commitment of the United Kingdom, the Community and its Member States to nuclear non‐proliferation, including the strengthening and efficient application of the related safeguards and export control regimes under which cooperation in the peaceful uses of nuclear energy between the United Kingdom and the Community is carried out; RECOGNISING that the United Kingdom, as a nuclear‐weapon State under the NPT, has voluntarily entered into the Agreement between the United Kingdom of Great Britain and Northern Ireland and the International Atomic Energy Agency for the Application of Safeguards in the United Kingdom of Great Britain and Northern Ireland in Connection with the Treaty on the Non‐Proliferation of Nuclear Weapons and the Protocol Additional to that Agreement both done at Vienna on 7 June 2018 (hereinafter collectively referred to as the “United Kingdom‐IAEA Safeguards Agreement”); NOTING that nuclear safeguards are applied in all Member States of the Community pursuant to both the Treaty establishing the European Atomic Energy Community (the “Euratom Treaty") and the safeguards agreements concluded between the Community, its Member States and the IAEA; NOTING that the United Kingdom and all Member States of the Community participate in the Nuclear Suppliers Group; REITERATING commitments of the United Kingdom and the Member States of the Community to their bilateral agreements in the peaceful uses of nuclear energy, HAVE AGREED AS FOLLOWS: Article 1 Objective 1. The objective of this Agreement is to provide a framework for cooperation between the Parties in the peaceful uses of nuclear energy on the basis of mutual benefit and reciprocity and without prejudice to the respective competences of each Party. 2. Cooperation under this Agreement shall be carried out exclusively for peaceful purposes. 3. The items subject to this Agreement shall only be used for peaceful purposes and shall not be used for any nuclear weapon or nuclear explosive device, nor for research on or development of any nuclear weapon or other nuclear explosive device or for any military purpose. (i) “peaceful purpose” includes the use of nuclear material, including nuclear material derived by one or more processes, non‐nuclear material, equipment and technology in such fields as electric power and heat generation, medicine, agriculture and industry, but does not include fabrication of, research on, or development of nuclear weapons or other nuclear explosive devices, or any military purpose. A military purpose does not include provision of power for a military base drawn from any power network, or production of radioisotopes to be used for medical purposes in a military hospital; Article 3 Scope of nuclear cooperation 1. The cooperation in peaceful uses of nuclear energy envisaged between the Parties under this Agreement may include: (h) nuclear safeguards and physical protection (k) regulatory aspects of the peaceful uses of nuclear energy; 2. The cooperation in specific areas set out in paragraph 1 may be implemented as necessary through arrangements between a legal entity established in the United Kingdom and a legal entity established in the Community, which the respective competent authority notifies to the other competent authority as being duly authorised to implement such cooperation… Article 4 Forms of nuclear cooperation The cooperation described in Article 3 [Scope of nuclear cooperation] may take, but is not limited to, the following forms: (a) transfer of nuclear material…(b) exchange of information in areas of mutual interest, such as nuclear safeguards… Article 5 Items subject to this Agreement (a) nuclear material, non‐nuclear material, equipment or technology, transferred between the Parties or their respective persons, whether directly or through a third party. Such nuclear material, non‐nuclear material, equipment or technology shall become subject to this Agreement upon its entry into the territorial jurisdiction of the receiving Party, provided that the supplier Party has notified the receiving Party in writing of the transfer, and the receiving Party has confirmed in writing that such item is or will be held subject to this Agreement and that the proposed recipient, if other than the receiving Party, is an authorised person under the territorial jurisdiction of the receiving Party; (b) nuclear material, non‐nuclear material or equipment used in, or produced through the use of, items subject to this Agreement and as may be further determined in the administrative arrangements established pursuant to Article 15 [Administrative arrangements]; (c) nuclear material, non‐nuclear material, equipment or technology, as determined in accordance with the procedures set out in the administrative arrangements established pursuant to Article 15 [Administrative arrangements] as being subject to this Agreement following the entry into force of this Agreement; 3. Items to which this Agreement applies as referred to in paragraph 1 shall remain subject to the provisions of this Agreement until it has been determined, in accordance with the procedures set out in the administrative arrangements established pursuant to Article 15 [Administrative arrangements], that: (b) in respect of nuclear material, such nuclear material is no longer usable for any nuclear activity relevant from the point of view of safeguards referred to in Article 6(1) [Safeguards] or has become practicably irrecoverable; for the purpose of determining when nuclear material subject to this Agreement is no longer usable or is no longer practicably recoverable for processing into a form in which it is usable for any nuclear activity relevant from the point of view of safeguards, both Parties shall accept a determination made by the IAEA in accordance with the provisions for the termination of safeguards of the relevant safeguards agreement to which the IAEA is a party; Article 6 Safeguards 1. Nuclear material subject to this Agreement shall be subject to the following conditions: (a) in the Community, to the Euratom safeguards pursuant to the Euratom Treaty and to the IAEA safeguards pursuant to the following safeguards agreements, as they may be revised and replaced, and in accordance with the NPT: (i) the Agreement between the Community's non‐nuclear weapon Member States, the European Atomic Energy Community and the International Atomic Energy Agency, done at Brussels on 5 April 1973 and which entered into force on 21 February 1977 (IAEA INFCIRC/193) and the Agreement between France, the European Atomic Energy Community and the International Atomic Energy Agency, done in July 1978 and which entered into force on 12 September 1981 (IAEA INFCIRC/290); and (ii) the Additional Protocols IAEA INFCIRC/193/Add.8, and IAEA INFCIRC/290/Add.1 signed in Vienna on 22 September 1998 and which entered into force on 30 April 2004 on the basis of the IAEA INFCIRC/540 (corrected) (Strengthened Safeguards System, Part II); (b) in the United Kingdom: (i) to the domestic safeguards system as implemented by the national competent authority; and (ii) to the IAEA safeguards pursuant to the United Kingdom‐IAEA Safeguards Agreement. The key thing to understand is what is permitted action under INFCIRC/263. Importantly, this Tripartite Agreement states at Article 14: EXCLUSIONS ON GROUNDS OF NATIONAL SECURITY “If the United Kingdom intends to make any withdrawals of nuclear material from the scope of this Agreement for national security reasons in accordance with Article l(c), it shall give the Community and the Agency advance notice of such withdrawal. If any nuclear material becomes available for inclusion within the scope of this Agreement because its exclusion for national security reasons is no longer required, the United Kingdom shall inform the Community and the Agency thereof in accordance with Article 62(c).” (https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc263.pdf) Nor was this provision a sleeping article, not applied by the UK, as the UK Government has stated in official disclosures that it has requested nuclear materials be removed from safeguards on more than 600 occasions since 14 August 1978, when the UK “voluntary” safeguards agreement entered into force. (http://www.onr.org.uk/safeguards/index.htm; http://www.onr.org.uk/safeguards/withdrawals.htm) Thus the new nuclear agreement between the UK and EU, allows the militarization of the entire 140,000 kilogramme stockpile of plutonium in store at Sellafield. A nuclear warhead may be made with 5 kilogrammes. 2. In the event of the application of any of the agreements with the IAEA referred to in paragraph 1 being suspended or terminated for any reason within the Community or the United Kingdom, the relevant Party shall, without delay, enter into an agreement with the IAEA which provides for effectiveness and coverage equivalent to that provided for by the relevant safeguards agreements referred to in point (a) or (b) of paragraph 1, or, if that is not possible: (a) the Community, as far as it is concerned, shall apply safeguards based on the Euratom safeguards system, which provides for effectiveness and coverage equivalent to that provided by the safeguards agreements referred to in point (a) of paragraph 1 and the United Kingdom, as far it is concerned, shall apply safeguards which provide for effectiveness and coverage equivalent to that provided by the safeguards agreement referred to in point (b) of paragraph 1; (b) or, if that is not possible, the Parties shall enter into arrangements forthe application of safeguards, which provide for effectiveness and coverage equivalent to that provided by the safeguards agreements referred to in point (a) or (b) of paragraph 1. 3. Both Parties agree to implement within their respective jurisdictions a robust and effective system of nuclear material accountancy and control aiming to ensure that nuclear material subject to this Agreement is not diverted from its peaceful use. Supervision, including inspections in the installations holding nuclear material subject to this Agreement, shall be carried out in such a way that the respective competent authorities can draw independent conclusions and, when necessary, require appropriate corrective actions and monitor such actions. Article 9 Transfers, retransfers and facilitation of trade 1. Any transfer of nuclear material, non‐nuclear material, equipment or technology carried out pursuant to the cooperation activities under this Agreement shall be made in accordance with the relevant international commitments of the Community, the Member States of the Community, and the United Kingdom in relation to peaceful uses of nuclear energy as listed in Articles 6 [Safeguards] and 7 [Physical protection] and in relation to the commitments undertaken by individual Member States of the Community and the United Kingdom within the Nuclear Suppliers Group, as set out in the Guidelines for Nuclear Transfers. 2. The Parties shall facilitate trade in items subject to this Agreement between themselves or between persons established in the respective territories of the Parties in the mutual interest of producers, the nuclear fuel cycle industry, utilities and consumers. 3. The Parties shall, to such extent as is practicable, assist each other in the procurement, by either Party or by persons within the Community or under the jurisdiction of the United Kingdom, of nuclear material.. 4. The continuation of the cooperation envisaged in this Agreement shall be contingent upon the mutually satisfactory application of the system for safeguards and control established by the Community in accordance with the Euratom Treaty and of the system for safeguards and control established by the United Kingdom. 6. Transfers of nuclear material, non‐nuclear material, equipment or technology and appropriate services shall be carried out under fair commercial conditions. The implementation of this paragraph shall be without prejudice to the Euratom Treaty and its derived legislation, and to the laws and regulations of the United Kingdom. 7. Any retransfers of nuclear material.. subject to this Agreement outside the jurisdiction of the Parties shall only be made in the framework of the commitments undertaken by individual Member States of the Community and the United Kingdom within the Nuclear Suppliers Group. In particular, the Guidelines for Nuclear Transfers shall apply to retransfers of any items subject to this Agreement. 8. Written notifications in respect of transfers of items subject to this Agreement and retransfers of non‐nuclear material, equipment and technology subject to this Agreement shall be exchanged in accordance with the procedures set out in the administrative arrangements established pursuant to Article 15 [Administrative arrangements]. 10. When the Guidelines for Nuclear Transfers require the consent of the supplier Party, nuclear material subject to this Agreement shall not be transferred beyond the territorial jurisdiction of the receiving Party without the prior written consent of the supplier Party, except in accordance with paragraph 11. 11. Upon entry into force of this Agreement, the Parties shall exchange lists of countries to which retransfers of nuclear material, non‐nuclear material, equipment and technology by the other Party pursuant to paragraphs 9 and 10 of this Article are authorised. Each Party shall notify the other Party of changes to any of its lists of countries according to the procedures defined in the administrative arrangements established pursuant to Article 15 [Administrative arrangements]. 12. Where the United Kingdom or a Member State of the Community transfers technology subject to this Agreement to a Member State that falls under the exception provided for in Article 5(4) [Items subject to this Agreement], paragraphs 7 and 9 of this Article apply. The practical modalities for the implementation of this paragraph shall be defined in the framework of the administrative arrangements established pursuant to Article 15 [Administrative arrangements]. Article 15 Administrative arrangements 1. The Parties, through their respective competent authorities, shall establish administrative arrangements to implement this Agreement effectively. Such arrangements shall include the procedures necessary for the competent authorities to implement and administer this Agreement. 2. Administrative arrangements established pursuant to this Article may be amended as mutually determined in writing by the competent authorities. 3. Administrative arrangements may provide for the exchange of inventory lists in respect of the items subject to this Agreement. 4. Administrative arrangements may set out the mechanisms for consultations between the competent authorities. 5. The accounting of nuclear material and non‐nuclear material subject to this Agreement shall be based on fungibility and the principles of proportionality and equivalence of nuclear material … as set out in the administrative arrangements established pursuant to this Article. Article 17 Applicable law 1. The cooperation provided for in this Agreement shall be in accordance with the respective laws and regulations in force in the United Kingdom and within the Union and the Community as well as with the international agreements entered into by the Parties, without prejudice to Article 18 [Existing agreements]. In the case of the Community, the applicable law includes the Euratom Treaty and its secondary legislation. Article 19 Joint Committee 1. A joint committee is hereby established by the Parties. 2. The composition of and procedures relating to the Joint Committee shall be set out in the administrative arrangements established pursuant to Article 15 [Administrative arrangements]. 3. The Joint Committee shall meet regularly, and at the request of either Party’s competent authority, to supervise the implementation of this Agreement. 4. The functions of the Joint Committee shall include, but are not limited to, the following: (a) exchanging information, discussing best practices, sharing implementation experience; (b) establishing and coordinating working groups acting within the scope of this Agreement; (c) identifying, discussing and consulting on technical issues; (d) adopting recommendations for joint decisions to be made by the Parties when provided for in this Agreement, including for joint decisions to amend this Agreement; (e) acting as a forum for consultation, including in respect of dispute settlement; (f) coordinating action for cooperation in non‐power uses of nuclear energy, in particular, in order to minimise the risks of shortage of supply of medical radioisotopes, and to support the development of novel technologies and treatments involving radioisotopes, in the interest of public health; and (g) acting as a technical forum for any other matters in respect of this Agreement. Article 20 Consultation At the request of either Party, representatives of the Parties shall meet when necessary to consult with each other in the framework of the Joint Committee on matters arising out of the application of this Agreement, to supervise its operation and to discuss arrangements for cooperation in addition to those provided for in this Agreement. Such consultations may also take the form of an exchange of correspondence. Article 21 Settlement of disputes 1. The Parties shall promptly discuss in the Joint Committee any dispute between them concerning the application, interpretation or implementation of this Agreement with a view to resolving the dispute by negotiation. Any such discussion or negotiation may take the form of an exchange of correspondence. 2. Any such dispute which is not settled by negotiation and mandatory consultations in the framework of the Joint Committee shall, on the request of either Party, be submitted to an arbitral tribunal which shall be composed of three arbitrators. Each Party shall designate one arbitrator and the two arbitrators so designated shall elect a third, not a national of either Party, who shall be the chairperson. 3. If within 30 days of the request for arbitration either Party has not designated an arbitrator, the other Party to the dispute may request the President of the International Court of Justice to appoint an arbitrator to the Party which has not designated an arbitrator. If within 30 days of the designation or appointment of arbitrators for both the Parties the third arbitrator has not been elected, either Party may request the President of the International Court of Justice to appoint the third arbitrator. 4. A majority of the members of the arbitral tribunal shall constitute a quorum, and all decisions shall be made by majority vote of all the members of the arbitral tribunal. The arbitral procedure shall be established by the tribunal. The decisions of the tribunal shall be binding on both Parties and implemented by them. The remuneration of the arbitrators shall be determined on the same basis as that for ad hoc judges of the International Court of Justice. Any arbitral decision or award shall be executed in compliance with all applicable legislation of the Parties and international law. Article 22 Cessation of cooperation in case of serious breach 1. In the event that: (a) either Party or any Member State of the Community is in serious breach of any of the material obligations under Articles 1 [Objective], 5 [Items subject to this Agreement], 6 [Safeguards], 7 [Physical protection], 9 [Transfers, retransfers and facilitation of trade], 10 [Enrichment], 11 [Reprocessing] or 15 [Administrative arrangements], or any other obligations under this Agreement as may be mutually determined by the Parties in writing after consultations in the Joint Committee; or (b) in particular, a non‐nuclear weapon Member State of the Community detonates a nuclear explosive device, or a nuclear weapon Member State of the Community or the United Kingdom detonates a nuclear explosive device using any item subject to this Agreement, the other Party may, on giving written notification to that effect, suspend or terminate in whole or in part the cooperation under this Agreement. In its notification, the Party shall identify the measures which it considers to constitute a serious breach of obligations under this Agreement, specify the provisions it intends to suspend or terminate and the date from which it intends to apply the suspension or termination. 2. Before either Party takes action to that effect, the Parties shall consult in the framework of the Joint Committee with a view to reaching an amicable resolution including a decision on whether corrective or other measures are needed, and if so, the measures to be taken and the time‐scale within which such measures shall be taken. 3. Suspension or termination pursuant to paragraph 1 shall be taken only if there has been a failure to implement the corrective or other measures within the time determined by the Joint Committee or, in the event of failure to find an amicable solution, within a reasonable period of time but without delay. 4. A suspension shall cease to apply when the suspending Party is satisfied that the other Party is complying with its obligations under this Agreement, whether of its own accord or as a result of a decision of an arbitral tribunal. 5. In the event of suspension or termination of this Agreement, the supplier Party shall have the right to require the return of items subject to this Agreement. Article 24 Entry into force and duration 1. This Agreement shall enter into force on the first day of the month following that in which both Parties have notified each other that they have completed their respective internal requirements and procedures for establishing their consent to be bound. 2. This Agreement shall remain in force for an initial period of 30 years. Thereafter, this Agreement shall be automatically renewed for additional periods of ten years, unless, at least six months before the expiration of the initial 30‐year period or of any such additional ten‐year period, a Party notifies the other Party by an exchange of diplomatic notes of its intention to terminate the Agreement. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Guidance Nuclear Cooperation Agreements: implementation guidelines for operators from 2021 https://www.gov.uk/government/publications/nuclear-cooperation-agreements-implementation-guidelines-for-operators Technical guidance for nuclear operators on reporting requirements related to Nuclear Cooperation Agreements from 1 January 2021. Published 27 June 2019 Last updated 24 December 2020 — see all updates From: Department for Business, Energy & Industrial Strategy and Office for Nuclear Regulation Brexit transition: new rules for 2021 The UK has left the EU. This page tells you the new rules from 1 January 2021. It will be updated if there’s new information about the UK’s deal with the EU that affects what you need to do. Get your personalised list of actions and subscribe to email updates to find out when things change. Documents Nuclear cooperation agreements between the United Kingdom and international partners: implementation guidelines for nuclear operators PDF, 348KB, 21 pages UK-Euratom nuclear cooperation agreement - notice HTML Details The UK and the European Atomic Energy Community (Euratom) have agreed a Nuclear Cooperation Agreement (NCA). This guidance is in the process of being updated. This joint BEIS / ONR guidance covers future reporting requirements for operators. These reporting requirements will allow the UK to comply with Nuclear Cooperation Agreements and other obligations arising from international trade following the UK’s withdrawal from the European Atomic Energy Community (Euratom). The guidance covers a number of areas, including: • BEIS and ONR’s expectations on operators relating to relevant provisions of the Nuclear Safeguards (EU Exit) Regulations 2019 • export licensing requirements It will take effect from 1 January 2021. Published 27 June 2019 Last updated 24 December 2020 + show all updates The Nuclear Safeguards (EU Exit) Regulations 2019 https://www.legislation.gov.uk/uksi/2019/196/contents/made • UK Statutory Instrument 2019 No. 196 • Table of contents -PART 1 Introduction 1.Citation and commencement. 2.Interpretation..Collapse -PART 2 Accountancy and control, records and the provision of information by an operator 3.Declaration of basic technical characteristics. 4.Programme of activities. 5.Particular safeguard provisions. 6.Accountancy and control of qualifying nuclear material. 7.Accountancy and control plan. 8.Replacement, amendment and revocation of accountancy and control plan. 9.Operation of an accountancy and control plan. 10.Operating records. 11.Accounting records. 12.Accounting reports. 13.Initial book inventory. 14.Inventory change report. 15.Material balance report and physical inventory listing. 16.Special report. 17.Unusual occurrences. 18.Reporting of nuclear transformations. 19.Additional reporting obligations arising from relevant international agreements and from obligations resulting from international trade. 20.Weight units and categories of qualifying nuclear materials..Collapse -PART 3 Exports and imports 21.Exports. 22.Imports. 23.Loss or delay during transfer. 24.Communication of change of date..Collapse -PART 4 Carriers and temporary storage agents 25.Carriers and temporary storage agents. 26.Intermediaries..Collapse -PART 5 Ores 27.Accounting records for ores. 28.Ore shipment and export reports..Collapse -PART 6 Qualifying nuclear material in the form of conditioned and retained waste 29.Stock list and accounting records for conditioned and retained waste. 30.Transfers of conditioned waste..Collapse -PART 7 Qualifying nuclear facility with limited operation and exemption 31.Declaration of basic technical characteristics, stock list and accounting records for qualifying nuclear facility with limited operation. 32.Exemption..Collapse -PART 8 Civil activities 33.Withdrawal from civil activities. 34.Qualifying nuclear facilities which are used partly for civil activities..Collapse -PART 9 Communication 35.Communication with the ONR..Collapse -PART 10 Safeguards equipment 36.Safeguards equipment. 37.Access to safeguards equipment. 38.Interference with safeguards equipment..Collapse -PART 11 The ONR 39.Inspections by the ONR. 40.Publication of information by the ONR. 41.ONR to provide an annual report to the Secretary of State. 42.Provision of information to the Agency..Collapse -PART 12 Offences 43.Offences..Collapse -PART 13 Notification to the Secretary of State 44.The Secretary of State may issue written advice. 45.Notification of receipt, production and transfer. 46.Form of notification. 47.Notification of change. 48.Continued application. 49.Interpretation..Collapse -PART 14 General 50.Extent. 51.General consequential and supplementary amendments Part 1 of Schedule 3. 52.General consequential amendments Part 2 of Schedule 3. 53.Transitional provisions. 54.Review.. Signature.Expand +SCHEDULE 1 .Expand +SCHEDULE 2The Components of an Accountancy and Control System.Expand +SCHEDULE 3Consequential and supplementary amendments for Nuclear Safeguards Act 2000 and related legislation .Expand +SCHEDULE 4Transitional provisions .. Explanatory Note.. .