Legal Issues Relating to Risk and Systems Driven Verification

Abstract

Broadly speaking, current verification approaches—exemplified by traditional IAEA safeguards—seek to show whether a declaration made by a state under a particular treaty is true or false. The IAEA safeguards experience shows the limits to this approach—not all situations are so neatly bivalent. A major focus for safeguards development over the last 20 years or so is the problem of detecting, and drawing conclusions about, undeclared nuclear material and activities. This involves the difficulty of proving a negative—can absence of evidence be taken to be evidence of absence? As the scope of arms control is extended and nuclear disarmament progresses, future verification missions will be dealing with increasing degrees of uncertainty, having to make judgments about unknowns. Risk and systems driven verification, involving greater use of qualitative methods and judgments, will be an essential aspect of this. With greater uncertainty, the confidence-building objective of verification will be more difficult, and at the same time more important. A less definitive verification environment has major implications for the application of legal precepts such as the standard of proof, the duty to cooperate, and non-discrimination, and related policy issues such as the use of information. Compared with the traditional emphasis on the right of the state, more focus will be required on the international interest—emphasising the need for cooperation and transparency. The need for an effective approach to managing uncertainty should also be reflected in the way new treaty regimes are developed, for example in decision-making processes, non-compliance determinations, adaptability of verification procedures to meet evolving circumstances, dispute resolution, enforcement, and so on. In the development of risk and systems driven verification, and the associated legal and institutional aspects, the IAEA verification system has a deep and rich experience to draw on.