NUCLEAR EXPORT CONTROLS - Closing the Gaps

by Fritz W. Schmidt

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Concerns over a nuclear "black market" have focused international attention on the effectiveness of nuclear export controls. IAEA Director General Mohamed ElBaradei has stated that the emergence of a multinational illicit network demonstrated the inadequacy of the present export control system, that international cooperation on export controls lay on informal arrangements that were not only not binding but also limited in membership, and that export control information was not systematically shared with the IAEA.

This criticism, often heard on the political level, does not really do justice to the work of export control groups. The emergence of a multinational illicit network does not necessarily prove failures in export control systems. Criminal activities, by definition, try to circumvent existing rules and regulations, or they exploit the absence of such rules on State level. To fight such individual cases is not so much a task of regular export control systems, whose function lies primarily in establishing standards and procedures for export controls on State level, but rather the task for intelligence services and their international cooperation.

How does the export control regime support nuclear non-proliferation?

The basis of the export control regime is the Nuclear Non-Proliferation Treaty (NPT). To define the current export control standards, one has to refer to the provisions of the NPT but at the same time also to the NPT Review Conferences, in which the sovereign of the NPT, the States Parties, have been expressing their understanding of the provisions of the Treaty. These conferences offer the opportunity to recognize developments in the understanding of security standards.

While the findings and conclusions of NPT conferences in the first instance relate to Treaty parties, the NPT strives for the universality of its security goals and the universal application of its requirements. Export controls can - and do - play an important role in fostering this universality goal by demanding the implementation of internationally agreed security standards in recipient countries before export licenses are granted. From this perspective it should be unacceptable if NPT parties only looked to the letter of the Treaty and not to what the sovereign has declared or decided over the years. It is the purpose of Review Conferences, enforced in 1995 with the decision for an "enhanced review mechanism", to review and interpret how the provisions of the Treaty should be applied.

Drawn from the deliberations in the NPT conferences, the current standards to be demanded as conditions of supply are the following:

Safeguards

The exporting States require from the recipient State safeguards according to the safeguards system established by the IAEA for NPT purposes. The current standard comprises safeguards agreements with the Agency based on the models INFCIRC/153 and INFCIRC/540 (the Model Additional Protocol).

Physical Protection

The prevention of theft of nuclear material and unauthorized access to nuclear material or facilities received its recognition as an important requirement at the international level only in the early 1970s when the IAEA developed and published its first recommendations and guidelines for the physical protection of nuclear material. As the NPT was drafted and agreed upon already in 1968, it does not contain a reference to this element. All NPT Review Conferences since 1975 on emphasized the need for appropriate physical protection on the systems on national level.

National export control provisions

Whenever nuclear items are transferred outside the country it is important to require from the recipient as a condition of supply that any re-export of those items should demand the same criteria as for the export to the recipient country. In order to implement that standard it is necessary to have appropriate legislation and licensing procedures in place in the recipient country.

How does the export control regime affect the IAEA's verification?

According to the NPT system, export controls require IAEA verification in the recipient country. In addition, export controls enable States to provide information to the IAEA on exports and imports as required by the Additional Protocol.

Cooperation between the IAEA and Exporting States

In recent years the IAEA has been expressing the wish to receive more information on exports. As the reporting of exports of sensitive nuclear items has become a regular feature of safeguards reporting through the additional protocol, this need for information is more or less satisfactorily covered. (Sensitive nuclear items often are called "trigger list" items because they require, or trigger, safeguards reporting; the list stems from the NPT Exporters Committee, known as the Zangger Committee, and is incorporated as Annex II in the IAEA Additional Protocol to the NPT comprehensive safeguards agreements.)

Regarding "dual use" (DU) items, there is a need to distinguish between information to the IAEA to be given on a regular and systematic basis and information required only in individual cases for particular countries of concern.

Different from trigger list items, DU items do not qualify for regular reporting to the IAEA because of their lower level of significance and their limited scope of controllability. There is no process of "government to government assurance" for DU items, as exists for trigger list items. Governments of recipient countries usually do not take responsibility for such items but limit their responsibility to statements that exports of DU items from their country require a license. This responsibility, disposed of in an "international import certificate", does not further involve the authorities of the recipient country. Whenever the IAEA gets information of a transfer of a DU item, the Agency would not regularly be able to receive confirmation about its arrival in the recipient country nor on where the item is located and used. This definitely limits the value of information, and the "digestion" of the information might become rather a burden for the IAEA.

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