NUCLEAR EXPORT CONTROLS – DO WE REALLY WANT TO REINFORCE THE NPT REGIME?

Nuclear export controls have traditionally confronted countries possessing nuclear goods and technology with potential importers of these items. The main lines of argument in this debate have been the contribution of such controls to the non-proliferation objective, their impact on the right to develop nuclear energy for peaceful purposes and, in this context, the compatibility of the measures agreed by the leading nuclear exporting States with the regulation of the Non-Proliferation Treaty (NPT).

The debate will be resumed at the upcoming NPT Review Conference in 2015, although documents submitted to date reveal the apparent stalemate between the State Parties as regards attempts to reach a consensus. Thus, for example, the working paper (WP) presented by the Vienna Group of Ten contains the following statements:[1]

  •  “All States should apply in their export control regimes the Understandings of the Zangger Committee (…) as well as the Guidelines developed by a group of States for their nuclear-related exports.”
  • “New supply arrangements for the transfer of source or special fissionable material or equipment or material specially designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of the IAEA full-scope safeguards and an Additional Protocol based on the model INFCIRC/540 (Corrected).”
  • “… transfers of nuclear material, sensitive equipment or technology should take place only if the recipient State has in place an effective and adequate national system of nuclear security.”

By contrast, the WPs presented by the League of Arab States and the Group of Non-Aligned States Parties to the Treaty take a diametrically opposed stance. Thus, the former rejects all attempts to make the conclusion of additional protocols a necessary (rather than a voluntary) condition for those developing States wishing to acquire peaceful nuclear technologies, and maintains that every State party to the Treaty:

“should facilitate the exchange of scientific and technological materials and information in as complete a manner as possible in the context of the Treaty, so long as the State obtaining those materials or information is committed to the safeguards agreements concluded with the [International Atomic Energy] Agency”.[2]

The WP submitted by the Group of Non-Aligned States stresses that the NPT:

“does not prohibit the transfer or use of nuclear technology, equipment or material for peaceful purposes based on their sensitivity, and only stipulates that such technology, equipment and material must be subject to full-scope IAEA safeguards”.

According to the Group:

“new supply arrangements for the transfer of source or special fissionable material or equipment or material designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of IAEA full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices.”[3]

Regardless of other considerations, the fact remains that the implementation of nuclear export controls is a legal obligation for all States pursuant to various resolutions adopted by the Security Council.[4] The resolutions, however, allow different interpretations to be made as regards the type of goods under control and the conditions associated with the authorization of particular exports.

The Final Document published at the last NPT Review Conference, held in 2010, makes a number of recommendations, which could be understood as potential solution to these two issues. Indeed, the Conference encourages States parties to make use of multilaterally negotiated and agreed guidelines and understandings in developing their own national export controls.[5] As such, the text seems to assign to these “guidelines and understandings” the function of a regulatory framework of reference for a country’s legislative activity and, thus, to be seeking the harmonization of national laws on nuclear export controls. Moreover, as a recommendation of the NPT Review Conference it can also be seen as an attempt at strengthening the regulations embodied in that Treaty. Yet, as shall be seen, such goals are not fully met by the guidelines issued by the leading group of nuclear supplier countries, the Nuclear Suppliers Group (NSG).

Indeed, the NSG guidelines would constitute a poor instrument for achieving the harmonization of national laws and, more importantly, their general application could even weaken the non-proliferation regime designed by the NPT.

Specifically, the worldwide application of the NSG guidelines[6] would appear to have four major consequences:

1. At first sight, the main outcome would be the enlargement of the material scope of national export controls and, as such, the modification of Article III.2 of the NPT. Hence, not only would the list of nuclear sources, materials and goods subject to control be extended (when compared to the aforementioned article and the ‘development’ of that provision made by the Zangger Committee), but goods of dual-use would also be included within the scope of these controls. Moreover, the NSG guidelines on nuclear-related dual-use items do not include a closed trigger list and so would allow States to extend the qualification of dual-use to any good as deemed necessary. As such, the guidelines would have a minimal impact on the harmonization of the material scope of national export controls, allowing each country to apply the guidelines at their discretion to other items of significance in addition to those identified jointly by the NSG.

2. Notwithstanding the fact that the NSG guidelines recognize the States right to incorporate additional conditions to the agreed list, their widespread application would lead to a distinction being drawn in the type of conditions with which an import country must comply through the consolidation of a double standard of conditionality: a general standard, as required by the full-scope IAEA safeguards in the recipient State, and a specific standard, namely the requirement of an Additional Protocol for the transfer of enrichment and reprocessing facilities, equipment and technologies. The NSG guidelines allow no exceptions to this last condition. However, in the case of the full-scope safeguards this condition may, according to the guidelines, be waived in certain circumstances subject to the assessment of the exporting State. Consequently, the only significant change is related to the Additional Protocol in the case of exports of enrichment and reprocessing goods, which brings about a change in the regulation contained in Article III.2 of the NPT as such exports would become a specific subtype subject to different conditions.

3. As for the conditions that control the export of dual-use goods, the NSG guidelines simply lay down a set of rules of conduct to be adhered to by the supplier countries. The guidelines include an open list of conditions that need to be taken into account when authorizing a particular export. Within this broad margin of discretion, the fact remains that the NSG guidelines establish a precautionary principle in relation to the export of such goods. Yet, while this principle imposes on States an obligation to control, it lacks any clearly defined legal content. In fact, the NSG guidelines merely mention the type of internal rules to be adopted by States and exclude any substantive indications with which those rules must comply. In practice, this could mean that the precautionary principle serves as a rule that enables any kind of restriction to be imposed on the export of dual-use goods and as such does little to generate harmonization. At the same time, given the few references to the NPT and to the IAEA safeguards, the NSG guidelines serve as an instrument that promotes the decentralization of international control to the detriment of the international non-proliferation bodies.

4. In line with the NSG guidelines, States can refuse to grant an export authorization by virtue of the ‘non-proliferation principle’, when they cannot be satisfied that the transfers will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices or their diversion to acts of nuclear terrorism, even though the importing country complies with the conditions included in the guidelines and all other conditions required by the law of the exporting State. The worldwide application of this non-proliferation principle, together with the characteristics outlined above of the precautionary principle, would have another consequence: the obligation to cooperate as set out in Article IV of the NPT would be undermined, since the margin of discretion that these principles allow States, would make it extremely difficult to demonstrate that this obligation is not being fulfilled.

In the light of the consequences described above, the recommendation adopted at the last NPT Review Conference would not appear to be conducive to a strengthening of the non-proliferation regime, nor is it useful for the harmonization of national export controls. The expansion of the types of goods and technologies subject to control does not reflect a strengthening of the powers assigned to the IAEA and, conversely, the exporting States obtain virtually complete freedom to authorize or otherwise the transfer of such goods and technologies, including anything that could qualify as dual-use materials.

All in all, the worldwide application of the NSG guidelines would broaden the gap between States with and without access to the development of nuclear energy for peaceful purposes and, consequently, would threaten the delicate balance that exists today between the three pillars on which the NPT is built: nuclear disarmament, non-proliferation and the peaceful use of nuclear energy.

Failing any unexpected developments, a general consensus at the next NPT Review Conference on the regulation of a universal export control system that might replace existing NPT rules is unlikely. However, a step forward in redirecting the debate might involve the exploration of alternative approaches to those adopted to date. One such approach might be the definition of a right to the import of nuclear goods. The instrument around which that right could be defined is the Additional Protocol to the IAEA safeguards agreements, since there is a general consensus as to its ability to ensure the absence of non-peaceful activities in the countries in which it is in force. Along a similar line, national laws governing nuclear export controls should consider that the existence of an Additional Protocol for the importing State is a sufficient condition to permit any type of nuclear export, including dual-use goods and, thus, that it is not possible to refuse to grant an export authorization under the non-proliferation or precautionary principle. The definition of this right would at least provide some substance to the duty to cooperate as laid down in article IV of the NPT.


[1] NPT/CONF.2015/PC.I/WP.7

[2] NPT/CONF.2015/PC.I/WP.15

[3] NPT/CONF.2015/PC.I/WP.24

[4] SC Resolutions 1540(2004) and 1887(2009).

[5] NPT/CONF.2010/50 (Vol. 1), First Part, Action 36.

[6] INFCIRC/254/Rev.10/Part.1: NSG guidelines for the export of nuclear material, equipment and technology, and INFCIRC/254/Rev.8/Part.2: NSG guidelines for transfers of nuclear-related dual-use equipment, material, software and related technology.

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2 Comments on “NUCLEAR EXPORT CONTROLS – DO WE REALLY WANT TO REINFORCE THE NPT REGIME?”

  1. I personally have a tendency to agree with almost everything
    that has been put into writing throughout “NUCLEAR EXPORT CONTROLS – DO WE REALLY
    WANT TO REINFORCE THE NPT REGIME? Arms Control Law”.
    Many thanks for pretty much all the actual info.Thanks,Jrgen


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