Appendix A Overview of International Control Regimes

BACKGROUND FOR EVOLUTION OF THE INTERNATIONAL REGIMES

In the late 1940s and early 1950s, many international discussions began to focus on possible mechanisms for controlling the spread of new technologies associated with nuclear weapons. For example, the topic frequently dominated early debates of the new United Nations.

In November 1945, the three World War II partners in nuclear development—the United States, United Kingdom, and Canada—issued a joint statement of policy on the future development of nuclear energy that underscored the need for international action to both prevent the use of atomic energy for destructive purposes and promote the use of atomic energy for peaceful and humanitarian ends. This need to balance cooperation and control was reaffirmed when the International Atomic Energy Agency (IAEA) was established in 1957. The relationship between cooperation and control was given legal definition by the Treaty on the NonProliferation of Nuclear Weapons. The treaty, which now has 185 parties, calls for member states to restrict nuclear weapons and other nuclear explosive devices and accept controls in the form of IAEA safeguards on their nuclear activities while at the same time undertaking to facilitate the fullest possible exchange of equipment, materials, and scientific and technological information for the peaceful uses of nuclear energy for those who abide by the treaty's provisions.

As the Cold War intensified, each of the superpowers became suspicious of the intentions of its adversary regarding the development of chemical warfare



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--> Appendix A Overview of International Control Regimes BACKGROUND FOR EVOLUTION OF THE INTERNATIONAL REGIMES In the late 1940s and early 1950s, many international discussions began to focus on possible mechanisms for controlling the spread of new technologies associated with nuclear weapons. For example, the topic frequently dominated early debates of the new United Nations. In November 1945, the three World War II partners in nuclear development—the United States, United Kingdom, and Canada—issued a joint statement of policy on the future development of nuclear energy that underscored the need for international action to both prevent the use of atomic energy for destructive purposes and promote the use of atomic energy for peaceful and humanitarian ends. This need to balance cooperation and control was reaffirmed when the International Atomic Energy Agency (IAEA) was established in 1957. The relationship between cooperation and control was given legal definition by the Treaty on the NonProliferation of Nuclear Weapons. The treaty, which now has 185 parties, calls for member states to restrict nuclear weapons and other nuclear explosive devices and accept controls in the form of IAEA safeguards on their nuclear activities while at the same time undertaking to facilitate the fullest possible exchange of equipment, materials, and scientific and technological information for the peaceful uses of nuclear energy for those who abide by the treaty's provisions. As the Cold War intensified, each of the superpowers became suspicious of the intentions of its adversary regarding the development of chemical warfare

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--> (CW) and biological warfare (BW) capabilities. In the West these suspicions revived international interest in the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare (the Geneva Protocol), which had been signed in 1925 and had entered into force in 1928. This protocol banned the use of CW and BW agents, and international attention focused on the need for stronger international measures to ban their development, production, and stockpiling. Also in the early 1950s, the western countries joined together in the informal, but important, Consultative Group and Coordinating Committee for Multilateral Export Controls (COCOM) to help ensure that their unique military technologies were not diverted in ways that would help the Soviets and, later, the Chinese build up their military capabilities. Then, in the 1980s, several Third World nations showed increased interest in obtaining missile capabilities, raising apprehensions in many other countries. As a result, international efforts were directed to preventing the transfer of missiles, their components, and supporting technologies to countries with new military ambitions. Against this background, a number of international regimes for controlling exports of sensitive materials, equipment, and technical information have evolved. In several areas they are well-established, providing frameworks for the efforts of countries around the world to join together in taking steps that will help prevent the spread of militarily sensitive items to countries that could then pose new threats to the international community. In other areas the regimes are still in their early stages of development. International regulatory efforts are based largely on two types of multilateral arrangements as reflected in the regimes: (a) formal international treaties and conventions to control trade and transfers of technology in selected areas and/or to mobilize multilateral action against countries found to be violating international nonproliferation norms by undertaking inappropriate activities; and (b) less formal multilateral arrangements directed to monitoring and influencing transfers of material and technologies of concern. An essential component of all international efforts is the network of national policies and laws that reflect the international consensus on transfers of dangerous material and sensitive technologies, with the individual countries applying the consensus in controlling their own trade and related activities involving such items. In addition, the United States and other countries, acting alone or in concert, undertake initiatives outside the framework of the established international regimes in addressing threats of proliferation of advanced weapons systems. For example, the United States can enter into a bilateral security agreement with a friendly country that feels threatened by a neighbor, and such an agreement might reduce the incentives for the friendly country to build up its own military capabilities (e.g., the U.S. agreement with Japan). Also, sanctions can be imposed by one or more governments against another government that approves exports of sensitive items to a state of proliferation concern. In the extreme, a country can

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--> take military action against a proliferant state building up unacceptable technological capabilities (e.g., the Israeli bombing of an Iraqi nuclear research reactor). Within this broad context of possible international actions, this appendix concentrates on the principal international regimes directed to the control of exports. As noted, these regimes are in various stages of development. NUCLEAR NONPROLIFERATION REGIME Treaty on the NonProliferation of Nuclear Weapons The centerpiece of the nuclear nonproliferation regime is the Treaty on the NonProliferation of Nuclear Weapons, or Nonproliferation Treaty (NPT), which entered into force in 1970 and was extended for an indefinite period of time in 1995. All parties to the treaty—other than the nuclear weapons states (United States, Russia, Great Britain, France, and China)—agreed to renounce nuclear arms and accept IAEA safeguard inspections at all their nuclear installations. These inspections help assure the international community that the installations are not being used for military purposes and that fissile material is not being diverted by a state for purposes other than the peaceful uses for which it was intended. At the same time, the nuclear weapons states are obliged to engage in negotiations to end the nuclear arms race and to reduce the levels of nuclear weapons. All parties are required to ensure that exports of sensitive nuclear material and equipment will be subject to IAEA safeguards in the recipient state, whether or not the recipient is a party to the treaty. The approaches developed for the control and accounting of nuclear material pursuant to IAEA safeguard requirements are quite relevant to procedures that are appropriate for national materials protection, control, and accountability (MPC&A) programs. Of course, the purpose of the MPC&A systems installed at individual facilities is to prevent theft and illegal diversions and if they do occur to detect them quickly. The treaty also calls for access to nuclear technology for peaceful purposes by those states that abide by the provisions of the treaty. Since such access often requires imports by states with limited nuclear capabilities of nuclear-related items from states with highly developed nuclear capabilities, the need for export control systems that address dual-use materials, equipment, and technical information is clear. The Nuclear Exporters Committee (Zangger Committee)1 The Zangger Committee was formed in 1971 to establish guidelines for the export control provisions of the NPT (Article III[2]). As of the end of 1996, 31 of 1   This information is from U.S. Arms Control and Disarmament Agency fact sheets. See http://www.acda.gov/factshee/exptcon/nuexpcnt.htm

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--> the principal nuclear supplier states participated in the committee. The list of controlled items—called the "trigger list" because their export triggers safeguards—consists of nuclear material and "especially designed or prepared" (EDP) material, equipment, and facilities normally used in peaceful nuclear programs. These are items, such as plutonium and highly enriched uranium (HEU), reactors, reprocessing and enrichment plants, and EDP equipment for such facilities, which if misused could contribute to a nuclear explosion program. The trigger list has been updated substantially since it was first adopted in 1974 to provide more specification in key areas of the nuclear fuel cycle (i.e., enrichment, reprocessing, heavy water production). The major Zangger Committee requirements for exports of trigger list items are that they (1) not be used for nuclear explosives, (2) be subject to IAEA safeguards in the recipient non-nuclear state, and (3) not be reexported unless subject to safeguards in the new recipient state. The Nuclear Suppliers Group2 The Nuclear Suppliers Group (NSG) is an arrangement of 34 nations (as of the end of 1996) that was initially formed by the United States and six other major supplier states following the 1974 nuclear explosion in India. The primary purpose was to go beyond the controls of the Zangger Committee and to involve the key non-NPT supplier, France. The major features of the NSG Dual-Use Guidelines that go beyond the Zangger guidelines are requirements for (1) an agreement between the IAEA and the recipient state requiring the application of safeguards on all fissionable materials in its current peaceful activities ("full-scope IAEA safeguards"); (2) physical protection against unauthorized use of transferred materials and facilities; and (3) restraint in the transfer of sensitive facilities, technology, and weapons-usable materials (i.e., exports that could contribute to the acquisition of plutonium or HEU by a state of proliferation concerns). The guidelines also call for consultations among member countries on specific sensitive cases to ensure that transfers do not contribute to risks of conflict and instability. In 1993, the NSG upgraded its fuel cycle control list and adopted an arrangement for controlling nuclear-related dual-use items. The NSG incorporated the full-scope IAEA safeguards supply condition, a long-term goal of U.S. nonproliferation efforts, into its guidelines. The new dual-use control arrangement contains its own guidelines prohibiting the transfer of controlled items for use in a non-nuclear weapons state in a nuclear explosive activity or an unsafeguarded nuclear fuel cycle activity or when 2   This information is from U.S. Arms Control and Disarmament Agency fact sheets. See http://www.acda.gov/factshee/exptcon/nuexpcnt.htm

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--> there is an unacceptable risk of diversion to such an activity. To reduce the risk of diversion, the guidelines require recipients to provide assurances (1) specifying how transferred items will be used, (2) stating that they will not be used for proscribed activities, and (3) stating that the supplier's consent will be obtained for any re-transfers of items. Convention on the Physical Protection of Nuclear Material Another relevant agreement is the Convention on the Physical Protection of Nuclear Material of 1987, which provides a basis for (a) physical protection measures during the international transport of nuclear material; (b) cooperation in the recovery and return of nuclear material stolen during international transport; and (c) criminal sanctions, including extradition, against persons who misuse or threaten to misuse nuclear material in international transport to harm the public. Agreed minimum standards for physical protection of nuclear material in facilities are published in IAEA document INFCIRC/225, "The Physical Protection of Nuclear Materials." This document has been revised several times. These guidelines provide a standard for the technical level of acceptability of physical protection systems at the facility level, recognizing that each facility will have unique physical design and security requirements. The guidelines provide a good point of departure for the development of this aspect of overall MPC&A systems. CHEMICAL WEAPONS REGIME The Geneva Protocol prohibits the use of chemical weapons. The development, production, possession, and preparation to use chemical weapons, as well as their use, are to be banned under the Convention on the Prohibition, Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction (the CW convention, or CWC). This convention will enter into force on April 30, 1997, having been ratified by 65 of the 160 signatories. The CWC had not been ratified by the United States or Russia as of the end of February 1997. When the CWC comes into force, the Organization for the Prohibition of Chemical Weapons will be formally established in the Hague to administer the convention. The convention calls for intrusive inspections of CW stocks and manufacturing facilities capable of producing selected dual-use chemicals. Also, the convention will control transfers of CW-related substances to parties to the convention and only under stringent conditions to nonparties. The chemicals of concern are divided into three schedules. Chemicals in Schedule 1 are those considered to be of high proliferation risk with very limited commercial applications. Significant risk chemicals with limited commercial applications are included in Schedule 2, and dual-use chemicals with broader commercial sales but that also present a risk are included in Schedule 3.

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--> The Australia Group In 1985, 16 industrial nations established the informal Australia Group to cooperate in curbing the proliferation of chemical weapons. Membership now stands at 30 industrial countries from around the world. The group's efforts are directed to the harmonization of export controls and the exchange of information on activities of concern. Currently, the Australia Group recommends regulations for international transfers of selected chemicals, including 54 dual-use precursor chemicals, as well as for transfers of the equipment needed to manufacture the chemicals subject to control. Each member controls the transfer of those chemicals and equipment. The Australia Group's goals are compatible with the CWC, and the group will continue its nonproliferation efforts after the CWC enters into force. BIOLOGICAL WEAPONS REGIME Biological Warfare Convention The Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction of 1972 (the BW Convention) is the core of the biological weapons regime. It builds on the Geneva Protocol, which prohibited the use of BW agents. The BW Convention prohibits parties from developing, producing, stockpiling, or acquiring biological weapons and from transferring relevant technologies to other countries or in other ways assisting others in acquiring such weapons. It does not include verification provisions. Also, it permits research on measures to defend against BW activities while outlawing research for offensive purposes. The dividing line between these two types of research is often very uncertain. The Australia Group In 1990, the Australia Group expanded its efforts to include items related to biological weapons. It has recommended export control lists of microorganisms and toxins and of equipment that can be used in the production of biological warfare agents. Each member controls the exports of those agents and equipment. Specific agents in each of these categories are placed on several types of lists: the core list, the warning list, the animal pathogens list, the plant pathogens list, and the awareness list. MISSILE TECHNOLOGY CONTROL REGIME The Missile Technology Control Regime (MTCR) is an arrangement among countries that share a common interest in restraining missile proliferation. As of

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--> mid-1996, there were 28 members. It does not link to a broadly based international agreement prohibiting the development, manufacture, or use of missiles. While the international community has considered missiles to be legitimate weapons, the rapid spread of nuclear-capable missiles caused great anxieties in western countries and led to the establishment of the MTCR in 1987. The MTCR develops common export control standards directed to a common list of controlled items. Members implement their commitments in the context of their own national export control laws. The MTCR was originally designed to restrict transfers of missiles able to carry payloads of at least 500 kilograms to a range of at least 300 kilometers, including ballistic missiles, cruise missiles, space-launch vehicles, sounding rockets, unmanned air vehicles, and remotely piloted vehicles. It was assumed that (a) rudimentary nuclear warheads and their support systems would weigh at least 500 kilograms and (b) an international regime should not attempt to address short-range battlefield systems. However, following the Persian Gulf war, the MTCR was extended to cover missiles capable of delivering all types of weapons of mass destruction, particularly BW and CW weapons. The focus of the MTCR thus became the "intention" of potential recipients, regardless of the range and payload of the missile systems in question. Each MTCR member is individually responsible for enforcing the regime's export control guidelines through its own national export control provisions, in conjunction with a common annex of controlled military and dual-use equipment and technology. The annex is divided into two sections. Category I includes those items of greatest sensitivity that could contribute to rapid missile proliferation if exported. Category II consists of a broad range of "dual-use" items. There is a strong presumption that the export of Category I items will be denied. Production facilities for Category I systems are to be flatly prohibited. Transfer of Category II dual-use items is permitted as long as they are subject to export controls and restraint is exercised in the consideration of such transfers. There is a strong presumption of denial for export of Category II items if intended for use in delivery systems for weapons of mass destruction. REGIMES FOR CONVENTIONAL ARMS AND DUAL-USE TECHNOLOGIES Overview In late 1995, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies was established with a secretariat in Vienna. This group of more than 30 nations includes not only the states that had been members of COCOM but also Russia and Ukraine and six countries of Eastern Europe. It has assumed international responsibility for coordinating export activities related to items previously included in COCOM's International

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--> Industrial List and International Munitions List. As an early step, both of these lists were replaced by new ones. Meanwhile, items related to nuclear weapons (i.e., COCOM's Atomic Energy Control List) have become the responsibility of the NSG. The Wassenaar Arrangement emphasizes responsible actions by its individual members in implementing export control laws and calls for transparency in information sharing among members for exports that are approved and denied by members. The new organization does not provide for veto power over transfers, nor does it require prior notification of impending export decisions. However, collective examination by its members of past decisions is to provide incentives for individual states to exercise prudence in their unilateral export decisions concerning items on the organization's lists. Since admission of new members requires consensus, the American policy that prospective members must show a record of export restraint with regard to North Korea, Libya, Iran, and Iraq in addition to meeting the formal Wassenaar criterion of acceptable national export controls and adherence to the other international control regimes makes this the de facto standard. Conventional Arms The Wassenaar Arrangement is designed to limit transfers of 22 categories of conventional armaments of concern. Initially data will be exchanged only on the seven categories of major weapons (e.g., main battle tanks, combat aircraft) in the United Nations Register of Conventional Arms. Since missiles are also the focus of the MTCR, they are not expected to be a priority for the Wassenaar Arrangement. Dual-Use Technologies The Wassenaar Arrangement also addresses a wide range of sensitive dual-use commodities that are not the subject of the other regimes. The basic list of dual-use items incorporates most of the items previously on the COCOM industrial list. All of these items are subject to national export control procedures. A Category 2 list includes sensitive items, and transactions involving them are subject to information sharing as to specific decisions. All members are to exercise "extreme vigilance" with regard to a still smaller list of very sensitive items (Category 3).

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--> OTHER INTERNATIONAL AGREEMENTS AND CONSULTATIVE MECHANISMS Several arms control agreements limit the size, transfer, and deployment of weapons systems and indirectly affect export control activities. Also, bilateral consultations on proposed trade in sensitive technologies have become standard diplomatic fare, sometimes within the framework of international regimes and sometimes independent of the procedures established by them. Such consultations frequently influence export control decisions. INTERNATIONAL REGIMES AND THE SUCCESSOR STATES Russia and some of the other countries of the former Soviet Union recognize that their adherence to the international control regimes is important if they are to become respected participants in international security discussions and international trade activities. Therefore, it is not surprising that many are becoming actively involved in the international activities discussed above. At the same time, these countries are financially limited and frequently have difficulty even finding the travel funds for appropriate participation in meetings organized within the frameworks of the regimes. In the nuclear area, Soviet and then Russian adherence to the NPT was of course central to the viability of that treaty. In addition, Russian specialists have been involved in IAEA activities since its founding in 1957, and many of them are well versed on the details of the nuclear nonproliferation regime. Russia was also a charter member of the NSG and the Zangger Committee. Russia has ratified the BW Convention, and in the CW area Russian experts have participated in the development of the CW Convention since its inception. However, ratification of the CW Convention is stalled in Moscow, in part because of the high cost of destroying chemical weapons stocks that exist in the country. Russia is not yet a member of the Australia Group. Also, Russia is a member of the MTCR and of the Wassenaar Arrangement. Ukraine is a member of the Wassenaar Arrangement and an adherent to the MTCR. Russian and Ukrainian officials are on a steep learning curve with regard to control of industrial dual-use items. The other successor states lag in most areas. All adhere to the NPT. Belarus, Ukraine, Turkmenistan, and Estonia have signed and ratified the BW Convention. Ukraine, Kazakstan, Belarus, Kyrgyzstan, and Uzbekistan have signed the CW Convention while Tajikistan and Turkmenistan have signed and ratified it. Further adoption by states of the former Soviet Union of the principles espoused in these and other international regimes will clearly be welcomed by western countries concerned about proliferation of technologies from these successor states. Of no less importance will be steps by the FSU states to translate the principles into regulatory practice, with effective enforcement mechanisms. Although many years or even decades will be needed to put into place some of the appropriate programs, a start has been made.