International export control regimes, nonproliferation agreements
Multilateral export control regimes
This section provides an overview of the objectives and fields of implementing multilateral export control regimes, shows their links to international legal documents concerning international security, control of arms, non-proliferation of weapons of mass destruction (WMD) as well as with such tools of international politics as initiatives, arrangements, embargoes etc.
The category of such policy documents should include international or multilateral export control regimes because their operation is based not on legally binding rules of international legal instruments (agreements, conventions, protocols etc.) but on political agreements (arrangements), under which decisions are usually made based on a consensus. Violators of such agreements bear political responsibility.
Under such conditions, it is possible to achieve the effectiveness of multilateral export control regimes, in particular, through implementing their requirements into national legal frameworks and the appropriate enforcement activities of national governments.
International export control regimes ensure an ongoing dialog between their participants. This dialog helps approve the guidelines of controlling military-purpose and dual-use goods that may be used in the creation of WMD and means of their delivery. Control lists are an essential component of international export control regimes, in particular, lists of dual-use goods.
In fact, the approved control lists of international export control regimes became an informal part of international law. This is so because they are mentioned in the legally binding UN Security Council Resolution 1540 as well as UN Security Council Resolutions on North Korea and Iran. They also are legally binding for EU member countries as annexes to Council Regulation (EC) No. 428/2009 governing transfers of dual-use goods.
One of the important tools ensuring the activities of the participants in multilateral export control regimes is the practical sharing of experience in the course of holding regular meetings of representatives of licensing authorities and, in some cases, of customs services of member countries. In the course of these meetings, a broad spectrum of issues is discussed, in particular, the problems inherent in national export control systems. Decisions are made regarding the sharing of confidential information as well as approving or refusing the issuance of export licenses etc.
Closely linked to the mentioned-above efforts undertaken as part of multilateral export control regimes are the activities aiming to ensure that the regime control lists are up to date. These activities include the drafting of changes to the lists of controlled goods and technologies (the “control lists”), their annual updating and publication; sharing the information about the best practices of their application; implementation on their basis of appropriate rules and standards as well as awareness-raising activities concerning the interested countries that do not participate in the regimes.
The implementation of control list requirements by many countries creates favorable conditions to harmonize the approaches in the field of export control on a global scale based on control lists. This is what the member countries of international regimes stand for: they aim to achieve a common understanding of the key elements of the functioning of export control regimes, for example, of the catch-all control principle.
The structure of the international system of export control includes four (plus one) elements, namely:
1. Australia Group (AG);
2. Missile Technology Control Regime (MTCR);
3. Nuclear Suppliers Group (NSG);
4. Wassenaar Arrangement (Wassenaar Arrangement, WA),
+ Zanger Committee (ZC).
The Zanger Committee is also referred to as a fifth multilateral regime of export control, however, it has a limited mandate and plays an auxiliary role only.
What follows is some brief information about each of the above-mentioned multilateral export control regimes.
Australia Group (AG)
(founded in June 1985)
In response to growing apprehensions of the world community concerning the use of chemical weapons that existed during the Iran-Iraq War, an informal association of countries was created in 1985 entitled the Australia Group (AG). The objective of this group was to minimize the risks of proliferation of chemical and biological weapons, while not preventing a “normal trade in materials and equipment that are used for legitimate purposes.”
As of August 2019, the AG international regime has 43 participants. With the exception of the European Union, all of them participate in the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction and the Geneva Protocol.
Aside from that, the AG encourages all other states to observe the guidelines and control lists approved and accepted by the group. The adherents of the Australia Group have to give a written notification to the AG Chair of their political commitment to the AG Guidelines and compliance with the requirements of both the current AG General Control Lists and those that will be changed in the future. The procedure for country’s joining the AG as an adherent is unilateral and does not require the group members to make any decisions. Presently, Kazakhstan (since 2015) is the only adherent.
The AG established and annually updates the guidelines and control lists of materials, technologies and software that may promote the activities of manufacturing and using chemical and biological weapons. They cover chemical substances, manufacturing equipment and technologies.
“The Australia Group members agreed to consider more regular Australia Group Dialogs as a model for regionally-based outreach and for encouraging all states to implement robust and effective national export controls and to adopt Australia Group export controls as the model for international best practice.”
Missile Technology Control Regime (MTCR)
(founded in 1987)
The MTCR was established under an informal political agreement within a group of countries that had a common position as to limiting the proliferation of missiles, materials for missile technology, equipment and related technologies, including unmanned delivery systems (for example, drones) that could be used to deliver all types of weapons of mass destruction (WMD).
As of August 2019, the MTCR has 35 partner states including... Alternatively, a number of missile exporters, for example, China, Israel, Iran, North Korea and Pakistan still do not show commitment to the MTCR.
In the absence of dedicated international legal instruments, the MTCR uses UN Security Council Resolution 1540 as a legal basis for its activities. This resolution makes it obligatory for all states to take effective measures to establish national controls, in particular, over systems of delivery of chemical, bacteriological, radioactive and nuclear weapons (CBRN). To implement UN Security Council Resolution 1540, many states implement the requirements of MTCR lists into their national legal frameworks.
Under MTCR, Regime Guidelines and Annex on Equipment, Software and Technologies have been developed to control unmanned aerial vehicles capable of delivering weapons of mass destruction (meaning missiles and other possible delivery systems). MTCR Guidelines and Annex establish two categories of goods, namely: Category I: finished missile systems (including ballistic missiles, launch aerial vehicles and meteorological rockets) as well as unmanned aircraft (including winged missiles, target drones and intelligence drones) capable of carrying up to 500 kg of useful load over a distance of at least 300 km; manufacturing equipment for such systems and the main subsystems.
The rest of the technical equipment listed in the Annex is included in Category II covering finished missile systems (including ballistic missiles, carrier rockets and meteorological rockets as well as unmanned aircraft (including winged missiles, target drones and intelligence drones) with the maximum range of 300 km and more that were not included in Category I. Category II also includes equipment, materials and technologies most of which have been developed for other purposes than delivery of weapons of mass destruction.
Annex to the MTCR lists Category I goods as the goods which transfers should not be allowed, save for exceptional cases. Alternatively, Category II goods may be transferred provided they meet the six criteria that determine the risks of improperly using them.
The control lists of both categories of the MTCR Annex are updated all the time (for example, in 2015, they were updated with information regarding control over drones and solid-fuel missile technologies). Since 2005, all MTCR partners must apply the catch-all control principle to the exports of goods that are not included in the control lists but their purpose may be related to the WMD delivery systems, except for man-carrying aircraft.
Nuclear Suppliers Group (NSG)
(established in 1974)
The NSG was created in response to India’s May 1974 nuclear tests, when it became apparent that nuclear technologies that were transferred seemingly for peaceful purposes may be used for the manufacture of nuclear explosive devices. It is a voluntary informal group that includes a number of countries that are suppliers of nuclear goods. The objective of this group is to prevent the proliferation of nuclear weapons by means of controlling exports of sensitive materials, equipment, technologies and software as regards the manufacturing of nuclear weapons.
Since that time, the NSG has been expanding all the time. Presently, it has 48 member countries as well as two permanent observers, the European Commission and the Zanger Committee (represented by its Head).
NSG activities are based on agreed-upon approaches both to nuclear export controls and dual-use goods that may be related to nuclear activities. This is duly reflected in the Guidelines approved by the member countries in 1978 that were published as a INFCIRC/254 document of the International Atomic Energy Agency (IAEA) .
In spite of export controls, Iraq that is an NPT participating country managed to conceal its implementation of a nuclear military program for a long time. It was done, in particular, by purchasing dual-use goods that were not covered by the then-current Guidelines.
After Iraq’s annexation of Kuwait and the world community reaction that resulted in Operation Desert Storm (1991), which was a UN mission, the NSG approved a number of decisions, in particular, on the drafting of Guidelines for transfers of dual-use equipment, materials and technologies (these include goods of both nuclear and non-nuclear application) that are or may be related to nuclear activities. The Guidelines for the transfer of dual-use goods are Part II of the INFCIRC/254/PART II IAEA document, while the initial Guidelines are included in Part I of the INFCIRC/254/PART I Agency document.
The NSG Guidelines define dual-use goods as the “goods that may be used both in nuclear and non-nuclear fields and provide a significant contribution to the nuclear fuel cycle that is not covered by the guarantees or to the activity to create a nuclear explosive device.”
NSG member countries developed procedures for exchanging notifications that are sent as a result of national-level approvals of decisions not to authorize the transfer or dual-use equipment or technologies and agreed to provide assurances that all NSG member countries shall not consent to the transfer of such items without prior consultations with the country that sent the notification. Future supplies of the goods included in the control list to any non-nuclear country could be carried out subject to entering into an Agreement on Comprehensive Guarantees with the IAEA. The said decision created the situation where transfers of nuclear items would be beneficial only to the NPT member countries and other countries that concluded agreements on comprehensive guarantees with the IAEA .
Besides, the application of the catch-all control principle allows the member counties to block exports of any dual-use goods that are suspected of a possible use under nuclear military programs even if a certain good has not been included in one of the control lists.
The NSG Guidelines are in line with the current international legally binding instruments in the field of nuclear non-proliferation. Notably, these include the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Treaty for the Prohibition of Nuclear Weapons in Latin America (Tlatelolco Treaty) and the Nuclear-Free Zones treaties. Aside from that, owing to the implementation at the national level of Guidelines provisions and requirements as well as of NSG Annexes, the activities of the Group promote the efforts of national governments to comply with national export control commitments in accordance with UN Security Council Resolution 1540, which primary objective is to prevent non-state actors (terrorist organizations in the first place) from getting their hands on nuclear weapons and relevant materials.
NSG activities also include information and outreach events related to the Guidelines and Control Lists that are implemented in the form of visits, meetings and regular briefings for individual governments that do not participate in the NSG. The events are also held in the countries across whose territories nuclear items are transported and in which the relevant goods and materials are transshipped. The information and outreach events also include global and regional forums etc. (for more details see http://www.nuclearsuppliersgroup.org/en/outreach).
(began functioning in 1996)
After the end of the Cold War, members of the former Coordinating Committee for Multilateral Export Controls (CoCom) that focused its activities on trading with Socialist countries decided that this mechanism no longer conforms to the existing conditions. They decided to establish more comprehensive export controls over the proliferation of conventional arms, dual-use goods and technologies.
Therefore, after the CoCom was abolished, the 17 countries that were its members along with a number of other countries that manufacture and export arms reached an agreement in 1995 on establishing a new regime, the Wassenaar Arrangement (WA). It is an informal group aiming to implement an agreed-upon policy in the export field that would promote regional and international security and stability through increasing transparency and enhancing responsibility when transferring conventional arms as well as dual-use goods and technologies, thus preventing the stockpiling (of weaponry) that has a destabilizing effect.
Later on, the main objective of the WA was expanded to include an important task of preventing terrorists from getting their hands on especially dangerous armament systems and dual-use technologies that are controlled by the regime.
In general, the founding members of the regime include 33 countries that attended the first WA Plenary held in Vienna (Austria) on July 11-12, 1996. After India became member of the Wassenaar Arrangement on December 8, 2017, the group has 42 participating states.
The Wassenaar Arrangement participating states agreed to apply export controls to all conventional arms and sensitive dual-use goods and technologies to prevent unauthorized transfers or re-transfers of such goods in cases where the member countries have serious concerns regarding the situation that shaped itself in a certain region or regarding the behavior of the government of a certain country to minimize the opportunities for a “potential destabilizing stockpiling of conventional arms.”
The WA is not aimed against any state and does not limit the right of any state to purchase means of self-defense in a legal manner in accordance with Article 51 of the UN Charter.
The WA does not have an international treaty that is directly related to it. Moreover, in a joint declaration the Wassenaar Arrangement participating states supported the entry in 2013 into the Arms Trade Treaty (ATT), emphasizing that the ATT objectives are concurrent with the WA objective, including the promotion of transparency and enhanced responsibility when performing transfers of conventional arms to prevent their destabilizing stockpiling.
A large set of documents has been developed as part of the WA activities with the control lists that are regularly updated, including the List of Dual-Use Goods and Technologies and Munitions List as well as over 20 instructions on implementing the best practices and different aspects of export controls over dual-use goods and munitions.
Under the WA international regime, various information and outreach events are held aiming to expand the application of the WA standards and promote the effectiveness of the national export control systems, including briefings after annual plenary meetings and extended technical briefings concerning the introduction of changes to the control lists and the problems of licensing and enforcement activities. Besides, seminars and working meetings for the stakeholders etc. are held.
The Zanger Committee and the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
(started functioning in 1971)
The Zanger Committee (ZC) which is also known as NPT Nuclear Exporters Committee was established in 1971 after the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) took effect on March 5, 1970. The Zanger Committee was established primarily to provide a correct and mutually acceptable interpretation to paragraph 2 of Article III of the Treaty on the Non-Proliferation of Nuclear Weapons, namely, to define, what is “equipment or material especially designed or prepared for the processing, use or production of special fissionable material.” The interpretation and procedures for control over implementation of this Article developed by the Committee help all the NPT participants to prevent redirecting nuclear export goods to the manufacture of nuclear, weapons or other nuclear explosive devices, thus contributing to the achievement of NPT goals and ensuring peace and security for all states.
As of August 2019, the Zanger Committee had 39 member countries. EU participates in the proceedings of the Zanger Committee as a permanent observer.
The activities of the Zanger Committee are related to NPT provisions which had an impact on the preparation of the Trigger List of especially developed or prepared equipment and materials (see above). The Agency publishes this list in the INFCIRC/209 series of documents under an arrangement with the International Atomic Energy Agency (IAEA).
It is worth noting that the limited effectiveness of the Zanger Committee recommendations is caused by the fact that its activities are directly related to NPT provisions, in particular, to the commitments not to provide especially developed or prepared for nuclear activity materials and equipment to non-nuclear states, if these materials and equipment are not covered by the IAEA guarantees, while the export of dual-use goods remains outside the scope of control on the part of the Zanger Committee.