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Export Controls

First-Ever Study Finds Congressional Attention on Nuclear Security Waning as Nuclear Terrorism Threat Persists

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A new report reveals a concerning loss of congressional leadership and interest in critical efforts to prevent nuclear terrorism.

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For Immediate Release: July 26, 2016

Media Contacts: Nathan Sermonis, Executive Director, Partnership for a Secure America, (202) 293-8580; Jack Brosnan, Program Associate, Partnership for a Secure America, 202-293-8580; Kingston Reif, Director for Disarmament and Threat Reduction Policy. Arms Control Association, 202-463-8270 ext. 104; Tony Fleming, Director for Communications and Operations, Arms Control Association, 202-463-8270 ext. 110
 

(Washington, D.C.)—A new report from Partnership for a Secure America and the Arms Control Association reveals a concerning diminution of congressional engagement and interest in critical efforts to prevent nuclear terrorism.

The report, Empowering Congress on Nuclear Security: Blueprints for a New Generation, assesses current congressional staff attitudes about nuclear security and explores the role of Congress and case studies in congressional leadership on this issue. The report also offers action items for lawmakers in enhancing nuclear security efforts and reducing global stockpiles of nuclear materials.

“As the threat of nuclear terrorism continues to loom, America must maintain its leadership of global efforts to keep dangerous nuclear and radiological materials out of the wrong hands,” said Nathan Sermonis, Executive Director of Partnership for a Secure America. “Unfortunately, congressional interest has steeply declined with nuclear security faded from the headlines. We need, however, an all-of-government approach to advance the most effective measures against this threat.”

This joint report, made possible by funding provided by the John D. and Catherine T. MacArthur Foundation, comes at a time when national attention on the security of nuclear and radioactive materials is decreasing even as these materials remain at risk from theft and more countries express interest in nuclear research and development.

“Despite significant progress in securing and eliminating nuclear materials around the world and the continued dedicated leadership role of several lawmakers, there is a need for Congress to play a more active role in shaping nuclear security policy,” noted Kingston Reif, Director for Disarmament and Threat Reduction Policy at the Arms Control Association. “We provide an important blueprint to build upon Congress’ historic bipartisan achievements on nuclear security and engage a new generation of policy advisers on Capitol Hill.”

To mark the publication of the report, Partnership for a Secure America and the Arms Control Association will be hosting an invitation-only event July 26 on Capitol Hill for congressional staff. The event will feature Ambassador Linton Brooks, Ambassador Bonnie Jenkins, and General Frank Klotz.

For more information about the report, please contact Partnership for a Secure America at [email protected] or (202) 293-8580, or the Arms Control Association at [email protected] or (202) 463-8270 ext. 104.

The full report, Empowering Congress on Nuclear Security: Blueprints for a New Generation, is available online.

Posted: July 25, 2018

Firearm Export Rule Change Draws Criticism

Critics say proposed shift to Commerce Department licensing will ease regulation on exports of nonautomatic and semiautomatic firearms.


June 2018
By Jeff Abramson

With proposed rule changes affecting U.S. firearms exports, the Trump administration is drawing criticism from domestic gun control advocates and taking a further step to promote weapons sales, a hallmark of this presidency.

The proposed changes, announced May 14 and published in the Federal Register on May 24, are open for public comment for 45 days. If implemented, licensing for the export of nonautomatic and semiautomatic firearms and their ammunition will move to the Commerce Department from the State Department, which administers the U.S. Munitions List.

Semiautomatic rifles are displayed for sale in a Las Vegas gun shop on October 4, 2017. The Trump administration has proposed new rules that critics say will ease licensing for exports of nonautomatic and semiautomatic firearms. (Photo: Robyn Beck/AFP/Getty Images)Critics say the change will loosen U.S. control over such exports to the benefit of U.S. gun manufacturers. “Small arms and light weapons are among the most lethal weapons that we and other countries export because these are the weapons that are most likely to be used to commit atrocities and suppress human rights, either by individuals, nonstate groups, or governmental security and paramilitary forces,” Sen. Ben Cardin (D-Md.) said on May 15.

Mike Miller, acting deputy assistant secretary of state for political-military affairs, said on May 22 that the change is justified because the weapons involved are “widely available, generally in retail outlets.” He noted that the categories of firearms moved to Commerce “will remain subject to export licensing requirements” and asserted that “these changes do not decontrol export of firearms and ammunition.”

In 2017 the administration notified Congress of more than $660 million of proposed firearms sales regulated under the munitions list, according to the Security Assistance Monitor. Some of those sales involved fully automatic weapons that will remain on the Munitions List, making it difficult to estimate the retail value of items moving to licensing at Commerce. Nonetheless, many industry groups welcomed the changes.

President Donald Trump has frequently touted the economic benefits of arms sales. In April, the administration issued a conventional arms transfer policy that emphasized the economic value of the defense industry broadly and promised the executive branch would “advocate strongly” on behalf of U.S. companies. (See ACT, May 2018.)

Miller said that “he wouldn’t necessarily pin [the proposed regulation changes] directly” to the new conventional arms transfer policy, but others including Democratic lawmakers have pointed to gun manufacturers and their supporters as the driving force behind the proposed rules. “I encourage the American people and relevant stakeholders to weigh in with the administration and speak out against the forces really driving this policy change—the gun lobby,” said Cardin.

Local news media in Connecticut and Florida reported that Sen. Chris Murphy (D-Conn.) and Reps. Elizabeth Esty (D-Conn.) and Ted Deutch (D-Fla.) also criticized the president for aligning with gun manufacturers. A number of gun control advocates also oppose the proposed change, including Robin Lloyd, director of government affairs at Giffords, the gun safety group founded by former Rep. Gabrielle Giffords (D-Ariz.) and her husband, retired U.S. Navy Captain Mark Kelly.

“It’s clear the administration will do anything to appease the gun lobby, even if it means putting profits over the safety of people around the world,” Lloyd said.

Efforts to revise the U.S. Munitions List have been ongoing for decades, but early in the Obama administration, the Export Control Reform Initiative was launched, based on a review that found the United States was “trying to control too much.” Seeking to “strengthen the United States’ ability to counter threats such as the proliferation of weapons of mass destruction,” the administration made changes to 18 of the 21 categories of major weapons and technology controlled under the munitions list, moving many items to the Commerce Control List, with an idea of building higher fences around fewer items.

Changes to the first three categories, which cover close-assault weapons and combat shotguns, guns and armaments, and their ammunition and ordnance, were considered by the Obama administration, but never published. The Obama-era delay can be attributed in part to the frequent national attention drawn to firearms by mass shootings in the United States and a presidency more inclined to support gun control efforts. On May 15, Cardin called the decision to move forward with changes “politically tone deaf as our nation reckons with a gun violence epidemic.”

In September 2017, Cardin, joined by Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.), sent a letter to Secretary of State Rex Tillerson expressing concerns about the possible transfer to Commerce control, pointing to congressional action in 2002 that required firearms sales valued at $1 million or more be notified to Congress, a much lower dollar threshold than for other weapons. Items moved over to Commerce control would no longer be subject to such notification.

With the rule release, Cardin and others reiterated their concern regarding loss of congressional oversight and broader worries about how firearms fuel conflict.

Posted: June 1, 2018

The Australia Group at a Glance

January 2018

Contact: Daryl Kimball, Executive Director, (202) 463-8270 x107

Updated: January 2018

Established in 1985, the Australia Group is a voluntary, informal, export-control arrangement through which 42 countries, as well as the European Union, coordinate their national export controls to limit the supply of chemicals and biological agents-as well as related equipment, technologies, and knowledge-to countries and nonstate entities suspected of pursuing chemical or biological weapons (CBW) capabilities.[1] All participants are members of the 1997 Chemical Weapons Convention (CWC) and the 1972 Biological Weapons Convention (BWC) and have stated that they view the Australia Group as a practical way to uphold the core purpose of these accords: preventing the spread of chemical and biological weapons.

Citing the use of chemical weapons during the Iran-Iraq war, the Australian government proposed creating the group in April 1985 as a means of uniting 15 countries that had independently established national controls on chemical weapons-related exports. At the first meeting in June 1985, the Australia Group initially focused on chemical weapons but by 1990 had extended its activities to include biological weapons. Although the group has traditionally aimed to prevent states from acquiring CBW-related materials, it decided at its June 2002 meeting to also address the flow of CBW capabilities to nonstate actors, such as terrorists.

The Australia Group establishes "control lists," and its members are expected to deny export license requests for items on the lists when there is a concern that the items might be used in a CBW program. Each year members meet in Paris to coordinate these export control policies, discuss possible revisions to the common control lists, and share intelligence about global CBW proliferation and export denials. The group has no charter or constitution, and each country uses its own discretion when implementing national export controls, relying on the group's lists as a baseline but often creating stricter controls than suggested by the group. Sensitive items on these control lists can be divided into five categories:

  • Chemical weapons precursors-chemicals used in the production of chemical weapons.
  • Dual-use chemical manufacturing facilities, equipment, and related technology-items that can be used either for civilian purposes or for chemical weapons production, such as reactors, storage tanks, pumps, and valves.
  • Biological agents-disease-causing microorganisms, whether natural or genetically modified, such as smallpox, Marburg, foot-and-mouth disease, and anthrax.
  • Toxins-poisonous substances either made by living organisms or produced synthetically that adversely affect humans, animals, or plants, such as botulinum toxin and ricin.
  • Dual-use biological equipment-items that can be used for both peaceful research and biological weapons production, such as fermenters, containment facilities, freeze-drying equipment, and aerosol testing chambers.

As with all other decisions, the Australia Group accepts new members only by consensus. Countries wishing to gain membership to the group must meet certain criteria, including proven compliance with the CWC and the BWC, and an established, effective national export control and enforcement mechanism for all the items on the group's control lists. In deciding whether to accept new members, each current member also weighs its willingness to share intelligence with the applicant country. Nonparticipating states complain that the criteria for membership are excessively strict and that denying a country membership implicitly accuses that applicant of pursuing chemical or biological weapons.

Nonmembers have also questioned the Australia Group's relationship to the CWC and BWC. Countries in the Non-Aligned Movement (NAM), for instance, have repeatedly asserted that they already made legally binding commitments not to acquire CBW by signing the biological and chemical weapons conventions, and that the Australia Group is at odds with the BWC provision for the "fullest possible technical exchange" for the advancement of peaceful scientific endeavors. Participants of the Australia Group, however, maintain that the group complements CWC and the BWC and serves the same goals. A U.S. State Department official explained that "the Australia Group offers another layer of control, but one-in the U.S.'s view-that is consistent with the U.S.'s obligations under the chemical and biological weapons treaties."[2]

At their June 2002 meeting, the members unanimously decided to adopt a set of formal, but not legally binding, guidelines outlining criteria for evaluating export requests and reaffirming the value of sharing intelligence about CBW proliferation. The two key provisions in these guidelines were a "no undercut" agreement and a "catch all" requirement. In the no-undercut provision, members pledged not to approve a particular export to a specific country that another member had previously denied without first consulting with that member. The catch-all provision requires member countries to be able to halt the transfer of any export, regardless of whether it appears on the group's control lists, if an importer might use it in a chemical or biological weapons program. This provision further stipulates that exporters in member states notify their governments if they suspect that an importer intends to use any import for CBW development.

In response to heightened concerns about chemical and biological terrorism, the group also decided in June 2002 to control the spread of technology by "intangible means," prohibiting the transmission of CBW technologies by e-mail, phone, or fax. For instance, with controls on intangible technology transfers, a company could be required to obtain government authorization before faxing abroad a "cookbook" for growth media that could be used in a biological weapons program.

At the June 2012 plenary meeting, the group agreed to amend the guidelines in order to enhance controls on brokering services and continued reviewing the proliferation risks of new and emerging technologies, particularly in the area of nanotechnology.

Although the effectiveness of the Australia Group is difficult to gauge definitively, the 42 member countries assert that the regime acts as an impediment to CBW proliferation by working to ensure that industries in member nations do not, either inadvertently or intentionally, assist states or groups seeking to develop CBW capabilities.

 


 

ENDNOTES

1. The 42 states participating in the Australia Group are Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, India, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom, and the United States. The European Union also participates. Several other countries, including Russia and China, have national export controls for some, but not all, of the items on the group's lists.

2. Quoted in Lois R. Ember, "Stemming the Tide," Chemical and Engineering News, July 15, 2002, p. 28.

Chemical/Biological Arms Control

Posted: January 22, 2018

MTCR Plenary Discusses Challenges

MTCR Plenary Discusses Challenges

Members of the Missile Technology Control Regime (MTCR) holding an annual plenary in October sought to address challenges facing the 30-year-old accord, including emerging technologies and regional proliferation. MTCR members agree to control exports of missiles and other unmanned delivery systems in order to curb the proliferation of weapons of mass destruction. Since the voluntary regime began in 1987, its membership has grown from seven to 35 countries.

The meeting, co-chaired by Iceland and Ireland, discussed intangible-technology transfers, unmanned aerial vehicles (UAVs), “catch all” controls, regional proliferation, and outreach to non-MTCR countries, according to an Oct. 20 joint statement.

Members also renewed their commitment to exercising “extreme vigilance” in restricting technology transfers that could contribute to North Korea’s missile program, according to the statement. For the meeting, the United States prepared a proposal that exports of certain UAVs, now tightly restricted as being equivalent to cruise missiles, be treated more leniently, according to an Oct. 11 Reuters report. That reflects an interest by the Trump administration and UAV manufacturers in pursuing increased U.S. drone exports, Reuters said. A State Department official praised the MTCR in an Oct. 25 email to Arms Control Today but provided no details about the confidential discussions.—ALICIA SANDERS-ZAKRE

Posted: November 1, 2017

ZTE Fined for Sanctions Evasion

Chinese telecom giant ZTE agreed to pay U.S. penalties of $1.2 billion for shipping equipment to Iran and North Korea.

Chinese telecommunications giant ZTE Corp. agreed to pay U.S. civil and criminal penalties totaling $1.2 billion for illegally shipping telecommunications equipment to Iran and North Korea, the largest fine and forfeiture penalty ever imposed in a U.S. export control case. ZTE pleaded guilty to violating U.S. export and sanctions regulations and obstructing justice with “false and misleading” statements during the investigation of its activities, the U.S. Commerce Department said in a March 7 statement. The regulations control the sale of sensitive U.S.-origin technologies.

ZTE “conspired to evade” the U.S. embargo on Iran between 2010 and 2016 in order to “supply, build, operate and/or service large scale telecommunications networks in Iran” using U.S.-origin equipment and software, the Commerce Department said. “As a result of the conspiracy, ZTE was able to obtain hundreds of millions of dollars in contracts with and sales from such Iranian entities.” ZTE also made 283 shipments of items to North Korea, including items controlled for national security purposes, such as routers, microprocessors, and servers, according to the statement. ZTE engaged in evasive conduct designed to prevent the U.S. government from detecting its violations, the Commerce Department said. 

ZTE Chairman and CEO Zhao Xianming said in a March 7 statement that the company acknowledged “the mistakes it made” and is instituting new “compliance-focused” procedures. Under the settlement, ZTE will be subject to audits and additional compliance requirements. The terms specify that $300 million of the penalty will be suspended if ZTE abides by all regulations during a seven-year probationary period. 

Posted: March 31, 2017

NSG Membership Proposal Would Undermine Nonproliferation

Six years ago, U.S. President Barack Obama pledged his support for India’s entry into the Nuclear Suppliers Group (NSG), the nuclear technology control organization established in 1975 in response to India’s first nuclear weapon test blast, which used plutonium produced with nuclear technology from Canada and the United States. According the official NSG website , India’s 1974 test explosion “demonstrated that peaceful nuclear technology transferred for peaceful purposes could be misused.” NSG membership currently requires that the state is a member in good standing with the nuclear...

Mapping Nuclear Security and Nonproliferation Efforts

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This new resource aims to inform policymakers, scholars, and the general public on the role that overlapping multilateral initiatives play in nonproliferation efforts.

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New Online Resource Maps Efforts to Combat Nuclear Terrorism and Curb the Spread of Nuclear Weapons

For Immediate Release: December 6, 2016

Media Contacts: Tony Fleming, director of communications, 202-463-8270 ext. 110

(Washington, DC)—The Arms Control Association today launched a new online resource in mapping and tracking the objectives and key activities of five major nuclear nonproliferation regimes.

The Nuclear Nonproliferation Initiatives Mapping Project aims to inform and update nuclear policy experts, scholars, students, and the general public, on the role that overlapping multilateral initiatives play in bolstering the nuclear Nonproliferation Treaty (NPT) by securing weapons-usable materials, regulating the spread of dual-use nuclear ballistic missile technologies, and blocking the illicit transfer of weapons-related items.

The Arms Control Association is launching a New Online Resource Maps Efforts to Combat Nuclear Terrorism and Curb the Spread of Nuclear WeaponsProject information and resources are available online at NuclearNonProMap.org
 
The five initiatives examined in this project include

  • the Global Initiative to Combat Nuclear Terrorism,
  • the Missile Technology Control Regime,
  • the Nuclear Suppliers Group,
  • the Proliferation Security Initiative, and
  • the G7 Global Partnership Against the Spread of Weapons of Mass Destruction.

"Each of these initiatives plays a critical role in reinforcing governments' efforts under the NPT, which entered into force in 1970, to combat the threat of nuclear terrorism, prevent the rise of new nuclear-armed actors, and strengthening the global nuclear security architecture," noted Kelsey Davenport, director of non-proliferation policy, who developed the site. 

In addition to displaying the geographic scope and providing a brief background of each initiative, this project provides general recommendations that could improve the effectiveness of each in the years ahead. These recommendations are based on open source information about the work of each initiative.

The project also presents options for collaboration amongst these voluntary groups to amplify impacts and results. These recommendations are meant to spur creative thinking about how these voluntary initiatives can adapt and evolve to better address future threats and challenges.
 
By consolidating references and recommendations, the project serves as a resource to better understand the role that voluntary intergovernmental initiatives play in bolstering nonproliferation and nuclear security efforts. The project was made possible by the generous support of the MacArthur Foundation.

The site will be updated periodically to reflect the changing membership and priorities of each initiative, developments related to the challenges they address, as well as additional recommendations for strengthening multilateral efforts to prevent the spread of nuclear weapons and combat nuclear terrorism.

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The Arms Control Association is an independent, membership-based organization dedicated to providing authoritative information and practical policy solutions to address the threats posed by the world's most dangerous weapons.

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Posted: December 2, 2016

Kazakhstan Approved as Fuel Bank Site

July/August 2015

By Daniel Horner

The International Atomic Energy Agency (IAEA) Board of Governors on June 11 voted to approve an agreement with Kazakhstan under which the Central Asian country would host a nuclear fuel bank that the agency is planning to establish, the IAEA announced in a statement after the vote.

The board also approved a transport agreement with Russia for the low-enriched uranium (LEU) that the bank would hold. The bank would be located at the Ulba Metallurgical Plant in northeastern Kazakhstan.

The bank will house up to 90 metric tons of LEU, enough material to fuel a light-water reactor with a capacity of 1,000 megawatts electric, according to the IAEA. 

The board authorized the establishment of the bank in December 2010. (See ACT, January/February 2011.) In 2011, Kazakhstan officially offered to host the bank. Since then, Kazakhstan and the agency “have been working on technical details” and negotiating the necessary agreements, the IAEA said in its June 11 release. Kazakhstan will operate the bank, but the IAEA will own and control it, the release said.

In a memo issued in January 2010, the IAEA Secretariat said the bank is “designed to be used rarely.” As in other versions of the fuel bank concept, developed by individual countries, the IAEA fuel bank is intended to be a “last resort” in case of a disruption in the international fuel market. As it has previously, the agency emphasized in the press release that the fuel bank “must not distort the commercial market.”

The initial impetus for the IAEA fuel bank came from the nongovernmental Nuclear Threat Initiative, which in 2006 pledged $50 million for the bank on the condition that other sources provide $100 million. Kazakhstan, Kuwait, Norway, the United Arab Emirates, the United States, and the European Union combined to supply the necessary funds. 

The NTI hailed the recent vote by the IAEA board. In a June 11 press release, NTI Co-Chairman Sam Nunn said the bank gives countries an alternative to pursuing uranium-enrichment programs.

The U.S. State Department’s press office said on June 12 that the IAEA fuel bank would support U.S. nonproliferation policies “by reducing incentives for the spread of sensitive technologies to new countries.” The statement commended Kazakhstan for the leadership it showed by offering to host the bank.

Some of the early versions of fuel bank proposals required countries to forgo indigenous enrichment programs in order to be eligible to receive material from a fuel bank, an approach that led to objections from many of the potential developing-country recipients. The IAEA has repeatedly stressed that it is not taking such an approach. The existence of the fuel bank “does not affect the rights of IAEA Member States to develop their own nuclear fuel cycle facilities,” the agency’s press release says.

Posted: July 8, 2015

S. Korea, U.S. Sign Civil Nuclear Pact

After years of talks, South Korea and the United States signed an agreement for peaceful nuclear cooperation.

July/August 2015

By Daniel Horner

South Korean Foreign Minister Yun Byung-se (left) and U.S. Energy Secretary Ernest Moniz sign an agreement for peaceful nuclear cooperation in Washington on June 15.(U.S. Department of Energy)South Korea and the United States on June 15 signed an agreement for peaceful nuclear cooperation after years of talks that had been bedeviled by the need to square U.S. nonproliferation policy with South Korean aspirations to develop its nuclear fuel cycle and be recognized as an equal nuclear partner.

One bone of contention has been the issue of whether the United States would provide so-called advance consent for South Korean sensitive nuclear activities that fall under the agreement. The pact provides such consent for relatively noncontroversial activities, but not for uranium enrichment or for pyroprocessing, a spent fuel treatment process that South Korea is pursuing and that Washington considers to be a form of reprocessing.

Through an ongoing, joint fuel-cycle study and a high-level bilateral commission that is established by the agreement and two supplementary documents, the new accord “contains pathways” toward a “possible” U.S. decision “to grant advance consent to [South Korea] to enrich or pyroprocess U.S.-obligated nuclear material,” according to the agreement’s Nuclear Proliferation Assessment Statement (NPAS). The NPAS, which is required under U.S. law, is one of the documents that accompanied the text of the agreement in a package that President Barack Obama sent to Congress on June 16.

Under the 1978 Nuclear Non-Proliferation Act, U.S. nuclear cooperation agreements must include language saying that the partner country may not undertake activities such as uranium enrichment and spent fuel reprocessing under the agreement unless Washington first consents to those activities.

In the agreements with Japan, Euratom, and India, the United States provided consent for the life of the agreement. Under a proposed agreement that is now before Congress, China would receive similar consent. South Korea was seeking a similar arrangement.

In 2011, South Korea and the United States began a joint study on pyroprocessing, which is due to be completed in 2021. Once the study is finished, the two sides “shall consult with a view to identifying appropriate options for the management and disposition of spent fuel subject to the Agreement and for further development or demonstration of relevant technologies,” according to the new agreement. The consultations are to take place “as promptly as possible so that nuclear energy programs of either Party would not be unduly hampered” and are to be under the auspices of the high-level commission. That body is to be headed by the U.S. deputy secretary of energy and the South Korean vice minister of foreign affairs. 

The agreement lists the criteria that the study is to use in assessing pyroprocessing—technical feasibility, economic viability, and nonproliferation acceptability. The two countries also must agree that the technology “does not significantly increase the risk of proliferation and ensures timely detection and early warning of diversion.”

In addition, the two sides have to agree that pursuing pyroprocessing “avoids the buildup of stocks of group actinides in excess of an amount that is reasonably needed.” The term “actinides” refers to a series of metallic elements in the periodic table, some of which are potentially usable as nuclear explosives.

A former U.S. official who worked on nuclear cooperation agreements said the last provision does not appear in other pacts and reflects the current U.S. policy on limiting the amount of separated plutonium. U.S. officials “don’t want to see another Japan happen,” he said in a July 3 interview, referring to Japan’s accumulation of separated plutonium well in excess of the country’s ability to use the material in its nuclear reactors.

Pyroprocessing differs from conventional reprocessing because the plutonium separated from spent fuel by pyroprocessing remains mixed with other actinides. South Korean officials have argued that this difference makes pyroprocessing more proliferation resistant than traditional reprocessing.

The NPAS notes that the United States treats pyroprocessing as a proliferation-sensitive technology and says that the United States believes that the Nuclear Suppliers Group also should do that.

That document acknowledges that the determination of whether a technology significantly increases the risk of proliferation is “subjective” and says that the proposed agreement gives the secretary of energy the “latitude” to make that determination, as required by the Atomic Energy Act.

The agreement makes clear that the potentially proliferation-sensitive activities can proceed only through mutual consent, but a former congressional staffer expressed concern that U.S. officials ultimately would accede to the South Korean requests. “For years, I’ve watched Americans forget that it’s through mutual consent. Friends are often harder to say no to” than enemies, he said in a June 30 interview.

In a July 2 interview, a congressional analyst said the structure of the agreement is “intended to allow each side to spin it positively.” The United States can say it did not give advance consent to pyroprocessing, and South Korea can say that the pact does not foreclose that possibility “forever,” he said.

He noted that the agreement’s duration is 20 years, with provision for a five-year extension. That time frame would allow the Koreans to revisit the contested issues relatively soon if they are not satisfied with the pace of progress, he said. U.S. nuclear cooperation agreements generally have had terms of at least 30 years, some of which allow for an unlimited number of five-year extensions. The shorter time frame in the new agreement was at the insistence of the South Koreans, the analyst said.

The former U.S. official agreed that the new accord represents a compromise by both sides. He added that the establishment of the high-level commission indicates “how seriously [the United States is] addressing” the South Korean concerns.

The new agreement replaces one that was due to expire last year but was extended for two years. Officials from the two countries initialed the new pact in April. (See ACT, May 2015.)

The June 16 submittal to Congress starts a countdown of 90 days of so-called continuous session. The agreement can enter into force if Congress does not block it during that time. Congress also can vote to add conditions to the agreement.

Posted: July 8, 2015

A Convention on Nuclear Security: A Needed Step Against Nuclear Terrorism

The current regime for nuclear security, although better than it was, is largely nonbinding and has many gaps. The most reliable, efficient, and direct way to improve it is to develop an international convention on nuclear security.

June 2015

By Kenneth C. Brill and John H. Bernhard

In his 2009 speech in Prague, President Barack Obama declared, “[W]e must ensure that terrorists never acquire a nuclear weapon. This is the most immediate and extreme threat to global security.” To help deal with this threat, he said the world needed “durable institutions” devoted to the problem and announced that the United States would host a global summit on nuclear security in part to address that issue.[1]

Since the speech in Prague, there have been nuclear security summits in Washington in 2010, Seoul in 2012, and The Hague last year. Obama will host what is widely expected to be the last nuclear security summit in the United States next year. The summits and the work that precedes each of them have generated progress on a variety of issues related to diminishing the threat of nuclear terrorism. Yet, they have not produced any “durable institutions” to prevent nuclear terrorism or any clarity on how the nuclear security regime can be sustainably strengthened once the summits end.

This article reviews the reasons for concern about the threat of nuclear terrorism, analyzes the current state of the nuclear security regime, and describes how an international convention on nuclear security could close existing gaps and be the “durable institution” Obama called for to ensure the nuclear security regime is as dynamic as the threat it is meant to prevent.
 
The Threat

President Barack Obama holds a press conference in The Hague on March 25, 2014, at the end of the nuclear security summit in the Dutch city. (Patrik Stollarz/AFP/Getty Images)Some wonder whether the threat of nuclear terrorism exists outside of novels and Hollywood action films. The administrations of President George W. Bush and Obama have made clear the threat is real. Other global leaders, including those from the other 52 countries that have participated in the nuclear security summits, have done the same. Successive U.S. directors of national intelligence have outlined the reality of the threat in testimony to Congress and in their national intelligence strategies. Yukiya Amano, the director-general of the International Atomic Energy Agency (IAEA), and his immediate predecessor, Mohamed ElBaradei, have described nuclear terrorism as a threat that needs urgent attention.

A nuclear terrorist attack, particularly one involving fissionable materials, would produce devastating international political, economic, humanitarian, and environmental consequences. Expert studies have concluded that even a small nuclear explosion in a major city would immediately kill tens of thousands of people and cause even more deaths subsequently. The explosion would destroy infrastructure over a wide area, and radiation would make a larger area unusable for many years. The costs of attending to the human casualties, relocating large numbers of people, and undertaking new construction and the cleanup of land and buildings, combined with the costs arising from bankruptcies, trade dislocations, and the disruption of energy and other supplies, would most likely be in the trillions of dollars.[2]

Terrorists also could make a device from radiological substances, which are used globally for medical, research, and industrial purposes. A radiological dispersal device, or “dirty bomb,” would produce fewer casualties, but could result in significant consequences and costs for health, infrastructure, and the environment. Such a device also could make many blocks in an urban area too contaminated for humans to work or live in without time-consuming remediation. This would be very expensive and very disruptive to people’s lives, the environment, and the economy.

Terrorist use of any type of nuclear device would cross an important psychological threshold for the public, governments and terrorist groups themselves, taking questions of national and international security into uncharted waters.

At least five terrorist groups, including al Qaeda and the Islamic State, have demonstrated an interest in acquiring and using nuclear material or a nuclear weapon. Terrorists do not need to steal a nuclear weapon. An improvised nuclear device, which would have the explosive power comparable to the weapons used in Hiroshima and Nagasaki, can be made from highly enriched uranium or plutonium being used for civilian purposes. The Islamic State indicated its interest in nuclear terrorism with a boast about constructing a dirty bomb after stealing 88 pounds of unenriched uranium compounds from a university laboratory when it overran Mosul, Iraq, in 2014.[3]

The continued loss, theft, and illegal movement of nuclear and other radioactive materials demonstrate that material is available for terrorists to acquire and use as a weapon. Since 1993, the IAEA has logged some 2,500 cases related to the theft, loss of control, unauthorized possession, or illicit trafficking of nuclear and other radioactive material.[4] The insecurity of nuclear and other radioactive material continues, with some 150 cases of theft, loss of control, or illicit trafficking reported annually. At least 18 cases of confirmed thefts or loss of weapons-usable nuclear material have occurred, the latest in 2011.

The growing global demand for nuclear energy for power production and industrial, medical, and research uses means there will be an increasing amount of nuclear material in a growing number of countries that needs to be secured in the future.

The impact of a terrorist nuclear explosion would be felt far beyond the city and country where it occurred. The entire global community would be affected, particularly those least able to afford it. In a 2005 speech, UN Secretary-General Kofi Annan said an act of nuclear terrorism “would stagger the world economy and thrust tens of millions of people into dire poverty” and create “a second death toll throughout the developing world.”[5] Other likely impacts would be an enhanced focus on security to prevent future nuclear attacks. This would affect international trade and investment, development assistance, and quite possibly domestic and international systems of governance.

For all these reasons, nuclear terrorism must be prevented, as no response could undo the pervasive damage an incident would inflict on individuals, societies, and global approaches to governance and security.

The Current Regime

Over time, the international community has constructed a nuclear security regime that is a patchwork of international treaties, organizations, and initiatives that rely largely on voluntary actions. The two relevant treaties—the International Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material (CPPNM), as well as the latter’s 2005 amendment, which is not yet in force—are narrowly focused in what they address and very general in what they ask states to do. UN Security Council Resolutions 1373, 1540, and 1887 require states to take steps to combat terrorism and prevent the proliferation of nonconventional weapons, including to terrorist and criminal groups. These legally binding international documents are useful, but have little relevance in day-to-day operations to secure nuclear and other radioactive material, in part because some of what they cover includes actions to take after a terrorist attack.

In the wake of the September 11 attacks, the IAEA developed a prominent role in nuclear security. It produced a variety of recommendations, standards, and services to help member states improve their systems for securing nuclear and other radioactive material, but it has no legal mandate to require actions by states, which are free to adopt or ignore IAEA advice related to nuclear security. This is different from the IAEA safeguards agreements that are mandated by the nuclear Nonproliferation Treaty, an international agreement. The IAEA, for example, can review but not require changes in a country’s nuclear security practices, and it can conduct such reviews only if it is asked to do so. The inspected country is under no obligation to do anything in response to the agency’s findings. The IAEA has begun to host ministerial conferences on nuclear security, which, to date, have been mainly opportunities for ministerial speechmaking rather than for decisions on concrete actions.

The final element of the current nuclear security regime is initiatives undertaken by like-minded states. These include the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, the Proliferation Security Initiative, and the Global Initiative to Combat Nuclear Terrorism. These initiatives have produced useful recommendations and actions to strengthen nuclear security and prevent nuclear terrorism and proliferation, but all are voluntary in nature. As a result, some states do more than others, and all states do only what they wish, not necessarily what needs to be done.

The summits have taken the nuclear security issue to the highest political level. The three summits that have taken place to date represent an unusual degree of sustained senior-level attention to a complex technical issue. The leaders have agreed on a variety of measures to address the threat of nuclear terrorism that have yielded very useful results. For example, since the summit process began, some 6,000 pounds of vulnerable nuclear material have been secured, states have developed initiatives and proposals to strengthen protection of nuclear and other radioactive materials, and work plans have been agreed that strengthen regional cooperation.[6] At the 2014 nuclear security summit, 35 of the participating 53 states agreed to incorporate the IAEA nuclear security principles into their national legislation.[7]
 
Assessing the Regime

Although the international community has made progress in improving global nuclear security, the regime’s patchwork and largely voluntary nature is inadequate compared to the consequences of failure. It is vitally important to recognize that the essential elements of an effective and sustainable global nuclear security regime to prevent nuclear terrorism are still missing. The current regime has no agreed and binding standards for securing nuclear and other radioactive materials, no process to assess how states are meeting their responsibility to secure these materials, and, perhaps most importantly, no mechanism to provide a sustained review of and promote improvements in the nuclear security regime as a whole.

Many assume the IAEA performs these functions, but it does not. It has no legal mandate to do so, and most of the funding for nuclear security is still provided by the voluntary contributions of a limited number of member states, not the IAEA’s regular budget. As a result, the IAEA’s possibilities to act are limited by the lack of sufficient resources and its restricted mandate.

In the aftermath of a nuclear terrorism incident, there can be no doubt that the current piecemeal approach to global nuclear security would be seen as woefully and probably irresponsibly deficient. There is no legitimate reason to wait for a catastrophe before developing an integrated global regime to secure nuclear materials. With the nuclear security summit process most likely coming to an end in 2016, there is an urgent need to develop a mechanism that can provide a process for sustained review and improvement of the nuclear security regime beyond 2016. This is crucial in an environment in which there is an increasing amount of nuclear material and the terrorism threat is escalating.

Improving Governance

Politically, the first hurdle to address in the process toward a better regime is the traditional concept of national sovereignty, which often restricts the readiness of states to enter into binding international agreements. Because nuclear security is generally linked to important national institutions, intelligence, and confidentiality, the nuclear security regime traditionally has been nationally based.

States have to strike a more appropriate balance between considerations of national sovereignty and international responsibility. This would be in line with the recognized principle in international law that activities on a state’s territory shall be undertaken in a way that does not seriously affect other states negatively.[8] A defective nuclear security situation in one state obviously is a potentially serious transboundary threat.

A balance along these lines has been developed with regard to nuclear safety in part by adopting the Convention on Nuclear Safety. This difference between nuclear safety and nuclear security is not logical because terrorists might create the same threatening situations that an accident or a natural disaster could.

The growing political consciousness of states regarding the threat, consequences, and importance of the matter should be transformed into legally binding international arrangements. As in many other areas of international cooperation, states should realize that the burden of taking on obligations would be balanced by the benefits of other states doing the same. This approach ensures a more coherent, effective, and sustainable international defense against nuclear terrorism.

Another important prerequisite for the development of strong international governance is universal participation. It has been valuable that groups of like-minded states have taken the lead in the nuclear security summit process and elsewhere, but in the long term, agreements on more-effective implementation and stronger commitments cannot apply only to restricted groups. A global threat should be addressed at the global level.

An effective international regime should build on existing relevant instruments and add the critically important missing elements, such as binding common standards, transparency (while protecting sensitive information), cooperation, reviews, and mechanisms that assess how standards and other commitments are implemented and promote continuous improvement of the regime. This would lay the foundation for confidence in the security regimes nationally and internationally. 

There are various ways to achieve the goal of stronger governance. These include continuing efforts to work within current structures and processes, thereby gradually adding more elements or instruments, binding or nonbinding, to the present patchwork of nuclear security commitments. This approach may eventually bring progress, but its success is uncertain. The most reliable, efficient, and direct way forward is to develop an international convention on nuclear security. This approach can complement existing agreements, address the weaknesses of the current regime, and create a mechanism through which parties to the convention can assess the effectiveness of nuclear security governance and develop ways to improve it.

The Virtues of a Convention

On the basis of the analysis outlined above, an international coalition of multisector experts, the Nuclear Security Governance Experts Group, decided in 2013 that a subgroup of its members should start drafting the model text of an international convention. One of the questions considered was whether a new convention on nuclear security should have the already existing documents attached to it, for example, as protocols or annexes. An argument in favor of this model was that it would become a fully comprehensive international agreement in which all relevant documents on nuclear security could be found.

Yukiya Amano, director-general of the International Atomic Energy Agency, delivers remarks on July 1, 2013, the first day of a nuclear security conference at the agency’s headquarters in Vienna. (Patrick Domingo/AFP/Getty Images)On the other hand, many questions would arise in connection with such a model. For example, could a country that was a state-party only to some of the attached documents become a party to the convention? Would the commitments that are not not legally binding become legally binding if attached to a legally binding convention? Could the existing agreements maintain their independent status in areas such as accession, entry into force, review, and amendments if they were to become attached to the convention? Solutions might be found to most of these questions, but the result could be a labyrinth of obligations that would make many states hesitant to join.

The model international convention on nuclear security[9] that the governance group presented at a press conference in Washington on March 24 therefore does not include existing agreements. Likewise, it does not replace or affect any of the existing instruments or processes. Instead, it supplements them and creates a mechanism to develop and strengthen the international regime further without establishing any new international bureaucracy.

The aim of the convention is ambitious but realistic. It is based on the assumption that many states may not be ready to enter into a large number of new international obligations immediately. Therefore, according to the convention, the future development and strengthening of international governance in this field lies in the hands of states, assembled in the conference of the parties.
 
Main Features of the Convention

The most significant substantive element in the convention is that its annex establishes a set of binding standards for national nuclear security regimes against which the performance of states can be measured. These standards have been reproduced from the IAEA publication titled “Nuclear Security Fundamentals: Objective and Essential Elements of a State’s Nuclear Security Regime.”[10] The standards are the result of extensive negotiations among IAEA member states; the IAEA Board of Governors and General Conference endorsed them in 2012. Thus, they are already generally accepted by states.

In their present form, however, the standards are politically but not legally binding, and states therefore may or may not implement them. By being included in the convention, they are converted into legally binding rules.

The second crucial feature of the draft is the establishment of the conference of parties, which will be responsible for devoting ongoing attention to the nuclear security regime and for making improvements to the regime that are made necessary by factors such as changing threats and technologies. Its comprehensive mandate includes overseeing the implementation of the convention and reviewing the international nuclear security regime in general. It also may play a more dynamic role by identifying weaknesses and gaps in the international regime and determining how to address them, such as by adopting protocols to the convention. The conference would be the “durable institution” that Obama called for in his Prague speech and which does not yet exist.

Adoption of protocols to the convention will be a way to improve and develop the international regime over time. The states themselves would be the masters of this process through negotiations and decisions at the meetings of the conference. The convention should be seen as a living document that leaves the responsibility for the further strengthening of the nuclear security regime to the parties. It contains some basic principles, in particular the common standards, but whether there is a need for additional rules is up to the conference of parties to decide.

The convention would require regular reviews of how states implement their nuclear security responsibilities; these reviews would yield practical and timely results. Here again, the role of the conference of parties is decisive. The conference would adopt the procedures and mechanisms that would apply to the review of the reports from states, which are foreseen in the convention. The convention stipulates that the procedures and mechanisms shall protect the confidentiality of sensitive information. The convention calls for the parties to cooperate in improving training and technical support. The conference is to develop mechanisms for provision of financial and other assistance to parties that may request it.

With regard to scope, the convention would apply to all nuclear and other radioactive materials used for civilian purposes and the facilities in which they are contained. To the extent possible, it also would apply to such materials and facilities used for noncivilian purposes. In other words, the degree to which the convention will cover materials and facilities used for noncivilian purposes is left to the states-parties in question, but the possibility clearly is there.

The parties would hold their first conference no more than 18 months after the date of entry into force of the convention, which like the Convention on Nuclear Safety, requires only 22 ratifications. Thereafter, the parties determine the date of the next meeting, but the interval between the meetings shall not exceed three years. In this way, the conferences will act as a regular and timely forum for review and discussion of the state of the nuclear security regime and of the need for further common steps. Normally, the officials attending the conference would be mid-level political representatives, but it is possible for the conference to meet at a high political level when states-parties so decide.

Finally, the convention foresees an important role for the IAEA as depositary and secretariat. This convention thus would strengthen the IAEA’s nuclear security role and work.

How to Produce a Convention

A key question as the nuclear security summit process nears its end is whether the international community will revert to the institutions, voluntary initiatives, and processes that existed before the summits, which appears to be the current trajectory of summit planning, or if it will start something new.

The convention and its conference of parties would replace and build on the summit process by providing the summit process by providing a forum for examining and developing the nuclear security regime in a way that leads to action, not loose commitments to voluntary recommendations. Starting negotiations on the convention after the end of the summit process is a logical follow-up to the 2014 joint statement on strengthening of nuclear security implementation, which became IAEA Information Circular 869 in October 2014.[11]

The convention and its mechanisms differ from the summit process, however, in that they will be open to all states that are ready to contribute to the strengthening of nuclear security. The convention therefore has the potential of eventually becoming a universal instrument.

An objection raised in some quarters is that although the idea of a convention may be an optimal approach in theory, in reality it would be too difficult to achieve and is impractical. On the contrary, the success of the Vienna Convention on Protecting the Ozone Layer and its Montreal Protocol in effectively addressing a complex technical and economic issue with serious global consequences demonstrates the practicality of the convention approach to an issue such as nuclear security. The ozone treaties were negotiated by a relatively small group of states committed to addressing a global problem. Their intention was that the treaties should be open to all states, and indeed, the ozone treaties have virtually universal membership and are widely seen as a success. With active leadership from a few states, this same approach can work for nuclear security. Clearly, there are potential leaders for this process among the 35 states that are part of the 2014 initiative on strengthening nuclear security implementation.

Another objection to a new, legally binding document is that what is needed is better and more complete implementation of existing international agreements. This objection misses the point that the gaps in the regime described above exist precisely because existing instruments do not address them. As a result, no matter how well they are implemented, the international community will remain vulnerable to nuclear terrorism.

Nonetheless, in parallel with negotiations on a convention, it is important to continue efforts to implement and strengthen the current instruments, for example, by bringing the CPPNM and its amendment into effect and by continuing the ongoing work in international organizations, in particular the IAEA. During negotiations and after entry into force, the aim of the convention is to supplement and support the existing regime and the work of the relevant organizations, not to interfere with them.
 
Ambition Required

Former Secretaries of State George Shultz and Henry Kissinger recently made comments about the need to improve global nuclear security.[12] Shultz noted that the late Max Kampelman, a former close adviser, said the global community and the United States tend to focus on the “what is” of difficult problems, rather than the “what ought to be.” Kissinger added that, in the wake of a nuclear explosion, significant changes would be inevitable. He asked whether the international community is smart enough to make the changes before such an event occurs.

It clearly is time to prove the international community is smart and ambitious enough to move the “is” of nuclear security much closer to the “what ought to be.” An international convention on nuclear security is the best way to do that and to do it sustainably. The goal should be to bring such a convention into force by 2020. That time frame would reflect both the complexity of the problem and the urgent need to address it.


Kenneth C. Brill is a former U.S. ambassador to the International Atomic Energy Agency (IAEA) and the founding director of the U.S. government’s National Counterproliferation Center. John H. Bernhard is a former Danish ambassador to the IAEA and the Organization for Security and Co-operation in Europe and a former legal adviser in the Danish Foreign Ministry. They are members of the Nuclear Security Governance Experts Group.


ENDNOTES

1. Office of the Press Secretary, The White House, “Remarks by President Barack Obama, Hradčany Square, Prague, Czech Republic,” April 5, 2009.

2. See Charles Meade and Roger C. Molander, “Considering the Effects of a Catastrophic Terrorist Attack,” RAND Center for Terrorism Risk Management Policy, 2006, http://www.rand.org/content/dam/rand/pubs/technical_reports/2006/RAND_TR391.pdf; Graham Allison, Nuclear Terrorism: The Ultimate Preventable Catastrophe (New York: Henry Holt and Company, 2004).

3. Amre Sarhan, “ISIS Claims Constructing Dirty Bomb After Stealing 40kg of Uranium,” Iraqi News, December 2, 2014, http://www.iraqinews.com/iraq-war/isis-claims-constructing-dirty-bomb-stealing-40kg-uranium/.

4. International Atomic Energy Agency (IAEA), “Incident and Trafficking Database,” December 9, 2014, http://www-ns.iaea.org/security/itdb.asp.

5. Kofi Annan, ”A Global Strategy for Fighting Terrorism” (keynote address at the International Summit on Democracy, Terrorism and Security, Madrid, March 10, 2005), http://summit.clubmadrid.org/keynotes/a-global-strategy-for-fighting-terrorism.html.

6. Office of the Press Secretary, The White House, “Fact Sheet: Advancing Global Nuclear Security,” March 24, 2014, https://www.whitehouse.gov/the-press-office/2014/03/24/fact-sheet-advancing-global-nuclear-security.

7. Nuclear Security Summit 2014, “Strengthening Nuclear Security Implementation,” March 25, 2014, https://www.nss2014.com/sites/default/files/documents/strengthening_nuclear_security_implementation.pdf.

8. See “Trail Smelter case (United States, Canada),” Reports of International Arbitral Awards, Vol. 3 (2006), pp. 1905-1982, http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf.

9. John Bernhard et al., “International Convention on Nuclear Security,” Nuclear Security Governance Experts Group, March 2015, http://www.nsgeg.org/ICNSReport315.pdf.  

10. IAEA, “Nuclear Security Fundamentals: Objective and Essential Elements of a State’s Nuclear Security Regime,” IAEA Nuclear Security Series, No. 20 (February 2013), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1590_web.pdf.

11. IAEA, “Communication Received From the Netherlands Concerning the Strengthening of Nuclear Security Implementation: Joint Statement on Strengthening Nuclear Security Implementation,” INFCIRC/869, October 22, 2014.

12. Nuclear Threat Initiative, “Excerpts: Nuclear Tipping Point,” Vimeo, February 2014, https://vimeo.com/119287564.

Posted: June 1, 2015

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