FRITZ SCHMIDT Report NPT Export Controls and the Zangger Committee FRITZ SCHMIDT Fritz Schmidt is the Chairman of the Zangger Committee and Director for Nuclear Nonproliferation in the Austrian Federal Ministry for Economy and Labor. He has dealt with nonproliferation matters since 1971 and has participated in every NPT review conference to date. While the opinions expressed in this viewpoint are not necessarily shared in toto by all members of the Zangger Committee, they do reflect the views of the Austrian Federal Ministry and elements of its policy for future activities in international fora. s required by Art. VIII.3, the Review Conference and coordination of export policies among all interested of the Treaty on the Non-Proliferation of Nuclear states parties, and how the Zangger Committee could help AWeapons (NPT) was held from April 24 to May increase cooperation between suppliers and recipients. A 19, 2000, “to review the operation of this Treaty” since new and increasingly important element in these consid- the last conference in 1995 “with a view to assuring that erations is the role the International Atomic Energy Agency the purposes of the Preamble and the provisions of the (IAEA) should play in the framework of NPT export con- Treaty are being realized.”1 At the NPT Review and Ex- trols. In particular, IAEA information-collection activities tension Conference in 1995 (NPTREC), the parties de- could provide a way to reduce the burdens that export cided without a vote to extend the Treaty indefinitely. As controls currently place on individual states. part of the indefinite extension package, they adopted de- cisions on “Strengthening the Review Process for the THE ROLE OF EXPORT CONTROLS IN THE Treaty” and on “Principles and Objectives for Nuclear NPT FRAMEWORK Non-Proliferation and Disarmament.”2 The principal goal of the NPT, specified in Articles I The focus of this viewpoint is on export control require- and II, is to prevent the spread of nuclear weapons. The ments in the framework of the NPT. It describes the prin- NPT prohibits nuclear weapon states (NWS) from sup- cipal obligations in this area that apply to each Treaty plying nuclear weapons to or contributing to weapons member. It tries to explain what the Treaty demands and programs in non-nuclear weapon states (NNWS). It also what new conclusions should be drawn from the deci- prohibits NNWS from acquiring or developing nuclear sions taken by the NPTREC. It also discusses the pur- weapons on their own. Article III contains tools to as- pose and the work of the Zangger Committee, and why certain whether nuclear material and equipment have the results of its work should be important for all mem- been diverted “from peaceful purposes to nuclear weap- bers of the NPT. During the 2000 review conference, dis- ons or other nuclear explosive devices” in a NNWS. cussions were held on better cooperation in export controls Article III provides two tools to meet these objectives: 136 The Nonproliferation Review/Fall-Winter 2000 FRITZ SCHMIDT safeguards for verification of activities inside states (Art. THE PURPOSE AND PROCEDURES OF THE III.1) and export controls for transfers between states (Art. ZANGGER COMMITTEE III.2). For this reason, in March 1971, after the NPT’s entry Article III.1 states that each NNWS party accepts safe- into force, suppliers or potential suppliers of nuclear ma- guards, which are based on a system developed in 1970 terial and equipment came together to discuss and clarify by the IAEA. The IAEA verification activities (e.g., re- the technical implications and requirements of NPT ex- porting and inspections) relate to all nuclear material in port controls. This meeting was the origin of the Zangger all peaceful nuclear activities within the territory of each Committee, named after the first chairman, Professor state, under its jurisdiction, or carried out under its con- Claude Zangger from Switzerland. trol anywhere. The supplier countries formed the Committee to de- This safeguards system, because of its scope, is called cide how to interpret the NPT’s rather general export the “Full Scope (or Comprehensive) Safeguards System” control obligations. They established a list of goods, (FSSG).3 A recent expansion of the FSSG through an called the “Trigger List” (any export of such items “trig- Additional Protocol4 will be discussed below. gers” safeguards), and defined procedures and conditions Article III.2 contains the provisions for nuclear ex- under which nuclear exports could be licensed. The port controls; it specifies that parties not transfer to Zangger Committee’s “Understandings” were published 5 NNWS nuclear material, as well as certain equipment in September 1974 as IAEA document INFCIRC/209, and non-nuclear materials, unless the nuclear material and since then the Trigger List has been amended sev- shall be subject to the required safeguards. This section eral times. raises two important questions: (1) what are the criteria The Zangger Committee6 meets regularly in spring for applying export controls, and (2) what specific equip- and autumn every year. Its agenda includes matters that ment and materials should be submitted to export con- either deal with amendments to the Understandings (the trols? Trigger List and its procedures) or with organizational The first question can be answered rather easily: All questions. A lot of work is done intersessionally, and criteria and conditions for supply are contained in the therefore two formal meetings suffice to keep all mem- NPT. NPT parties are permitted to export to NNWS bers up-to-date and to make any necessary decisions. under three conditions: (1) the transferred items will be The Committee does not decide “ex cathedra” what used for peaceful purposes only; (2) the recipient state the export control requirements of the NPT should be. has a safeguards agreement with the IAEA in place; and Instead, its members—NPT parties who are major sup- (3) in case of a re-transfer to a third country, the re-ex- pliers confronted regularly with the question of how to porting state has to assure itself that the criteria of the interpret Art. III.2 obligations—meet to negotiate what NPT are applied in the recipient country. minimum requirements should be applied. They seek to The second question—what equipment and materials harmonize their understandings, aiming at the widest shall be submitted to export controls—cannot be an- possible membership, to try to prevent commercial trans- swered as easily as the first question. There is possible actions from weakening nonproliferation objectives. uncertainty in what the relevant treaty language in this The Committee’s Understandings are published in two area means, and therefore in what items fall within its separate memoranda. Each memorandum defines and scope. NPT Article III.2 requires states parties not to provides for export controls on a category of commodi- provide a NNWS with “equipment or material especially ties described in Article III.2. Memorandum A covers designed or prepared for the processing, use or produc- source and special fissionable material, while Memoran- tion of special fissionable material” unless the recipient dum B covers equipment and material specifically de- has NPT safeguards in place. However, the Treaty does signed or prepared for the processing, use, or production not define what constitutes such equipment or material. of special fissionable material.7 Attached to the Trigger List is an annex “clarifying” or defining in some detail the equipment and material listed in Memorandum B. The Committee is regularly engaged in considering possible revisions to the Trig- The Nonproliferation Review/Fall-Winter 2000 137 FRITZ SCHMIDT ger List to cover new developments in technology, and these guidelines and thus left to the Zangger Committee the original annex has thus become increasingly detailed. further improvements to the Trigger List. To date, the Committee has made eight clarifications; most In 1992, after the Gulf War, when the world commu- recently, in June 1999, it added a chapter on conversion nity found out that Iraq, an NPT member, was develop- equipment for uranium and plutonium. The consolidated ing a clandestine nuclear weapons program, supplier Understandings were published by the IAEA in March states revitalized the London Group as the NSG, and 8 2000, as document INFCIRC 209/Rev.2. added to the existing regime (now referred to as Part 1, To fulfill the requirements of NPT Article III.2, the containing the NSG’s Trigger List) a second part, the Zangger Committee Understandings contain three ba- “nuclear-related dual-use regime.” This regime intended sic conditions of supply for these items: to introduce export controls on items used in conven- 1. the nuclear material either directly transferred, or tional industries that can also be used for nuclear pur- produced, processed, or used in the facility for which poses. This Part 2 was the main reason why the NSG the transferred item is intended, shall not be diverted was created. As the “dual-use regime” did not have its to nuclear weapons or other nuclear explosive devices; legal foundation in the NPT, it has been the target of 2. such nuclear material, as well as transferred equip- criticism since its inception, particularly from “non- ment and non-nuclear material, shall be subject to aligned movement” (NAM) countries. safeguards under an agreement with the IAEA; and As Part 1 of the NSG Guidelines is similar to the 3. the nuclear material, equipment, and non-nuclear Zangger Committee’s Trigger List and as many states are material shall not be re-exported to a third state un- members of both groups, there has been a strong interest less the recipient state accepts the same conditions that in harmonizing the two practically identical lists. The were placed on the re-exporting state.