(5) Implementing Appropriate Export Controls on Nuclear Related Items and Technologies
A) Establishment and implementation of the national control systems
On establishing and implementing national control systems regarding export controls on nuclear-related items and technologies, there were few remarkable developments in 2021. The following countries surveyed in this report belong to the four international export control regimes,96 including the Nuclear Suppliers Group (NSG), have national implementation systems in place, and have implemented effective export controls regarding nuclear- (and other WMD-) related items and technologies through list and catch-all controls: Australia, Austria, Belgium, Canada, France, Germany, Japan, South Korea, the Netherlands, New Zealand, Norway, Poland, Sweden, Switzerland, the United Kingdom and the United States.97
These countries have also made proactive efforts to strengthen export controls. For example, Japan has held an annual Asian Export Control Seminar, inviting Asian countries and other major countries from outside the region, to promote Asian and international nonproliferation efforts though it could not be convened in 2021 due to the COVID-19 pandemic. At the 27th Asian Export Control Seminar in February 2020, approximately 230 persons in charge of export control from 33 Asian and other regional major countries attended. According to the Japan’s Ministry of Economy, Trade and Industry, “The 27th seminar focuse[d] on the growing diversity and sophistication of procurement activities for accessing sensitive technologies applicable to developing and manufacturing WMDs or conventional weapons in Asian countries and regions, and against this backdrop, participants shared the current situations of activities by international organizations and efforts and best practices involving export control tackled by member countries and, through this information sharing, they enriched their common understanding of the need for enhancing the effectiveness of export control.”98
Among other countries surveyed in this project, Brazil, China, Kazakhstan, Mexico, Russia, South Africa and Turkey are members of the NSG. These countries have set up export control systems, including catch-all controls.
As for non-NSG members, the UAE and the Philippines have been developing their own national export control systems, whereas Egypt, Indonesia and Saudi Arabia have yet to establish sufficient export control legislations and systems.
India, Israel and Pakistan have also set up national export control systems, including catch-all controls.99 Again in 2021, the NSG could not achieve a consensus on India’s membership application. China, the main opponent, has argued that applicant countries must be parties to the NPT.100 It has also been reported that China will not accept India’s participation in the NSG unless Pakistan is also accepted as a member.101 Pakistan has argued that, as a state behaving responsibly regarding nuclear safety and security, it is qualified to be accepted as an NSG member.
At the time of writing, the status of export control implementation by North Korea, Iran and Syria remains unclear. Rather, cooperation among these countries in ballistic missile development continues to be a concern, as mentioned below. In addition, North Korea was involved in the past in constructing a graphite-moderated reactor in Syria to produce plutonium.
B) Requiring the conclusion of the Additional Protocol for nuclear exports
Under the NSG Guidelines Part I, one of the conditions for supplying materials and technology designed specifically for nuclear use is to accept the IAEA comprehensive safeguards. In addition, NSG member states agreed on the following principle in June 2013:
[S]uppliers should authorize transfers, pursuant to this paragraph, only when the recipient has brought into force a Comprehensive Safeguards Agreement, and an Additional Protocol based on the Model Additional Protocol or, pending this, is implementing appropriate safeguards agreements in cooperation with the IAEA, including a regional accounting and control arrangement for nuclear materials, as approved by the IAEA Board of Governors.102
The Non-Proliferation and Disarmament Initiative (NPDI) and the Vienna Group of Ten have argued that conclusion and implementation of the CSA and the Additional Protocol should be a condition for new supply arrangements with NNWS.103 Some of the bilateral nuclear cooperation agreements that Japan and the United States concluded recently with other capitals make the conclusion of the Additional Protocol a prerequisite for their cooperation with respective partner states. On the other hand, the NAM continues to argue that supplier countries should refrain from imposing or maintaining any restrictions or limitations on the transfer of nuclear equipment, material and technology to other states parties with comprehensive safeguards agreements.104
Issues on enrichment and reprocessing under the bilateral nuclear cooperation agreements
Enriching uranium and reprocessing spent fuel by NNWS is not prohibited under the NPT so long as the purpose is strictly peaceful and the activities are under IAEA safeguards. Still, these remain highly sensitive activities in light of nuclear proliferation, as the spread of enrichment and reprocessing technologies would mean that more countries would acquire the potential for manufacturing nuclear weapons. As previously mentioned, NSG guidelines demand implementation of the Additional Protocol by the recipient state as a condition for the transfer of enrichment or reprocessing facilities, equipment or technology.
While the U.S.-UAE Nuclear Cooperation Agreement concluded in 2009 stipulates a so-called “gold standard”—i.e. that the recipients are obliged to forgo enrichment and reprocessing activities— other bilateral agreements (except that with Taiwan) concluded and updated by the United States do not stipulate similar obligations.105 In the meantime, the nuclear cooperation agreements that Japan has signed with the UAE and Jordan, respectively, prohibit the enrichment and reprocessing of nuclear materials transferred, recovered or produced under the agreements.
Whether a nuclear cooperation agreement being negotiated between Saudi Arabia and the United States will include the gold standard has been the subject of considerable public attention. The United States has asked Saudi Arabia to forgo enrichment and reprocessing activities, but Saudi Arabia has not accepted this. Also, as previously mentioned, Saudi Arabia has not yet concluded an amended SQP, CSA or an Additional Protocol.
C) Implementation of the UNSCRs concerning North Korean and Iranian nuclear issues
With regard to the North Korean nuclear issue, UN Member States are obliged to implement measures set out in the resolutions adopted by the UN Security Council, including embargos on nuclear-, other WMD-, and ballistic missile-related items, material, and technologies.
The Panel of Experts, established pursuant to UNSCR 1874 (2009), has published biannual reports on its findings and recommendations about the implementation of the resolutions. According to the report published in March 2021, the Panel pointed out North Korea’s activities in defiance of the UNSCRs, for instance:106
➢ The Panel investigated the country’s continued illicit import of refined petroleum, via direct deliveries and ship-to-ship transfers, using elaborate subterfuge. According to imagery, data and calculations received from a Member State covering the period from January 1 to September 30 in 2020, these illicit shipments exceeded the annual aggregate 500,000-barrel cap by several times.
➢ North Korea illegally imported refined petroleum products at least 121 times during the period covered by the report.
➢ The Panel investigated cases that North Korea has continued acquisition of vessels, the sale of fishing rights, and export of coal in violation of sanctions. The Panel notes that shipments of coal appeared to have been largely suspended since late July
➢ North Korea exported at least 4.1 million tons of coal and possibly other prohibited minerals to China between January and September 2020.
➢ The Panel investigated cases of transfers of other sanctioned commodities and goods through different channels. It continued investigations into access by North Korea to international banking channels, including through its own bank representatives overseas, joint ventures, shell companies and the use of offshore and virtual assets. It investigated cases related to the Mansudae Overseas Project Group of Companies and the Korea Paekho Trading Corporation and workers from North Korea earning income in sub-Saharan Africa. It also investigated other cases of such workers continuing to earn income overseas, including information technology workers dispatched by the Munitions Industry Department.
➢ North Korea is acquiring foreign currency by the construction of hotels and airports through joint ventures in Senegal and the Democratic Republic of Congo.
➢ Migrant workers sent abroad by North Korea for the purpose of earning income overseas continued to work outside the country even after the deadline for repatriation has passed.
➢ The Panel investigated malicious cyberactivities by North Korea in violation of sanctions, mostly led by the Reconnaissance General Bureau, including the targeting of virtual assets and virtual asset service providers, and attacks on defense companies.
➢ North Korea illegally took a total of $316.4 million in virtual assets in cyberattacks on, inter alia, virtual currency exchange houses in 2019-20.
➢ The Panel updated its information on alleged military cooperation, attempted violations of the arms embargo, illicit activities of designated entities, including the Korea Mining Development Trading Corporation, and the commercial use of the overseas diplomatic premises of North Korea.
In the Panel’s Midterm Report published in September 2021, the following issues, inter alia, were pointed out:107
➢ Maritime exports of coal and other sanctioned commodities from North Korea continued, but at a much reduced level. The import of oil products reported to the Panel fell substantially in the first half of 2021. Maritime and financial investigations demonstrated increasing sophistication by both vessels and the management and ownership structures supporting them in order to evade sanctions. Misuse of automatic identification systems continued; the fleet of North Korea continued to acquire vessels; and the country continued to sell fishing rights in its waters.
➢ Between February and May 2021, over at least 41 separate occasions, 364,000 tons of North Korean coal was exported to China’s Ningbo and Zhoushan regions through illegal shipto- ship transfers.
➢ Official figures of refined petroleum imports reported to the Committee are extremely low, with only 4.75 per cent of the permitted annual cap of 500,000 barrels officially reported by mid-July 2021. A Member State assesses that increasing illicit imports would mean that North Korea is still likely to exceed the cap in 2021.
➢ The Winson Group, which is headquartered in Singapore with extensive global operations and is engaged primarily in international wholesale oil trading and high-seas bunkering, is a key node in the illicit fuel procurement activities of North Korea.
➢ Access by North Korea to international financial institutions continued, as did the presence overseas of its workers earning revenue for use in State programs. Officials overseas continued to feel pressure to develop revenue streams. The import of luxury goods into North Korea is halted.
➢ Some imported and luxury goods, such as car tires and parts, construction and interior materials, and supplies for Kim Jong Un family’s vacation home, were illegally transported by ship from a border railroad base to Nampo and other ports. A Chinese company was involved in the shipment of Lexus cars to North Korea.
➢ North Korea is continuing its efforts to obtain relevant components and technologies from abroad to upgrade its nuclear weapons and ballistic missile technologies.
➢ The Panel continued to investigate the involvement of North Korea in global cyberactivity and the collaboration of its academics and universities with scientific institutes abroad, focusing on studies with potential applications in weapons of mass destruction programs. The Panel considers both cybertheft of funds and know-how and the intangible transfer of technology via academic means to be important issues.
➢ Member State engagement with the Panel remains patchy. More than half of the Panel’s requests for information are unanswered.
The UN Iran Sanctions Committee and Panel of Experts ceased to exist after the conclusion of the JCPOA, at the insistence of Iran, and the UN Security Council now has the responsibility of overseeing the remaining limitations.
In accordance with the JCPOA, approval of the Procurement Working Group, established under the agreement, is required for Iranian procurement of nuclear-related items and material. The number of cases has been reported to the Security Council every six months.108
According to the report published in June 2021, in the six months leading up to that month, the Procurement Working Group reviewed one proposal from one State, which was recommended for approval. Another proposal that was under review during the previous reporting period was also recommended for approval.109 The report published in December stated that during the reporting period, no proposals were under review by the Procurement Working Group.110
Although it is not clear whether Iran is engaged in illegal nuclear-related procurement activities, the intelligence agencies of the Netherlands, Sweden and Germany have reported that Iran continues to illegally procure equipment and technology to develop weapons of mass destruction.111
Nuclear-related cooperation between concerned states
It has been repeatedly alleged that North Korea and Iran have engaged in nuclear and missile development cooperation. According to the report by the Panel of Experts on North Korea, North Korea and Iran “have resumed cooperation on long-range missile development projects. This resumed cooperation is said to have included the transfer of critical parts, with the most recent shipment associated with this relationship taking place in 2020. … [T]hese shipments included valves, electronics, and measuring equipment suitable for use in ground testing of liquid propellant ballistic missiles and space launch vehicles.” In response, “[i]n an interim reply of 21 December 2020, [Iran] stated that: ‘Preliminary review of the information provided to us by the Panel indicates that false information and fabricated data may have been used in investigations and analyses of the Panel.’”112
Meanwhile, no concrete evidence has been revealed to support allegations of nuclear-related cooperation between North Korea and Iran.
According to the report by the U.S. Congressional Research Service, “Official U.S. government reports indicate that the Chinese government has apparently ended its direct involvement in the transfer of nuclear- and missile-related items, but Chinese-based companies and individuals continue to export goods relevant to those items, particularly to Iran and North Korea. U.S. officials have also raised concerns about entities operating in China that provide other forms of support for proliferation-sensitive activities, such as illicit finance and money laundering.” The report also pointed out the possibility that China is directly or indirectly involved in supporting nuclear and missile proliferation, by revealing that, inter alia, Chinese companies provided missile-related materials, the export of which is restricted by the Missile Technologies Control Regime (MTCR), to Iran, North Korea, Syria and Pakistan in 2018.113 In November 2021, the U.S. Department of Commerce added sixteen entities and individuals operating in China and Pakistan to the Entity List based on their contributions to Pakistan’s unsafeguarded nuclear activities and/ or its ballistic missile program.114
D) Participation in the PSI
As of 2020, a total of 107 countries— including 21 member states of the Operational Expert Group (Australia, Canada, France, Germany, Japan, South Korea, the Netherlands, New Zealand, Norway, Poland, Russia, Turkey, the United Kingdom, the United States and others) as well as Belgium, Chile, Israel, Kazakhstan, the Philippines, Saudi Arabia, Sweden, Switzerland, the UAE and others—have expressed their support for the principles and objectives of the Proliferation Security Initiative (PSI). Many of them have also participated and cooperated in PSI-related activities.
The interdiction activities actually carried out within the framework of the PSI are often based on information provided by intelligence agencies; therefore, most of them are classified. Additionally, participating states have endorsed the PSI statement of interdiction principles and endeavored to reinforce their capabilities for interdicting WMD through exercises and outreach activities. In July 2019, South Korea hosted an interdiction exercise, entitled “Eastern Endeavor 19,” in which six countries (Australia, Japan, South Korea, New Zealand, Singapore and the United States) participated, together with some observer countries, including India, Indonesia, Pakistan and Russia. Such exercises have not been conducted since 2020 due to the COVID- 19 pandemic.
In January 2018, several PSI-participating countries released a joint statement reiterating their commitment to impede and stop North Korea’s illicit activities, including smuggling, by taking measures such as: inspecting proliferation-related shipments on vessels with the consent of the flag State, on the high seas, if they have information that provides reasonable grounds to believe that the cargo of such vessels contains items prohibited under UNSCRs; and prohibiting their nationals, persons subject to their jurisdiction, entities incorporated in their territory or subject to their jurisdiction, and vessels flying their flag, from facilitating or engaging in ship-to-ship transfers to or from DPRK-flagged vessels of any goods or items that are being supplied, sold, or transferred to or from the DPRK.115
Regarding illicit maritime activities, including ship-to-ship transfers with North Korean-flagged vessels prohibited by UNSCRs, the Japan Maritime Self- Defense Force has engaged in monitoring and surveillance activities in the Sea of Japan and the Yellow Sea since December 2017. Japan’s Foreign Ministry made a post regarding North Korea’s illicit activities on its official website.116 Monitoring and surveillance activities regarding this matter were conducted by Japan and the United States, together with Australia, Canada, France, Germany, New Zealand and the United Kingdom in 2021 as in the previous years.
E) Civil nuclear cooperation with nonparties to the NPT
In September 2008, the NSG agreed to grant India a waiver, allowing nuclear trade with the member states under the condition that India made commitments, including conclusion of the IAEA Additional Protocol and continuation of the nuclear test moratorium. Since then, some countries have sought to engage in civil nuclear cooperation with India, and several countries, including Australia, Canada, France, Japan, Kazakhstan, South Korea, Russia and the United States, have concluded bilateral civil nuclear cooperation agreements with India.
Actual nuclear cooperation with India under these agreements has been sparse,117 with the exception of India’s importing uranium from Australia, Canada, France, Kazakhstan and Russia, and the conclusion of its agreements to import uranium from Argentina, Mongolia, Namibia and Uzbekistan.118
The director general of the Pakistan foreign ministry’s Arms Control and Disarmament Division, Kamran Akhtar, expressed criticism that NSG members have discussed India’s participation, but not Pakistan’s request to join the NSG. He argued that Pakistan does not have a mix of safeguarded and unsafeguarded facilities and has been more forthcoming in accepting legally binding commitments, making it more eligible than India.119
Meanwhile, China has been criticized for its April 2010 agreement to export two nuclear power reactors to Pakistan, an act which may constitute a violation of the NSG guidelines. China has claimed an exemption for this transaction under the “grandfather clause” of the NSG guidelines (i.e. it was not applicable at the time China became an NSG participant after the start of negotiations on the supply of the reactors). China will also supply enriched uranium to Pakistan for operating those reactors.120 Their construction started in 2015 in Karachi, and commercial operations are scheduled to begin in 2021 and 2022 respectively.121 Because all other Chinese reactors that were claimed to be excluded from NSG guidelines under the grandfather clause were built at Chashma, there remains a question as to whether or not the exemption can also apply to the Karachi plant.
In April 2020, the U.S. think tank C4ADS published a report which concluded that the Indian and Pakistani procurement networks for nuclear-related technologies are both larger than previously expected.122 The report states:
Pakistani nuclear procurement companies, who face strict international export control regulations and Nuclear Suppliers Group (NSG) trade restrictions, are more likely to procure through the use of transshipment hubs. Customs and trade data demonstrate that the top 33 suppliers of Pakistan’s known procurement companies are located in mainland China (34%), Hong Kong (18%), the United Arab Emirates (UAE) (9%), the United States (9%), Germany (6%), Italy (6%) and Singapore (6%).”123
It also offered the following analysis: “Indian companies tend to purchase more directly from NSG countries. Of the 124,089 imports from 64 countries between January 2017 and July 2019 associated with the 87 Indian companies known to have procured for more than one unsafeguarded facility, 92% were from companies in NSG member states including Germany, China, [the] United States, South Korea and the [United Kingdom]. India does hold a waiver from the NSG exempting the country from certain nuclear trade restrictions. However, this exemption does not apply to facilities outside of the IAEA safeguards.”124
The NAM has been critical of civil nuclear cooperation with non-NPT states, and continues to argue that exporting states should refrain from transferring nuclear material and technologies to those states which have not accepted IAEA comprehensive safeguards.125
96 Aside from the NSG, Australia Group (AG), Missile Technology Control Regime (MTCR), and Wassenaar Arrangement (WA).
97 In July 2019, Japan pointed out the inadequacy of South Korea’s domestic export control system, and reviewed its operation of export controls with respect to South Korea.
98 Ministry of Economy, Trade and Industry of Japan, “The 27th Asian Export Control Seminar Held,” February 19, 2020, https://www.meti.go.jp/english/press/2020/0219_003.html.
99 Regarding the situation of Pakistani export controls, see Paul K. Kerr and Mary Beth Nikitin, “Pakistan’s Nuclear Weapons,” CRS Report, August 1, 2016, pp. 25-26.
100 Ministry of Foreign Affairs of China, “Foreign Ministry Spokesperson Geng Shuang’s Regular Press Conference,” January 31, 2019, https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/ t1634507.shtml.
101 “China and Pakistan Join Hands to Block India’s Entry into Nuclear Suppliers Group,” Times of India, May 12, 2016, http://timesofindia.indiatimes.com/india/China-and-Pakistan-join-hands-to-block-Indias-entry-into-Nuclear-Suppliers-Group/articleshow/52243719.cms.
102 INFCIRC/254/Rev.12/Part 1, November 13, 2013.
103 See, for instance, NPT/CONF.2020/PC.III/WP.5.
104 NPT/CONF.2020/PC.III/WP.18, March 21, 2019.
105 The U.S.-Mexico Nuclear Cooperation Agreement concluded in May 2018, and it is stated in the preamble that Mexico will not conduct sensitive nuclear activities, which is referred to as a “silver standard.”
106 S/2021/211, March 4, 2021.
107 S/2021/777, September 8, 2020. For an analysis of the various measures taken by North Korea to circumvent sanctions, see King Mallory, North Korean Sanctions Evasion Techniques (RAND, 2021).
108 From December 5, 2019 to June 5, 2020, the Procurement Working Group reviewed four proposals from one state: three were recommended for approval and one remained under review (S/2020/508, June 15, 2020). From June 6 through December 3, 2020, the Procurement Working Group reviewed three proposals from one state: one was recommended for approval, one was withdrawn by the proposing state, and one remained under review (S/2020/1164, December 9, 2020).
109 S/2021/578, June 24, 2021.
110 S/2021/992, December 2, 2021.
111 Benjamin Weinthal, “Iran Sought Nuclear Weapons, Technology for WMDs Last Year, Reports Find,” Fox News, May 3, 2021, https://www.foxnews.com/world/iran-nuclear-weapons-technology-weapons-mass-destruction.
113 Paul K. Kerr, “Chinese Nuclear and Missile Proliferation,” CRS In Focus, May 17, 2021.
114 The U.S. Department of Commerce, “Commerce Lists Entities Involved in the Support of PRC Military Quantum Computing Applications, Pakistani Nuclear and Missile Proliferation, and Russia’s Military,” November 24, 2021, https://www.commerce.gov/news/press-releases/2021/11/commerce-lists-enti ties-involved-support-prc-military-quantum-computing; Federal Register, “Addition of Entities and Revision of Entries on the Entity List; and Addition of Entity to the Military End-User (MEU) List,” November 26, 2021, https://www.federalregister.gov/documents/2021/11/26/2021-25808/addition-of-entities-and-revision-of-entries-on-the-entity-list-and-addition-of-entity-to-the.
115 “Joint Statement from Proliferation Security Initiative (PSI) Partners in Support of United Nations Security Council Resolutions 2375 and 2397 Enforcement,” January 12, 2018, https://www.psi-online.info/psi-info-en/aktuelles/-/2075616. Originally, 17 countries signed the joint statement. By the end of 2018, 42 countries had become signatories, including Australia, Austria, Belgium, Canada, France, Germany, Japan, South Korea, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and the United States.
116 Ministry of Foreign Affairs of Japan, “Suspicion of Illegal Ship-to-Ship Transfers of Goods by North Korea-Related Vessels,” November 5, 2021, https://www.mofa.go.jp/fp/nsp/page4e_000757.html.
117 “No New Power Projects from Indo-US Nuclear Deal,” The Pioneer, March 9, 2020, https://www. dailypioneer.com/2020/india/no-new-power-projects-from-indo-us-nuclear-deal.html.
118 Adrian Levy, “India Is Building a Top-Secret Nuclear City to Produce Thermonuclear Weapons, Experts Say,” Foreign Policy, December 16, 2015, http://foreignpolicy.com/2015/12/16/india_nuclear_ city_top_secret_china_pakistan_barc/; James Bennett, “Australia Quietly Makes First Uranium Shipment to India Three Years after Supply Agreement,” ABC, July 19, 2017, https://www.abc.net.au/news/2017-07-19/australia-quietly-makes-first-uranium-shipment-to-india/8722108; Dipanjan Roy Chaudhury, “India Inks Deal to Get Uranium Supply from Uzbekistan,” Economic Times, January 19, 2019, https://econ omictimes.indiatimes.com/news/defence/india-inks-deal-to-get-uranium-supply-from-uzbekistan/article show/67596635.cms.
119 “NSG Assailed for Treating Pakistan, India Differently on Membership,” Dawn, January 2, 2021, https: //www.dawn.com/news/1599186/nsg-assailed-for-treating-pakistan-india-differently-on-membership.
120 “Pakistan Starts Work on New Atomic Site, with Chinese Help,” Global Security Newswire, November 27, 2013, http://www.nti.org/gsn/article/pakistan-begins-work-new-atomic-site-being-built-chinese-he lp/.
121 “Karachi Nuclear Power Plant (KANUPP) Expansion,” Power Technology, May 22, 2020, https://www. power-technology.com/projects/karachi-nuclear-power-plant-expansion/.
122 C4ADS, “Trick of Trade: South Asia’s Illicit Nuclear Supply Chains,” April 2020.
123 Ibid., p. 5.