International Non-proliferation Export Control Regimes
IntroductionIn terms of the Cabinet decision of 31 August 1994 establishing policy on the non-proliferation of weapons of mass destruction, South Africa is to strive to be an active participant in the various non-proliferation regimes and suppliers groups; and to use its position in those regimes to promote the importance of non-proliferation and to ensure that these controls do not deny developing countries access to advanced technologies required for peaceful purposes and their developmental needs.
This has proved to be a tremendous challenge for South Africa as the supplier or control regimes are seen by some States as “exclusive clubs” whose sole purpose is to deny them access to advanced technology. South Africa is the only country from the Non-Aligned Movement that is a member of supplier groups and it therefore placed an extra onus on the country, especially during its role as chair of the Movement from 1998-2003, to balance its own national legislation obligations and adherence responsibilities to suppliers groups with its determination to ensure that the developing world is not denied technology for the pursuit of peaceful developmental needs.
South Africa has, against strong opposition and at the risk of being isolated, nevertheless defended the rights of the developing world in the supplier regimes as well as at all disarmament fora where access to technology or technical co-operation assistance is an issue. Furthermore, South Africa has never shirked its responsibilities in ensuring that its national controls and participation in international efforts – including supplier controls – are fully implemented to prevent materials and technology ending up in the hands of those wanting to pursue weapons of mass destruction programmes. In doing so it may have at various times irked various States or groups of States but at the same time has reinforced its status as a responsible producer, possessor and trader of advanced technologies as well as a dialogue bridge and interlocutor between the developed and developing States.
South Africa is a member of the Nuclear Suppliers Group (NSG), the Zangger Committee, and the Missile Technology Control Regime (MTCR). South Africa is not currently a member of two of the existing control regimes, the Australia Group and the Wassenaar Arrangement. The reasons for this non-membership are briefly discussed at the end of this chapter of the study.
Nuclear Suppliers Group (NSG)
South Africa became a member of the Nuclear Suppliers Group (NSG) on 5 April 1995, just before the start of the NPT Review and Extension Conference. The timing is significant as it would have been untenable for partner countries of the NSG to delay or place obstacles in the way of South Africa 's membership, particularly in the light of the position South Africa had decided to take on the extension of the NPT.
1 The NSG was established in 1975 and is an informal and voluntary association of countries which share the goal of promoting nuclear non-proliferation. The NSG currently has 44 members that pursue its aims through a set of guidelines that are adopted by consensus and through an exchange of information, particularly those developments concerning nuclear proliferation. The first set of Guidelines (Part I items) governs the export of items that are especially designed or prepared for nuclear use while the second set (Part II items) governs the export of nuclear related dual-use items and technologies (items that have both nuclear and non-nuclear applications), which could make a significant contribution to an unsafeguarded nuclear fuel cycle or nuclear explosive activity. These Guidelines are consistent with and complement the various other international and legally binding instruments in the field of nuclear non-proliferation, namely the NPT and treaties establishing nuclear weapon-free zones. They also aim to ensure that nuclear trade for peaceful purposes does not contribute to the proliferation of nuclear weapons or other nuclear explosive devices, while not hampering international trade and co-operation in the nuclear field. The Guidelines therefore facilitate the development of peaceful nuclear trade by providing the means whereby obligations to facilitate peaceful nuclear co-operation can be implemented in a manner consistent with international nuclear non-proliferation norms. NSG partners subsequently commit themselves to conditions of supply, in the context of the further development of the applications of nuclear energy for peaceful purposes.
NSG controls are implemented in South Africa by the Department of Minerals and Energy ("direct-use" nuclear materials equipment) in terms of the Nuclear Energy Act (Act No.46 of 1999) and by the South African Council on the Non-Proliferation of Weapons of Mass Destruction (NPC) (dual-use capabilities) in terms of the Non-Proliferation of Weapons of Mass Destruction Act (Act No.87 of 1993).
South Africa has worked actively in the regime and sought to make its operations more transparent in order to alleviate the perception by some developing countries that the Group is an “exclusive secretive” club. As a consequence South Africa was elected to chair an International Seminar on the Role of Export Controls that took place in Vienna in April 1997. This seminar , chaired by Mr. Abdul Minty, the South African Governor to the IAEA, stressed the importance of both suppliers and recipients evaluating the legitimacy and effectiveness of nuclear export controls as they contribute to nuclear non-proliferation. Steps were also taken to increase the transparency of nuclear export controls. To accomplish this goal the NSG developed a web page aimed at keeping governments and the public at large informed about developments within the NSG and nuclear exports controls. The seminar was attended by all UN Member States as well as experts from academic institutions, industry, and international organisations. NSG member countries and the European Union provided financial support for the participation of experts from least-developed and other countries facing economic hardships.
Zangger Committee
The Zangger Committee, of which South Africa became a member on 21 October 1995, has a narrower mandate than the NSG. It was established in 1970 to implement and monitor the export control provisions of Article III(2) of the NPT. It therefore defines and monitors trade in goods and equipment specifically designed for nuclear use through a Trigger List. This List is regularly updated to provide clarity in all areas of the nuclear fuel cycle. The fundamental criterion under the NPT is whether an item is “especially designed or prepared” (EDP equipment) for nuclear use. In South Africa , the Zangger Committee Controls are implemented by the Department of Minerals and Energy.
Missile Technology Control Regime (MTCR)
South Africa joined the Missile Technology Control Regime (MTCR) on 13 September 1995 in terms of its policy on the non-proliferation of weapons of mass destruction and the capabilities South Africa possessed, having previously developed a sophisticated and advanced space launch programme along with the technology and items which could also be used in the development of ballistic and cruise missiles.
The MTCR is an informal and voluntary association of countries which shares the goal of the non-proliferation of unmanned delivery systems for weapons of mass destruction and seeks to co-ordinate national export licensing efforts aimed at preventing their proliferation. The regime was established in 1987 and consists of 33 Member States which are major possessors of missile technology whose aim is to limit the risks of proliferation of weapons of mass destruction (nuclear, chemical and biological) by controlling the transfers of material and technology that could be used in the production of unmanned delivery systems (ballistic or cruise missiles). The Regime rests on adherence to common export policy guidelines (MTCR Guidelines) applied to an integral common list of controlled items (the MTCR Equipment and Technology Annex). Like the NSG, the Partners have equal standing and all decisions are taken by consensus. Individual partners are responsible for implementing the Guidelines and Annex on the basis of sovereign national discretion and in accordance with national legislation and practice. Partners regularly exchange information about relevant national export licensing issues in the context of the Regime's overall aims.
Partner countries exercise restraint in the consideration of all transfers of items contained in the MTCR Equipment and Technology Annex. All such transfers are considered on a case-by-case basis. Greatest restraint is applied to what are known as Category I items. These items include complete rocket systems (including ballistic missiles, space launch vehicles and sounding rockets) and unmanned aerial vehicle systems (including cruise missile systems, target and reconnaissance drones) with capabilities exceeding a 300km/500kg range/payload threshold; production facilities for such systems; and major sub-systems including rocket stages, re-entry vehicles, rocket engines, guidance systems and warhead mechanisms.
The remainder of the Annex is regarded as Category II, which includes complete rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) and unmanned aerial vehicles (including cruise missile systems, target drones and reconnaissance drones) not covered in Item I, capable of a maximum range equal to, or greater than, 300km. Also included is a wide range of equipment, material and technologies, most of which have uses other than for missiles capable of delivering WMD. While still agreeing to exercise restraint, partners have greater flexibility in the treatment of Category II transfer applications.
MTCR controls are not intended to impede peaceful aerospace programmes or international co-operation in such programmes. Nor are they designed to restrict access to technologies necessary for peaceful economic development. The MTCR Guidelines aim to assist in building confidence among suppliers so that they can provide access to technology without such technology being diverted to WMD delivery system programmes.
Until recently the MTCR was the only instrument, albeit with only 33 Member States, that dealt with aspects concerning the non-proliferation of missiles (ballistic and cruise missiles) capable of delivering weapons of mass destruction. In response to heightened fears about the proliferation of ballistic missiles the MTCR partners decided in 2001 to draft an International Code of Conduct against Ballistic Missile Proliferation. This Code underwent a process of so-called “multilateralisation” whereby more than a hundred States are now committed politically under the Hague Code of Conduct against Ballistic Missile Proliferation.
Australia Group
The Australia Group, an informal arrangement consisting of 33 countries, controls the export of a wide range of chemical products, biological agents and "dual-use" equipment which can be used in the development of chemical and biological weapons. South Africa is not yet a member of the Australia Group. It had been hoped that negotiations on the strengthening of the Biological and Toxin Weapons Convention would introduce the same depth of regulation on transfers of biological agents as the CWC did, thereby providing a universal norm on all chemical and biological transfers. However, as explained earlier, this did not materialise.
Given the need to control the transfer of chemical and biological agents and toxins manufactured in South Africa, the Non Proliferation Council implements the Australia Group-type controls (without actually formally joining the Group at this stage) under the Non-Proliferation of Weapons of Mass Destruction Act.
Wassenaar Arrangement
The Wassenaar Arrangement is also an export control group on an informal voluntary association basis and replaced the former COCOM (the Co-ordinating Committee for Multilateral Export Controls). The Wassenaar Arrangement was established in order to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. Participating States, through their national policies, seek to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities. Participating members have to be members or acting in accordance with the Nuclear Non-Proliferation Treaty, the Missile Technology Control Regime, the Chemical Weapons Convention and the UN Register of Conventional Arms.
South Africa is not yet a member of the Wassenaar Arrangement although it has repeatedly stated its desire to join. It is hoped that obstacles currently placed in its path among some of the participating members can be overcome to permit membership as soon as possible. At the eighth plenary meeting of the Wassenaar Arrangement in 2002, a major new initiative on small arms and light weapons was adopted as well as a Statement of Understanding on controlling arms brokering. As the only arms control regime that addresses conventional weapons, the Wassenaar Arrangement would provide South Africa with a critical opportunity to influence the regulation of the arms trade especially in the context of its concerns about the role that this trade plays in feeding the conflicts spread across the African continent.
Given the high profile and interest South Africa has on the issue of small arms and light weapons regionally and internationally and its record in other export control regimes it is difficult to fathom the conditionality that is being placed on South Africa (outside the usual criteria for membership). This underlines the dichotomy South Africa faces as a developing country yet a producer and possessor of advanced military technologies.
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