Proliferation Control Regimes:
Background and Status
Mary Beth Nikitin, Coordinator
Analyst in Nonproliferation
Paul K. Kerr
Analyst in Nonproliferation
Steven A. Hildreth
Specialist in Missile Defense
October 18, 2010
Congressional Research Service
7-5700
www.crs.gov
RL31559
CRS Report for Congress
P
repared for Members and Committees of Congress
Proliferation Control Regimes: Background and Status
Summary
Weapons of mass destruction (WMD), especially in the hands of radical states and terrorists,
represent a major threat to U.S. national security interests. Multilateral regimes were established
to restrict trade in nuclear, chemical, and biological weapons and missile technologies, and to
monitor their civil applications. Congress may consider the efficacy of these regimes in
considering the potential renewal of the Export Administration Act, as well as other proliferation-
specific legislation in the 111th Congress. This report provides background and current status
information on the regimes.
The nuclear nonproliferation regime encompasses several treaties, extensive multilateral and
bilateral diplomatic agreements, multilateral organizations and domestic agencies, and the
domestic laws of participating countries. Since the dawn of the nuclear age, U.S. leadership has
been crucial in developing the regime. While there is almost universal international agreement
opposing the further spread of nuclear weapons, several challenges to the regime have arisen in
recent years: India and Pakistan tested nuclear weapons in 1998, North Korea withdrew from the
Nuclear Nonproliferation Treaty (NPT) in 2003 and tested a nuclear explosive device in 2006 and
2009, Libya gave up a clandestine nuclear weapons program in 2004, and Iran was found to be in
non-compliance with its treaty obligations in 2005. The discovery of the nuclear black market
network run by A.Q. Khan spurred new thinking about how to strengthen the regime, including
greater restrictions on sensitive technology. However, the extension of civil nuclear cooperation
by the United States and other countries to India, a non-party to the NPT with nuclear weapons,
has raised questions about what benefits still exist for non-nuclear-weapons states that remain in
the treaty regime.
The chemical and biological weapons (CBW) nonproliferation regimes contain three elements:
the Chemical Weapons Convention (CWC), the Biological and Toxin Weapons Convention
(BWC), and the Australia Group. The informal Australia Group coordinates export controls on
CBW-related materials and technology. After 25 years of negotiations, the CWC entered into
force in April 1997. It prohibits the development, production, stockpiling, transfer, and use of
chemical weapons, and mandates the destruction of existing chemical weapon arsenals. Since its
1972 inception, BWC state parties have failed to agree on a verification mechanism.
The missile nonproliferation regime is founded not on a treaty, but an informal agreement created
in 1987, the Missile Technology Control Regime (MTCR). The MTCR’s goal is to limit the
spread of missiles capable of carrying nuclear weapons. Thirty-four countries now adhere to the
guidelines, which have been modified over time to include missile systems designed for the
delivery of chemical and biological weapons. The regime, which has no enforcement
organization, is thought to have been instrumental in blocking several missile programs, but it has
been unable to stop North Korean missile development, production, and exports, or to win the full
cooperation of Russian and Chinese entities. This report is updated annually.
Congressional Research Service
Proliferation Control Regimes: Background and Status
Contents
Introduction ................................................................................................................................ 1
Status and Trends .................................................................................................................. 1
State-to-State Relations ......................................................................................................... 4
Counterproliferation, Intelligence, and Deterrence................................................................. 4
Congressional Role ............................................................................................................... 5
Organization of the Report .................................................................................................... 5
The Nuclear Nonproliferation Regime......................................................................................... 8
Treaties and Agreements ....................................................................................................... 9
Treaty on the Nonproliferation of Nuclear Weapons (NPT), 1970 .................................... 9
Convention on the Physical Protection of Nuclear Material, 1987.................................. 10
Nuclear-Weapon-Free Zones ......................................................................................... 12
Other Agreements ......................................................................................................... 13
Implementing the Regime ................................................................................................... 16
The International Atomic Energy Agency (IAEA) ......................................................... 16
The Nuclear Suppliers Group (NSG)............................................................................. 18
U.S. Government Organization ..................................................................................... 19
U.S. Laws ........................................................................................................................... 21
The Atomic Energy Act of 1954 (AEA)......................................................................... 21
The Nuclear Non-Proliferation Act of 1978 (NNPA)...................................................... 21
The Arms Export Control Act (AECA) .......................................................................... 22
Export Administration Act of 1979 (EAA)..................................................................... 23
Export-Import Bank Act of 1945 ................................................................................... 23
Nuclear Proliferation Prevention Act of 1994 ................................................................ 24
Nunn-Lugar/Cooperative Threat Reduction Program Legislation................................... 24
Iran-Iraq Arms Nonproliferation Act of 1992................................................................. 25
Iran, North Korea and Syria Nonproliferation Act.......................................................... 25
Foreign Operations, Export Financing, and Related Programs Appropriations Act
of 2006 ...................................................................................................................... 25
Issues for the 111th Congress ............................................................................................... 25
Chemical and Biological Weapons Proliferation Regime ........................................................... 26
Treaties and Agreements ..................................................................................................... 26
Chemical Weapons Convention (CWC)......................................................................... 27
Biological and Toxin Weapons Convention ................................................................... 27
Implementing the Regime ................................................................................................... 27
International Organizations ........................................................................................... 27
U.S. Government Organizations .................................................................................... 29
U.S. Laws ........................................................................................................................... 30
Export Administration Act of 1979................................................................................ 30
Arms Export Control Act .............................................................................................. 30
Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 .......... 30
Biological Anti-Terrorism Act of 1989 .......................................................................... 31
Additional CW/BW Nonproliferation Policy Provisions in Legislation .......................... 31
Issues for the 111th Congress ............................................................................................... 31
Export Controls............................................................................................................. 31
U.S. Compliance With CWC ......................................................................................... 31
U.S. Funding for OPCW ............................................................................................... 33
Congressional Research Service
Proliferation Control Regimes: Background and Status
Biological Weapons Convention—U.S. Biodefense Programs ....................................... 33
Missile Proliferation Control Regime ........................................................................................ 33
Implementing the Regime ................................................................................................... 36
International Organization............................................................................................. 36
U.S. Government Organization ..................................................................................... 36
U.S. Laws ........................................................................................................................... 37
The Missile Technology Control Act of 1990................................................................. 38
The Arms Export Control Act........................................................................................ 38
The Export Administration Act of 1979 ......................................................................... 38
Additional Missile Nonproliferation Policy Provisions in Legislation ............................ 38
Issues for the 111th Congress ............................................................................................... 39
Tables
Table 1. Proliferation Control Regimes........................................................................................ 3
Table 2. U.S. Legal Framework for Proliferation Control............................................................. 6
Appendixes
Appendix A. Proliferation Control Regime Membership............................................................ 42
Appendix B. Additional Legislation and Executive Orders ........................................................ 44
Contacts
Author Contact Information ...................................................................................................... 45
Congressional Research Service
Proliferation Control Regimes: Background and Status
Introduction
The United States has historically led the international community in establishing regimes
intended to limit the spread of nuclear, chemical, and biological weapons and missiles. The
regimes and their member countries use cooperative and coercive measures to achieve
nonproliferation and counterproliferation objectives. Multilateral agreements and organizations
are supplemented by strong bilateral cooperation among key allies, unilateral political and
economic actions, and recourse to military operations should they become necessary. Congress
supports the nonproliferation regimes primarily by providing statutory authority and funding for
U.S. participation, establishing policy, and mandating punitive actions to help enforce the
international standards set by the regimes.
The term “regime” often refers to the entire array of international agreements, multilateral
organizations, national laws, regulations, and policies to prevent the spread of dangerous weapons
and technologies. The nuclear nonproliferation regime is presently the most extensive, followed
by those dealing with chemical and biological weapons, and then by the missile regime. The
difficulty of producing nuclear weapons material (highly enriched uranium or plutonium) and the
great awareness of nuclear weapons’ destructiveness together have been conducive to creating a
complex regime with widespread agreement on the priority of nuclear nonproliferation. Chemical
weapons are easier to make and rely on readily available precursors, and they are far less
destructive. Biological weapons also rely on dual-use technology, and as technology has spread,
efforts to build a more extensive control regime have intensified. Finally, there is no international
consensus on the danger of missile proliferation to support a nonproliferation treaty or a binding
regime with enforcement mechanisms.
A key aspect of all the regimes is their attempt to control exports of sensitive goods and
technologies through supplier agreements. These are the Nuclear Suppliers Group and the
Zangger Committee for nuclear technology, the Australia Group for chemical and biological
weapons technology, and the Missile Technology Control Regime. In the last decade, these export
control regimes have expanded their membership, expanded and refined their control lists, and
increased coordination among member states. At the same time, however, the non-binding nature
of some of the regimes and growing resistance to them by certain countries, including some
regime members, limits their effectiveness. A major dilemma is whether to include new members,
that may not be U.S. allies and may not have reliable export controls, or to limit membership to
countries with excellent nonproliferation credentials. Regime members are afforded special
access to controlled technology by the other members, so this issue also affects decisions on
whether to include non-allies. Table 1 lists the proliferation control regimes, their components
and statutory authority. There are many arms control treaties and other activities that address
aspects of WMD and conventional weapons beyond the regimes covered in this report.1
Status and Trends
Although proliferation control regimes are a useful tool in preventing dangerous technology
transfers, several factors undermine their effectiveness. One is the difficulty of addressing
underlying motivations of countries to acquire weapons of mass destruction (WMD). Regional
1 See also CRS Report RL33865, Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, by Amy
F. Woolf, Mary Beth Nikitin, and Paul K. Kerr
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Proliferation Control Regimes: Background and Status
security conditions as well as the desire to compensate for other countries’ superior conventional
or unconventional forces have been common motivations for WMD programs. Some countries
may want WMD to dominate their adversaries. Prestige is another reason why certain countries
seek WMD. Another factor working against the regimes is the steady diffusion of technology over
time—much of the most significant WMD technology is 50 years old, and growing access to
dual-use equipment makes it easier for countries or groups to build their own WMD production
facilities from commonly available civilian equipment.
There are at least two problems common to all of the nonproliferation regimes—the lack of
universal membership and gaps in verification. In the nuclear regime, India, Pakistan, North
Korea, and Israel are not members of the NPT. Apart from diplomatic questions about how to
treat their status as states with nuclear weapons not sanctioned by the NPT, those countries are
not bound by that treaty’s prohibition on sharing nuclear technology, nor are they committed to
eventually eliminating these weapons. They are also not members of the export control groups.
The international community struggles with how to bring these states into the nonproliferation
regimes without tacitly agreeing to their acquisition of nuclear weapons. For example, a major
objection to the U.S. nuclear cooperation agreement with India was the perception that it
legitimizes India’s nuclear weapons program without extracting any significant concessions on
limiting its nuclear arsenal. Like India, Pakistan is not bound by any NPT obligations, whether or
not Pakistani scientist A.Q. Khan sold nuclear technology on the black market with or without
Pakistani government acquiescence. Revelations in 2004 of centrifuge enrichment technology
sales to Libya, Iran, and North Korea galvanized the international community to examine
strengthening implementation of national export controls and interdiction.
In the chemical and biological weapons (CBW) area, some states suspected of having military
programs are still outside the treaty. Within the treaties, there are some members (e.g., Iran under
the CWC and Russia under the BWC) suspected of continuing programs. In the missile area,
although the Hague Code of Conduct has widespread membership, MTCR is still not adhered to
by many states (e.g., China, North Korea) that are responsible for proliferating missile
technologies.
Continued diplomatic support for the treaties and export control regimes may face some hurdles.
In the nuclear nonproliferation regime, many non-weapons states link their continued cooperation
with progress in implementing Article VI of the treaty (steps toward eventual nuclear
disarmament by the five nuclear weapons states). In recent years, several developments have
generated criticism: the United States’ abrogation of the Anti-Ballistic Missile (ABM) Treaty;
conclusion of the Moscow Treaty, which many criticize as having little real impact and no
verification; the U.S. Senate’s rejection of the Comprehensive Test Ban Treaty in 1999; failure to
proceed on a fissile material production cutoff treaty in Geneva; and perceived interest in new
U.S. nuclear weapons. Some non-nuclear-weapon states are also resistant to accepting any
limitations on nuclear technology exports involving advanced fuel production technology that has
the potential to produce weapons grade material. These states view such restrictions as limiting
their access to peaceful nuclear technology as guaranteed by the NPT. Thus, as dual-use
equipment in all WMD fields becomes more widespread, there may be a higher expectation that
exporters will need to better control where their technology goes and how it is used.
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Proliferation Control Regimes: Background and Status
Table 1. Proliferation Control Regimes
Regime Formal
Treaties
Suppliers Groups and
International
Informal Agreements
Organization
U.S. Legal Framework
U.S. Government Agencies
Nuclear Nuclear
Nonproliferation
Treaty Zangger Committee, 1971
International Atomic
AEA, 1954
State, Defense, Commerce, Energy (+
(NPT), 1970
Nuclear Suppliers Group,
Energy Agency (IAEA)
NNPA, 1978
national laboratories), Treasury, NRC,
Convention on Physical Protection of
1975
U.N. Conference on
FAA, 1961
intelligence agencies
Nuclear Material, 1987 + Amendment G-8
Disarmament
AECA, 1976
Treaty of Tlatelolco
EAA, 1979
Treaty of Rarotonga
NPPA, 1994
Treaty of Pelindaba
Ex-Im Bank, 1945
Treaty of Bangkok
Nunn-Lugar 1991
Treaty on a nuclear-weapons-free-
Iran-Iraq Arms Non-
zone (NWFZ) in Central Asia
proliferation (NP) Act, 1992
Iran, Syria, No. Korea NP Act
START Protocols
Treaty of Moscow, 2002
Chemical and
Geneva Protocol, 1925
Australia Group, 1984
OPCW
EAA, 1979
State, Defense, Commerce, Treasury,
Biological
Chemical Weapons Convention
U.N. Conference on
AECA, 1976
intelligence agencies
(CWC) 1993
Disarmament
Biological Weapons Anti-
Terrorism Act
Biological and Toxin Weapons
Chem-Bio Weapons Control
Convention (BWC)
Warfare Elimination Act,
1991
Nunn-Lugar
Freedom Support Act
Iran-Iraq Arms NP Act, 1992
Iran, Syria, No. Korea NP Act
Missiles
Missile
Technology
FAA, 1961
State, Defense, Commerce, Treasury,
Control Regime, 1987
AECA, 1976
NASA intelligence agencies
International Code of
EAA, 1979
Conduct, 2002
Missile Tech. Control Act,
1990
Freedom Support Act
Iran-Iraq NP Act
Iran, Syria, No. Korea NP Act
Source: Congressional Research Service.
Notes: Legislation abbreviations: AEA—Atomic Energy Act; AECA—Arms Export Control Act; EAA—Export Administration Act; FAA—Foreign Assistance Act; NNPA—
Nuclear Nonproliferation Act of 1978; NPPA—Nuclear Proliferation Prevention Act.
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Proliferation Control Regimes: Background and Status
State-to-State Relations
In addition to a formal framework of control agreements, close political relationships with key
allies and other countries are very important for U.S. efforts to counter the spread and the use of
WMD. Initiatives by allies, such as the G-8 Global Partnership to Combat the Spread of WMD,
demonstrate resolve to tackle specific proliferation problems. In May 2003, President Bush
launched the “Proliferation Security Initiative” (see description below). Many of these
relationships, nonetheless, are strongly influenced by other political, military, and economic
issues that sometimes take precedence over proliferation concerns. In practice, nonproliferation
competes with important policy objectives such as trade, regional issues, and domestic political
considerations, and uneven implementation of nonproliferation policy can result.
A more difficult challenge exists when U.S. allies and friends seek WMD and missiles of their
own or transfer WMD technology. Perhaps the hardest challenge for nonproliferation policies is
to reduce the desire of countries for weapons of mass destruction. It is sometimes possible to
change regional security conditions through alliances, conventional arms transfers, arms control,
or negotiations aimed at settling conflicts. However, eliminating underlying motivations takes
time, and the next best option may be to delay WMD development for as long as possible, or to
attempt to impact a country’s calculation of the costs of pursuing these weapons. Libya’s decision
in December 2003 to give up its nuclear, chemical weapons, and missile programs is a good
example of a state that apparently decided the costs of WMD programs exceeded their benefits.
Unilaterally, the United States uses sanctions to support its nonproliferation objectives. Various
laws authorize or require the President to impose unilateral sanctions on countries that acquire,
use, or help other countries to obtain WMD or missiles. Sanctions can affect U.S. aid,
cooperation, and impose restrictions on U.S. technology exports. The effectiveness of sanctions
often depends on persuading other countries to support or respect U.S. sanctions. Even without
multilateral support, sanctions can still highlight strong U.S. opposition to WMD proliferation.
However, strong sanctions are rarely imposed on U.S. friends or allies that acquire WMD.
Counterproliferation, Intelligence, and Deterrence
U.S. armed forces have developed programs to help prevent the spread of WMD, to deter or
prevent their use, and to protect against their effects. Defense cooperation and arms transfers to
U.S. allies can ease concerns about security that can lead them to consider acquiring WMD, and
also signal potential adversaries that acquisition or use of WMD may evoke a strong military
response. U.S. conventional and nuclear military capabilities and the threat of retaliation help
deter WMD attacks against U.S. forces, territory, or allies. Counterproliferation capabilities have
been expanded in recent years to include more advanced “passive” and “active” defense
measures. Passive counterproliferation tools include protective gear such as gas masks and
detectors to warn of the presence of WMD. Active measures include missile defenses to protect
U.S. territory, forces, and allies; precision-guided penetrating munitions and special operation
forces to attack WMD installations; and intelligence gathering and processing capabilities.
Intelligence is crucial to U.S. nonproliferation efforts, particularly in helping shape policy
options. Intelligence agencies track foreign WMD programs, monitor treaty compliance, and
attempt to detect transfers of WMD goods and technology. The United States cooperates with
certain allies to prepare for possible counterproliferation actions. Although counterproliferation is
a main pillar of U.S. strategy to combat WMD, political and technical hurdles (hidden
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Proliferation Control Regimes: Background and Status
underground bunkers, locations near civilians, etc.) tend to make counterproliferation a last resort,
after other options have failed.
One key tool of counterproliferation has been interdiction of WMD-related equipment shipments
at sea, on land, and by air. President Bush announced the Proliferation Security Initiative (PSI) on
May 31, 2003. PSI, described as an activity rather than an organization, aims to better coordinate
like-minded countries’ efforts to interdict such illicit shipments, based on existing legal
authorities.2
Congressional Role
Congress has been actively engaged in nonproliferation legislation for close to 60 years. In
addition to laws affecting diplomacy, treaty implementation and military options, legislation
effecting restrictions on foreign aid, sanctions, and export controls helps establish
nonproliferation policy and congressional oversight of executive branch nonproliferation and
counterproliferation policies.
Congress enacted strict controls on nuclear energy and cooperation in the first Atomic Energy Act
of 1946. By the 1950s, however, it became clear that the U.S. nuclear weapons program needed
materials from abroad and that pure denial of materials and technology had neither stopped the
Soviet Union nor the UK from acquiring nuclear weapons. The 1954 revision of the Atomic
Energy Act reflected a shift in strategy from that of prevention through denial to one of influence
through cooperation. However, as allies planned to sell sensitive enrichment and reprocessing
equipment to states outside of the NPT in the 1970s (e.g., Pakistan, South Korea, and Brazil),
Congress reacted by passing several laws to slow down nuclear commerce and implement
sanctions against those states clandestinely pursuing nuclear weapons. Controls on exports of
chemical and biological agents with military applications and missiles have been regulated under
the Arms Export Control Act (AECA) of 1968, and their dual-use technologies have been
regulated under the Export Administration Act (EAA) of 1979 and its predecessors, but these
controls were implemented relatively later in the 1980s. Table 2 lists the major U.S. laws enacted
to limit the transfer of WMD and WMD technology. Over time, most laws have been amended to
address the range of WMD threats, but there are a few laws that address only one kind of weapon
of mass destruction; some laws have focused on a proliferation threat from a particular country.
Nunn-Lugar-related legislation and the Freedom Support Act address the range of WMD, but
focus on Russia and the NIS. In addition, legislation related to Iran and Syria spans the range of
WMD proliferation. See Appendix B for relevant text from nonproliferation-related legislation.
Organization of the Report
The following sections will describe the nuclear, biological, chemical, and missile
nonproliferation regimes. Each section will include (1) a background section with a brief history
of the regime; (2) a section setting out the treaties and agreements that authorize or affect the
regime; (3) a brief description of how the regime is implemented; (4) U.S. laws authorizing or
affecting the regime; and (5) issues for 111th Congress. More detailed information on regime
membership, specific provisions in law and relevant executive orders are contained in appendices.
2 See CRS Report RL34327, Proliferation Security Initiative (PSI), by Mary Beth Nikitin.
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Proliferation Control Regimes: Background and Status
Table 2. U.S. Legal Framework for Proliferation Control
Target
Title Public
Law
Application
Nuclear
Chemical
Biological
Missiles
Country
Notes
Export-Import Bank Act
P.L. 79-173
financing cutoff for
X
X
X
X
Various
P.L. 107-189 added enforcement
of 1945
P.L. 107-189
nuclear safeguards
of AECA, EAA, IEEPA as
reauth
violations and
justification for denying
nuclear tests after
financing, extending purview of
1977
law to CW/BW/missile areas
Atomic Energy Act 1954
P.L. 83-703
exports; cutoff in
X
Various
P.L. 95-242 added Sec 129
nuclear cooperation
Sec 129
Foreign Assistance Act
P.L. 87-195
aid cutoff
X
X X X
Various
NPPA repealed relevant
1961
Sec 307e
Sec 498
Russia
sections in FAA and placed them
Sec 620 E
A(b)
in AECA. Reference to FAA is
(e)
Cuba
deemed now to refer to
Sec 620
sections 101 or 102 in AECA.
(y)
Arms Export Control Act P.L. 90-629
exports, aid cutoff;
X
X
X
X
Various *
NPPA
94
1968
sanctions
Sec 3f
Sec 81**
Sec 81
Sec 72,
**P.L. 102-182 added in 1991
Sec 101,
73, 74
102*
Nuclear Nonproliferation P.L. 95-242
sanctions
X
Various
See Atomic Energy Act
Act 1978
Export Administration
P.L. 96-72
export controls
X
X
X
X
Various
Sec 11C added in 1991 by P.L.
Act 1979
Sec 5, 6
Sec 6(m),
Sec 6(m),
Sec 5,
102-182.
11C
11C
6(l),
11B
Biological Anti-Terrorism P.L. 101-298
treaty:
X
N.A.
Implements
BWC
Act 1989
BWC
Missile Technology
P.L. 101-510, Title
sanctions
X
Various
Added Chapter VII to AECA,
Control Act 1990
XVII
Sections 6 (L) and 11B to EAA
1979
Chemical and Biological
P.L. 102-182, Title
sanctions
X
X
Various
Weapons Control and
III
Warfare Elimination Act
1991*
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Proliferation Control Regimes: Background and Status
Target
Title Public
Law
Application
Nuclear
Chemical
Biological
Missiles
Country
Notes
Nunn-Lugar 1991
P.L. 102-228
assistance programs
X
X
X
X
Russia
Amendment to CFE Treaty;
Cooperative Threat
P.L. 103-160
Title XI
Reduction Act 1993
X
X
X
X
Iran-Iraq Arms
P.L. 102-484
sanctions X
X
X
X
Iran,
Iraq
Nonproliferation Act
Title XVI
1992
Freedom Support Act
P.L. 102-511
assistance programs
X
X
X
X
NIS
Title V
Nuclear Proliferation
P.L. 103-236, Title
sanctions
X
Various
Consolidated np legislation into
Prevention Act 1994
VIII
AECA, moving it from FAA
Chemical Weapons
P.L. 105-277
treaty:
X
N.A.
Convention
CWC
Implementation Act 1998
North Korea Threat
P.L. 106-113
assistance;
X
North
Reduction Act of 1999
(consolidated
nuclear cooperation
Korea
appropriations)
Iran, North Korea and
P.L. 109-112
third-party sanctions
X
X
X
X
Iran, North Covers transfers to and from
Syria Nonproliferation
(amended by P.L.
Korea,
states
Act 2006
109-353)
Syria
Syria Accountability and
P.L. 108-175
Export controls,
X X X X
Syria
Lebanese Sovereignty
sanctions
Restoration Act of 2003
Foreign Operations,
P.L. 109-102
Financing,
X
Russia
Export Financing, and
assistance cutoff
Related Programs
Appropriations Act, 2006
Iran & Libya Sanctions
P.L. 109-267
third-party sanctions
X
X
X
X
Iran, Libya
Renewed by H.R. 6198, Iran
Act
(amended by H.R.
Freedom Support Act until
5877)
2011, signed by President on
Sept. 30, 2006
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Proliferation Control Regimes: Background and Status
The Nuclear Nonproliferation Regime
The nuclear nonproliferation regime encompasses several treaties, extensive multilateral and
bilateral diplomatic agreements, multilateral organizations and domestic agencies, and the
domestic laws of participating countries. Since the dawn of the nuclear age, U.S. leadership has
been crucial in developing the regime. While there is almost universal international agreement
opposing the further spread of nuclear weapons, several challenges have arisen in recent years:
India and Pakistan tested nuclear weapons in 1998; North Korea withdrew from the Nuclear
Nonproliferation Treaty (NPT) in 2003 and tested a nuclear device in 2006 and 2009; Libya gave
up a clandestine nuclear weapons program in 2004, and Iran was found to be in non-compliance
with its treaty obligations in 2005. The discovery of the nuclear black market network run by
A.Q. Khan has spurred new thinking about how to strengthen the regime, including enhanced
export controls and greater restrictions on sensitive technology. However, the extension of civil
nuclear cooperation by the United States and other countries to India, a non-party to the NPT, has
raised questions about what benefits still exist for non-nuclear-weapons states that remain within
the treaty regime.
In 2009, there were five declared nuclear weapons states (United States, Russia, Great Britain,
France, China), three de facto nuclear weapons states (India, Israel, Pakistan), and one country—
North Korea—that has probably produced enough plutonium for at least half a dozen nuclear
bombs and has tested two nuclear devices.3 This is considerably less than predicted 40 years ago,
when President Kennedy warned of the possibility that, by the 1970s, the United States could
“face a world in which fifteen or twenty or twenty-five nations may have these weapons.”
The nonproliferation regime has not stopped all proliferation, but it has helped restrain nuclear
ambitions and solidified an international norm of behavior strongly condemning proliferation.
Many countries that could make nuclear weapons have not, but some have at one time or another
taken significant steps towards acquiring a nuclear weapons capability. Argentina, Brazil, South
Africa, Iran, Iraq, North Korea, Taiwan, Sweden, and South Korea all have had nuclear weapons
development programs. Both Japan and Germany had nuclear weapons programs during the
Second World War, but did not succeed in making nuclear weapons before their programs were
halted at the end of the war. Argentina, Brazil, South Korea, Sweden, Taiwan, and South Africa
abandoned their nuclear weapons programs and joined the NPT as non-nuclear-weapons states.
South Africa was the only country in this group to have built and abandoned actual warheads.4
Ukraine, Kazakhstan, and Belarus inherited nuclear weapons on their soil when the Soviet Union
collapsed, but opted to join the NPT as non-nuclear-weapons states (the warheads were returned
to Russia). Despite its membership as a non-nuclear-weapons state in the NPT, Libya gave up a
clandestine nuclear weapons program in December 2003.5
While only a few countries maintain an interest in developing nuclear weapons, it is difficult to
predict how many countries or terrorist groups may in the future want a nuclear weapons
3 For a current summary, see CRS Report RL30699, Nuclear, Biological, and Chemical Weapons and Missiles: Status
and Trends, by Paul K. Kerr.
4 For details, see “South Africa Profile: Nuclear Overview,” Nuclear Threat Initiative website, http://www.nti.org/
e_research/profiles/SAfrica/Nuclear/index_2153.html.
5 See CRS Report RS21823, Disarming Libya: Weapons of Mass Destruction, by Sharon Squassoni.
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capability. Some of the major challenges in preventing nuclear proliferation will include the
following:
• controlling access to sensitive nuclear fuel cycle technologies, such as uranium
enrichment and spent fuel reprocessing, via multilateral ownership or some other
mechanism;
• strengthening physical protection of all source and special nuclear materials
globally, with continued emphasis on controlling nuclear materials smuggling
from the former Soviet Union and other countries with weak controls;
• strengthening the International Atomic Energy Agency’s safeguards system;
• strengthening national export control laws and regulations, per U.N. Security
Council Resolution 1540;
• negotiating with North Korea to verify and dismantle its nuclear weapons
program;
• restraining nuclear proliferation in India and Pakistan;
• restraining nuclear programs in the Middle East, including those of Israel and
Iran;
• preventing U.S. technology from aiding the development of WMD and delivery
systems in foreign countries;
• strengthening international verification and enforcement of nonproliferation
agreements.
Treaties and Agreements
The NPT is the centerpiece of nuclear nonproliferation efforts. Other relevant treaties include
regional nuclear-weapon-free zones and the Convention on the Physical Protection of Nuclear
Material. In addition to these multilateral treaties, the United States has also entered into bilateral
agreements and multilateral initiatives, such as the G-8 Global Partnership to Combat WMD.
Finally, actions the United States takes in related areas of arms control may have an impact on the
nonproliferation regime.
Treaty on the Nonproliferation of Nuclear Weapons (NPT), 1970
It took just three months after the bombing of Hiroshima and Nagasaki in 1945 for the first
proposals to emerge from governments to control the “destructive uses” of nuclear energy. It took
25 years, however, for the NPT to emerge as the blueprint for nuclear nonproliferation.6 In 1968,
the treaty demarcated nuclear-weapon states from non-nuclear-weapon states by defining nuclear-
weapon states as those states that have manufactured and exploded a nuclear weapon or other
6 Previous proposals included a 1945 proposal by the United States, Britain, and Canada proposed to establish a U.N.
Atomic Energy Commission to eliminate “the use of atomic energy for destructive purposes,” a 1957 “package” of
measures (from Canada, UK, France, and United States) to the U.N. Disarmament Commission that included a
commitment not to transfer nuclear weapons, a 1964 program proposed by the United States for nonproliferation. See
Arms Control and Disarmament Agreements: Texts and Histories of the Negotiations, 1990 edition, U.S. Arms Control
and Disarmament Agency, p. 89.
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nuclear explosive device prior to January 1, 1967. This definition implied that there would only
ever be five “legitimate” nuclear-weapon states—the United States, Russia, Great Britain, France,
and China. All other states would join as non-nuclear-weapon states, agreeing not to acquire
nuclear weapons in exchange for assistance in the peaceful uses of nuclear energy. As of January
2010, there are 189 parties to the NPT, including all five nuclear weapons states.7 Only four
countries are not members of the treaty. North Korea withdrew from the treaty officially in April
2003. India, Israel, and Pakistan have never been members of the treaty.
The pledge not to acquire nuclear weapons is verified through the application of “nuclear
safeguards” measures. The International Atomic Energy Agency (IAEA), founded in 1957,
devised a system of nuclear material accountancy coupled with periodic and special inspections
to ensure that nuclear material is not diverted from peaceful uses to military uses. Each non-
nuclear-weapon-state party to the NPT must negotiate an agreement with the IAEA to submit all
nuclear material in its possession to regular inspections.8 After learning several lessons from
Iraq’s and North Korea’s clandestine nuclear programs, the IAEA launched a major effort to
strengthen its safeguards system (see below) in 1992.
The incentive for non-nuclear-weapon states to submit to inspections is a promise by advanced
nuclear countries to promote “the fullest possible exchange of equipment, materials and scientific
and technological information for the peaceful uses of nuclear energy.”9 For their part, the
nuclear-weapon states agree to “pursue negotiations in good faith on effective measures relating
to cessation of the nuclear arms race at an early date and to nuclear disarmament.”10
In 1995, NPT members voted to make the treaty permanent. The members also agreed on a
stronger review process to oversee compliance with the treaty. However, many members of the
NPT are dissatisfied, particularly with perceived lack of progress on nuclear disarmament, and
the future of the treaty is not guaranteed (see discussion of implementation). Member states will
discuss the status of the treaty at a Review Conference in May 2010.
Convention on the Physical Protection of Nuclear Material, 1987
The Convention on the Physical Protection of Nuclear Material11 sets international standards for
nuclear trade and commerce. The treaty had 142 parties in January 2010. The convention outlines
security requirements for the protection of nuclear materials against terrorism and provides for
the prosecution and punishment of offenders of international nuclear trade laws. Parties to the
treaty agree to report to the IAEA on the disposition of nuclear materials being transported and
agree to provide appropriate security during such transport.
7 This number excludes North Korea (the DPRK). North Korea announced its withdrawal from the NPT effective
January 11, 2003, but no official agreement has been reached on its status amongst the NPT states parties or depositary
states.
8 These agreements are called “full-scope safeguards.” Other states have partial safeguards agreements, including India,
Pakistan and Israel, which can either apply to material or facilities. All of the five nuclear weapons states have
voluntary safeguards agreements, which cover a portion of facilities and materials.
9 NPT, Article IV-2.
10 NPT, Article VI.
11 http://www.iaea.org/Publications/Documents/Conventions/cppnm.html.
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For several years, the United States worked to strengthen this treaty to address nuclear terrorism
by extending controls to domestic facility security, not just transportation. In July 2005, states
parties convened to amend the convention. They extended the convention’s scope to cover not
only nuclear material in international transport, but also nuclear material in domestic use, storage,
and transport, as well as the protection of nuclear material and facilities from sabotage. The new
rules will come into effect once they have been ratified by two-thirds of the states parties of the
convention, which could take several years. As of December 17, 2009, only 33 states had
deposited their instruments of ratification, acceptance, or approval of the amendment with the
depositary. On September 4, 2007, President Bush submitted the amendment to the Senate for its
advice and consent on ratification. The Senate Committee on Foreign Relations recommended
that the Senate give its advice and consent on September 11, 2008. The Senate must approve
implementing legislation before the United States deposits its instrument of ratification to the
amendment.
Related Arms Control Agreements
In the 1990s, the Comprehensive Test Ban Treaty (CTBT) was seen as the next step toward
nuclear disarmament, but also a means to prevent the further spread of nuclear weapons. By the
mid-1990s, all nuclear-weapons states were observing a moratorium on testing, which the treaty
would make permanent. The parties completed negotiations and signed the CTBT in 1996;
President Clinton submitted the treaty to the Senate in September 1997, and in 1999 the Senate
voted against the treaty.12 President Obama has said his Administration will pursue U.S. CTBT
ratification.
Another initiative dating from the 1990s is the effort to negotiate a treaty banning the production
of fissile materials for weapons, or fissile material cut-off treaty (FMCT). Some perceive such a
ban on producing fissile material for weapons as much more relevant today than it was a decade
ago. Concern about terrorist access to large stockpiles of fissile material has only grown since the
Cooperative Threat Reduction programs began in the early 1990s and particularly since
September 11, 2001. Revelations about Pakistani scientist A.Q. Khan’s nuclear black market sales
of uranium enrichment technology in 2004 have spurred efforts not only to shut down networks,
but restrict even “legitimate” technology transfer. Recent proposals to strengthen the
nonproliferation regime, including those of Mohamed El Baradei, former director general of the
International Atomic Energy Agency (IAEA), have focused on tighter controls on sensitive
nuclear fuel cycle technologies, renewed disarmament effort, and creative approaches toward
states outside the Nuclear Nonproliferation Treaty (NPT)—India, Pakistan, and Israel.13 An
FMCT could play a pivotal role in implementing that agenda, by helping to gain broad support
for new multilateral arrangements to restrict enrichment and reprocessing, helping to strengthen
consensus among NPT parties, and by achieving a concrete step toward disarmament.14 The
Obama Administration said it will “lead a global effort to negotiate a verifiable treaty ending the
production of fissile materials for weapons purposes.”15
12 See CRS Report RL33548, Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, by
Jonathan Medalia.
13 Mohamed ElBaradei, “Rethinking Nuclear Safeguards,” Washington Post, June 14, 2006.
14 Henry Kissinger, Sam Nunn, William Perry and George Shultz, “A World Free of Nuclear Weapons,” Wall Street
Journal, January 4, 2007. http://www.nuclearsecurityproject.org/site/c.mjJXJbMMIoE/b.3483737/k.4057/
Nuclear_Security_Project_Home.htm
15 http://www.whitehouse.gov/agenda/homeland_security/.
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Nuclear-Weapon-Free Zones
In the last 35 years, some states have concluded treaties to declare their regions to be “nuclear
weapons-free.” These regions now include most of the globe—Latin America, Central and
Southeast Asia, the South Pacific, Africa, and Central Asia.
Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of
Tlatelolco)
The Treaty of Tlatelolco16 establishes a nuclear-weapon-free zone (NWFZ) in Latin America.
Protocol I of the treaty obligates non-Latin American countries that have territories in the zone
(United States, UK, Netherlands, France) to accept the provisions of the treaty with respect to
those territories. Protocol II contains a negative security pledge by the nuclear weapons states
(China, France, Russia, UK, United States) “not to use or threaten to use nuclear weapons against
the Contracting Parties of the Treaty.” In 1994, treaty holdouts Argentina, Brazil, and Chile
signed on, and in 1995 Cuba signed the treaty (which entered into force in 2002). The Agency for
the Prohibition of Nuclear Weapons in Latin America and the Caribbean (OPANAL) in Mexico
City serves as Secretariat for treaty implementation.
South Pacific Nuclear Free Zone (Treaty of Rarotonga)
Thirteen nations of the South Pacific have established a NWFZ for their region which prohibits
the possession of nuclear weapons by its members and bans the manufacture or permanent
emplacement of nuclear weapons within the zone by signatories outside of the Pacific region. The
treaty does not inhibit transit through the zone by nuclear-armed or -powered military ships or
aircraft. In 1996, the United States, France, and Britain signed the protocols to the treaty, which
are nearly identical to those of the Treaty of Tlatelolco. Before signing the treaty protocols,
France conducted its last nuclear tests at its test site in French Polynesia. The United States is the
only nuclear-weapon state that has not ratified the protocol.
African Nuclear Weapon-Free-Zone Treaty (Treaty of Pelindaba)
In April 1996, the Treaty of Pelindaba, establishing Africa as a NWFZ, was opened for signature.
The treaty now has 53 signatures and 21 ratifications. It will enter into force after the 28th
ratification. The African NWFZ closely follows the models of the South Pacific and Latin
American zones, and thus was able to attract the support of the United States and other weapons
states after certain criteria were satisfied. This nuclear-weapon-free zone is not yet in force, and
the United States and Russia have not ratified (but have signed) the relevant protocol.
Southeast Asia Nuclear Weapon-Free-Zone (Treaty of Bangkok)
A group of 10 Southeast Asian nations declared a NWFZ for their region in December 1995, and
the treaty entered into force in 1997. The United States and other weapons states declined to sign
the protocols to the zone because the treaty contained controversial definitions of its members’
sovereignty over territorial seas. The United States maintains that the language of the treaty is
16 See http://www.opanal.org/index-i.html.
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inconsistent with the Law of the Sea and could inflame territorial disputes as well as interfere
with rights of passage. Modifications of the language are under consideration. In 1999, China
announced it would sign the protocol but has deferred its signature.
Central Asian Nuclear Weapons Free Zone
Signed on September 8, 2006, this treaty creates a NWFZ in the five Central Asian states of
Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. With Kazakhstan’s
ratification in January 2009, all five countries have joined the treaty. The treaty entered into force
on March 21, 2009. This treaty is the first nuclear weapon-free zone located entirely in the
northern hemisphere, and prohibits the development, manufacture, stockpiling, acquisition, or
possession of any nuclear explosive device within the zone. The treaty requires signatories to
accept enhanced IAEA safeguards on nuclear material and activities, addresses the impact of
production and testing of Soviet nuclear weapons on the environment, and implements measures
to meet international standards for nuclear facility security.
Other Agreements
The United States has concluded arrangements with several states on a bilateral basis and on a
multilateral basis in an effort to address specific proliferation challenges. In 1994, the United
States signed the Agreed Framework with North Korea (which was terminated in 2003) and now
addresses the North Korean nuclear program through the Six Party Talks. The United States
addresses the Iranian nuclear program with the other permanent members of the U.N. Security
Council plus Germany in the “P-5+1” Contact Group. The United States also provides bilateral
assistance to countries to secure their WMD-relevant materials and technologies, or to detect their
movement across borders.
In 2002, the United States initiated a “10 plus 10 over 10” effort within the G-8 to provide
additional funding for nonproliferation assistance to Russia and the newly independent states of
the former Soviet Union (NIS), called the G-8 Global Partnership Against the Spread of Weapons
and Materials of Mass Destruction. The United States also created the Proliferation Security
Initiative in 2003 to improve coordination on WMD interdiction efforts. The U.S.-Russian-led
Global Initiative to Combat Nuclear Terrorism also aims to guide and coordinate international
activities. The establishment of these joint activities reflected a trend away from internationally
negotiated approaches to proliferation controls and towards ad hoc cooperation amongst “like-
minded states,” at least during the Bush Administration’s tenure, and due to heightened
perception of WMD threats following the attacks of September 11, 2001.
G-8 Global Partnership
At a summit held in June 2002 in Kananaskis, Canada, G-8 members agreed to a Global
Partnership to halt the spread of weapons of mass destruction and related materials and
technology. The G-8 members agreed to raise $20 billion over 10 years in nonproliferation—
related assistance beginning Russia, of which the United States committed to providing $10B.
Projects relating to disarmament, nonproliferation, counterterrorism and nuclear safety initially
were to focus on Russia. Russia and, since 2004, Ukraine are the official recipients of Global
Partnership funds. Since 2002, 12 countries and the European Union have joined the G-8 as
donors. The four priority areas of work as identified at the Kananaskis Summit are (1) destruction
of chemical weapons, (2) dismantlement of decommissioned nuclear submarines, (3) disposition
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of fissile materials, and (4) employment of former weapons scientists. Some donor countries also
emphasize the importance of biological weapons-related and nuclear material security assistance.
A G8 Global Partnership Working Group meets regularly to coordinate assistance efforts, and
publishes a report and annex detailing projects at the summit each year.17
At the June 2004 Sea Island summit, the Global Partnership states agreed to consider expanding
assistance to states outside the former Soviet Union. At their 2008 and 2009 summits, the G-8
countries agreed to extend the Global Partnership to recipients worldwide on a case-by-case basis.
This would mirror U.S. efforts to expand its own cooperative threat reduction assistance to states
outside of Russia and the former Soviet Union, for example, Albania. Outside observers assess
that pledges are about $2 billion short of the $20 billion goal, and there remains a gap between
pledges and actual funds spent. The Global Partnership is expected to be a main focus of the G8
Summit in 2010, as the initiative nears its 10-year anniversary and since Canada holds the G-8
presidency. Global Partnership countries will be examining whether and how to extend the
initiative beyond its first 10 years. The U.S. government supports the further expansion of Global
Partnership recipients and an extension of the effort beyond 2012.
Global Initiative to Combat Nuclear Terrorism
At the July 2006 summit, the United States and Russia launched another initiative—the Global
Initiative to Combat Nuclear Terrorism. As of July 2008, 76 states have agreed to the statement of
principles and are Global Initiative partner nations. The International Atomic Energy Agency
(IAEA), the European Union (EU) and International Criminal Police Organization (INTERPOL)
have observer status. Although it does not receive funding of its own, the initiative appears to
exceed the G-8 Global Partnership in its scope. Participating states share a common goal to
improve national capabilities to combat nuclear terrorism by sharing best practices through
multinational exercises and expert level meetings. Without dues or a secretariat, actions under the
Initiative will take legal guidance from the International Convention on the Suppression of Acts
of Nuclear Terrorism, the Convention on the Physical Protection of Nuclear Materials and its
amendment, and U.N. Security Council Resolutions 1540 and 1373.18 According to a White
House fact sheet issued at the time of its announcement, the initiative has the following goals:19
• Improve security of nuclear material and radioactive substances and nuclear
facilities;
• Detect and prevent illicit trafficking in such materials, especially by terrorists;
• Develop responses to nuclear terrorist attacks;
• Cooperate in developing technical means to combat nuclear terrorism;
17 For the 2009 G8 Summit documentation see the Italian Presidency’s website: http://www.g8italia2009.it/G8/Home/
G8-G8_Layout_locale-1199882116809_Atti.htm
18 “U.S.-Russia Joint Fact Sheet on The Global Initiative to Combat Nuclear Terrorism,” July 15, 2006. Available at
http://www.state.gov/r/pa/prs/ps/2006/69016.htm.
19 http://www.whitehouse.gov/news/releases/2006/07/20060715-3.html.
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• Take all possible measures to deny safe haven to terrorists seeking to acquire or
use nuclear materials; and
• Strengthen national legal frameworks to ensure the effective prosecution of
terrorists.
Global Initiative partner nations met in June 2009 in the Hague to discuss “enhancing
international partnerships by sharing best practices.” In past meetings the partner countries have
focused on strengthening detection and forensics; denying safe haven and financing to terrorists;
deterring terrorist intentions to acquire and use nuclear devices. Participants have developed
“Model Nuclear Detection Guidelines.” An International Nuclear Terrorism Law Enforcement
Conference, organized by the FBI, was held in Miami in June 2007 for Global Initiative partners.
Tabletop and field exercises are held to identify and address individual states’ vulnerabilities.
According to a State Department fact sheet, over 30 workshops and exercises have been held
since the initiative began.20 President Obama proposed in an April 2009 speech in Prague that the
Global Initiative should become a “durable, international institution” but it is not yet clear how
this will be carried out.
Proliferation Security Initiative21
President Bush announced the Proliferation Security Initiative (PSI) in May 2003 to improve
multilateral cooperation in interdicting shipments of weapons of mass destruction-related
materials and delivery systems at sea, on land, and in the air. U.S. officials stress that PSI is a
voluntary effort consistent with national legal authorities and international law. The stated
purpose is to strengthen the enforcement of already-existing export controls associated with
nonproliferation treaties, and to better coordinate interdiction efforts through multilateral training
exercises. States agreed to a set of interdiction principles in Paris in September 2003 and 90
nations now support PSI. PSI participants conduct joint interdiction training exercises and hold
regular operational experts working group meetings. The United States is pursuing the conclusion
of ship-boarding agreements with key states that have high volumes of international shipping.
The United States has signed such agreements with the Bahamas, Belize, Croatia, Cyprus,
Liberia, Malta, the Marshall Islands, Mongolia, and Panama. The Obama Administration has
given full support to PSI and has said it wants to strengthen and “institutionalize” the effort.22
U.N. Security Council Resolution 1540
In April 2004, the U.N. Security Council adopted Resolution 1540, which requires all states to
“criminalize proliferation, enact strict export controls and secure all sensitive materials within
their borders.” UNSCR 1540 called on states to enforce effective domestic controls over WMD
and WMD-related materials in production, use, storage, and transport; to maintain effective
border controls; and to develop national export and trans-shipment controls over such items, all of
which should help interdiction efforts. The resolution did not, however, provide any enforcement
authority, nor did it specifically mention interdiction. About two-thirds of all states have reported
to the U.N. on their efforts to strengthen defenses against WMD trafficking. U.N. Security
Council Resolutions 1673 (2006) and 1810 (2008) extended the duration of the 1540 Committee.
20 http://www.state.gov/t/isn/rls/fs/125325.htm
21 For a detailed discussion, see CRS Report RL34327, Proliferation Security Initiative (PSI), by Mary Beth Nikitin.
22 “The Agenda: Homeland Security,” White House website, http://www.whitehouse.gov/agenda/homeland_security/
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The committee is currently focused on identifying assistance projects for states in need and
matching donors to improve these WMD controls.
Implementing the Regime
Although the Nuclear Nonproliferation Treaty (NPT) is perhaps the most visible aspect of the
nuclear nonproliferation regime, the success of nonproliferation efforts relies on the sturdy
functioning of national export control laws and their implementation, the Zangger Committee and
Nuclear Suppliers Group multilateral coordination of export controls, and effective inspections
conducted by the International Atomic Energy Agency (IAEA). Equally important is the quid pro
quo of technical assistance in the peaceful uses of nuclear energy that the IAEA provides.
The International Atomic Energy Agency (IAEA)
The IAEA, a U.N.-affiliated international organization, was established in 1957 to “accelerate and
enlarge the contribution of atomic energy to peace, health and prosperity,” and to ensure “that
assistance provided by it ... is not used in such a way as to further any military purpose.”23 With
the entry into force of the NPT in 1970, it performs the dual missions of verifying NPT
obligations and providing assistance in peaceful nuclear technology to developing nations. By
December 2009, the agency had 151 member states and an annual budget of about $400 million.24
The IAEA safeguards system monitors nuclear materials and technology to deter and detect
diversions from peaceful to military uses.
The administrative structure of the agency resembles that of the United Nations. The General
Conference includes all members and meets annually. The Board of Governors has 35 members,
nine of which are permanent advanced nuclear nations, with the remaining board members
serving one-year terms as representatives of regional nuclear interests. The Secretariat is the
administrative arm of the agency. It is headed by the director general, who is the chief policy-
making official. The current director general, Yukiya Amano, is a Japanese diplomat. The IAEA
won the Nobel Peace Prize in 2005 under its previous director general, Mohamed El Baradei.
In over 25 years of inspections, five states have been declared in violation of their safeguards
agreements: Iraq, North Korea, Romania, Libya, and Iran. Following revelations in 1991 of Iraq’s
clandestine activities, the IAEA developed a strengthened safeguards program (formerly called
“93+2”) to improve its ability to detect unreported nuclear activities in non-weapons states. The
program includes
• provision of intelligence information to the IAEA by member states about
suspect nuclear activities;
• access for inspectors to any location on a timely basis;
• new safeguards technology;
• measures to promote complete transparency and reporting of all nuclear
commerce;
23 The IAEA Statute is found at http://www.iaea.org/About/statute.html.
24 See http://www.iaea.org/About/index.html.
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• sufficient financial resources to carry out the IAEA’s expanded responsibilities.
State parties to the NPT have been required to ratify new “model protocol” agreements to their
existing nuclear safeguards agreements with the IAEA (INFCIRC/540). President Bush submitted
the U.S. model protocol agreement to the Senate for its consent to ratification in 2002. The Senate
gave its advice and consent to the protocol on March 31, 2004 (Treaty Doc. 107-7, Senate
Executive Report 108-12). On December 18, 2006, implementing legislation was passed in P.L.
109-401, as part of the Hyde Act. On December 30, 2008, the President signed the instrument of
ratification for the Additional Protocol. It was deposited with the IAEA and entered into force on
January 6, 2009. A continuing issue will be adequate funding for the IAEA safeguards. The
annual safeguards budget is insufficient to carry out the IAEA’s new responsibilities; the agency
relies on extrabudgetary (voluntary) contributions to fully fund its work. Thus, the IAEA’s ability
to carry out its growing responsibilities and efforts to upgrade its safeguards system continue to
be limited by members’ reluctance to increase the IAEA regular budget. The United States had
advocated for increasing the budget of the IAEA.
Since September 11, 2001, the IAEA has been promoting efforts to help prevent terrorists from
acquiring or using weapons of mass destruction, including nuclear or radiological devices. These
have focused primarily on upgrading its assistance in physical security, in locating orphaned
radioactive sources, and in promoting enhancement of the Convention on the Protection of
Physical Security. The IAEA established a Code of Conduct on the Safety and Security of
Radioactive Sources in 2001 and an Action Plan on Combating Nuclear Terrorism in 2002. In
2005, the IAEA Board of Governors adopted a four-year Nuclear Security Plan 2006-2009.25 In
2009, a Nuclear Security Action Plan for 2010-2013 was outlined. The Nuclear Security Fund
(NSF) is a voluntary funding mechanism to support activities to prevent, detect, and respond to
nuclear terrorism. Implementation of the Nuclear Security Plan is dependent on contributions to
the NSF.26 As of September 2009, 107 states participate in the IAEA’s Illicit Trafficking Database,
which facilitates the exchange of information related to the illicit trafficking of nuclear or
radiological material.
In response to revelations in 2004 about Pakistani scientist A.Q. Khan’s clandestine nuclear sales
to Libya, Iran, and North Korea, the IAEA’s director general proposed seven steps to enhance the
nuclear nonproliferation regime. These include a five-year moratorium on construction of
uranium enrichment and plutonium reprocessing facilities; conversion of nuclear reactors using
highly enriched uranium (HEU) to low-enriched uranium; making the Additional Protocol the
verification norm of the NPT; revisiting U.N. Security Council actions in response to a state’s
withdrawal from the NPT; universal implementation of U.N. Security Council Resolution 1540;
acceleration of Article VI actions by nuclear weapons states (toward nuclear disarmament); and
resolution of regional security tensions that give rise to proliferation, including a Middle East
nuclear-weapon-free zone.27 Measures to further strengthen the non-proliferation aspects of the
IAEA’s work meet resistant by member states who are more concerned about access to peaceful
use of nuclear technology. In particular, the case of Iran’s noncompliance with its safeguards
obligations continues to present challenges for the IAEA and the nonproliferation regime.
25 See GC(50)/RES/11.
26 See GOV/2007/43-GC(51)/15.
27 IAEA Director General Mohamed ElBaradei, “Seven Steps to Raise World Security,” Financial Times, February 2,
2005.
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The Nuclear Suppliers Group (NSG)
In 1971, a group of seven NPT nuclear supplier nations formed the Nuclear Exporters Committee,
known as the Zangger Committee, to assist in restricting nuclear trade as called for in Article III
of the NPT.28 In 1974, the Zangger Committee compiled a list of nuclear export items that could
be potentially useful for military applications of nuclear technology. The nuclear suppliers agreed
that the transfer of items on the list would “trigger” a requirement for IAEA safeguards to ensure
that the items were not used to make nuclear explosives. The Zangger list included reactors,
reactor components, and certain nuclear materials such as heavy water. In recent years, the list of
controlled items has been expanded and updated. Membership is voluntary and implies no formal
commitments for enforcement of the guidelines. As of January 2010, the Zangger Committee had
37 members,29 including all five NPT-recognized nuclear weapon states. The committee meets
twice each year to exchange information and upgrade its list of controlled commodities.
Shaken by the 1974 test of a nuclear explosive device by India, the major nuclear suppliers in
1975 established a set of unpublished nuclear export guidelines.30 In 1978, the group, known as
the London Club, added new members and announced a common policy regarding nuclear
exports. While the NPT’s Zangger list initially included only nuclear materials and components
used directly in weapons development, the London Club adopted more restrictive export control
guidelines that included some dual-use items, with civil and military applications. The NSG
guidelines called for suppliers to exercise restraint regarding transfers of enrichment and
reprocessing technology, and required the provision of physical security for transferred nuclear
facilities and materials, acceptance of safeguards on replicated facilities (based on a design
transferred from a London Club member-state), and prohibitions against retransfer of nuclear
exports to third parties.
Although NSG guidelines were in place, members took no further actions until 1991. Concerned
about Iraq’s successful procurement of dual-use items and apparently inconsistent enforcement of
nuclear export controls in several supplier countries, the NSG convened in March 1991 for the
first time since 1978 to update its list of controlled commodities. The expanded group agreed on
new guidelines in January 1992 for transfers of a wider range of nuclear-related, dual-use
equipment, material and technology and jointly adopted the long-standing U.S. policy of
requiring full-scope safeguards for all nuclear exports. (Nations purchasing nuclear technology
must open all nuclear facilities to inspection, not just the facility in which an imported item is
used.)31 The NSG has expanded to 45 members.32
Some developing nations have objected to the NSG because it further divides the technologically
advanced nuclear “haves” from the “have nots” and creates additional obstacles to their access to
nuclear technology. A few countries have turned to suppliers outside of the NSG to avoid the
requirement for full-scope safeguards on nuclear exports. The emergence of new nuclear
28 See http://www.zanggercommittee.org/Zangger/default.htm for Zangger website.
29 See Appendix A for list of Zangger Committee members. http://www.zanggercommittee.org/Zangger/default.htm.
30 See http://www.nuclearsuppliersgroup.org for NSG website.
31 The new guidelines appeared as an International Atomic Energy Agency document, INFCIRC/254/Rev.1/Part 1 and
Part 2, July 1992.
32 See Appendix A for NSG membership.
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suppliers that do not subscribe to NSG guidelines undermines the efforts of NSG members to
control the spread of nuclear weapons.
The strengthening of NSG export policy after the Gulf War responded to numerous examples of
illegal, covert, and suspicious nuclear trade involving Western firms and countries such as India,
Iraq, Iran, Israel, Pakistan, Brazil, Argentina, South Africa, and others. These transfers
underscored the limitations of voluntary export controls, but they also motivated U.S. officials to
push for further tightening of NSG restrictions on world nuclear exports. However, as a voluntary
association, the NSG has no formal administrative structure, no legal authority to influence the
nuclear trade policies of its members, and no formal enforcement mechanism.
In 2005, the United States approached the NSG to create an exception for India to the NSG’s
requirement for full-scope safeguards as a condition of nuclear supply. Such an exception was
necessary for the United States to implement its proposed civil nuclear cooperation initiative with
India.33 Key NSG members, such as the United States, Russia, and France, supported a country-
specific exception, while other members questioned whether such an approach might be
damaging to the nonproliferation regime. India and the IAEA formulated an India-specific
safeguards agreement, as required by the Henry J. Hyde United States-India Peaceful Atomic
Energy Cooperation Act of 2006 (P.L. 109-401) in 2008. In September 2008, the NSG agreed to
exempt India from the full-scope safeguards requirement, although retained a policy of restraint
on the transfer enrichment and reprocessing equipment. NSG members are discussing whether or
not to adopt additional guidelines that would define eligibility criteria for the transfer of
enrichment and reprocessing technologies to new states.
U.S. Government Organization
The Departments of State, Energy, Defense, Treasury, and Commerce, and the intelligence
community are all involved in the formulation and implementation of nonproliferation policy.34
Congress mandated the creation of a White House Coordinator for the Prevention of Weapons of
Mass Destruction Proliferation and Terrorism (P.L. 110-53). The Administration pledged to
appoint “a deputy national security advisor to be in charge of coordinating all U.S. programs
aimed at reducing the risk of nuclear terrorism and weapons proliferation.”35 Gary Samore was
assigned this post, as National Security Council Coordinator for Arms Control and
Nonproliferation. Primary functions of the various federal agencies are outlined below.
• The National Security Council coordinates nonproliferation, counterproliferation,
threat reduction, and WMD terrorism prevention policy.
• The State Department, in consultation with the Energy Department, negotiates
U.S. agreements for nuclear cooperation and arms control measures, represents
U.S. nonproliferation interests with other states and international organizations
such as the IAEA, and administers some nonproliferation assistance programs.
The State Department also represents the United States and plans international
33 See CRS Report RL33016, U.S. Nuclear Cooperation with India: Issues for Congress, by Paul K. Kerr.
34 An October 2007 GAO Report raises important questions about US efforts to combat proliferation networks. See
U.S. General Accounting Office, “U.S. Efforts to Combat Nuclear Networks Need Better Data on Proliferation Risks
and Program Results,” October 31, 2007. http://www.gao.gov/new.items/d0821.pdf.
35 http://www.whitehouse.gov/agenda/homeland_security/
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coordination meetings for the G8 Global Partnership, Global Initiative to Combat
Nuclear Terrorism, and Proliferation Security Initiative.
• The Department of Defense is responsible for counterproliferation strategy and
policy, administers the Cooperative Threat Reduction (CTR) programs, and is
involved in operational aspects of the Proliferation Security Initiative.
• The Department of Energy’s National Nuclear Security Administration provides
technical expertise in nuclear weapons to support nonproliferation policy and
diplomacy, largely through its national laboratories. DOE also administers
nonproliferation programs to control fissile material in the former Soviet Union
and elsewhere, the Global Threat Reduction Initiative and export control and
border security programs.
• The Nuclear Regulatory Commission licenses nuclear exports subject to
concurrence by the Department of State.
• The Department of Commerce oversees licensing of dual-use exports as
mandated by Section 309(c) of the Nuclear Non-proliferation Act, which requires
controls on “all export items, other than those licensed by the NRC, which could
be, if used for purposes other than those for which the export is intended, of
significance for nuclear explosive purposes.”
• The Department of the Treasury oversees U.S. embargoes through its Office of
Foreign Assets Control, and enforces export control through the U.S. Customs
Service. It also represents the United States in the inter-governmental Financial
Action Task Force (FATF).
• The Director of National Intelligence has a National Counterproliferation Center
(NCPC) that coordinates intelligence on proliferation issues within the
intelligence community.
• The Federal Bureau of Investigation (FBI) has a WMD Directorate.
• Several interagency working groups coordinate the various responsibilities for
nonproliferation policy.
Since September 11, 2001, significant U.S. government interest has focused on
counterproliferation programs—that is, military measures against weapons of mass destruction.
Although the Department of Defense has had programs in place for several years, efforts in this
area have been renewed. Counterproliferation includes active and passive defenses to protect U.S.
and allied troops. The December 2002 National Strategy to Combat Weapons of Mass Destruction
described counterproliferation as including interdiction, deterrence, defense, and mitigation.36
Preemption is explicitly described as an option under defense and mitigation policies. Increased
attention has also been given to breaking down proliferation finance networks. U.S. government
agencies have also stepped up efforts to secure or remove nuclear and radiological materials
worldwide and to improve detection of WMD-related trafficking at borders. President Obama has
pledged to secure all vulnerable nuclear materials around the world in four years. A Global
Nuclear Security Summit will be held in April 2010 to further this goal.
36 “National Strategy to Combat Weapons of Mass Destruction,” December 11, 2002. See http://www.whitehouse.gov/
news/releases/2002/12/WMDStrategy.pdf.
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U.S. Laws37
The main legislative pillars of U.S. nuclear nonproliferation policy are the Atomic Energy Act of
1954, as amended by the Nuclear Nonproliferation Act of 1978, and the Arms Export Control Act
of 1968.
The Atomic Energy Act of 1954 (AEA)38
The Atomic Energy Act of 1954 established legal authority for the commercial and military
development of nuclear energy. It gave primary authority for the development and oversight of
the U.S. government’s nuclear programs to a civilian agency: the Atomic Energy Commission
(now the Nuclear Regulatory Commission). In 1974, these duties were divided between the NRC
and the Department of Energy. A major purpose of the act was to establish controls on the export
of nuclear materials, goods, information, and technology. Under the AEA, the State Department
must negotiate an agreement for nuclear cooperation as a precondition for exports of sensitive
U.S. nuclear technology to any foreign country. Each agreement must meet several standards
outlined in the AEA. Moreover, the act contains penalties and restrictions for countries that do not
uphold the terms of nuclear agreements with the United States. Congress reviews all such
agreements before they can enter into force.
The Nuclear Non-Proliferation Act of 1978 (NNPA)39
Congress and the Carter Administration viewed U.S. leadership and control over the international
nuclear fuel cycle as an effective means of restraining the spread of uranium enrichment and
plutonium reprocessing facilities throughout the world. Enrichment and reprocessing technologies
are key technologies for states aspiring to develop nuclear weapons. While reaffirming the U.S.
commitment to be a reliable supplier of nuclear technology and fuels, the act established an
important new requirement for nations importing U.S. nuclear technology and materials: they
must accept full-scope safeguards on their entire nuclear program. This standard was adopted by
NSG members in 1992. The act also established a requirement of prior U.S. approval for
retransfers or reprocessing of material or equipment as well as to material produced using U.S.-
exported technology. These measures gave the United States much more control over the foreign
uses of U.S.-origin nuclear material.
Title III of the NNPA includes such varied measures as requiring the Department of Energy to
obtain NRC licenses to distribute source and special material and establishment of criteria for
terminating nuclear exports from the United States (which affects bilateral nuclear cooperation
agreements) to include detonation of a nuclear device, termination/abrogation or violation of
IAEA safeguards, or engaging in activities involving nuclear material which have significance in
the manufacture of nuclear explosive devices (covering a wide array of activities). Additional
prohibited acts included violating a nuclear cooperation agreement with the United States;
assisting a non-nuclear-weapon state in activities involving nuclear material that could potentially
help in the manufacture or acquisition of a nuclear explosive device; or enriching any U.S. source
37 This section drawn from CRS Report RL31502, Nuclear, Biological, Chemical, and Missile Proliferation Sanctions:
Selected Current Law, by Dianne E. Rennack.
38 P.L. 83-703, 42 U.S.C. 2011.
39 P.L. 95-242, 22 U.S.C. 3201.
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or special material without the permission of the United States. The NNPA requires (in Section
601) the President to report annually to Congress on the government’s efforts to prevent nuclear
proliferation.
The Arms Export Control Act (AECA)40
The Arms Export Control Act (AECA), as amended, authorizes U.S. government military sales,
loans, leases, financing, and licensing of commercial arms sales to other countries. The AECA
coordinates such actions with other foreign policy considerations, including nonproliferation, and
determines eligibility of recipients for military exports, sales, leases, loans, and financing.
• Section 3(f) (22 U.S.C. 2753(f)) prohibits U.S. military sales or leases to any
country that the President determines is in material breach of binding
commitments to the United States under international treaties or agreements
regarding nonproliferation of nuclear explosive devices and unsafeguarded
special nuclear material.
• Section 40 (22 U.S.C. 2780) prohibits exports or assistance in exporting
(financial or otherwise) munitions to countries that provide support for terrorism.
Included in the definition of acts of international terrorism are: “all activities that
the Secretary [of State] determines willfully aid or abet the international
proliferation of nuclear explosive devices to individuals or groups or willfully aid
or abet an individual or groups in acquiring unsafeguarded special nuclear
material.” The President can rescind a determination or waive sanctions if
essential to the national security interests of the United States.
• Section 101 (22 U.S.C. 2799aa) (formerly section 669 of the Foreign Assistance
Act) prohibits foreign economic or military assistance to countries that deliver or
receive nuclear enrichment equipment, materials, or technology unless the
supplier agrees to place such under safeguards and the recipient has full-scope
safeguards. The President, who makes the determination, can waive sanctions if
they will have a serious adverse effect on vital U.S. interests, given assurances
that the recipient will not acquire, develop, or assist others in acquiring or
developing nuclear weapons.
• Section 102 (22 U.S.C. 2799aa-1) (formerly section 670 of the Foreign
Assistance Act) prohibits foreign economic or military assistance to countries
that deliver or receive nuclear reprocessing equipment, material, or technology to
or from another country; or any non-nuclear-weapon state which illegally exports
from the United States items that would contribute to nuclear proliferation. The
President, who makes the determination, can waive the sanction if he finds that
ending assistance would adversely affect U.S. nonproliferation objectives or
jeopardize the common defense and security. The section further prohibits
assistance (except humanitarian or food assistance), defense sales, export licenses
for U.S. Munitions List items, other export licenses subject to foreign policy
controls, and various credits and loans to any country that the President has
40 P.L. 90-629, 22 U.S.C. 2751. Title 22 of the U.S. Code, Chapter 39, addresses Arms Export Control. Subchapter VII
addresses control of missiles and missile exports or technology; subchapter VIII addresses chemical weapons and
biological weapons, and subchapter X addresses nuclear nonproliferation controls.
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determined transfers a nuclear explosive device, design information, or
component to a non-nuclear-weapons state, or is a non-nuclear-weapons state and
receives a nuclear device, design information, or component, or detonates a
nuclear explosive device.
Much of the language on nuclear nonproliferation controls that had been incorporated into the
Foreign Assistance Act earlier (including the 1977 Glenn-Symington amendments on enrichment
and reprocessing and the 1985 Pressler amendment related to Pakistan) were incorporated into the
AECA in 1994 by the Nuclear Proliferation Prevention Act (see discussion below).
Export Administration Act of 1979 (EAA)
The Export Administration Act of 1979 (P.L. 96-72) authorizes the executive branch to regulate
private sector exports of particular goods and technology to other countries. Although the act
expired in 1989, export controls have been implemented under executive orders and the
International Emergency Economic Powers Act (IEEPA).41 The EAA coordinates such actions
with other foreign policy considerations, including nonproliferation, and determines eligibility of
recipients for exports. Section 5 (50 U.S.C. app. 2404) authorizes the President to curtail or
prohibit the export of any goods or services for national security reasons: to comply with other
laws regarding a potential recipient country’s political status or political stability, to cooperate
with international agreements or understandings, or to protect militarily critical technologies.
Section 6 (50 U.S.C. app. 2405) authorizes the President to curtail or prohibit the export of goods
or services for foreign policy reasons. Within Section 6, for example, Section 6(j) establishes the
State Department’s list of countries found to be supporting acts of international terrorism, a list on
which many other restrictions and prohibitions in law are based.
Export-Import Bank Act of 1945
The Export-Import Bank Act of 1945 (P.L. 79-173) establishes the Export-Import Bank of the
United States and authorizes the Bank to finance and facilitate exports and imports and the
exchange of commodities and services between the United States and foreign countries. Key
nuclear-nonproliferation-related provisions were added in 1978. These include Section 2(b)(1)(B)
(12 U.S.C. 635(b)(1)(B)) and Section 2(b)(4) (12 U.S.C. 635(b)(4)), which together allow the
Bank to deny credit generally if that credit does not help advance U.S. nuclear proliferation
policy, and specifically, if a person or country has (1) violated, abrogated or terminated a nuclear
safeguards agreements; (2) violated a nuclear cooperation agreement with the United States; or
(3) aided or abetted a non-nuclear-weapon state to acquire a nuclear explosive device or to
acquire unsafeguarded special nuclear material. There is a provision for presidential waiver. (See
Appendix B for details.)
The Export-Import Bank Act of 1945 was amended in 200242 to allow denial of Ex-Im Bank
financing for violations of the Foreign Corrupt Practices Act, the Arms Export Control Act, the
International Emergency Economic Powers Act, or the Export Administration Act of 1979,
extending its purview from strictly nuclear to CW, BW, and missile-related concerns.
41 See CRS Report RL31832, The Export Administration Act: Evolution, Provisions, and Debate, by Ian F. Fergusson.
42 See The Export-Import Bank Reauthorization Act of 2002, P.L. 107-189.
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Nuclear Proliferation Prevention Act of 1994
In 1994 Congress approved the Nuclear Proliferation Prevention Act (NPPA, Title VIII, of the
Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, P.L. 103-236), which primarily
strengthened penalties against persons who aid or abet the acquisition of nuclear weapons or
unsafeguarded nuclear weapons materials, or countries (non-nuclear-weapon states) that obtain or
explode nuclear devices. Sanctions include cutoff of U.S. assistance, prohibition on involvement
with U.S. government procurement, stringent licensing requirements for technology exports, and
opposition to loans or credits from international financial institutions. These sanctions were
imposed on India and Pakistan following their nuclear tests in May 1998, but were gradually
relaxed. Legislation passed in the 106th Congress extended the President’s authority to relax
sanctions on India and Pakistan for a year, and the Senate passed a bill suspending sanctions on
the two countries for five years. The FY2000 Department of Defense Appropriations bill (P.L.
106-79) extended the authority to suspend sanctions. Following the September 11 terrorist
attacks, President Bush lifted all remaining sanctions on India and Pakistan in response to support
of U.S. operations in Afghanistan.
The NPPA defined for the first time in U.S. law the term “nuclear explosive device.” It defined
“terrorism” as used in the AECA, to include activities that assist groups or individuals to acquire
any nuclear explosive device. It included a sense of Congress that identified 24 measures to
strengthen IAEA safeguards, some of which have been implemented. Relevant sections include
Section 821 (22 U.S.C. 3201 note), which requires U.S. government procurement sanctions;
Section 823 (22 U.S.C. 3201 note), which requires U.S. executive directors of international
financial institutions to vote against finance that might promote nuclear proliferation; and Section
824 (22 U.S.C. 3201 note), which takes aim at financial institutions and persons involved with
financial institutions from assisting nuclear proliferation through the provision of financing. (See
Appendix B for specific details.)
Nunn-Lugar/Cooperative Threat Reduction Program Legislation
In late 1991, Congress passed the Soviet Nuclear Threat Reduction Act (which became known as
the Nunn-Lugar Amendment), establishing programs to assist with the safe and secure storage
and dismantlement of nuclear weapons in Russia and the Newly Independent States (NIS). These
programs initially focused on the “loose nukes” problem, but have broadened their focus to
address a variety of proliferation risks associated with weak political control over nuclear
materials, equipment, and expertise, as well as CW, BW, and missiles. This effort has expanded to
include the CTR program in DOD and nonproliferation programs in DOE and the State
Department.43 The FY2008 defense authorization bill expanded the program to countries outside
the former Soviet Union, and eliminated the annual certification requirements for the CTR
program.44
43 See CRS Report 97-1027, Nunn-Lugar Cooperative Threat Reduction Programs: Issues for Congress, by Amy F.
Woolf.
44 See CRS Report RL31957, Nonproliferation and Threat Reduction Assistance: U.S. Programs in the Former Soviet
Union, by Amy F. Woolf.
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Iran-Iraq Arms Nonproliferation Act of 1992
Section 1602 of the Defense Authorization for FY1993 (Title XVI, P.L. 102-484, as amended)
extended existing sanctions on Iraq to Iran. The law states that it is the policy of the United States
to oppose any transfer to Iran or Iraq that could contribute to either country’s ability to acquire
nuclear, chemical, biological, or advanced conventional weapons. Section 1604 requires the
President to impose sanctions against any person whom he has determined to be engaged in such
transfers. Section 1605 similarly addresses activities of foreign governments. The 104th Congress
amended the law (by passage of section 1408(a), P.L. 104-106, National Defense Authorization
Act for Fiscal Year 1996) to make it apply to transfers contributing to the development of
weapons of mass destruction as well as advanced conventional weapons.
Iran, North Korea and Syria Nonproliferation Act
The law (P.L. 106-178) imposes penalties on countries whose companies help Iran’s efforts to
acquire weapons of mass destruction and missile delivery systems. In 2005, P.L. 109-112, Iran
Nonproliferation Amendments Act, added Syria to the law and added sanctions for transfers to
and from those countries. In 2006, Congress also added North Korea to the Act (P.L. 109-353).
Foreign Operations, Export Financing, and Related Programs Appropriations
Act of 2006
This law (P.L. 109-102) withheld 60% of funds set aside for assistance to the Russian government
until the President certifies that assistance to Iran has ceased. Assistance constitutes technical
training, expertise, technology, or equipment needed to build a nuclear reactor, develop research
facilities or programs, or ballistic missile technologies.
Issues for the 111th Congress
Since September 11, 2001, much of Congress’s attention in the area of the nonproliferation of
weapons of mass destruction has focused on how to mitigate the threat U.S. citizens face right
now—improving domestic preparedness against WMD terrorism and improving intelligence
capabilities to detect evidence of proliferation-related activities. Above all, however, most experts
agree that the U.S. government should continue to address nuclear proliferation at the source—
that is, securing nuclear materials and halting information flows from WMD-knowledgeable
scientists to countries of proliferation concern.
Other key nuclear nonproliferation issues for Congress include:
• facilitating implementation of DOD’s Cooperative Threat Reduction and relevant
DOE programs that improve controls on nuclear materials, equipment, and
expertise in Russia and the NIS and expanding these efforts to countries outside
the NIS;
• monitoring efforts to end Pyongyang’s nuclear weapons program;
• monitoring Iran’s nuclear program, including Russian and Chinese nuclear
exports and assistance;
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• opposing the nuclear arms race between India and Pakistan, preventing those
countries from exporting WMD technology and cooperating to prevent terrorist
access to their facilities;
• strengthening the IAEA safeguards system to enforce the NPT and prevent
further proliferation;
• maintaining and expanding adherence to NSG nuclear export control standards;
• curbing dangerous Chinese and Russian nuclear exports;
• banning the production of fissile material for nuclear weapons;
• consideration of the future of the U.S. nuclear arsenal and impact of these
policies on nonproliferation.
Closer to home, Congress will be asked to consider how to dispose of tons of excess plutonium
from dismantled Russian and U.S. warheads without increasing proliferation risks; and how U.S.
arms control and defense cooperation (particularly missile defense cooperation) might affect
proliferation risks. Congress will also be asked to assess U.S. and multilateral programs to lessen
the proliferation risks of an expansion of nuclear energy. Congress may also exert oversight over
key nonproliferation programs, such as Proliferation Security Initiative and the Global Threat
Reduction Initiative.
Chemical and Biological Weapons Proliferation
Regime45
Prohibitions against the use of chemical weapons date back to the International Peace
Conferences that met at the Hague in 1899 and 1907; these pre-World War I prohibitions were
reaffirmed in the 1919 Versailles Treaty and further expanded in the 1925 Geneva Protocol. In
some ways, it is more difficult to prevent the proliferation of these weapons than nuclear weapons
because they require a smaller infrastructure and the production technologies are much more
widely disseminated. Furthermore, it is more difficult to distinguish between legitimate and
illegitimate chemical and biological activities.46 The regimes that have grown up around these
weapons include treaties, supplier agreements, and domestic laws.
Treaties and Agreements
The Chemical Weapons Convention (CWC) and the Biological and Toxin Weapons Convention
(BWC) are the two primary treaties related to CBW proliferation. The United States is a state
party to both the BWC and the CWC.
45 This section was prepared by Paul Kerr.
46 United Nations Institute for Disarmament Research, “Blood, Toil, Tears and Sweat: The Biological and Toxin
Weapons Convention since 2001,” Disarmament Forum, 2006.
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Chemical Weapons Convention (CWC)
Culminating 25 years of negotiations, the Chemical Weapons Convention opened for signature in
January 1993.47 The CWC entered into force on April 29, 1997. As of January 27, 2010, the treaty
had 188 states-parties.48
The CWC prohibits the development, production, stockpiling, transfer, and use of chemical
weapons. The convention mandates the destruction of chemical weapon arsenals within 10 years
of its coming into force. The CWC also restricts the international transfer of chemicals deemed
useful in the production of chemical weapons, so-called “precursors.” Most precursor chemicals
are dual-use, with legitimate peaceful applications. The CWC establishes extensive lists or
“schedules” of precursors whose production, use, and transfer must be reported to the CWC’s
Organization for the Prohibition of Chemical Weapons (OPCW). The schedules are designated I-
III, in order of their potential usefulness in chemical warfare. Schedule I chemicals may be
exported only to states parties (i.e., nations that have ratified the CWC). In accordance with treaty
provisions, as of April 2000, the export of Schedule II chemicals to non-states parties became
prohibited.
Biological and Toxin Weapons Convention
The Biological Weapons Convention was concluded in 1972, with U.S. ratification and entry in
force in 1975.49 As of January 27, 2010, the convention had 163 states parties. The convention
bans the development, production, and stockpiling of biological agents or toxins “of types and in
quantities that have no justification for peaceful purposes.” The development, manufacture, and
possession of BW weapons or delivery systems is also prohibited. States parties also agree not to
transfer biological agents or toxins for any but peaceful purposes.50
The United Kingdom first tabled a draft treaty in 1968 that contained verification provisions.
Assuming the Soviet Union would reject such a proposal, the United States, with UK agreement,
privately negotiated a treaty text with the Soviets that did not include a verification mechanism.
On the same day in 1969, both the United States and the Soviet Union tabled identical draft
treaties. In 1969, the United States declared a unilateral end to its offensive BW program and
suggested separating the BW issue from the chemical-biological arms control negotiations in
Geneva. Negotiations on this proposal took three years to conclude.
Implementing the Regime
International Organizations
The CBW nonproliferation regime relies on the Australia Group and the Organization for the
Prohibition of Chemical Weapons (OPCW), which was created by the CWC. There is no
47 http://www.opcw.org.
48 For more information about the CWC’s status, see CRS Report RL 33865, Arms Control and Nonproliferation: A
Catalog of Treaties and Agreements, by Amy F. Woolf, Mary Beth Nikitin, and Paul K Kerr.
49 http://www.fas.org/nuke/control/bwc/text/bwc.htm.
50 For more information about the BWC’s status, see CRS Report RL 33865.
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independent international organization to administer the Biological Weapons Convention.
Currently, BWC member states report all defensive biological activities to the United Nations
Department of Disarmament Affairs. This information is reported to all BWC member states, with
the State Department as the international point of contact within the U.S. government. The states-
parties decided in December 2006 to establish an Implementation Support Unit for the BWC.
According to its website, the three-person unit provides “administrative support and assistance;
National Implementation support and assistance; Support and assistance for Confidence-Building
Measures; and Support and assistance for obtaining universality.”51
Australia Group (AG)
In 1984, United Nations investigators officially confirmed that chemical weapons had been used
in the Iran-Iraq War. In response, the United States and several other countries began to
implement export controls on chemicals that could be used to manufacture chemical weapons. In
1985, Australia proposed that concerned countries meet in order to coordinate their export
controls and share information to enhance their effectiveness. The first meeting took place in June
1985, and biennial meetings continue at the Australian embassy in Paris.
The Australia Group has established a list of chemicals and equipment that are subject to control.
In 1990, in response to growing concerns over the proliferation of covert biological weapons
programs, certain biological agents and research/production equipment were added to the control
list. Australia Group guidelines do not call for prohibiting the export of control list items, but
rather establishing monitoring and licensing procedures, with export denial only if there is reason
to suspect potential contribution to a CBW program. The group’s list does not curtail legitimate
trade. Since its inception, the Australia Group has added controls on the transfer of information
and knowledge that could aid BW proliferation. These included “catch-all” constraints covering
items that are not on control lists, adding eight toxins to the control list, adopting controls on
technology associated with dual-use biological equipment, and agreeing to control intangible
technology transfer (i.e., by phone, fax, or internet) that could be used to advance CBW
programs.
As noted, the Australia Group does not have an independent administrative organization. National
governments administer their own export control programs. As an informal effort, it is not based
on international treaty, is not affiliated with any international organization, and has no
independent administrative structure. It operates entirely upon consensus of its 41 members and
its decisions are not binding. Countries are admitted to membership only upon the full consensus
of current members, and must have demonstrated compliance with the CWC and BWC, and have
an effective export control regime.
The question of the Australia Group’s relationship to the Chemical Weapons Convention revolves
around the convention’s Article XI which declares that states parties will not
maintain among themselves any restrictions, including those in any international agreements,
incompatible with the obligations undertaken under this Convention, which would restrict or
impede trade and the development and promotion of scientific and technological knowledge.
51 http://www.unog.ch/80256EE600585943/(httpPages)/16C37624830EDAE5C12572BC0044DFC1?OpenDocument.
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The Australia Group maintains that its export control regime is compatible with the objectives of
the convention, and therefore not prohibited. A number of developing countries, led by Iran (a
CWC state party), maintain that the AG controls should be dropped—particularly for CWC states
parties. They view the controls as a tool of economic oppression on the part of developed
countries, even though no country has been able to provide an example where AG controls have
resulted in a denial of exports for legitimate purposes.
Organization for the Prohibition of Chemical Weapons (OPCW)
The OPCW is headquartered in The Hague. It has four components:
• Conference of States Parties—Comprises all nations who have ratified the
convention; meets annually; has the responsibility to ensure compliance and levy
sanctions; selects the Executive Council;
• Executive Council—Comprises 41 states parties on a two-year rotation52; directs
the routine administration of the OPCW;
• Technical Secretariat—Comprises a permanent international work force;
administers and monitors treaty compliance (inspections, data collection and
assessment);
• Scientific Advisory Board—Comprised of independent experts to advise the
OPCW on relevant scientific and technical issues.
U.S. Government Organizations
In the United States, the following offices, among others, participate in administering the CBW
export control program, with State serving as the international point of contact:
• Department of Commerce—Under Secretary of Commerce, Bureau of Industry
and Security;
• Department of State—Under Secretary for Arms Control and International
Security—Bureau of International Security and Nonproliferation administers the
CWC and export controls;
• Department of Defense—Deputy Under Secretary for Technology Security
Policy and Counterproliferation;
• The Department of the Treasury oversees U.S. embargoes through its Office of
Foreign Assets Control;
• The Department of Homeland Security enforces export control through the U.S.
Customs Service.
52 By virtue of the treaty-prescribed method of selecting rotational members, the United States will always have a seat
on the Executive Council.
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U.S. Laws53
U.S. laws pertaining to chemical and biological weapons proliferation include statutes and
executive orders, the most important of which are the Export Administration Act and the Arms
Export Control Act. These statutes operate on the principle that licenses are required for the
export of certain goods, and that it is government policy to deny such licenses if there is a danger
that the items will contribute to CBW proliferation.
Export Administration Act of 1979
(P.L. 96-72, Section 6(m) and 11C, 50 U.S.C. App. 2405m and 2410c). This act requires a license
for the export of dual-use goods or technology that “would directly and substantially” assist CBW
proliferation. Under the act, the Secretary of Commerce maintains a list of such goods. Exports to
countries which have entered into an agreement for the control of restricted goods (i.e., Australia
Group members) are exempted from licensing requirements. The EAA requires the President to
impose procurement and import sanctions on foreign persons who contribute to CBW
proliferation through exports.
Arms Export Control Act
Section 81 of the AECA (22 U.S.C. 2798) provides the State Department the authority to maintain
licensing of the export of chemical and biological agents and munitions. It also provides criminal
penalties for violation and specifies sanctions against foreign persons who contribute to CW or
BW proliferation through exports, and against countries which use chemical or biological
weapons or make substantial preparations to do so.
Chemical and Biological Weapons Control and Warfare Elimination Act of
199154
This act mandates U.S. sanctions, and encourages international sanctions, against countries that
use chemical or biological weapons in violation of international law. Section 307 (22 U.S.C.
5605) requires the President to terminate foreign assistance (except humanitarian, food, and
agricultural assistance) arms sales and licenses, credits, guarantees, and certain exports to a
government of a foreign country that he has determined has used or made substantial preparation
to use chemical or biological weapons. Within three months, the President must determine and
certify to Congress that the government: is no longer using chemical or biological weapons in
violation of international law, is no longer using such weapons against its own people, has
provided credible assurances that such behavior will not resume, and is willing to cooperate with
U.N. or other international observers to verify that biological and chemical weapons are not still
in use. Without this three-month determination, sanctions are required affecting multilateral
development bank loans, U.S. bank loans or credits, exports, imports, diplomatic relations, and
aviation access to and from the United States. The President may lift the sanctions after a year,
and may waive the imposition of these sanctions.
53 This section drawn from CRS Report RL31502, Nuclear, Biological, Chemical, and Missile Proliferation Sanctions:
Selected Current Law, by Dianne E. Rennack.
54 Title III, P.L. 102-182, 22 U.S.C. 5601-5606.
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Biological Anti-Terrorism Act of 1989
This act (P.L. 101-298) implements the Biological Weapons Convention, providing criminal
penalties for its violation. It does not amend either the Export Administration Act or the Arms
Export Control Act.
Additional CW/BW Nonproliferation Policy Provisions in Legislation
Congress has expressed views on CW/BW nonproliferation policy and U.S. government
organization to implement those policies in several other laws. CBW-related provisions have been
included in the Iran-Iraq Arms Nonproliferation Act of 1992, the Freedom Support Act, and the
Cooperative Threat Reduction Act. These and other provisions are listed in Table 2.
Issues for the 111th Congress
Export Controls
Effective export controls are generally viewed as critical tools to stem the proliferation of
chemical and biological weapons. The 111th Congress may consider changes to the export control
laws. For example, on July 31, 2009, Representative Sherman introduced the Export Control
Improvements Act (H.R. 3515), co-sponsored by Representative Manzullo and Representative A.
Smith, which contains provisions on export controls enforcement, integration of export control
data in the AES, and diversion control.55 In addition, the White House announced in August 2009
that it was beginning a “broad-based interagency process for reviewing the overall U.S. export
control system.” When evaluating proposals for changing export controls, Congress may consider
potential implications for the multilateral proliferation control regimes.
U.S. Compliance With CWC
None of the six CWC states-parties that declared possession of chemical weapons destroyed their
stocks by the original April 29, 2007, deadline. In July 2007, Albania became the first country to
have destroyed its declared chemical weapons. South Korea became the second on July 10, 2008.
India became the third on March 16, 2009. Three other states—Libya, Russia, and the United
States—have declared possession of such weapons and all three have stated their intentions to
destroy them.
The United States has already destroyed all of its Category Three stockpile and has declared no
Category Two weapons. However, it has encountered difficulties in destroying its Category One
chemical weapons stockpile. In April 2006, the United States submitted a formal request to the
OPCW chairman and director-general to extend Washington’s final chemical weapons destruction
deadline from April 2007 to April 29, 2012, the latest possible date allowed under the CWC.56
55 Taken from CRS Report RL 31832, The Export Administration Act: Evolution, Provisions, and Debate, by Ian F.
Fergusson. See that report for more information on the proposed legislation.
56 Ambassador Eric Javits, U.S. Permanent Representative to the OPCW, Statement Concerning Request to Extend the
United States’ Destruction Deadline Under the Chemical Weapons Convention, April 20, 2006. Available at
http://www.state.gov/t/isn/rls/rm/64878.htm.
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However, Ambassador Eric Javits, U.S. Permanent Representative to the OPCW, added that “we
do not expect to be able to meet that deadline” because Washington had encountered “delays and
difficulties” in destroying its stockpile.57 These delays have generally resulted from the need to
meet state and federal environmental requirements and from both local and congressional
concerns over the means of destruction.
Reinforcing Javits’ statement, former Secretary of Defense Donald Rumsfeld notified Congress in
April 2006 that destruction of the U.S. stockpile by the April 2012 deadline “was in doubt based
on the current schedules, but that the Department of Defense [DOD] would continue requesting
resources needed to complete destruction as close to the 2012 deadline as practicable.”
Andrew Weber, Assistant Secretary of Defense for Nuclear and Chemical and Biological Defense
Programs, told the OPCW November 30, 2009, that the United States has destroyed over 67% of
its Category One stockpile.58 Washington projects that its four operating destruction facilities59
will have destroyed 90% of the total U.S. stockpile by 2017.60 Two other facilities under
construction will destroy the remaining chemical agents stockpiles located at Pueblo, CO, and
Lexington, KY. A 2007 estimate from the DOD Assembled Chemical Weapons Alternatives
(ACWA) program stated that these stockpiles would be destroyed by 2020 and 2023,
respectively.61
However, the 2008 Defense Appropriations Act (P.L. 110-116) required the Defense Department
to “complete work on the destruction” of the U.S. chemical weapons stockpile by the 2012
deadline “and in no circumstances later than December 31, 2017.” Additionally, the National
Defense Authorization Act for Fiscal Year 2008 (P.L. 110-181) required that the Secretary of
Defense submit a report to Congress that includes a
description of the options and alternatives for accelerating the completion of chemical
weapons destruction at each such facility, particularly in time to meet the [CWC] destruction
deadline of April 29, 2012 ... and by December 31, 2017.
That report, submitted in June 2008, compared three options for accelerating stockpile
destruction, noting that “[t]here are no options to achieve 100 percent destruction of the national
stockpile by 2012.”62 The three options were as follows:
• Provide schedule incentives authorized by Congress63 to ensure that the operating
sites complete the destruction of their stockpiles by 2012.
• Transport portions of the remaining stockpile to destruction facilities that are
already operating.
• Accelerate the destruction schedule for the Colorado and Kentucky sites.
57 Ibid.
58 The United States has destroyed all of its chemical weapons munitions.
59 These sites are managed by the U.S. Army Chemical Materials Agency (CMA). The facilities under construction in
Colorado and Kentucky are managed by the Assembled Chemical Weapons Alternatives program.
60 Department of Defense Report Chemical Demilitarization Program Semi-Annual Report to Congress, May 2009.
61 See ACWA Cost and Schedule Information. Available at http://www.pmacwa.army.mil/ip/dl/
acwa_cost_schedule.pdf
62 Chemical Demilitarization Program Semi-Annual Report to Congress, 2008.
63 In section 923 of P.L. 109-364.
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A May 2009 DOD report to Congress proposes that the Department “seek additional resources” to
complete destruction of the Colorado stockpile by 2017 and the Kentucky stockpile by 2021.64
The 2010 Department of Defense Appropriations Act enables the Department to meet this
timetable.65
U.S. Funding for OPCW
Ambassador Robert Mikulak stated April 20, 2010, that earlier that month Washington had
“authorized full payment of the outstanding balance of our 2010 assessed contribution to the
OPCW,” explaining that the United States had previously “split our payment: 30% of our
assessment in the first part of the year and the remaining 70% in the last three months. However,
we have now been able to regularize our payment schedule so that our full assessment can be paid
in the first part of the year.”
Some observers had argued that, because the U.S. assessment comprises a large percentage of the
OPCW‘s budget, these late payments negatively affected the organization’s financial planning.
Moreover, the Conference of States Parties Convention recognized the “negative consequences of
the late payment of assessed contributions on the operational activities” of the OCPW in a
December 2009 statement.66
Biological Weapons Convention—U.S. Biodefense Programs
In conducting oversight, the 111th Congress may consider the issue of transparency in U.S.
biodefense programs. Some observers have argued that these programs could create suspicions
that the United States is conducting research related to biological weapons that is prohibited by
the BWC.67
Missile Proliferation Control Regime68
In the early 1980s, the United States and its allies heightened their concern over the spread of
missiles as the advanced industrial nations’ monopoly on missile technology gave way to a
diffusion of missiles and missile technology throughout much of the world. In April 1987, the
United States, Canada, France, West Germany, Italy, Japan, and the United Kingdom created the
Missile Technology Control Regime (MTCR) to prevent the proliferation of missiles and
unmanned aerial vehicles capable of delivering nuclear weapons. Today, 34 countries are formal
64 Chemical Demilitarization Program Semi-Annual Report to Congress, 2009.
65 Analyst interview with ACWA official, January 28, 2010.
66 Decision Programme and Budget of the OPCW for 2010, December 2, 2009, C-14/DEC.8.
67 CRS Report RL32891, The National Biodefense Analysis and Countermeasures Center: Issues for Congress, by
Dana A. Shea. See also, Jonathan Tucker, “Seeking Biosecurity Without Verification: The New U.S. Strategy on
Biothreats,” Arms Control Today, January/February 2010.
68 This section was prepared by Steven A. Hildreth.
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partners in the MTCR.69 Although there is no permanent secretariat or headquarters, the French
Foreign Ministry acts as a central point of contact.
In addition, China, Israel, Romania, and the Slovak Republic have agreed to observe MTCR
guidelines as “unilateral adherents.” China’s application for MTCR membership, submitted in
2004, remains under review by the MTCR member states. China officially reiterated its
commitment to MTCR goals in February 2008. Israel completed a memorandum of
understanding with the United States affirming its commitment to abide by MTCR guidelines.
Under the U.S.-India nuclear agreement (U.S.-India 123 Agreement of October 2008), India will
be required to adhere to MTCR guidelines. And in April 2009, Kazakhstan said it would consider
joining the MTCR a foreign policy priority.
The regime is based on the premise that foreign acquisition and development of missiles can be
delayed, made more difficult and expensive, and even prevented if major producers agree to
control exports of missiles and the equipment and technology used in missile production. The
MTCR is similar in this regard to the Nuclear Suppliers Group, the Australia Group, and the
Wassenaar Arrangement. It differs from the nuclear and chemical non-proliferation regimes in
that the MTCR is not supported by a treaty and has no international organization to verify or
enforce compliance. Rather, the MTCR is a set of common export control guidelines adopted and
administered independently by each of the partner nations through consensus.
The specific missile equipment and technology subject to the guidelines is described in an annex
to the MTCR Guidelines and divided into two categories. Each of the member countries is to
exercise particular restraint in considering transfers of items in Category I, which include
complete rocket systems and unmanned air vehicle (UAV) systems capable of delivering a 500-
kilogram (1,100-pound) payload to a range of 300 kilometers (186 miles) or more, and complete
subsystems of such missiles and vehicles. There is a strong presumption by the MTCR to deny
transfers of these systems and components. The guidelines further state that the transfer of
Category I production facilities will not be authorized.
In addition, export restraints are to be applied to Category II items, which consist of other
components, equipment, material, and technology that would be usable in the production of
missiles and UAVs. Category II also includes, at item number 19, complete rocket systems and
UAVs with a 300-km range but not capable of delivering a 500-kg payload to that range (as
covered by Category I), and in item number 20, individual rocket stages and rocket engines and
production equipment usable for systems with a range of 300 km with less than a 500-kg payload.
In January 1993, MTCR partners revised the guidelines to limit the risks of proliferation of
missile delivery systems for all weapons of mass destruction: chemical and biological weapons as
well as nuclear weapons. The guidelines now call for particular restraint and the presumption to
deny transfers of any missiles (whether or not they are included in the annex) and of any items in
the annex if the government judges that they are intended to be used for the delivery of weapons
of mass destruction.70 This addition is commonly referred to as a “catch-all” clause.
69 See Appendix A for a list of current partners.
70 According to the guidelines, the government judgment on the likely use of the missile items will be made, “on the
basis of all available, persuasive information, evaluated according to factors including:
A. Concerns about the proliferation of weapons of mass destruction;
B. The capabilities and objectives of the missile and space programs of the recipient state;
(continued...)
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The MTCR has undergone a transformation from a small group of Western industrial countries to
a more inclusive formal and informal group of countries. Argentina, with its Condor II missile
program, was originally one of the primary targets of the regime, but that country terminated
development of Condor II and is now a full partner in the MTCR. South Africa and Brazil had
active missile programs but are now partners. Brazil currently chairs the MTCR. Whereas the
Soviet Union was the primary source for missiles to the Third World in the 1970s and 1980s,
Russia has become a partner in the MTCR. Even so, the United States has sanctioned some
Russian organizations for improper exports to Iran. China has been, and still is, another
significant supplier of missiles and missile technology to developing countries, but has committed
to observing the MTCR guidelines and pledged not to transfer surface-to-surface missiles that
meet the MTCR thresholds. In spite of these commitments, some Russian and Chinese
organizations and individuals apparently continue to supply components and technical assistance
for missile production.
North Korea reportedly has become a primary supplier of missiles and missile technology to
some developing countries. Iran, Syria, India, and Pakistan are the other countries of major
concern regarding the development and acquisition of missiles. Missile programs in China,
Egypt, and South Korea have also caused concern in Washington. Cruise missiles have always
been included with ballistic missiles and space-launch vehicles in the MTCR but are now
receiving greater attention as advanced propulsion and guidance technology is becoming more
widely available.
The United States long ago stated its support for expanding membership of the MTCR “to include
additional countries that subscribe to international non-proliferation standards, enforce effective
export controls, and abandon offensive ballistic missile programs.”71 The United States will not
support space launch programs in non-MTCR countries, but will consider exports of MTCR items
for use in space-launch programs by MTCR countries on a case-by-case basis. The United States
and other MTCR countries are promoting regional efforts to reduce the demand for missiles and
persuade countries to forgo the acquisition of missiles.
Some nations have not joined the MTCR, affirming their sovereign right to acquire, develop,
deploy, and export missiles. It has been particularly difficult to control dual-use technologies that
may be used for civilian space launch vehicles, civil aviation, general industry, and tactical
weapons.
MTCR member states have been working since about 1999 on a supplementary effort that has
become known as the International Code of Conduct (ICOC) Against Ballistic Missile
Proliferation. On November 25, 2002, the ICOC entered into force and the United States was an
initial subscribing member. The code includes broad principles, general commitments and modest
confidence-building measures. The Bush Administration saw the ICOC as “an important addition
to the wide range of tools available to countries to impede and roll back this proliferation
(...continued)
C. The significance of the transfer in terms of the potential development of delivery systems (other than manned
aircraft) for weapons of mass destruction;
D. The assessment of the end-use of the transfers, including the relevant assurances of the recipient states ... ; and
E. The applicability of relevant multilateral agreements.”
71 U.S. Department of State, Reprint of White House Press Release, Non-Proliferation and Export Control Policy,
September 27, 1993.
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threat.”72 The code attempts to fill the gap of demand-side incentives by offering “cooperation”
with respect to civilian space-launch vehicle technology in exchange for significant
nonproliferation commitments. However, such cooperation is to be worked out between states
and is not specified in the draft document, making incentives for cooperation appear a bit elusive.
Implementing the Regime
International Organization
Although the MTCR has no international organization, partner countries hold monthly meetings
in Paris among embassy representatives (called “points of contact” meetings), hold technical
experts’ meetings (including information exchanges) and convene a plenary once each year. In
this manner, partners revise the guidelines and the equipment annex and admit new partners. At
the Madrid 2005 Plenary, partners emphasized that the threat of proliferation of WMD delivery
systems constitutes a threat to international peace and security and stressed the need to reduce the
risks associated with terrorism in this regard. This theme has been reiterated each year since.
U.S. Government Organization
The Directorate of Defense Trade Controls of the State Department administers the regulations
governing the export of items on the Munitions List—those items that are subject to controls
under the AECA and the ITAR.73 The Bureau of Industry and Security in the U.S. Department of
Commerce administers the regulations governing the export of items on the Commerce Control
List—those items that are primarily for civilian use but have applications for the development,
testing, or production of missiles.74
The Missile Technology Export Control (MTEC) working group is chaired by a State Department
official that reviews controversial missile export license cases. The Missile Trade Analysis Group
(MTAG), another interagency group chaired by a State Department representative, reviews
intelligence reports on diversions of missile technology from legitimate recipients to others.75
Officials in the State Department’s Bureau of International Security and Nonproliferation (ISN)
and regional bureaus also undertake diplomatic initiatives to dissuade additional nations from
developing missiles, to persuade other countries to adopt export controls on missile technology,
and to reduce the perceived need for missiles.76
Department of Defense officials have established a counter-proliferation policy that addresses
export controls, security relationships with friendly and hostile countries, defensive and offensive
military operational concepts, and equipment. Many organizations within the Department
implement the various aspects of the counter-proliferation policy, but the Assistant Secretary for
72 John R. Bolton, Remarks at the Launching Conference for the ICOC, The Hague, The Netherlands, November 25,
2002. See http://www.state.gov/t/us/rm/15488.htm.
73 http://www.pmddtc.state.gov
74 http://www.bis.doc.gov
75 http://www.state.gov/t/isn/58386.htm
76 http://www.state.gov/t/isn
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International Security Policy (ASD(ISP)) has the primary responsibility for counter-proliferation
policy formulation.77
The Department of the Treasury also oversees U.S. embargoes through its Office of Foreign
Assets Control (OFAC), and helps enforce export controls through the U.S. Customs Service.78
U.S. Laws79
The United States has maintained stringent controls on missiles and missile technology under the
Arms Export Control Act (22 U.S.C. 2751) and the International Traffic in Arms Regulations (22
C.F.R. Part 121, hereafter the ITAR).
In the early 1980s, the United States also unilaterally adopted tighter export controls on dual-use
equipment and technology that could benefit foreign missile programs. Dual-use controls have
been placed in the Export Administration Regulations (15 C.F.R. 730-799) pursuant to the
authority of the Export Administration Act of 1979 (50 U.S.C. app. 2401 et seq.) and the
International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). Successive
administrations have updated regulations to reflect changes adopted by the MTCR, changes in
U.S. law, and the changing international political environment. The Export Administration Act of
1979 has expired several times, but the President has invoked his authority to continue in effect
the system of controls that had been maintained under the act.
Members of Congress became concerned about missile proliferation in the mid-1980s because
growing evidence of missile proliferation in developing world was an additional consideration in
funding President Reagan’s ballistic missile defense programs. Libya had purchased Soviet Scud
missiles and Iran and Iraq were firing missiles at each other. Congress had little or no
involvement in shaping the MTCR, because it was neither a treaty nor an executive agreement.
Soon after the regime was announced in April 1987, it became apparent that companies and
individuals from a number of MTCR member countries (such as West Germany, Italy, Britain,
and France) had transferred goods and technical assistance to missile development teams in
Argentina, Brazil, Iraq, Egypt, and elsewhere. In 1987, the United States also learned that China
had transferred intermediate range missiles to Saudi Arabia. Many Members of Congress thought
the MTCR needed enforcement mechanisms, additional members, and stricter compliance.
Several bills were introduced at the time with the intention of strengthening the U.S. position on
missile nonproliferation. Those bills that included sanctions against nations, companies, and
individuals who violate the MTCR guidelines gained widespread bipartisan congressional
support. At the time, Bush Administration officials maintained that the President already had
sufficient authority to reprimand or sanction foreign governments, companies, and individuals for
inappropriate missile transfers and objected to the imposition of mandatory statutory sanctions.
President George H.W. Bush pocket-vetoed the Export Administration Act of 1990, which
included a missile nonproliferation provision, as well as the Chemical and Biological Weapons
Control Act. However, he signed the defense authorization bill that contained a nearly identical
section on missile nonproliferation policy.
77 http://www.fas.org/irp/doddir/dod/ds111_14.pdf
78 http://www.treas.gov.offices/enforcement/ofac
79 This section drawn from CRS Report RL31502, Nuclear, Biological, Chemical, and Missile Proliferation Sanctions:
Selected Current Law, by Dianne E. Rennack.
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The Missile Technology Control Act of 1990
The act became law in the 101st Congress (H.R. 4739, Title XVII of the National Defense
Authorization Act for Fiscal Year 1991, P.L. 101-510). It added Chapter 7 to the Arms Export
Control Act, sections 6(l) and 11B to the Export Administration Act of 1979, and established an
annual reporting requirement. Chapter 7 of the AECA has been amended several times.
The Arms Export Control Act
(22 U.S.C. 2751 et seq.) Chapter 7 of the AECA requires the President to impose sanctions on
U.S. and foreign individuals who improperly conduct trade in controlled missile technology. If
someone inappropriately transfers MTCR Category II goods or technology, they will be denied,
for two years, any U.S. government contracts relating to missile equipment or technology, and
U.S. export licenses for missile equipment and technology. The AECA requires sanctions for at
least two years if a person inappropriately transfers Category I items; these include denial of all
U.S. government contracts and export licenses for any item on the U.S. Munitions List. If the
President determines that a foreign person has substantially contributed to the design,
development, or production of missiles by a non-MTCR country, he shall prohibit for at least two
years U.S. imports of items produced by that person. The act includes presidential waivers,
exclusions, determination requirements, and definitions that allow the Administration to take no
action in certain circumstances.
These sanctions may be waived by the President, and they generally do not apply to transfers of
missile goods or technology to an MTCR adherent or from an MTCR adherent. The United States
has imposed missile sanctions against entities in several countries including China, Pakistan,
South Africa, North Korea, Iran, Russia, India, Syria, and Egypt.
The Export Administration Act of 1979
(Sections 6 (l) and 11B, 50 U.S.C. app. 2405 and app. 2410b). Similarly, the EAA requires
controls on U.S. missile-related exports and sanctions against U.S. and foreign persons who
improperly transfer dual-use goods or technology listed in the MTCR annex. If a person
improperly transfers Category II goods or technology, he will be denied export licenses for two
years for missile equipment and technology controlled under the EAA. If a person improperly
exports Category I goods or technology, he will be denied export licenses for at least two years
for all items controlled under the EAA. If a foreign person exports goods or technology that
substantially contribute to the design, development, or production of missiles in a non-MTCR
country, he will be denied license to import his products into the United States for at least two
years. Actions that trigger sanctions under the provisions of either the AECA or the EAA, require
commensurate sanctions under the other act.
Additional Missile Nonproliferation Policy Provisions in Legislation
Over the years, Congress has called for additional sanctions, expressed views to strengthen
nonproliferation policies related to missiles or advanced conventional weapons, and expressed
views on improving the organization of the U.S. government to implement those policies in
several other laws. There are provisions related to missile proliferation in the Foreign Assistance
Act of 1961, the Iran, North Korea and Syria Nonproliferation Act, the Iran-Iraq Arms
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Nonproliferation Act of 1992, the Freedom Support Act, and the Cooperative Threat Reduction
Act. These and other laws are listed in Appendix B.
Issues for the 111th Congress
A perennial issue of varying interest is whether the MTCR and the associated U.S. sanctions are
effective enough to warrant the economic and political costs to the United States, and whether
additional or alternative feasible measures would increase effectiveness.
Many analysts consider the MTCR a successful vehicle for quiet diplomacy. The MTCR has been
credited with slowing missile development in Brazil and India, and blocking a collaborative
program of Argentina, Egypt, and Iraq to build the Condor missile. This missile would have been
a significant improvement over the Scud-based missiles used by Iraq in the Gulf War. Russia and
China have probably stopped exporting entire missiles that fall under the parameters of the
MTCR, even though some entities within those countries may continue to transfer components
and technology. Most European countries and Asian allies have tightened their export control
laws and some have prosecuted individuals who have smuggled missile technology as well as
nuclear and chemical production technology. Long-range ballistic missiles are expensive and
extraordinarily difficult to develop and produce. Because most countries cannot produce and
integrate all of the sophisticated components required, many observers argue the MTCR and
complementary export controls will probably continue to impede development of the most
advanced missiles.
The major ongoing challenge, however, is that much of the international commerce in missiles
and missile technology occurs between nations that do not adhere to MTCR guidelines. China
and North Korea are not members, although China promised to observe the guidelines after the
United States had twice imposed economic sanctions on Chinese companies for transferring
missile items to Pakistan, on the condition that the United States would lift those sanctions. North
Korea’s missile development, production, deployment, and export of missiles has continued
largely outside the reach of the MTCR. Reported North Korean exports of missile production
technology to Iran, Pakistan, Syria, and Egypt seriously undercut the international standards and
goals of the regime. In the view of some analysts, the activities of North Korea demonstrate the
failure of the MTCR and the necessity of other measures. Other analysts argue North Korea
demonstrates the need to expand the regime in order to make it even more difficult for such
missile proliferation to occur.
Some difficulties associated with the nuclear, chemical, and biological nonproliferation regimes
may be even more acute with respect to missile technology. The notion of a suppliers’ regime
dividing the world into “haves” and have-nots” is even more exacerbated in the case of missiles,
because there is no treaty and no quid pro quo for the have-nots. The International Code of
Conduct is an attempt to address this “carrot” side of the carrot-stick equation, but the lack of
specificity on incentives is viewed by some as too limited and by others as too potentially
expansive. Also, there is a common perception that technology is shared among MTCR members,
although the guidelines call for the strong presumption of denial of Category I-class missiles and
technology to anyone. The U.S. decision in 2002 to elaborate what constitutes “rare occasions”
(wherein Category I presumption of denials could be overruled) lends credence to this view.80
80 Testimony given by Vann Van Diepen, Deputy Assistant Secretary of State for Proliferation Controls in a hearing
(continued...)
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Further, although many of the materials associated with nuclear weapons can be identified and
controlled, the materials and components used in missiles are commonly used in a wide range of
commercial manufacturing processes. Ballistic missile programs can be nearly indistinguishable
from civilian space launch programs, and some missile production equipment, technology, and
materials are difficult to distinguish from civilian items. This is particularly acute in the case of
UAVs.
As some developing nations become increasingly capable of producing missiles indigenously, the
effectiveness of supplier controls may gradually erode. Some analysts see attempts to control
missile technology exports as futile and argue for the fewest export restrictions possible,
emphasizing the importance to the U.S. economy of exports. Others say the U.S. government
should not allow the export of any goods that are likely to harm U.S. national security, despite the
potential positive effect on some American business interests.
In addition to the promotion of exports, other foreign policy and national security goals may also
compete with missile nonproliferation for government attention and action. For instance, U.S.
leaders hope to encourage Russia and China to become stable and responsible actors in their
regions and in the international community, to pursue economic and political reforms, and to
respect internationally recognized human rights. The United States has sought the cooperation of
those two countries and many others in efforts to block nuclear proliferation, terrorism, drug
trafficking, and organized crime. Although missile nonproliferation will remain an issue of utmost
importance, other goals may occasionally be given greater emphasis. However, when political
leaders suspend missile nonproliferation policies in favor of other goals, the credibility of the
U.S. policy and that of the MTCR can be damaged, according to many observers. It can become
more difficult to persuade other countries to comply with a set of standards when the United
States appears to enforce the standards on a selective basis. The priority to be given to missile
nonproliferation was occasionally a point of contention between Congress and the Bush
Administration.
Congress has established economic sanctions that must be imposed on companies that trade in
missile technology contrary to the MTCR guidelines. The imposition, lifting, and waiving of
these sanctions frequently cause controversy. Some analysts suggest these negative actions should
be coupled with positive incentives to induce countries to refrain from proliferation. Positive
incentives could include trade credits, development assistance, military assistance, technology
transfers, access to space launch and satellite capabilities, or security guaranties. But other
analysts contend the security benefits derived from adhering to the MTCR should be sufficient
and that the United States should not try to buy compliance.
According to many foreign policy specialists, the underlying political and security problems that
drive proliferation must be resolved before meaningful curbs can be applied to the spread of
weapons of mass destruction and missiles. The United States and its partners in the MTCR have
helped countries, particularly neighbors in regions of ongoing conflict, adopt confidence-building
measures such as those that have contributed to security and cooperation in Europe. Many of
these same countries also try to help correct regional imbalances of military forces and to
facilitate peace negotiations and arms control talks.
(...continued)
before Senate Government Affairs Committee, Subcommittee on International Security, Proliferation and Federal
Services, June 11, 2002.
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Security alliances and military assistance also can play a role in restraining missile development.
The U.S. security umbrella over Western Europe and parts of Asia and the transfer of large
quantities of advanced conventional weapons helped dissuade a number of U.S. allies from
developing weapons of mass destruction and helped deter aggression. Some analysts contend that
the security of some allies was enhanced by the deterrent power of U.S. nuclear-armed missiles
previously deployed in their territory or, possibly in the case of Israel, by indigenous weapons.
The U.S. government has also decided that it is appropriate to sell missiles (U.S. Army Tactical
Missile Systems) with a potential range of 250 km to countries such as Turkey, Greece, South
Korea, Britain, France, and Germany, though it forbids sales of missiles with a range of more than
300 km. However, the superiority of U.S. military technology may actually persuade some
adversary countries to develop weapons of mass destruction and missiles as their best means of
deterring U.S. intervention.
Some analysts see missile defense systems as a proper alternative to export controls, though most
see them as supplementing other military, political, and long-range economic measures (including
export controls and sanctions). The United States will likely continue to deploy theater and long-
range missile defense systems and has provided such defensive missiles and capabilities to
friends and allies in Europe, East Asia, and the Middle East. As the United States seeks to
increase defense cooperation in the area of missile defenses, a few have raised issues over the
applicability of MTCR guidelines. Additionally, as longer range ballistic missile defense systems
are developed, some might question the transfer of such systems or technologies to other
countries in the context of the MTCR. For instance, would Chinese development of intermediate-
range ballistic missile defense systems be widely viewed as a permitted MTCR export to
countries such as Pakistan? Air defense missiles and anti-theater ballistic missiles probably
enhance the security of U.S. allies, but none are expected to be 100% effective. In some cases,
such as Taiwan, deployments might increase tensions. The Obama Administration and Congress
will likely continue to review defense and missile nonproliferation policy objectives in this area.
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Appendix A. Proliferation Control Regime
Membership
NSG (45)
MTCR (34)
Australia Group (41)
Argentinaa Argentina Argentina
Australiaa Australia Australia
Austriaa Austria Austria
Belarus
Belgiuma Belgium Belgium
Brazil Brazil
Bulgariaa Bulgaria Bulgaria
Canadaa Canada Canada
Chinaa
Croatia
Croatia
Cyprusa
Cyprus
Czech Republica
Czech Republic
Czech Republic
Denmarka Denmark Denmark
Estonia
Estonia
European
Commission
Finlanda Finland Finland
Francea France France
Germanya Germany Germany
Greecea Greece Greece
Hungarya Hungary Hungary
Iceland
Iceland
Irelanda Ireland Ireland
Italya Italy Italy
Japana Japan Japan
Kazakhstana
Latvia
Latvia
Lithuania
Lithuania
Luxembourga Luxembourg Luxembourg
Malta
Malta
Netherlandsa Netherlands Netherlands
New Zealand
New Zealand
New Zealand
Norwaya Norway Norway
Polanda Poland Poland
Portugala Portugal Portugal
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NSG (45)
MTCR (34)
Australia Group (41)
Romaniaa
Romania
Russian Federationa Russian
Federation
Slovakiaa
Slovakia
Sloveniaa
Slovenia
South Africaa South
Africa
South Koreaa
South Korea
South Korea
Spaina Spain Spain
Swedena Sweden Sweden
Switzerlanda Switzerland Switzerland
Turkeya Turkey Turkey
Ukrainea Ukraine Ukraine
United Kingdoma
United Kingdom
United Kingdom
United Statesa
United States
United States
a. Zangger member.
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Proliferation Control Regimes: Background and Status
Appendix B. Additional Legislation and
Executive Orders
Combating Proliferation of Weapons of Mass Destruction Act of 1996, Title VII, Intelligence
Authorization Act for Fiscal Year 1997, P.L. 104-293, 50 U.S.C. 2301 note.
National Defense Authorization Act for Fiscal Year 1994, Title XVI, Arms Control Matters,
Nonproliferation Provisions, P.L. 103-160.
National Defense Authorization Act for Fiscal Year 1995, Title XV, Arms Control Matters,
Nonproliferation Provisions, P.L. 103-337; 22 U.S.C. 2751 note.
Weapons of Mass Destruction Control Act of 1992, Title XV, National Defense Authorization Act
for Fiscal Year 1993, P.L. 102-484; 22 U.S.C. 5859a begins at section 1505 of Act.
Antiterrorism and Effective Death Penalty Act of 1996, Title V, Nuclear, Biological, and
Chemical Weapons Restrictions, P.L. 104-132, 18 U.S.C. 831 note, and 2331, 42 U.S.C. 262
note, 50 U.S.C. 1522 note.
Arms Control and Nonproliferation Act of 1994, Title VIII, Part A, Foreign Relations
Authorization Act, Fiscal Years 1994 and 1995, P.L. 103-236, 22 U.S.C. 2551 note.
Defense Against Weapons of Mass Destruction Act of 1996, Title XIV, National Defense
Authorization Act for Fiscal Year 1997, P.L. 104-201, 50 U.S.C. 2301 note.
Foreign Relations Authorization Act, Fiscal Year 2003, Title XI and XIII: Verification of Arms
Control and Nonproliferation Agreements, Assistance - P.L. 107-228 (Sec. 1101) 22 USC
2651 note.
Executive Order 13382 (June 28, 2005, 70 FR 38567) Blocking Property of Weapons of Mass
Destruction Proliferators and Their Supporters.
Executive Order 13222 (August 17, 2001, 66 FR 44025, August 22, 2001) Continuation of Export
Control Regulations, upon the expiration of the Export Administration Act of 1979.
Continued on August 15, 2002 by notice published in Federal Register on August 16, 2002.
Executive Order 13128 (June 25, 1999, 99FR 16634) Implementation of the Chemical Weapons
Convention and the Chemical Weapons Convention Implementation Act.
Executive Order 13049 (June 11, 1997, 62 FR 32471) Organization for the Prohibition of
Chemical Weapons.
Executive Order 13030 (December 12, 1996, 61 FR 66187) Administration of Foreign Assistance
and Arms Exports.
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Executive Order 12938 (November 14, 1994, 59 F.R. 59-9, 50 U.S.C. 1701 note) Declares the
proliferation of weapons of mass destruction and their means of delivery as an unusual and
extraordinary threat and declares a national emergency to deal with that threat.
Amended by EO 13094 (July 28, 1998, 63 FR40803 and by EO 13128 (June 25, 1999, 64 FR
34703).
Executive Order 12946 (January 20, 1995, 60 F.R. 4829, 22 U.S.C. 2551 note) Establishes the
President’s Advisory Board on Arms Proliferation Policy.
Executive Order 12851 (June 11, 1993, 58 F.R. 33181, 22 U.S.C. 2797 note) Delegates
President’s authority under the Export Administration Act, Arms Control Export Act, and the
Chemical and Biological Weapons Control, Warfare Elimination Act, National Defense
Authorization Act for Fiscal Years 1992 and 1993, National Defense Authorization Act for
Fiscal Year 1993, and Foreign Relations Authorizations Act for Fiscal Years 1992 and 1993,
to the Secretaries of State, Commerce, Defense, and Treasury, and Director of ACDA.
Executive Order 11850 (April 8, 1975, 40 F.R. 16187, 50 U.S.C. 1511 note) Renunciation of
certain uses in war of chemical herbicides and riot control agents.
Author Contact Information
Mary Beth Nikitin, Coordinator
Steven A. Hildreth
Analyst in Nonproliferation
Specialist in Missile Defense
mnikitin@crs.loc.gov, 7-7745
shildreth@crs.loc.gov, 7-7635
Paul K. Kerr
Analyst in Nonproliferation
pkerr@crs.loc.gov, 7-8693
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