Let us continue with our discussion of export and import controls and take a look at the key elements of its legislation. Many of the key elements in nuclear export and import control legislation parallel those, already discussed, of legislation governing domestic nuclear related activities. As with all other activities involving nuclear material and technology, a transfer of such commodities and information across national boundaries is permitted only after the issuance of a licence (or permit or other authorization) that clearly states the essential features of the transfer. These essentials include: the identity of the licensee; the precise subject matter of the transfer (in terms of the types and quantities of material or the character of the information or technology); the destination of the transfer; the end use or (if different from the destination) the end user of the material or information; the duration of the license; and any relevant limitations or conditions (such as the mode of transport and the required physical protection measures). A State’s legal framework must contain a clear assignment of responsibilities to the agencies or officials responsible for conducting the export and import control process. While some States may find it convenient to establish a separate organizational body for dealing with export and import licence applications, many will find it more efficient to assign such responsibilities to an existing body, such as a ministry or department for international trade, commerce or foreign affairs. The export licensing function typically involves issues of concern to several governmental agencies (e.g. ministries or departments of defense, foreign trade, energy, foreign affairs, environment, science and health). This can result in complicated interagency reviews, which may be costly, time consuming and inefficient. Therefore, in structuring the export and import control process, the legislation sets out a clear division of responsibilities among the interested agencies. Also, it provides for action forcing mechanisms (such as time limits or reporting requirements) for the various steps in the process. In the event that nuclear transfers are to be licensed by an entity that also exercises export promotion functions, the principle of regulatory independence must be kept in mind. It is important that the licensing function be shielded, to the maximum extent possible, from the influence of officials involved in functions other than protecting public health and safety or ensuring that non-proliferation objectives receive the highest priority. The substantive requirements for authorizing transfers of nuclear material or technology will parallel a State’s obligations under the relevant international instruments and that State’s national policies regarding nonproliferation, nuclear safety and radioactive waste management. The following are some typical license requirements: (a) That the receiving State has made a binding commitment to use transferred material and information for peaceful purposes only; (b) That international safeguards be applied to the transferred item; (c) That the receiving State places all its nuclear material and nuclear facilities under international safeguards (the full scope safeguards requirement); (d) That retransfers of previously transferred material and technology to a third State be subject to a right of prior approval by the supplying State; (e) That any reprocessing of supplied nuclear material or alteration of the material in some other way be subject to a right of prior approval by the supplying State; (f) That the levels of physical protection that will apply to the international transport of nuclear material be consistent with those given in Annex I to the CPPNM (Article 4 of the CPPNM); (g) That, in the case of certain material, a State of destination have received prior notification of and have consented to the transfer (pursuant to the Joint Convention, Article 27); (h) and finally, that, in a case of certain material, a State of destination have the administrative and technical capacity and the regulatory structure needed to manage the material in a safe and secure manner (also pursuant to the Joint Convention, Article 27); (i) That transfers of certain material be not to the Antarctic region (the Joint Convention, Article 27). In addition to these requirements, which relate to fundamental nonproliferation, physical protection, safety or environmental considerations, many of them reflected in international instruments, States are at liberty to impose export or import requirements of their own in the light of their domestic nuclear energy policies, their economic development aims, their international political and trade relations, and other factors. In any event, when contemplating the imposition of additional requirements for the authorization of nuclear transfers, States should bear in mind the general obligation under NPT Article IV “to facilitate… the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy.” As we have already discussed, an essential feature of any nuclear control regime is that the responsible authorities have clear powers to inspect and monitor licensed activities. The field of export and import control is no exception. One of the most important functions of the authority charged with implementing export and import control laws is to examine goods destined for transport out of and into the State. For this function, typically performed by officials of a State’s customs service, it is necessary to have access to all items that are to be transported. As we have also discussed, a State’s export and import legislation generally contains clear provisions to ensure the enforcement of its requirements and procedures. These provisions usually include: defined penalties for violations (from licence suspension or revocation to monetary fines, and even criminal penalties for especially serious or intentional violations); a clear assignment of enforcement responsibility to appropriate governmental bodies; and a clear procedural framework for an enforcement action (with an indication of the means by which licensees may appeal against enforcement decisions that they believe to be unwarranted). The subject of illicit trafficking in nuclear material and technology will be addressed in a few moments (when we start discussing the physical protection). However, export and import controls obviously play a central role in preventing unauthorized acquisition of licensed material and information.
