De Pampilla a Campo de Marte

The NSG was established following the nuclear test by India in 1974. The Indian test demonstrated that nuclear technology transferred for peaceful purposes could be misused for developing WMD. The NSG is a group of nuclear supplier countries, which was formed to contribute to the non-proliferation of nuclear weapons by ensuring that nuclear energy technology is only used for energy security, social, economic development, and environmental protection (Kimball & Davenport, 2007; see also IAEA, 2012a). All Member States voluntarily coordinate their export controls by governing transfers of civilian nuclear material and nuclear-related equipment and technology to non-nuclear-weapon states. The NSG put into place a common set of guidelines governing exports of nuclear materials, equipment and technology and agreed to exercise restraint in the transfer of sensitive nuclear facilities, technology and weapon-usable materials and to establish special controls on exports of enrichment and reprocessing technology (McGoldrick, 2011). The NSG Guidelines that were adopted in 1994 contain the so-called “Non-Proliferation Principle”, which, apart from other provisions in the NSG Guidelines, authorises suppliers to transfer only when they are satisfied that this would not contribute to the proliferation of nuclear weapons. Meanwhile, potential recipients are expected (King, 2009): to have physical security measures in place to prevent theft or unauthorised use of their imports; to ensure that nuclear materials and information will not be transferred to a third party without the permission

148 of the original exporter; and to ensure that final destinations for any nuclear transfer must have IAEA safeguards in place.

The NSG was created with the idea that when suppliers coordinate their nuclear export control policies, fewer channels will exist to transfer sensitive items for proliferation activities. Thus, members could decide to make the NSG more universal and open membership opportunities to nearly all states, whatever their export control policies, with the condition that the new members support the principle of controlling exports to halt nuclear proliferation activities. As of January 2015, the participating Governments were: Argentina, Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Canada, China, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Kazakhstan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and the U.S. (NSG, n.d.).

Factors taken into account for membership include the following: the ability to supply items (including items in transit) covered by the annexes to Parts 1 and 2 of the NSG guidelines; adherence to the Guidelines and action in accordance with them; enforcement of a legally based domestic export control system which gives effect to the commitment to act in accordance with the Guidelines; adherence to one or more of the NPT, the Nuclear-Weapon-Free Zone Treaty such as the Treaties of Pelindaba, Rarotonga, Tlatelolco, Bangkok or an equivalent international nuclear non-proliferation agreement, and full compliance with the obligations of such agreement(s); and support of international efforts

149 towards non-proliferation of weapons of mass destruction and of their delivery vehicles (NSG, n.d.).

4.2.1 History

Soon after the entry into force of the NPT in 1970 and after a series of nuclear tests by non-weapon states, various multilateral consultations on nuclear export controls were negotiated and led to the establishment of two separate groups for dealing with nuclear exports: the Zangger Committee in 1971 and the NSG in 1975 (Kimball & Davenport, 2007). Apprehension on nuclear proliferation issues was also raised due to the challenges to control abandoned nuclear materials after the dissolution of the Soviet Union in 1991 (U.S. Congress, 1993). The problem became crucial due to the economic downturn at that time, and the possibility that military personnel in ex-Soviet states might sell nuclear material on the black market (Lee, 2003).

It all started when India conducted its first nuclear detonation at Pokharan in the desert in Rajasthan on May 18, 1974. India described the test as a peaceful nuclear explosion (PNE) (Bhumitra. 2005; see also Abraham, 2006). However, the international community was quite sceptical, since India had an on-going strained relationship with a nuclear weapon state, China, over border disputes and there were fears about a second war with China. Moreover, India, which refused to sign the 1968 NPT, also had an even more tense relationship with its neighbour, Pakistan (Bhumitra, 2005). These situations gave enough reasons for India to actively seek the development of a nuclear deterrent in the early 1970s. This situation made the international community realise that nuclear technology transferred for peaceful purposes could be misused for a non-peaceful agenda.

150 Following the nuclear test by India, a series of meetings were held in London from 1975 to 1978. This is where the NSG was born, also known as the “London Club” due to the series of meetings in London (Anstey, 2018). It has also been referred to as the London Group, or the London Suppliers Group. Following these meetings, they agreed to develop guidelines for nuclear transfers that incorporated a trigger list developed by the Zangger Committee to ensure that such transfers were only for peaceful purposes and would not be diverted to an unsafeguarded nuclear fuel cycle or nuclear explosive activities (Anstey, 2018). Later, in 1978 the IAEA published the NSG Guidelines as IAEA document INFCIRC/254 which was subsequently amended, based on current issues and development on nuclear matters. However, between 1978 and 1991, the NSG was not active, even though its Guidelines were in place (IAEA, 2000).

During the 1990 NPT Review Conference, the committee reviewed the implementation of Article III.2, which had a significant impact on the NSG’s activities in the 1990s. The committee made a number of recommendations which including commitments by each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article (United Nations, 2005:2).

The NSG has developed several systems and mechanisms for strengthening the implementation of NSG business which included (NSG, n.d) the establishment of Guidelines in 1992 for transfers of nuclear-related dual-use equipment, material and technology (items

151 which have both nuclear and non-nuclear applications). The NSG arrangement covered exports of dual-use because it was recognized as making a significant contribution to development of nuclear weapons. At the 2004 NSG Plenary held in Göteborg decided to adopt a “catch-all” mechanism in the NSG Guidelines; to provide a national legal basis to control the export of nuclear related items that are not on the control lists, when such items are or may be intended for use in connection with a nuclear weapons programme (IAEA, 2015). The 2005 NSG Plenary held in Oslo adopted a decision that supplier and recipient states should elaborate appropriate measures to invoke fall-back safeguards if the IAEA can no longer undertake its Safeguards mandate in a recipient state (IAEA, 2015). To keep up with advances in technology, market trends and security challenges, the 2010 NSG Plenary held in Christchurch agreed to establish a technical group to conduct a fundamental review of the NSG’s Trigger and Dual-Use Lists (IAEA, 2015; see also NTI Euratom, 2011). The technical working group was called the Dedicated Meeting of Technical Experts (DMTE) (IAEA, 2015; see also NTI Euratom, 2011). The 2011 NSG Plenary held in Noordwijk agreed to strengthen the NSG Part 1 Guidelines on the transfer of sensitive enrichment and reprocessing technologies (Onishi, Abe & Pujol, 2016). Finally, the 2012 NSG Plenary held in Seattle approved an amendment to the NSG Part 1 Guidelines, which added a new paragraph entitled “Support for Access to Nuclear Fuel for Peaceful Uses” (Onishi et al, 2016).

4.2.2 Principles, Guidelines and Good Practice

The NSG has developed Guidelines with the aim to ensure that nuclear trade is only for peaceful purposes that does not contribute to the proliferation of nuclear weapons or other nuclear explosive devices.

152 However, these guidelines should not hinder or discriminate the process of international nuclear trade and nuclear cooperation but facilitate the development of nuclear trade and be consistent with international nuclear non-proliferation norms and obligations. This could be realised through the implementation of NSG Guidelines for nuclear exports and other nuclear-related activities. There are two parts in the Guideline. Part I deals with materials and technology designed specifically for nuclear use include fissile materials, nuclear reactors and equipment, and reprocessing and enrichment equipment. Part II, established in 1992, deals with dual-use goods, which are non-nuclear items with legitimate civilian applications that can also be used to develop weapons that also included machine tools and lasers. Part I was introduced in 1978 as a result of India's diversion of nuclear imports that were supposedly for peaceful purposes but were used to conduct a nuclear explosion in 1974. Meanwhile, Part II was published after it was discovered that Iraq had illicitly employed dual-use imports with the intention of using them for a nuclear weapons programme before the 1991 Persian Gulf War (King, 2009).

The NSG Guidelines were developed in such a way that it is in accordance with Participating Government’s national laws and practices, where any decisions on export applications comply with national export licensing requirements. The NSG Guidelines are also consistent with, and complement, various legally binding international instruments in the field of nuclear non-proliferation. These include the NPT, and the NWFZ such as the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco), the South Pacific Nuclear-Free-Zone Treaty (Treaty of Rarotonga), the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba), the Treaty on the Southeast Asia Nuclear- Weapon-Free Zone (Treaty of Bangkok), and the Central Asian Nuclear-

153 Weapon-Free Zone Treaty (Treaty of Semipalatinsk) (King, 2009). Hence, the NSG helps to strengthen and cover the grey areas that may occur in the NPT and NWFZ, which may not of its own accord be a guarantee that a State will consistently share the objectives of the Treaty or remain in compliance with its Treaty obligations.

It is observed that the principles and guidelines developed are based on fundamental principles for safeguards and export controls, which were constructed by three issues in nuclear activities, namely: the transfer or export of nuclear materials; transfers of nuclear-related dual-use items including equipment, materials, software, and related technology; and brokering and transit/transhipment. These three issues needed close