When exporting nuclear-related items, export control is required from two perspectives: the control of “Trigger List Items” as controlled by Nuclear Supplier Groups (NSG) and the control of the “Items Subject to the Agreement” as specified in bilateral Nuclear Cooperation Agreements. While Trigger List Items and Items Subject to the Agreement are largely similar, there are some items where they do not overlap. Furthermore, national law for controlling each item is different. The Trigger List Items are governed by the Foreign Trade Act, and the Items Subject to the Agreement (Internationally Controlled Items) are governed by the Nuclear Safety Act. As a result, the detailed procedures and requirements for controlling each item are quite distinct. For the Trigger List Items, export license must be obtained in accordance with the Foreign Trade Act. The details such as responsible authority, the items subject to license, license requirements and procedures, penalties are specified in the Public Notice on Import and Export of Strategic Goods. For the Items Subject to the Agreement, the process and obligations set forth in bilateral agreements and related administrative agreements are fulfilled in accordance with the Nuclear Safety Act. However, in contrast to the Trigger List Items, the details for complying with the agreements are not specified legally. Since most of the Items Subject to the Agreement are fall within the category of the Trigger List Items, the obligations in accordance with the agreements are reviewed and implemented during the export license assessment process. However, if the Items Subject to the Agreement are not are fall within the category of the Trigger List Items, there is a risk of control omission. For example, this applies to cases of exporting tritium and tritium removal facilities, which are not the Trigger List Items, to Canada and Romania. Moreover, since subjects to the agreement and compliance procedures are respectively different for 29 bilateral Nuclear Cooperation Agreements signed with different countries, it is difficult for enterprise to recognize the appropriate procedures and obligations under the agreement by their own. The bilateral Nuclear Cooperation Agreements establish legal obligations between state parties while NSG are non-legally binding arrangements. Therefore, it could be even more necessary to comply strictly with the agreements. Consequently, legal improvements are required for effective implementations of Nuclear Cooperation Agreements. While it may be challenging to institutionalize details of 29 Nuclear Cooperation Agreements, it is essential to legally specify key elements such as the list of items subject to agreements, responsible authority, requirements and procedures for implement the agreement obligations, and penalties. Furthermore, domestic awareness on compliance with Nuclear Cooperation Agreements is lower compared to the system of export license for Trigger List Items. The continuous outreach is also necessary, along with institutional improvements.

In South Korea, the exporters of items related to nuclear power generation are diversified. Consequently, there is a risk of illegitimate export by companies failing to recognize the export control system because the awareness about this system for the strategic items among the subcontractors of nuclear power facilities is limited. To prevent illegitimate export of the strategic items, it is necessary to conduct outreach activities regarding the export control system for the related companies. Additionally, the exporters and export license examiners should consider whether an export target is on the Denial List, who may divert the strategic items to weapons of mass destruction. Therefore, the Korea Institute of Nuclear Nonproliferation and Control developed two systems for controlling illegitimate export of the Trigger List items. The first system, Nuclear Industry Information Collection and Analysis System, can gather information about the key nuclear industries in Korea and analyze the dealing of strategic items. The second system, Denied Persons Information Gathering System, can regularly gather information about the denied persons and provide the updated data to the exporters and regulatory examiners. These two systems can be used for outreach activities and export license examination to prevent illegitimate export of the strategic items.

According to Article 3(2) of the NPT and NSG the Guidelines, the exporting country should be guaranteed the import country’s willingness to implement nuclear non-proliferation and the level of implementation before the transfer of Trigger List Items. Also, unknown or new end-users could be officially identified through GA procedure. Accordingly, Korea government requests the importing country a formal Governmental Assurance (GA), before issuing an export license. This study summarizes GA items and characteristics. First, GA is The NSG guidelines suggests four items that should be assured by importing countries: peaceful use of export items, full-scope safeguards application, physical protection measures, and retransfer control. Therefore, these four items are generally requested based on the NSG guidelines. However, if they are already guaranteed by bilateral nuclear cooperation agreement, the GA could be based on the nuclear cooperation agreement. The GA procedure could be omitted in the case of concluding an administrative agreement that imposes another implementation procedure. The levels of requested GA requested vary with the countries, since the NSG guidelines are just recommendations that are not legally enforceable. Korea requests the level based on the NSG guidelines. Among the four GA items, peaceful use of export items is the most fundamental obligation, and levels of safeguards and physical protection of the importing country could be verified in advance by reviewing the conclusion status of international agreement with the IAEA. Thus, the important thing for the licensee to consider is to decide the level of retransfer control. The NSG guidelines suggest two levels of retransfer control, taking into account the sensitivity of the export items and the level of safeguards in the end-user country, which is either to receive GA from the third receiving country at an equivalent level with that originally requested from exporting country, or to get a prior consent by the exporting country. The latter should be approached more carefully, as requiring a prior consent is not only to have authority, but also to have responsibility when problem occurs. In addition, the level of retransfer control must be decided through sufficient reviewing on the transaction characteristics, it may affect the domestic export industry.

In 2004, in order to comply with UN Security Council Resolution 1540, the European Union (EU) came into force with Regulation 428/2009 for the export control of dual-use items, which has been working to prevent the proliferation of weapons of mass destruction (WMDs). In August 2021, it amended the EU 821/2021 to include mandating the introduction of ICPs for exporters in the member countries in order to strengthen controls over the transfer of tangible and intangible technologies. The main contents are as follows; 1) Mandatory introduction of Internal Compliance Program (ICP): Exporters within the EU countries should introduce a transaction review procedure through the ICP in consideration of their size and organization. 2) Export control on Cyber Surveillance Items to protect human rights: In order to protect human rights and comply with the obligations of international human rights law, EU countries should implement export controls on cyber-monitoring items exported from customs zones in the EU. Cyber surveillance items are specially designed to monitor, extract, collect or analyze data such as biometrics through intrusion of information and communication systems or deep packet hijacking. However, items used for purely commercial programs such as billing, marketing, quality service, user satisfaction or network security are excluded. 3) Expansion of the Catch-all system: EU countries should utilize the catch-all system to strengthen export controls on cyber-monitoring items, including dual-use items. 4) Strengthening control over the cloud: Exporters and EU countries should extend the scope of intangible technology transfer, such as electronic media, fax, and telephone, outside the EU’s customs territory, and apply export control regulations such as general or comprehensive licenses to cloud transmissions outside the EU territory. 5) Introduction of large-scale project authorization: To reduce the administrative burden on enterprises (especially small and medium-sized enterprises) and authorities when exporters with individual or collective licenses export to one or more specific end-users for the purpose of large scale projects, provided that they ensure the implementation of an appropriate level of export controls; EU countries may introduce large-scale project license systems in the form of general authorization. Recently, there is a possibility that the ROK would export its nuclear technologies including APR1400 to the EU member countries in the midst of the EU adoption of carbon-zero policy. In this paper, we have analyzed the EU export control regulations and suggested the future direction of nuclear export control programs in the ROK.

In April 2015, the government of the Republic of Korea and the United States of America signed a new Nuclear Cooperation Agreement (NCA). Subsequently, in April 2016, the Nuclear Safety and Security Commission (NSSC) of the ROK and the Department of Energy (DOE) of the US signed the Administrative Agreement (AA) under the new Nuclear Cooperation Agreement. Accordingly, when Korea imports items subject to the Korea-US agreement, it is required to determine the inventory of imported agreement items and notify the United States of the inventory amount every year. In addition, when re-exporting an agreement item to a third country, prior consent of the original exporting country (USA) must be obtained. Nuclear companies that import items subject to the Korea-US Atomic Energy Cooperation Agreement must report their inventory to the government every year, but the standards and procedures for managing the inventory are not clearly stipulated in the national law. This makes it difficult for the government to verify the adequacy of the report submitted by nuclear companies, adding to the administrative burden on both the government and the companies. Accordingly, it is required for the government to establish and operate a system for history management system for import and export items subject to the agreement so that related information can be recorded and managed at each stage, such as first import of items to Korea, generation, disposal, and exports to third countries. This system provides history management functions such as initial import information record for items imported through import/export procedures according to administrative agreements, change of owned company due to domestic movement, deletion of inventory due to loss/disposal, deletion of inventory due to export or addition of inventory due to derived materials. Through this system, operators can easily manage agreement items, and the government can obtain reliable information on agreement items in close to real-time. In addition, when this system applies to exports of items subject to the agreement, the number of items subject to the agreement exported by Korea can be provided first so that the importing country can more quickly check the items subject to the agreement. It is expected to contribute to securing control of the items subject to the agreement and reducing concerns over nuclear proliferation.

The Nuclear Safety Act defines items defined in nuclear cooperation agreements with each country as internationally regulated materials and requires that import and export procedures be implemented according to each agreement. In particular, the US, Canada, and Australia, which are major nuclear power suppliers, describe detailed procedures related to imports and exports in administrative agreements attached to the agreement. This paper compares and analyzes the import and export procedures of agreed items in the three major countries and proposes procedures and precautions that nuclear companies should follow for smooth import and export. The import/export procedure, according to the annexed administrative agreement, is divided mainly into Direct-transfer, Indirect-transfer, and Re-transfer. Direct transfer refers to direct import and export between countries that have signed an agreement. The four-step process of prior notice, written confirmation, shipment notice, and receipt confirmation is commonly required for direct transfer. However, in the case of Canada, if the previously related information is the same, the shipping notification and receipt confirmation procedure may be omitted. Australia only defines items included in the notification without a separate form in the administrative agreement. Indirect transfer means transferring items originating from the other two countries that signed the agreement through a third country. All three countries stipulate that item transferred by indirect transfer are also subject to the agreement, and Canada stipulates separate advance notifications and shipping notifications for indirect transfer. Australia manages indirect transfers by including information from third countries in the exchange-related information between the two countries. The US does not have a specific procedure for indirect transfer, but it is presumed that it was omitted because it was difficult to confirm the time of shipment when the US exports through a third country. Re-transfer is a procedure to obtain consent from the original exporting country in advance when exporting items held in Korea to a third country. There are two types of consent based on re-transfer, the long-term consent method, and the individual case-by-case method. Long-term consent is a method of long-term consent for re-transfer to an agreed-upon country by agreeing in advance on a list of countries where re-transfer is possible. In the long term, the procedure will be reflected in domestic laws in detail and managed through an IT-based management system so that operators can smoothly implement such complex import and export procedures.