Sanctions for nuclear explosive device transfers

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1. Four events that trigger sanctions

Section 102(b) of the Arms Export Control Act, codified at 22 U.S.C. 2799aa-1(b), requires sanctions against a country that takes part in transfers or detonations of nuclear explosive devices (22 U.S.C. 2799aa-1(b)(1)). It applies to events after part B of the Nuclear Proliferation Prevention Act of 1994 took effect. The President must determine that a country did one of four things.

The first is transferring a nuclear explosive device to a non-nuclear-weapon state (22 U.S.C. 2799aa-1(b)(1)(A)). The second is, as a non-nuclear-weapon state, receiving or detonating such a device (22 U.S.C. 2799aa-1(b)(1)(B)). The third is transferring to a non-nuclear-weapon state design information or a component the President finds important to developing or making such a device, which the transferring country knows the recipient intends for that use (22 U.S.C. 2799aa-1(b)(1)(C)). The fourth is, as a non-nuclear-weapon state, seeking and receiving such design information or components for that use (22 U.S.C. 2799aa-1(b)(1)(D)).

Design information means specific information on the design of a nuclear explosive device that is not available to the public (22 U.S.C. 2799aa-1(b)(3)(A)). A component means a specific component of such a device (22 U.S.C. 2799aa-1(b)(3)(B)). Article IX(3) of the Treaty on the Non-Proliferation of Nuclear Weapons supplies the line between nuclear-weapon and non-nuclear-weapon states (22 U.S.C. 2799aa-1(c)). The meaning of nuclear explosive device comes from section 6305(4) of title 22 (22 U.S.C. 2799aa-2).

Once the determination is made, the President must report it in writing to Congress forthwith and impose the sanctions forthwith, subject to the delay and waiver rules below (22 U.S.C. 2799aa-1(b)(1)). The President may not delegate or transfer the power to make or modify these determinations (22 U.S.C. 2799aa-1(b)(8)).

2. Seven sanctions

Seven sanctions are listed, and they reach well beyond the aid cutoffs in section 102(a) (22 U.S.C. 2799aa-1(a)(1)). The sanctions are broad (22 U.S.C. 2799aa-1(b)(2)). Assistance under the Foreign Assistance Act of 1961 ends, except humanitarian assistance and food or other agricultural commodities (22 U.S.C. 2799aa-1(b)(2)(A)). Sales under the Arms Export Control Act of defense articles, defense services, or design and construction services end (22 U.S.C. 2799aa-1(b)(2)(B)). So do licenses to export any Munitions List item to the country. All foreign military financing for the country ends (22 U.S.C. 2799aa-1(b)(2)(C)).

The government must also deny the country any credit, credit guarantees or other financial assistance from any federal department, agency or instrumentality (22 U.S.C. 2799aa-1(b)(2)(D)). That denial does not cover transactions reported under the intelligence oversight title of the National Security Act of 1947, or medicines, medical equipment and humanitarian assistance. Nor does it cover Agriculture Department credit or financial help for buying food or other agricultural commodities.

The remaining sanctions reach beyond direct government programs. The United States must oppose loans and financial or technical assistance to the country by international financial institutions (22 U.S.C. 2799aa-1(b)(2)(E)). American banks must be barred from lending or giving credit to the country’s government, except for buying food or other agricultural commodities, including fertilizer (22 U.S.C. 2799aa-1(b)(2)(F)). The export control authorities of section 4605 of title 50 must be used to bar exports of specific goods and technology to the country, other than food and agricultural commodities and intelligence oversight transactions (22 U.S.C. 2799aa-1(b)(2)(G)).

3. A single 30-day delay

For the first two triggers, transfers and receipt or detonation of a device, the President may delay sanctions for up to 30 days of continuous session (22 U.S.C. 2799aa-1(b)(4)(A)). The President must first certify to the Speaker of the House and the chairman of the Senate Committee on Foreign Relations that immediate sanctions would harm national security. Only one such certification is allowed for a country for the same detonation, transfer or receipt. The delay is not available for the two design information triggers.

Continuous session is broken only by an adjournment of Congress sine die (22 U.S.C. 2799aa-1(b)(7)). Days when either House is out because of an adjournment of more than three days to a day certain are not counted.

4. A waiver only with Congress

For those first two triggers, a waiver needs Congress to act first. After a delay certification, Congress may enact a joint resolution authorizing the President to use the waiver (22 U.S.C. 2799aa-1(b)(4)(B)). A resolution may be introduced in either House within 30 days of continuous session after Congress receives the delay certification (22 U.S.C. 2799aa-1(b)(4)(B)). It is then considered in the Senate under section 601(b) of the International Security Assistance and Arms Export Control Act of 1976 (22 U.S.C. 2799aa-1(b)(4)(C)). The resolution follows a set form, naming the date the certification was received and the country concerned (22 U.S.C. 2799aa-1(b)(4)(D)).

Once such a resolution is law, the President may waive sanctions for those triggers by certifying that imposing it would be seriously prejudicial to American nonproliferation objectives or otherwise jeopardize the common defense and security (22 U.S.C. 2799aa-1(b)(5)). The certification goes to the Speaker of the House and the Senate Committee on Foreign Relations, with a statement of specific reasons.

5. The design information triggers

The last two triggers, on design information and components, follow a different path (22 U.S.C. 2799aa-1(b)(6)(A)). The President must inform the country forthwith. Sanctions start 30 days after the report to Congress, unless, and to the extent that, a law barring them is enacted within that period. No authorizing resolution is needed for these triggers, because the statute gives the President a direct way to switch them off.

These sanctions also do not apply if the President certifies in writing that applying them would seriously harm vital interests of the United States (22 U.S.C. 2799aa-1(b)(6)(B)). That certification goes to the Senate Committees on Foreign Relations and on Governmental Affairs and the House Committee on Foreign Affairs, with a statement of specific reasons. The aid cutoffs for enrichment and reprocessing transfers are covered in aid cutoffs for enrichment and reprocessing transfers.

Key terms

Design information	Specific, non-public information on the design of a nuclear explosive device.
Continuous session	The way the 30-day periods are counted, excluding long adjournments.
Delay certification	The one-time finding that immediate sanctions would harm national security.
Authorizing resolution	The joint resolution Congress must pass before a waiver of the first two triggers.
Vital interests certification	The finding that switches off sanctions for the design information triggers.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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