Contents
The Missile Technology Control Regime
The International Code of Conduct and efforts to control ballistic missile proliferation
The Nuclear Suppliers Group
Issues with India
The Wassenaar Arrangement
The impact of the 11 September terrorist attacks on multilateral export control
Challenges
Opportunities
Conclusions
Additional Reads
This chapter describes identified changes in the guidelines and procedures of five multilateral export control regimes: the Australia Group (AG), the Zangger Committee, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers Group (NSG) and the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (WA).
The Zangger Committee is an informal group of states that meet to discuss how to interpret their obligations under Article 3.2 of the 1968 Non-Proliferation Treaty (NPT). The committee is not part of the NPT.
The Missile Technology Control Regime
The MTCR is an informal, voluntary association of countries that share the goal of non-proliferation of unmanned delivery systems for weapons of mass destruction and seek to coordinate national export licensing efforts aimed at preventing their proliferation. It was established by seven states in 1987.
In 2001 the MTCR continued to discuss the issue of compliance with agreed measures. The national approaches of Russia and the United States to implementing their MTCR obligations have attracted particular attention. Russia continued to modify its national export control system, partly in response to allegations that it did not comply with its MTCR commitments. Allegations related to Russia focus on two different issues. First, the allegation has been made that, Russian entities continue to supply missile-related items to missile programmes of concern—including Iran and North Korea, whose nuclear programmes cause proliferation concerns to the USA, in particular. Second, Russia has continued to have the more aggressive export orientation in its aerospace and arms industries that was observed in 2000.
The International Code of Conduct and efforts to control ballistic missile proliferation
While the ongoing proliferation of ballistic missiles capable of delivering nuclear, biological and chemical (NBC) weapons creates a security challenge, states have not put in place a system of international legal control. During 2000 and 2001 discussions within the MTCR aimed to develop an International Code of Conduct against Ballistic Missile Proliferation (ICOC) and to bring about the adoption of such a code. At the plenary meeting in Ottawa in September 2001 a final draft code was agreed among the MTCR participating states. The draft ICOC contains a set of broad principles against ballistic missile proliferation, in favour of peaceful uses of space and supporting existing non-proliferation regimes. The draft also contains some confidence-building measures (CBMs) in the form of annual disclosures of information on ballistic missile and space launch vehicle (SLV) programmes and advance notification of ballistic missile and SLV launches. The ICOC is only one of several initiatives currently taking place that is intended to put in place a system of international control for missiles. The United Nations has on its agenda the question of ‘missiles’ in all their aspects, while Russia has stimulated discussion of missile proliferation by proposing the creation of a Global Control System for Non-Proliferation of Missiles and Missile Technologies (GCS).
The Nuclear Suppliers Group
The Nuclear Suppliers Group was established in 1978 following three years of discussion among seven nuclear supplier countries (Canada, France, the Federal Republic of Germany, Japan, the UK, the USA and the USSR). It is an informal arrangement of nuclear supplier states that seek to prevent the acquisition of nuclear weapons by states other than those recognized as nuclear weapon states in the framework of the NPT. The NSG has developed Guidelines for Nuclear Transfers and Guidelines for Nuclear-Related Dual-Use Equipment, Materials, Software and Related Technology that participating states apply in making national decisions about what kinds of exports to authorize. It has also drawn up lists of items to which these guidelines apply. These guidelines and lists are published by the International Atomic Energy Agency (IAEA) as INFCIRC/254.
Apart from questions of membership and list development, in 2001 the NSG established a Consultative Group. This is a standing body that facilitates consultations among participating states on, for example, the interpretation of agreed guidelines for nuclear supply.
Issues with India
A set of issues concerned how to interpret Russian nuclear cooperation with India in the context of NSG guidelines. This is not a new issue for the NSG to consider. In 1998 the NSG tried, unsuccessfully, to persuade Russia not to supply two nuclear reactors to India.
This issue was raised again when Russia agreed to sell 58 tonnes of low enriched uranium fuel pellets to India’s nuclear power station at Tarapur. This agreement was reached in October 2000, at which time Indian reports suggest that India and Russia also discussed the question of additional supplies of reactors. Under the NSG guidelines nuclear suppliers have committed themselves not to supply controlled items to any end-user unless the recipient country has placed all of its nuclear activities under full-scope IAEA safeguards. This commitment was adopted in Warsaw in 1992. India has many nuclear facilities that are not under full-scope safeguards.
The United States has argued that both supply of the reactors and the supplies of nuclear fuel are inconsistent with Russia’s NSG commitments. Decisions reached by Russia in 1998 and any offers made in 2001 to supply reactors to India would be in conflict with the 1992 Warsaw Statement on Full Scope Safeguards. Russia has argued that specific contracts to supply reactors to India, agreed in 1997 and 1998, were implementing a bilateral Memorandum of Understanding (MOU) signed with India in 1988. In the Russian view, commitments made prior to 1992 are not governed by the Warsaw Statement.
Russia does not claim that agreements on nuclear fuel are ‘grandfathered’ since they were reached in 1998. Before the Indian nuclear tests of 1998 the Tarapur reactor purchased nuclear fuel from China (which is not a member of the NSG). However, after the Indian tests China stopped supplying this fuel. Russia has argued that nuclear supply arrangements do not prohibit transfers made on the grounds of safety and that Tarapur should be seen as a special case. According to the Russian argument, the reactors will become unsafe if they continue to burn existing fuel. Moreover, it is argued that the nonproliferation arguments against nuclear supply are weak because India has already demonstrated its capability to manufacture nuclear weapons using resources that are not related to the Tarapur facility.
Individual participating states take national licensing decisions according to their own interpretation of their commitments under the NSG. However, in 1994 the NSG suppliers agreed on how this safety exemption should be interpreted for licensing purposes. Transfers should be authorized ‘only when deemed to be essential in order to prevent or correct a radiological hazard posing a significant danger to public health and safety and which cannot be realistically met with any other means’.
The Wassenaar Arrangement
The Wassenaar Arrangement is an informal arrangement in which the participating states intend to contribute to regional and international security by promoting transparency and greater responsibility with regard to transfers of conventional arms and dual-use goods and technologies, thus preventing destabilizing accumulations. Through national policies the participating states seek to prevent transfers of agreed items from contributing to the development or enhancement of military capabilities that undermine regional and international security, and to ensure that transferred items are not diverted to support such capabilities. The arrangement mainly provides a mechanism for information exchange and does not attempt to develop common controls. However, under its initial elements the arrangement is intended ‘to enhance cooperation to prevent the acquisition of armaments and sensitive dual-use items for military end-uses, if the situation in a region or the behaviour of a state is, or becomes, a cause for serious concern to the participating states’.
The impact of the 11 September terrorist attacks on multilateral export control
The multilateral export control regimes were not designed to address the issue of terrorist access to weapons of different kinds. However, after the terrorist attacks against the United States it has become more obvious that counteracting transnational terrorist networks requires international cooperation. After 11 September 2001 all of the multilateral regimes have taken notice in their meetings of the need to examine how their activities could contribute to eliminating terrorism. The risk that terrorist groups would acquire non-conventional weapons became a focus of particular attention. In testimony before the US Senate the Director of Central Intelligence noted that
as early as 1998, Bin Ladin publicly declared that acquiring unconventional weapons was ‘a religious duty’ . . . we know that al-Qa’ida was working to acquire some of the most dangerous chemical agents and toxins. Documents recovered from al-Qa’ida facilities in Afghanistan show that Bin Ladin was pursuing a sophisticated biological weapons research program. We also believe that Bin Ladin was seeking to acquire or develop a nuclear device. Al-Qa’ida may be pursuing a radioactive dispersal device— what some call a ‘dirty bomb’.
Issues that have been under discussion in export control regimes in recent years are relevant to combating terrorist groups. The implementation of end use or ‘catch-all’ controls against groups and individuals identified as terrorists by the United Nations may be one feasible approach. The more widespread use of end-use controls has increased the need for information sharing among regime members. In response to the attacks of 11 September the Australia Group is currently discussing enhanced information sharing within the group and expanding its scope to cover dual-use equipment and technology. The Wassenaar Arrangement decided to amend its initial elements for the first time to include the commitment that participating states ‘will continue to prevent the acquisition of conventional arms and dual-use goods and technologies by terrorist groups and organisations, as well as by individual terrorists’. Export control regimes lack a common risk assessment that can be the basis for national decisions about whether to authorize a given export and the conditions to attach to an authorization. Measures to help identify the actual end user of controlled items and to reduce the risk of unauthorized re-export of controlled items are likely to remain a focal point of discussion. Since the dissolution of the Coordinating Committee on Multilateral Export Controls (COCOM) arrangements states that participate in regimes have emphasized national decision making and insist that regimes do not target any particular state or group of states. If risk assessment procedures suggested that programmes of concern are in fact concentrated in a small number of states this approach might be called into question. Regimes are also examining the conditions under which simplified procedures might be applied between states that have a high degree of confidence regarding compliance with arms control agreements and the effectiveness of their export control systems. The realization that groups planning terrorist acts may already be located within the territories of regime participants is causing a reassessment of the wisdom of simplified procedures.
Challenges
1. Structural Challenges
As previously explained, the export regimes have an informal nature, and often mainly consist of supplier states. In addition, they make decisions based on consensus, and states have national discretion. As a result, the regimes are facing multiple structural challenges.
a. Non-universal Character
b. Consensus-Based Decisions
c. Informal Nature
d. National Discretion
2. Recent Challenges
Next to the structural challenges, several present-day developments have caused new challenges for the regimes. Over the last twenty years, five developments that have an impact on the arms export control systems can be identified. Non-state threats and producers have emerged, there are suppliers operating outside the regimes, technology is rapidly evolving, the world order is slowly changing, and the UK decided to leave the EU.
a. Non-state Threats
b. Non-state Producers and Facilitators
c. Emerging Suppliers
d. Evolving military and dual-use technology
e. Multipolar World Order
f. Brexit
Opportunities
While the regimes face several challenges, there are also opportunities for the regimes to improve and keep up with contemporary developments. First, they could improve by strengthening dialogue and cooperation. Second, the regimes could be reformed so that a diverge from the regimes’ norms has more consequences for states such as introducing an enforcement mechanism. Third, the regimes can be more paradigm based, and the catch-all mechanisms may remain. Further, the decision-making process could be revised.
1. Dialogue and Cooperation
2. Binding Instruments or Enforcement Mechanism
3. Paradigm-Based Regimes and Catch-All Mechanisms
4. Revise Decision-Making Process
Conclusions
A significant number of states have developed common rules and habits of cooperation in the framework of the multilateral export control regimes. Nevertheless, there has been a growing sense that the momentum established within the regimes in the first part of the 1990s was not maintained. Prior to the attacks of 11 September 2001, however, the experience of the regimes was that there remain significant disagreements between participating states over important issues. Disagreements often stem from the fact that licensing decisions are based on national interpretations of regime rules. These are in turn steered by the interests of participating states rather than a common norm or a common perception of the risks posed by particular transfers. After 11 September certain decisions that were difficult to take in the framework of the regimes may have become possible. Particular attention is being paid in this regard to the following issues: the development of procedures for sharing information related to licensing and enforcement; the development of a more harmonized approach to risk assessment and the identification of programmes of concern; the development of common approaches to end-user controls in countries where programmes of concern are located; and the question of how to apply controls to new types of commercial practices in a changing market.
Additional Reads and References
1. de Bruin, E. (2022). Export Control Regimes—Present-Day Challenges and Opportunities. In: Beeres, R., Bertrand, R., Klomp, J., Timmermans, J., Voetelink, J. (eds) NL ARMS Netherlands Annual Review of Military Studies 2021. NL ARMS. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-471-6_3
2. Multilateral export controls by IAN ANTHONY. https://www.sipri.org/sites/default/files/14.%20Ian-5.1 F%E2%80%A6AL%20w.%20WA%20fixe.pdf
3. Overview of the Multilateral ExportControl Supplier Arrangements: NSG, MTCR, AG, and Waasenar.https://csis-website-prod.s3.amazonaws.com/s3fs public/legacy_files/files/attachments/150625_LodenPresentation.pdf
4. Reforming multilateral export regimes by Micheal Beck. https://www.nonproliferation.org/wp-content/uploads/npr/72beck.pdf
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