Non-Proliferation Export Controls

Origins, Challenges, and Proposals for Strengthening

Daniel Joyner, Daniel Joyner

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351914413
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

This volume provides a comprehensive and interdisciplinary examination of the Multilateral Non-Proliferation Export Control system and the national and international context within which it functions. Key features: "

PART I

Introduction to International Export Controls

Chapter 1

Multilateral Export Control Regimes: Operations, Successes, Failures and the Challenges Ahead

Seema Gahlaut

Senior Research Associate, Centre for International Trade and Security, University of Georgia

The international non-proliferation community has been grappling with a number of challenges over the past few years. Recent research suggests that terrorist groups are becoming interested in acquiring weapons of mass destruction (WMD), that state actors continue to remain interested in developing latent WMD capability (if not the weapons themselves), and that the black market in materials and technologies that can assist both types of actors in this quest continues to thrive. This situation persists even as we see a growth in the number of international agreements and initiatives to control the proliferation of nuclear, chemical, biological weapons and missiles. Within these, the agreements to regulate trade and transfers of sensitive dual-use technologies have been under maximum strain. Globalization of liberal free market ideology, the diffusion of advanced technologies to an ever larger number of states, and the transnationalization of the high-tech industry have together created an environment where controls on export of sensitive technologies are hard to legislate upon, and even harder to implement and enforce at the national level. Reaching and sustaining export control agreements between nations has become correspondingly more difficult. Despite these trends, the four major multilateral export control regimes: the Nuclear Suppliers Group (NSG), the Missile Technology Control Regime (MTCR), the Australia Group (AG) and the Wassenaar Arrangement (WA) have survived, and are engaged in efforts to re-equip themselves to face the changed environment (see Table 1.1). In order to assess whether, and to what extent, they will succeed in their mission, we must examine their origins, operations, successes and failures.

Origins of Multilateral Export Control Coordination and Cooperation

The first post-Second World War attempt to coordinate export controls resulted in the establishment of the Coordinating Committee on Multilateral Export Controls (COCOM) by the United States and its allies. Yet the objective of export controls in COCOM was not the prevention of WMD proliferation in general: the focus was primarily on denial of technology to the opposing Communist Bloc – the Soviet Union, China and members of the Soviet-led alliance.¹ In time, the focus expanded to include states that were either considered sympathetic to the Communist ideology or were deemed to be potential conduits of western technology to the Communist Bloc.

Within two decades of the formation of COCOM, during the late 1960s, negotiations on the Nuclear Non-proliferation Treaty (NPT) produced near-identical drafts from the United States and the Soviet Union regarding the broad contours of the proposed treaty: the two ideological adversaries recognized their common interest in preventing the proliferation of nuclear weapons technology to other states. The final form of the NPT text, however, had no specifics on how to implement and enforce Article 2 commitments.² Suppliers within the NPT formed the Zangger Committee to create guidelines on regulating nuclear exports within the mandate of NPT.³

The nuclear test by India in 1974 necessitated the creation of an alternate arrangement that would regulate nuclear trade more strictly than the NPT-bound Zangger Committee. Thus was born the first of the multilateral export control regimes in 1975: the London Suppliers Club – later renamed the Nuclear Suppliers Group (NSG).⁴ Subsequently, two other parallel regimes came to be established: the Australia Group (AG) to regulate trade in chemical and biological technologies in 1985⁵ and the Missile Technology Control Regime (MTCR) in 1987.⁶ The fourth regime, the Wassenaar Arrangement (WA) was established in 1995 (Smith and Udis 2001, 81–92). It was a refurbished and updated successor to the COCOM which, by 1993, had already lost its raison d’être as the primary targets of this regime – the Soviet Union and the Warsaw Pact – disintegrated.

Table 1.1 The Four Multilateral Export Control Regimes⁷

The Nuclear Suppliers Group (NSG) is an informal agreement established in 1975. Currently, 45 states are members (with the European Union as an observer). NSG members agree to common guidelines governing exports of nuclear materials, technologies and related equipment. NSG seeks to ensure that civilian nuclear trade does not contribute to nuclear weapons acquisition. The Group’s actions are viewed as complementary measures in support of the 1971 Nuclear Non-Proliferation Treaty and the 1954 International Atomic Energy Agency (IAEA). The IAEA first published the NSG guidelines on nuclear export in 1978. There are two sets of NSG Guidelines: the first one governs the export of items that are especially designed or prepared for nuclear use, while the second one includes items that can make a major contribution to an unsafeguarded nuclear fuel cycle or nuclear explosive activity, but which have non-nuclear uses as well. The Group has no charter or constitution. It operates by consensus. Members voluntarily adhere to the guidelines, and share information on nuclear proliferation concerns. Recently, NSG members have begun to consider proposals for responding to the threat posed by nuclear terrorism. Website: <www.nsg-online.org>.

The Australia Group (AG) is an informal agreement established in 1984. Currently, 39 states are members (with the European Union and Singapore as observers). AG members agree to common guidelines governing chemicals, pharmaceuticals and pathogens, and related technologies and equipment. AG seeks to ensure that exporting or transshipping countries do not inadvertently assist chemical and biological weapon (CBW) proliferation. Members meet annually in Paris. The Group’s actions are viewed as complementary measures in support of the 1925 Geneva Protocol, the 1972 Biological and Toxins Weapons Convention and the 1993 Chemical Weapons Convention. The Group has no charter or constitution. It operates by consensus. Members voluntarily adhere to the guidelines, and share information on CBW proliferation concerns. Recently, AG has become the first regime where members have agreed to adopt catch-all controls as a means for ensuring greater government–industry partnership in controlling sensitive exports to suspect endusers. Website: <www.australiagroup.net/>.

The Missile Technology Control Regime (MTCR) is an informal agreement established in 1987. Currently, 34 states are members. MTCR members seek to prevent the proliferation of unmanned delivery systems that may be used for delivering weapons of mass destruction. It controls exports of missiles (and related technology) whose performance in terms of payload and range exceeds stated parameters. There are two categories of items controlled. Category I includes complete systems and subsystems capable of carrying a payload of 500 kg over a range of at least 300 km, and specially designed production facilities for such systems. Category II includes missile-related components such as propellants, avionics equipment and other items used for the production of Category I systems. The Group has no charter or constitution. It operates by consensus. Members voluntarily adhere to the guidelines, and share information on missile proliferation concerns. Members meet annually in Paris. Website: <www.mtcr.info/>.

The Wassenaar Arrangement (WA) is an informal agreement established in 1995. Currently, 39 states are members. WA members seek to prevent destabilizing accumulations of conventional weapons and sensitive dual-use goods and technologies. Accordingly, WA was designed to promote transparency, exchange of views and information, and greater responsibility among supplier states. The Group has no charter or constitution. It operates by consensus. Members voluntarily adhere to the guidelines, and share information on conventional weapons and dual-use proliferation concerns. The institution has no list of target countries or restricted entities, although it does (since December 2001) target ‘terrorist groups and organizations, as well as individual terrorists’. There are, however, agreed lists of items: a munitions list that consists of the same basic categories of major weapons-systems as the UN Register on Conventional Weapons; and a dual-use technology list that is broken into two tiers. Tier 1, the basic list, is made up of sensitive items and technologies; and tier 2 consists of very sensitive items that are subject to more stringent monitoring. Final interpretation and implementation of these lists is left to the national discretion of participating states. There is a small secretariat located in Vienna, and there are several expert and technical working group meetings held each year in addition to the plenary in December. The Wassenaar Arrangement replaced the Cold War export control mechanism (COCOM) that sought to deny military-related articles to the Soviet Union and its allies. Website: <www.wassenaar.org/>. Information is current as of September 2005.

There were a few common factors that formed the bases for the creation of these four regimes. Each regime arose as a response to the perceived gap in the existing formal non-proliferation treaty that regulated state behaviour with...