Security-related Export Controls of Dual-use Technologies: An International Law Perspective
Text Andreje Krokoše „Security-related Export Controls of Dual-use Technologies: An International Law Perspective“ se zaměřuje na aktuální téma obchodu s technologiemi dvojího užití z pohledu mezinárodněprávní perspektivy. Autor předkládá o zdroje dobře opřený přehled hlavních prvků režimu kontroly technologií dvojího užití a v závěru se vhodným způsobem pokouší i o zhodnocení jeho dosavadních úspěchů a limitů. Text je v anglickém jazyce.
Autor: Andrej Krokoš, student oboru Mezinárodní vztahy, FSS MU.
The term dual-use technologies refers to research and technology with the potential both to yield valuable scientific knowledge and to be used for nefarious purposes with serious consequences for public health or the environment. (Pustovit, Williams 2008) In a simple way, dual-use technologies are of twofold use: civilian and military. The definition assumes that these kinds of technologies are special and require development of specific approach. According to some scholars, the pragmatic approach relies on ethical principles and norms to generate specific guidance and policy for dual-use technologies. (Pustovit, Williams 2008) In a perfect world people would not have to solve any ethical or moral dilemma in association with trading dual-use technologies. However, today we must concern about our security and refrain undesirable and potentially dangerous actors from acquiring technologies which could make harm to human beings. These considerations are even stronger in the case of WMD and their proliferation, because spreading of such weapons undoubtedly increases possibility of tragic lethal consequences. Similar concerns lead industrially developed countries to control export of dual-use technologies that are vital in the manufacturing of WMD. The effort in each historical period reflects international security development and requires global approach, including creating and maintaining effective international regimes.
According to Krasner’s influential definition, international regime is viewed as a set of implicit and explicit principles, norms, rules, and procedures around which actors‘ expectations converge in a particular issue-area. (In: Haggard, Simmons 1987) International regime is therefore an example of cooperative behaviour among states which can have implicit or explicit form (or both of them). Since our main concern is legal analysis, this paper deals mostly with explicitly expressed elements of regime, such as various treaties, legal acts, initiatives, guidelines, lists etc. The other, more restricted definition, which treats regimes as multilateral agreements among states which aim to regulate national actions within an issue-area (Haggard, Simmons 1987) is better applicable in our case.
International Law: Initiatives and Measures
There are many forms of agreements in the international arena regulating dual use trade issue directly or indirectly but just some of them are of special nature corresponding to international law characteristics. In this chapter we discuss those special ones, legally binding obligations.
International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. (Shelton in Armstrong 2010: 68) The ability of an act to be legally binding can be derived also from its relationship to the Article 38 of ICJ Statute, which recognizes sources of law to be applied in accordance with international law: international conventions establishing rules expressly recognized by the contesting states, international customs, the general principles of law, judicial decisions and the teachings of the most highly qualified publicists of the various nations. (ICJ Statute, Article 38)
The most important international treaty concerning proliferation of non-conventional, nuclear weapons, is NPT (Nuclear Non-Proliferation Treaty), which entered into force in 1970. In general, it divides the community of states into two groups. Five nuclear weapon states (NWS) represent the first group and all the other non-nuclear weapon states (NNWS) form the second group. According to the NPT treaty, the obligation of the NWS is not to assist in the spread of nuclear weapons (article I) and of the NNWS not to acquire nuclear weapons. There is also a guarantee to all states that allows them to develop nuclear programmes for energy purposes (article IV) subject to conformity with articles I an II. (Ruzicka, Wheeler 2010) The treaty also gives to the International Atomic Energy Agency (IAEA), established in 1957, the responsibility of ensuring states’ compliance. (Evan, Hays 2006) The IAEA provided NPT provisions with institutional background, without which the international trade control regime concerning nuclear materials and technologies could not exist. Another tool that has supplemented NPT treaty is the so-called Zangger Committee formed in 1971. By interpreting and implementing article III, paragraph 2 of the NPT, the Zangger Committee helps to prevent the diversion of exported nuclear items from peaceful purposes to nuclear weapons or other nuclear explosive devices, and thereby furthers the objectives of the Treaty and enhances the security of all States. (ZanggerCommittee.org) It creates and updates the list of controlled items, offers guidance to all parties of the treaty and commits them to the use of the IAEA safeguards mechanisms.
From the legal point of view, IAEA agreements concerning non-proliferation of nuclear weapons and multilateral Zangger Committee does not represent legally binding instruments. They act as nonbinding instruments to complete or supplement binding agreements (IAEA to NPT) or appear relatively independent and freestanding, but make reference to existing obligations (Zangger Committee to NPT). (Shelton in Armstrong 2010: 73)
Except from NPT treaty, there are other important international treaties associated with dual-use technologies and trade with them. The Chemical Weapons Convention (CWC) and the Biological and Toxin Weapons Convention (BTWC) regulate the area of WMD proliferation concerning chemical and biological technologies. They are purely instruments of the international law, therefore they require ratification of member states and their provisions are legally binding.
In general, the CWC prohibits member states to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. (Article 1, paragraph 1) The CWC also contains the list of chemicals which are sorted into three groups according to their civilian, commercially legitimated purpose. The possibility of their possessing, manufacturing and exporting is dependent on the reference to the particular group. In addition, the CWC does encourage member states to promote free trade in chemicals and scientific cooperation in this field. The restrictions not in accordance with the Convention are not allowed. However, the exact balance between free trade in chemicals amongst States Parties and the prohibitions of the CWC is still under discussion. (OPCW.org) Organisation for the Prohibition of Chemical Weapons is established in order to promote the implementation of the CWC and operate verification mechanisms, which are also among the provisions of the treaty.
The BTWC and its regime concerning proliferation of biological weapons is more problematic issue than the CWC. Some scholars argue that the widespread presence of dual-use items in this category, especially for medical treatment, is the reason of slow and weak adaptation of regulatory and control mechanisms. (Evan, Hays 2006) The truth is that the BTWC still lacks verification procedures and also an international institution which would implement them. The BTWC therefore relies primarily on states’ self-monitoring, with the provision that a state may lodge a complaint with the UN Security Council if it suspects another state has committed a violation. (Evan, Hays 2006) The situation is not satisfactory, because the biological weapons are really difficult to control, more difficult than chemical or nuclear weapons. Just a little amount of the efficient substance can cause serious damage to human beings. Since legally binding treaty that should create conditions for the regulation of trade with biological dual-use technologies is inadequate, the international community must rely on other legal and non-legal instruments to establish and maintain a control regime.
Finally, the UN Security Council Resolution 1540 adopted in 2004 shall be the subject of discussion. It shall be so, because the Security Council, under the Article 25, is one of the few international bodies conferred the power to bind states and demand compliance with the measures it adopts. (Shelton in Armstrong 2010: 69) The international community in the beginning of the 21st century has found itself in the position to adopt immediately generally accepted and legally binding measures to prevent the proliferation of WMD and related materials, especially considering non-state actors. The facts that many countries have not participated on multilateral export controls arrangements (discussed below) and that the issue of proliferation from state to non-state actors has not been covered in international treaties (like NPT, for example) contributed to the UN efforts. In spite of the unquestioned legal nature of the Resolution 1540, made under Chapter VII of UN Charter and adopted by the competent institution, some experts argue that such legislative resolutions are beyond the power of the Security Council. (Scott in Armstrong: 214) According to them the introduction of “legislative” resolutions has sparked concern about the potential scope for this autocratic mode of imposing new law on the international community in contrast to the relatively more democratic method of multilateral treaty negotiations. (Scott in Armstrong: 214) Nevertheless, the legal instrument had entered into force and in April 2011 its mandate was extended for a period of ten years.
To sum up obligations which are included in the Resolution, all states are supposed to put into practice necessary elements of effective national export controls: legal basis, enforcement capacity, and industry-government relations. (Jones 2006) Even though the term “dual-use” is not explicitly expressed in the Resolution for political reasons, there is no doubt that its provisions regulate also activities related to the items and technologies of dual-use nature.
All countries also have to create corresponding enforcement capacity which would ensure effective border controls and law enforcement efforts to detect, deter, prevent and combat the illicit trafficking and brokering in such items. (Resolution 1540, Article 3, c) In addition, international cooperation and mutual assistance are encouraged to advise those countries with weak institutional and legislative capacity to improve their national laws.
Other Initiatives and Measures
In this chapter we will discuss the nature of international arrangements other than those enforceable by international law. These arrangements are dominant in the contemporary international environment and in case of many sensitive issues they are the only possible form of common agreements. Nonbinding instruments are faster to adopt, easier to change, and more useful for technical matters that may need rapid or repeated revision. (Shelton in Armstrong 2009: 75) For these reasons they are appropriate to creation and maintenance of dual-use export controls regime which often lacks political consensus. Some scholars define these agreements as “soft law”. Soft law usually refers to any written international instrument, other than a treaty, containing principles, norms, standards, or other statements of expected behaviour. It expresses a preference and not an obligation that states should act, or should refrain from acting, in a specified manner (Gold, Shelton in Armstrong 2009: 69). In regard to the international trade with dual-use technologies, the term Multilateral Export Controls Arrangements (MECA) is often used in this context.
Member countries of the MECA rely on voluntary cooperation, consensus agreement, and communication to improve national export controls. (Early 2009) In order to promote the control of proliferation, they coordinate policies, especially by preparing common export control lists and guidelines. In general, the MECA includes regimes under Australia Group, Nuclear Suppliers Group, Wassenaar agreement, Missile Technology Control Regime (MTCR). Proliferation Security Initiative (PSI) as a relatively new measure can be loosely added here, even though it is built on different principles.
All these arrangements came into existence as the results of crucial moments in the international security environment. The first one was the Indian nuclear explosion in 1974, which gave birth to the Nuclear Suppliers Group. There were accusations that India promoted its covert military nuclear development programme on the basis of peaceful imports of the nuclear technology for energy purposes. In reaction, the demand for closer coordination of nuclear export policies arose and the broader spectrum of nuclear-related items were put on the control list. The NSG later completely replaced previous regime under NPT-associated Zangger Committee and now it is the most important international mechanism in relation to nuclear dual-use technologies. The Australia Group, which is focused on preventing the spread of chemical and biological weapons, was established in 1985 as a consequence of the Iran-Iraq war. The war revealed weakness of previous control regimes, because chemical weapons were manufactured, stockpiled and finally used. All participants are members of the 1997 Chemical Weapons Convention (CWC) and the 1972 Biological Weapons Convention (BWC) and have stated that they view the Australia Group as a practical way to uphold the core purpose of these accords. (AG glance 2007). The Australia Group has elaborated the list of controlled items and guidelines in order to limit illegitimate supply to countries and non-state entities suspected of pursuing chemical or biological weapons. In the 1980s, the availability of ballistic missiles increased and the greater number of countries were in the position to acquire or manufacture them. These missiles, in particular the SCUD class, are able to bear a warhead containing the nuclear, chemical or biological payload. The western international community reacted by creating the Missile Technology Control Regime (MTCR) to restrict the supply of missile technology abroad. The regime urges its members, which include most of the world’s key missile manufacturers, to restrict their exports of missiles and related technologies capable of carrying a 500-kilogram payload to the distance of at least 300 kilometres or delivering any type of weapon of mass destruction. (MTCR at glance 2004) The last traditional multilateral export control arrangement was established in 1996 with reference to previous Cold War regime under the COCOM. The communist countries as targets of the export limitations were replaced by the so-called “states of concern”. In general, Wassenaar agreement provides member countries with control lists of conventional weapons and dual-use items which can be used for military purposes and calls for greater attention in the licensing process. It is also a platform for the exchange of information concerning export controls. Finally, The Proliferation Security Initiative (2003) started in 2003 as a consequence of the U.S. security policy after the terrorist attacks in 2001.
What is the essential content of these multilateral export controls arrangements as examples of the soft law instruments? First of all, they provide member states with guidelines containing principles, norms, standards or other statements of expected behaviour in relation to the export controls policies. Then, they often prepare control lists of items, materials and technologies that are to be the subject of stricter export controls. In order to assure this aim, member countries are encouraged to improve their relevant legislation, law enforcement capabilities and the exchange of information among themselves.
The two key provisions in the guidelines outlining criteria for evaluating export requests and reaffirming the value of sharing intelligence about proliferation are “no-undercut principle” and “catch-all clause”. (AG glance 2007) No-undercut principle refers to the provision committing members not to approve a particular export to a specific country that another member had previously denied without first consulting with that member. (AG glance 2007) The country that would deny any particular trade for security reasons is supposed to inform others and they are obliged to consider this denial in their own licensing procedure. The provision, which is its added value, enhances the trust and also creates conditions for more willing information exchange among member countries. On the other hand, catch-all clause is a mechanism which authorizes members to block any export suspected to be destined to a nuclear weapons program even if the export does not appear on one of the control lists. (NSG glance 2006) The catch-all clause is a possibility for countries more concerned with non-proliferation of dual-use items and technologies to broaden the spectrum of restricted exports to particular destinations or entities. Due to the rapid development of technology, this provision adds more flexibility for national authorities. However, there is a risk that other participants will not include the problematic item or technology on their national catch-all list and the gap will exist.
To sum up this chapter, the international regime regulating trade with dual-use technologies is based on the typical soft law instruments known as the MECA. These regimes are informal and impose no legally-binding obligations on their members. According to Early (2009), they are formed from groups of likeminded states, have exclusive membership criteria and rely on voluntary cooperation, consensus agreement and communication to improve national export controls. Thanks to these arrangements, their member states can trade more freely with one another, because they know that such trade is safe. Dinah Shelton (in Armstrong 2009: 72) summarized several functions of soft law, among which we can mention those characterizing the MECA: they consolidate political opinion around the need for action on a new problem, fostering consensus that may lead to treaty negotiations or further soft law; they fill in gaps in existing treaties in force; they provide guidance or a model for domestic laws without international obligation; they substitute for legal obligation when ongoing relations make formal treaties too costly and time consuming or otherwise unnecessary or politically unacceptable.
Even though many important measures have been adopted during the last few decades in fighting undesirable dual-use proliferation, there are still some uncertainties, risks and problems. International treaties are legally binding instruments, but in a global reality there is no sovereign authority that would enforce agreed commitments by power as in national legal systems. Some scholars even argue that the adoption of the Resolution 1540 promoting compulsory export controls was above the Security Council specific competence. According to them, the Security Council appears to have undergone a fundamental change in understanding of its proper institutional role, and to have taken upon itself the mantle of an international legislative body, filling in the gaps in existing sources of international law and establishing obligations which are of a forward-looking, preventive, continuing character. (Joyner 2006) Proponents of the resolution claim that extraordinary situations require extraordinary means and in the consequence of the terrorist attacks, the U.S. led international community has been in a position to do everything possible to prevent another catastrophe.
On the other hand, there are voluntary, non-binding instruments called multilateral export controls arrangements. From the theoretical point of view, they are important achievements reducing uncertainty by creating and maintaining common norms, principles and trustful atmosphere among their participants. Practically, international regimes help their member countries coordinate dual-use export control policies and they represent a platform for mutual assistance and information exchange. However, the international regimes do not have the possibility to consider letters of intention proposing future contract, analyze background of particular business entity or control trade transaction during the shipment. The implementation and enforcement of export control mechanisms are the issues to realized properly by national governments and officials.
In order to characterize the limits of international dual-use trade regime, we must consider not only the supply-side preventive strategies, but also demand-side efforts to obtain such technologies. Today, the attempts of various actors, which are suspected of elaborating WMD programmes, are very sophisticated and therefore difficult to prevent. According to the BfV, German domestic intelligence service, the direct procurement of an item or a commodity is rather the exception, because the risk of detection and the export denial become too large. In order to get the product, the procurement through third countries (so-called bypass exports) is used, front companies are employed or false statements about the intended use are created with the aim to conceal real proliferation-sensitive destination. (Verfassungsschutzbericht 2010) In addition, contemporary proliferation of dual-use technologies is often realized by so-called illicit procurement networks, which are elusive nets of collaborating individuals, business companies, governmental and non-governmental agencies intended to supply WMD programme in particular country. Jack Boureston and James A. Russell (2009) argue that these procurement networks are staying ahead of export controls by altering their tactics, learning new and more evasive techniques and finding ways to exploit legitimate trade practices to acquire sensitive materials. How these elaborated demand-side strategies can be tackled by export controls regimes is always the issue of their implementation and enforcement.
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