Export Controls: Responding to Proliferation Threats

Proprietary. For CITS Training Use Only. What are export controls? Government and other efforts to regulate and monitor the transfer or trade in defense articles and items that can be used to produce or deliver WMD Other export controls exist (e.g., short supply, anti-terrorism, foreign policy)

Proprietary. For CITS Training Use Only. What Can Export Controls Do? Delay efforts of proliferators in acquiring WMD items or weaponry Buy time for diplomatic efforts to stop a WMD program Facilitate high-technology trade by building trust that others will properly use and monitor any re-transfer. Serve as a deterrent to WMD acquisition efforts Help interdict illegal transfers of controlled technologies Serve as a source of information on possible WMD activities Strengthen norms of nonproliferation Allow a country to maintain a military-edge (e.g., munitions tech)

Proprietary. For CITS Training Use Only. Understanding Proliferation  Horizontal proliferation => diffusion of WMD capability Govt-to-govt transfers or sales Business-to-govt sales or transfers Business-to-Business sales Govt or Business-to-terrorists  Knowingly helping v. inadvertently helping a WMD program Materials/equipment/technology (data, know-how) is increasingly “dual-use” Knowing the true (intended) end-use may be difficult Knowing who the ultimate end-user may be difficult Examples of each kind of sales or transfer exist

Proprietary. For CITS Training Use Only. Export Controls in the World Today  International treaties NPT, IAEA, BWC, CWC, ATT, UN Security Council Resolution 1540  Regional and Bilateral agreements ASEAN, APEC U.S.-India Nuclear Cooperation Agreement  Multilateral agreements NSG, Zangger Committee, Australia Group, MTCR, WA  National systems More defined and better specified in advanced industrial countries Others in various stages of development

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): Nuclear NPT or The Nuclear Nonproliferation Treaty [in force since 1970]  Article III.2 requires states to not help others acquire or develop n-weapons  Problems: Is access to peaceful nuclear technologies a right or a privilege? How do we know what items to control? Are NWS violating NPT by not moving toward disarmament? Are non-NPT states violating NPT by building nukes? Does NPT forbid peaceful nuclear cooperation with non-NPT states? What level of safeguards does NPT require of technology recipients NOT in the NPT?

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): Nuclear IAEA or the International Atomic Energy Agency  conventions require regulation of activities re radioactive materials (import, transfer, transport, use, handling etc)  IAEA Additional Protocol or IAEA-AP demands more intrusive inspections and more complete info on a country ’ s overall nuclear program  Problems from conflicting roles/images: World ’ s nuclear inspectorate World's focal point for scientific and technical cooperation in nuclear fields Becoming the world ’ s focal point on nuclear safety practices & technologies If a state signs and complies with the Additional Protocol, can some states still (legally) deny it access to civilian technologies?

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): Biological BWC or Biological and Toxin Weapons Convention [in force since March 1975]  Article I  prohibition on transferring or otherwise encouraging others to acquire  Article III  implicit requirement for export controls  Article IV  any necessary measures to prohibit and prevent activities contravening the Convention Problems:  No guidance on controlled items  No verification of compliance

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): Chemical CWC or the Chemical Weapons Convention [in force since 1997]  First true disarmament treaty  all existing CW stocks must be declared & destroyed within 10 years  A permanent secretariat – OPCW – in The Hague to oversee implementation  Article I d mandates no CW transfer directly or indirectly to anyone  3 Schedules for controls = 43 chemicals/families of chemicals  Materials protection, control and accounting in production facilities  Verification of chemical industry facilities  Protection of confidential information during inspections  Problem: all members still do not have or do not implement control lists

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): Conventional ATT or Arms Trade Treaty October 1995 Dr. Oscar Arias initiated effort by fellow Nobel Peace Laureates to draft an International Code of Conduct on Arms Transfers Public launch in May 1997 in New York City Oct members of UN Disarmament & Security Cmte agree to set up a Group of Governmental Experts Goal is to establish the basis of “ a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms ” core common minimum standards for international arms transfers sometimes falsely considered a “disarmament” issue not a new normative framework but affirm states' existing responsibilities under international law Initial US resistance  Feb 2008 agreed to discuss the issue

Proprietary. For CITS Training Use Only. Regional and Bilateral agreements ASEAN (Association of South East Asian Nations) Best Practices document being forwarded to ARF APEC (Asia-Pacific Economic Cooperation agreement) Best Practices document circulated in 2004 PSI (Proliferation Security Initiative) A mix of multilateral and bilateral agreements to interdict shipments with WMD/components CSI (Container Security Initiative) Bilateral with U.S., relates to port & supply-chain security U.S.-India Nuclear Cooperation Agreement A mix of bilateral and multilateral and treaty (IAEA) arrangement

Proprietary. For CITS Training Use Only. Formal International Obligations (treaties): All WMD with reference to non-state actors Resolution 1540 or UN Security Council Resolution 1540 [In force since April 2004]  Why 1540? Trends in proliferation & terrorism Need to give teeth to national and international “commitment to nonproliferation” Need to harmonize regulations to promote secure and fast trade  Why is it important? Passed by UNSC under Chapter VII of UN Charter Mandatory for all UN members  NO CHOICE to opt out Regular reporting requirement to a Committee Website for 1540 Committee

Proprietary. For CITS Training Use Only. Uniqueness of Resolution 1540 Fairly specific mandate Comprehensive national export controls Government Industry relations Incorporate international obligations into national law Cooperation re illicit trafficking Very detail-oriented guidelines Border controls Control list Range of activities to be controlled

Proprietary. For CITS Training Use Only Compliance Update Most, but not all, UN Member States have submitted a national report to the 1540 Committee as of 1 July 2008 Total Submissions = 155 (+ EU) Additional Material Submitted = 102 Total Non-submissions = 37 Is Resolution 1540 Useful? Base-level info on legal and enforcement capacities of a majority of countries available in public National Reports A Legislative database An Assistance directory (website) Experts Committee’s assessments of overall trends First step toward harmonization of understandings (concepts) and procedures

Proprietary. For CITS Training Use Only. Elements of a Comprehensive National Export Control System 1. Licensing System 2. Enforcement Mechanisms 3. Government-Industry Outreach Each element should be supported by 1)Legal basis 2)Institutions (Agencies and procedures) 3)a record of implementation 4)training procedures

Proprietary. For CITS Training Use Only. LICENSING: Procedures that serve to permit or deny exports Licensing System should be supported by laws/legislation that provide authority to designated officials/agencies, agencies with regulations, and actual implementation. 1.To review and issue licenses 2.To control the export, re-export, re-transfer, transit and transshipment of sensitive dual-use goods and military items. 3.To establish an interagency process 4.To establish Control Lists 5.To regulate the transfer of know-how (intangible technology) 6.To control transfers by intangible means. 7.To include Catch-all provision 8.To control Brokering 9.To control Deemed Exports

Proprietary. For CITS Training Use Only. Enforcement What happens if exporters do not comply with laws and obtain a license? Enforcement is needed. Laws and regulations should : 1.Designate one or more government agencies with enforcement authority (both munitions and dual-use) 2.They should authorize such agencies : a.to detain, search, and seize cargo destined for export/re- export/transit/transshipment b.to require delivery verification (Licensing body or Customs) c.to conduct pre-license and post-shipment checks d.to investigate and prosecute criminal and civil cases e.to levy fines and issue prison sentences f.to revoke export rights or privileges

Proprietary. For CITS Training Use Only. Industry-Government Relations Basic expectation: Government should inform industry about export regulations & industry should understand these regulations and comply. Government regulators and exporters should develop a close relationship – a partnership! Evidence suggests that the scientific-community, academic community, defense exporters, technology exporters are ALL critical to export management.

Proprietary. For CITS Training Use Only. U.S. Export Control / Sanctions System President National Security Council Dept of Commerce Bureau of Industry & Security Dual-Use Exports Dept of State Office of Defense Trade Controls Defense Trade Dept of Treasury Office of Foreign Assets Control Economic Sanctions Dept of Defense Defense Technology Security Administration Dept of Energy Nuclear-Related Trade Intelligence Community CIA, NSA, DIA Congress House and Senate Committees Exporting Community Exporting Community

Proprietary. For CITS Training Use Only. Major Export Control Challenges Globalization and diffusion of technology New types of technology transfer (how do we control intangibles – information, know-how?) With globalization and concerns about security – how can industry be engaged as a partner? Lack of export controls in many developing countries Enforcement not strong

Proprietary. For CITS Training Use Only. Export Controls Job opportunities!

Proprietary. For CITS Training Use Only. Contact Information Michael Beck, Ph.D. (706) (706)