• Multilateral Export Control Regimes

In 2003, President George W. Bush called on the United Nations to pass a resolution to “criminalize” the proliferation of “weapons of mass destruction” (WMD) by and to nonstate actors. The next year, the UN Security Council obliged, passing Resolution 1540 on the nonproliferation of nuclear, chemical, and biological weapons as well as related delivery systems.

Based on Chapter VII of the UN Charter, the resolution called for states to comply with a battery of legal obligations and report on their progress in implementing the resolution. It also called for the formation of a new UN committee to receive and compile the reports. That committee’s term was initially set to expire at the end of April, but on April 27 the Security Council unanimously approved Resolution 1673 extending the committee’s term for two years.

Inspired by the terrorist attacks of September 11, 2001, and by revelations surrounding the proliferation network of Pakistani scientist Abdul Qadeer Khan, the resolution was explicitly designed to address a gap in current nonproliferation treaties and arrangements as well as deficiencies in national legislation. The gap concerns nonstate actors[1] because, strictly speaking, these groups are not captured by such treaties as the nuclear Nonproliferation Treaty (NPT) or the Chemical Weapons Convention.[2]

Still, the treaty ultimately relies on states to curb such nonstate efforts. Resolution 1540 calls on states to put in place “appropriate effective measures to account for and secure” WMD-related items in production, use, storage, or transport and to “maintain appropriate effective physical protection measures” of said items. Most importantly, the resolution seeks to address the absence of universal standards for export controls, representing one of the most far-reaching efforts in this regard since the creation of the NPT.

Now with the recent extension of the committee created to ascertain compliance with the resolution, it is an appropriate time to assess whether the implementation of the resolution has lived up to the goals of the international community. The assessment is mixed. The resolution has played a valuable role in spurring a more focused and sustained effort to create a truly international standard for export controls beyond those of the limited current multilateral regimes. Yet, both the report and the committee’s work illustrate distinct problems with transparency, resources, guidance, awareness, and mandate. If the committee’s extension is to prove truly useful, these issues need to be addressed.[3]

Articulating Universal Export Control Standards

The current de facto standards for export controls are shared among the multilateral export control arrangements: the Australia Group, the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Wassenaar Arrangement (see "Multilateral Export Control Regimes"). Because their rules are restricted to their limited membership, however, they also have limited global currency. When strategic technologies were produced by and traded among a smaller number of states, export controls were effectively applied by and between these supplier states. With an increase in the amount of global trade in strategic technologies and dual-use goods (those with both civilian and military applications), regime nonmember countries with weak export controls can compromise international export control efforts.

As Figure 1 indicates, Resolution 1540 identifies the key elements of effective export controls. Specifically, the resolution calls for the creation of “effective” laws to control WMD-related transfers. Leaving aside the ambiguities inherent in “effective,” the first three paragraphs of the resolution provide the legal basis to address brokering, transit, transshipment, and re-export controls and sufficient penalties for violations. As the resolution is legally binding, all UN member states must adopt such laws, albeit in a manner according “with their national procedures.” Likewise, paragraph six of the resolution calls on states to develop “national control lists and calls upon all member states, when necessary, to pursue at the earliest opportunity the development of such lists.”[4]

In addition, states must develop an enforcement capacity to police exports and transfers of sensitive items. States are urged to “develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law.”[5]

To ensure compliance with the “effective” laws, the resolution calls on states to “develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws.” That is because, apart from direct theft of strategic goods and technologies (e.g., fissile material), WMD acquisition efforts are based on otherwise routine commercial transactions.[6] States such as Iraq, Iran, Libya, North Korea, and others were able to procure sensitive technology, innocuous-looking dual-use materials, and know-how through direct and semi-commercial channels. They did this by using already existing networks of scientists, technologists, and businessmen who had been cooperating for decades in the WMD procurement efforts of various countries, the Khan network being the most recent example. They operated through real or shell companies, brokerage firms with shady antecedents, and insignificant and/or overlooked warehousing facilities around the world. Much of the proliferation took place by exploiting loopholes in existing national export control systems of major supplier states whose policies have been shaped by the guidelines of the multilateral regimes.[7]

The resolution acknowledges this reality in its comparative detail of export control standards. Unlike materials accounting, physical protection, and control, export control requirements contain specific references to, for example, brokering and transshipment controls. Both brokering and transshipment controls speak directly to the actual means by which proliferants seek to acquire dual-use items. For instance, the most recent example of dual-use brokering, the 2004 arrest of Israeli Asher Karni for allegedly re-exporting U.S.-made triggered spark gaps from South Africa to Pakistan, suggests that proliferation is also being driven by middlemen.[8] Dubai may not itself be the source of dangerous technologies or materials, but it found itself at the center of the Khan network in a transit and transshipment capacity.[9]

In summary, Resolution 1540 identifies the necessary elements of effective national export controls: legal basis, enforcement capacity, and industry-government relations. Although the resolution’s universality is viewed somewhat skeptically by many—it was approved by the 15 members of the Security Council rather than the 191 members of the UN General Assembly—it was unanimously adopted.[10] Nevertheless, as with similar resolutions, the likelihood of implementation is problematic for reasons of scale, resource, and commitment.

Implementation Problems

Although the resolution delineated general export control standards, implementation has been and will be limited by perceptual and awareness problems associated with export controls. To states outside the current multilateral export control regimes, export controls are unfamiliar tools. Even within the regimes, export control development varies greatly.[11] Compounding matters, trade controls are unpopular internationally. For several years, the multilateral export control regimes have been viewed as “supplier cartels” engineered to keep high technology from developing countries.[12] Further, heavily trade-dependent countries in regions such as Asia view trade controls as antithetical to their economic development. This wariness is to some extent enshrined in the resolution. Rather than explicitly seeking to curtail trade in dual-use goods, which would have complicated the adoption and the implementation of the resolution, the Security Council adopted the politically expedient term “related materials.”[13] Yet, it is precisely dual-use goods, materials, and technology that reside at the heart of the proliferation problem.

Through the resolution, a 1540 Committee was created to assess compliance. Within its original two-year mandate, the committee, composed of Security Council representatives and select outside experts, developed a matrix to review the national reports in a comprehensive, systematic manner. Yet, its ability to do so effectively has been limited. The resolution, for instance, does not specify what would constitute “appropriate effective national export and transshipment controls.” Additionally, the committee is not empowered to establish such criteria. [14] Therefore, the effort to assess implementation has been undermined by the absence of commonly agreed-on definitions. The work of the committee has also been hampered by resource constraints and the routine political complications surrounding the UN in general and the Security Council specifically.[15]

Adherence to the resolution by all 191 members is complicated by the fact that export controls are a relatively novel concept to many countries. As one staff member of the 1540 Committee commented, “[O]ne should not underestimate the lack of understanding of the resolution, especially with respect to export controls.”[16] To many states, the obligations accruing from the resolution are simply not clear. This situation is evident in various reports. For example, Yemen’s submission is only five lines long. Other countries have done even less: according to a draft April 21 report from the 1540 committee to the Security Council, roughly a third of the UN membership (62 countries) had yet to submit their first national report by the end of the panel’s original two-year term.

To help such countries, Resolution 1540 invites states to offer assistance to other “states lacking the legal and regulatory infrastructure, implementation experience and/or resources” to “fulfill the provisions of the resolution,” but it does not demand that they do so. In other words, Resolution 1540 is an unfunded mandate: compliance is required without direct recourse to resources. According to the 1540 committee, 46 countries, of the 124 countries submitting reports, have offered assistance, the bulk of which is devoted to export controls. At least 37 of these states made offers of or have programs in place for direct, or country-to-country, assistance; and at least 31 reports provide detailed data on offers or programs in at least one category by type (training or expertise); scope (legal or implementation); subject (physical protection or export controls); and region. Interestingly, Pakistan is among the 46 states offering export control assistance.[17]

With respect to requests for assistance, 32 states have requested assistance in implementing the resolution. Twenty-four of these states have made specific requests, but some of the requests are quite general. For example, Jordan states that it is “ready to cooperate with countries which are able to provide assistance, in terms of either legislation or operational skills and resources, with a view to implementation of the resolution.”

On the other hand, some states with recent negative export control experiences have eschewed any assistance. For instance, in its 1540 report, Malaysia, which hosted an important supplier to the Khan network, contends that, “[c]urrently, Malaysia does not require assistance in implementing the provisions of the resolution within its territories.”[18] Iran, on the other hand, which received materials from the Khan network, has requested general assistance: “[d]ue to its long sea and land borders and given the huge amount of financial and human resources required for the implementation of the resolution, the Islamic Republic of Iran welcomes assistance in form of expertise, technical, and financial resources. Specific requests, if deemed necessary, will be announced in the future.”

Despite the offers, up to now the United States has been the only major provider of export control assistance.[19] Extending its export control assistance programs beyond the approximately 45 countries with which it currently cooperates would call for financial support orders of magnitude beyond its current operating budget.[20] The Group of Eight, under the auspices of the “Global Partnership against the Spread of Weapons and Materials of Mass Destruction,” has called for similar support for export control assistance. However, actual support has flagged since this effort was launched several years ago. Similarly, the European Union has developed an export control assistance strategy, enunciated in the “Action Plan against Proliferation of Weapons of Mass Destruction,” approved by the EU Political and Security Committee at a meeting on June 10, 2003. Yet, the EU currently does not have an integrated policy toward international export control assistance.[21] At this point, it is unclear how offers of and requests for assistance would be efficiently coordinated, let alone financed.[22]

Conclusion: Next Steps

In the two years since its inception, Resolution 1540 has, at a minimum, expanded the normative awareness and rhetorical repertoire of the nonproliferation community. A more expansive reading of the resolution suggests that it can bring all states into the nonproliferation system, including states such as Pakistan, whose absence has vexed supply-side nonproliferation efforts. Specifically, the resolution establishes a truly universal means by which to create export control standards outside the otherwise restrictive multilateral export control regimes. For example, IAEA Director-General Mohamed ElBaradei observed that “we must tighten controls over the export of sensitive nuclear material and technology. The nuclear export control system should be binding rather than voluntary, and should be made more widely applicable to include all countries with the capability of manufacturing sensitive nuclear related items.”

Although the implementation of Resolution 1540 faces considerable obstacles, even to its partial realization, the resolution provides a critical template on which to build a truly international consensus on the form, if not scope, of export controls. Ostensibly created to address the nonstate-actor gap, the resolution also concentrates on state-based proliferation programs. For example, Assistant Secretary of State for Nonproliferation John Wolf argued, “I would submit that the resolution also looks at state-state transactions, as well as state-nonstate transactions. There’s a whole universe of state-state, state-nonstate, nonstate-nonstate, nonstate-state [transactions], and all of those need to be covered by comprehensive export controls and rigorous enforcement.”[23] Such a comprehensive approach is necessary to ensure a proper balance between global trade and nonproliferation, a balance articulated in the resolution.

There are obvious problems of conceptual clarity, resources, oversight, and implementation, but the resolution should not be viewed as a final document. Instead, the resolution should serve as the starting point for a wider dialogue on how best to manage trade in strategic items, many of which are critical for the development of modern economies.

The Security Council and the 1540 committee have begun this dialogue with Resolution 1673 and the panel’s report to the Security Council.

The council, in addition to calling on those states which have not filed a report at all to do so “without delay”, encouraged all states that have submitted such reports to provide “additional information on their implementation.” Such steps, the council suggested should include additional information on implementation of export controls.

In its resolution, the Security Council called for greater outreach activities to increase understanding of the resolution and explore “experience sharing and lessons learned in the areas covered by resolution 1540.”

It also called for enhanced technical assistance to carry out the resolution. For its part, the committee suggested that the Security Council examine the feasibility of identifying model legislation to aid states in meeting their obligations.

Yet, if the 1540 instrument is to move beyond the rhetorical into the practical, perhaps shifting to a treaty-level mechanism, it will require further legal, conceptual, and financial support. These demands will necessitate a significantly fortified committee or other coordinating body capable of establishing working-level best practices for export control systems, identifying noncompliance, directing assistance, and ensuring maximal coordination with pre-existing regimes, i.e., the multilateral export control regimes.

Scott Jones is a senior research associate at the Center for International Trade & Security at the University of Georgia.

ENDNOTES

1. The UN Security Council Resolution 1540 definition of a nonstate actor is an “individual or entity, not acting under the lawful authority of any state in conducting activities which come within the scope of this resolution.”

2. For a recent review of the terrorist weapons of mass destruction (WMD) threat, see John Eldridge, “Terrorist WMD: Threats and Responses,” Jane’s International Defence Review, September 1, 2005.

3. For an excellent summary analysis of select country reports, see Lars Olberg, “Implementing Resolution 1540: What the National Reports Indicate,” Disarmament Diplomacy, No. 82 (Spring 2006).

4. A control list for nonproliferation export controls is the legally established means of verifying the types of goods, services, and technologies that will be controlled and therefore reviewed by the licensing system. Control lists define the products being controlled by describing the technical specifications of items that require a license in order to export. A typical nonproliferation export control list contains categories for nuclear, chemical, biological, missile, dual-use, and conventional weapons technologies. Traditionally, national dual-use control lists are derived from the multilateral export control regimes as a minimal basis for control.

5. Resolution 1540 was designed to accommodate the Proliferation Security Initiative. Jofi Joseph, “The Proliferation Security Initiative: Can Interdiction Stop Proliferation?” Arms Control Today, June 2004, p. 6.

6. The Abdul Qadeer Khan network revealed the extent to which commercial networks were engaged in illicit trade. In addition, studies on terrorist group WMD acquisition efforts indicate they are similarly relying on trade rather than theft. See Gavin Cameron, “Multitrack Microproliferation: Lessons From Aum Shinrikyo and Al Qaeda,” Studies in Conflict and Terrorism, Vol. 22, No. 4 (October-December 1999).

7. Even advanced Western countries were not immune to exploitation by the Khan network. See “ Pakistan’s Quest for UF6 Sensors Underlines Limits of NSG Controls,” NuclearFuel, March 28, 2005.

8. Institute for Science and International Security, Asher Karni Case Shows Weakness in Nuclear Export Controls, (2004).

9. See Mathew Swibel, “Trading With the Enemy,” Forbes, April 12, 2004.

10. The U.S.-initiated resolution required several months of debate and revisions before winning approval. See Wade Boese, “Security Council Unanimously Adopts Resolution on Denying Terrorists WMD,” Arms Control Today, May 2004.

11. Center for International Trade and Security, Strengthening Multilateral Export Controls: A Nonproliferation Priority (2003).

12. The Sunshine Project, Export Controls: Impediments to Technology Transfer Under the Convention on Biological Diversity (2004).

13. As defined by Resolution 1540, related materials are “materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.”

14. The 1540 Committee adopted its terms of reference on August 13, 2004. The terms delineate the guidelines for the conduct of the committee’s work and indicate that the committee may decide to establish cooperative arrangements, as necessary, with the International Atomic Energy Agency and the Organization for the Prohibition of Chemical Weapons or, if appropriate, with “other relevant international, regional and sub-regional bodies, including Security Council committees.” The committee is also to “undertake its tasks with utmost transparency.” Nevertheless, the terms do not define the operative provisions of the resolution, such as defining the necessary and sufficient components of “effective” export controls or safeguards.

15. For issues regarding the legitimacy of Security Council legislation, see Merav Datan, “Security Council Resolution 1540: WMD and Non-state Trafficking,” Disarmament Diplomacy, No. 79 (April/May 2005).

16. For the original source for these statistics, see Richard Cupitt, “Export Controls and Implementing UNSC Resolution 1540 (2004),” Presentation made at the Carnegie Conference on Non-Proliferation, November 7-8, 2005, found at http://www.carnegieendowment.org.

17. Draft Report To The Security Council By The Committee Established Pursuant To Resolution 1540 (2004); Olberg, “Implementing Resolution 1540.”

18. After initial nuclear transfers to Iran, Khan reportedly expanded his network of customers to include Libya and North Korea. Khan’s network was based on a complex structure of international suppliers that shipped components unimpeded by ineffective controls. Details of Libya’s acquisition trace the network to Malaysia, Singapore, Turkey, South Africa, Switzerland, South Korea, the United Arab Emirates, and possibly others. Malaysia’s lack of an export control system was a key consideration for Khan in engaging a company in Malaysia to manufacture centrifuge components. See Christopher Clary, “Dr. Khan’s Nuclear WalMart,” Disarmament Diplomacy, No. 76 (March/April 2004).

19. Some European states and Japan provide export control assistance to less-developed countries, albeit on a fraction of the scale provided by the United States. European officials recently indicated in private discussions that they are considering additional measures at the request of the 1540 Committee. Such steps might include organizing regional meetings to aid countries that have not reported to the committee or filed incomplete reports. Communication with Annalisa Giannella, April 5, 2006, Brussels.

20. The U.S. Export Control and Related Border Security Assistance program, which provides essential technical and material assistance to recipient countries to help them carry out these nonproliferation efforts, was budgeted at approximately $40 million for fiscal year 2004.

21. Nonproliferation and export control assistance programs and projects are developed nationally by individual member states. EU assistance, such as denuclearization programs in Russia, is financed using a variety of different national and collective mechanisms. Some projects are managed by the authorities of member states, and others are managed by the commission.

22. For a similar point, see Wade Boese, “Implications of UN Security Council Resolution 1540,” Presentation to the Institute of Nuclear Materials Management panel discussion, March 15, 2005, found at http://www.armscontrol.org.

23. Wade Boese, “The Bush Administration’s Nonproliferation Policy: An Interview With Assistant Secretary of State John S. Wolf,” Arms Control Today, June 2004, p. 14.