In discussing the role of export controls on dual-use technologies, most participants agreed that:
The international legitimacy of export controls is derived almost solely from legally binding international treaty obligations and norms. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), Chemical Weapons Convention (CWC), and the Biological Weapons Convention (BWC) have introduced the underpinnings of international law to complement purely national security concerns. If we lived in a world without multilateral disarmament regimes at the global level, there would be no internationally legalized basis for denying exports at the national level.
Treaty regimes have defined an almost universal norm for nonproliferation: the stipulation that potential supplier states must "not in any way assist" potential weapons programs. This wording is found in both the NPT and the CWC.
There is a strong linkage between legitimacy and effectiveness of export controls. Compliance behavior under global treaties by both supplier states and recipients of technology cannot be consistently evaluated if the legitimacy of standards is undermined by inconsistent application of treaty rules and norms.
The discussion of legitimacy included a comparison of bilateral and multilateral methods for creating and implementing export controls. Closely connected to this debate was the issue of follow-up arrangements for verification of technology end use by recipient states.
A minority of participants felt that:
Technologies should not be denied unless there is a specific reason tied to disarmament/nonproliferation regimes to deny it.
Denials should be completely based upon the judgment of multilateral organizations concerned with global treaty implementation.
In cases where sales of technology are allowed, the follow-up on verification of end use should be conducted by multilateral organizations, not the supplier state. Bilateral cooperation agreements and end-use assurances between a supplier and recipient state should be avoided, because it is inevitable that in any bilateral deal there will be a strong state and a weak state—a situation that is prone to manipulation, "bullying," and inconsistent application of norms.
The goal of the international community should be automatic approval of technology transfer for members in good standing of international regimes such as the NPT, CWC, and BWC. In areas of technology where a treaty regime does not exist to legitimate multilateral export controls (for example, missile-related technologies covered by the Missile Technology Control Regime, or MTCR), a legal multilateral framework should be created to establish strong norms upon which legitimate export controls can be based.
However, the majority view was that:
The nuclear realm is the only area where s t rong norms and international institutions such as the International Atomic Energy Agency (IAEA) allow credible assurance of technology end use through an intergovernmental organization (IGO). The esoteric nature of core nuclear components and the advanced nature of the nuclear nonproliferation regime Technology Access for the Developing World allow a more multilateral, treaty-based approach, while the ubiquitous nature of chemical, biological, and missile dual-use technologies (and the relative political weakness of norms in these areas) makes verification of end use much more demanding.
It is not practical to expect an IGO to oversee all these aspects of international trade. International institutions have neither the intelligence assets nor the legal processes inplace to oversee the transfer of all dualuse technologies from beginning to end. Inevitably, end-use assurances must depend heavily upon national intelligence assessments for verification, and legal assurances about end use must be based upon the processes set in place by supplier states when bilateral trade deals are first negotiated.
Even if IGOs did have the requisite legal and intelligence capabilities, it is unreasonable to expect a supplier state to forego its own procedures when supplying a potentially dangerous technology on the international market. These national decisions on trade are an integral part of the sovereign right to self-defense as outlined in the UN Charter.
On the recipient's end, conclusion of verifiable bilateral assurances with a supplier is one of the most concrete ways for the recipient to demonstrate its adherence to multilateral treaty norms and requirements. Rather than detracting from global regimes such as the NPT and CWC, bilateral assurances augment nonproliferation norms.
The practical answer is to use bilateral and multilateral methodologies together in a way that is both effective and legitimate.
The primary political problem is that many developing countries see export control arrangements as add-ons to norms rather than practical instruments that support norms. For many developing countries, current opposition to both bilateral and multilateral export controls may be based on psychological and symbolic factors, including past experiences with colonialism. Also, there is an inherent distastefulness associated with the existence of a "club," which by definition is seen as a discriminatory group.
However, in some cases, charges of discrimination are based on more than just perceptions. Requirements for end-use assurances a re sometimes handled differently across countries and regions. There are concrete cases where end-use assurances have been dropped or made more lax despite the fact that the recipient country in question was not a member in good standing of an international treaty regime. In other cases, responsible members of treaty regimes or Multilateral Export Control Arrangements (MECAs) have trouble obtaining promised technologies despite their assurances. This creates the perception of a double standard.
Several participants challenged the notion that export controls have impeded the economic development of any country not desiring weapons of mass destruction (WMD). Most participants believed that the primary critiques of export controls came from two classes of countries: those that actually want dual-use technologies for weapons purposes and those that have more symbolic concerns, such as Malaysia and Mexico.
Despite skepticism about claims of discrimination, the majority of participants agreed it is still important to engage the Non-Aligned Movement (NAM) countries because widespread perceptions of illegitimate technology denials and commercial exclusivity threaten global nonproliferation goals. Four types of policy measures were discussed:
The creation of new transparency measure s on export control decisions at both the national and multilateral level, possibly including a multilevel information exchange between members of the NAM and various export control groups such as the Nuclear Supplies Group (NSG), MTCR, and Australia Group.
The initiation of new analytic case studies on the exact economic effects of export controls for various countries.
A greater emphasis on disarmament obligations of global treaty regimes.
The merging of MECAs into one super export control arrangement.
An examination of the destablizing aspects of conventional weapons transfers.
There was no consensus on which transparency and information-sharing measures would be both politically and technically feasible. One of the main reasons for disagreement was uncertainty about what level and type of information to provide developing countries not already members of export control arrangements.
Some participants expressed concern about the unintended effects of publicizing information on exports. For instance, US participants said there is a lot of pressure from the media to make such information public so it can be printed in the form of sensationalist stories and also from nonproliferation activists who would like to "harass" companies selling certain dualuse technologies. It is not clear that such side effects are in the interest of either the US policy community or the developing world.
Despite this uncertainty, there was agreement on which measures would not work:
The formal expansion of current MECAs through new members (thereby allowing full information exchange) would only serve to undermine their effectiveness and reduce decisions to the "lowest common denominator," with some members joining simply for prestige or symbolic reasons. For instance, there are already current members of the MTCR who are either ignorant of the rules and requirements or who try to skirt the rules for commercial advantage.
Blanket transparency on all critical technology transfers would violate commercial proprietary and also would contradict the wishes of many recipient states, which do not always want such transactions to be fully public.
In response to these concerns, one participant said a useful step forward would be for the United States and other supplier states to publicize all denials, including a listing of the reasons for each denial. This would not endanger either political or commercial goals because denials constitute a small percentage of all licensing requests. Another suggestion was for more dialogue among the members of various MECAs and members of NAM, possibly through expansion of current yearly or biannual meetings already taking place among members of the export control arrangements.
New studies on the negative economic effects of dual-use technology export controls should be commissioned. Is there evidence that the workings of MECAs result in denial of technology that inhibits development, beyond those few states that are actually trying to acquire WMD and missiles for weapons purposes? Critics of MECAs should attempt to assess the impact of export controls relative to other factors, such as lack of finance, difficulty of access to markets, internal corruption, and defense conversion problems after the Cold War. Analytical efforts should be made to separate these various factors. Patterns of supplier-state decisions on technology denials should also be studied.
There are two halves of global treaties: nonp roliferation requirements that apply to both supplier and recipient states and disarmament obligations that apply primarily to the major powers. Indirectly, accords such as the Comprehensive Test Ban Treaty (CTBT) are seen as part of the effort to move toward disarmament.
Thus far, supplier states are emphasizing primarily the horizontal, not vertical, nonproliferation goals of regimes, thereby weakening them. If global regimes are persistently weakened while MECAs are continually strengthened, this sends the signal that export controls "are the future" and constitute an alternative to treaty regimes rather than a supplement. It must be made clear that global treaty regimes, not MECAs, are the true end goal of policy.
The merging of various MECAs such as the Nuclear Suppliers Group, MTCR, the Wassenaar Arrangement, and the Australia Group into one "super-arrangement" would involve:
International institutionalization of export controls through a new IGO or a new coordinating body such as an executive council.
The creation of strict enforcement mechanisms among all supplier states (in contrast to current voluntary methods).
Verification of invasive end-use agreements among recipients.
Under this solution, MECAs would take on the same legal and institutional characteristics as treaty regimes like the NPT or CWC, and all types of technologies (nuclear, chemical, biological, missile, and conventional) would be included under the super-arrangement's mandate. The new arrangement would also be formally tied to existing global treaty regimes like the NPT, CWC, and BWC, hopefully making export controls more palatable for recipient states.
However, this solution was rejected on both political and technical grounds. Most participants argued that:
A super-arrangement would be even more threatening to the developing world, which would probably see it as an attempt at "cartelism" by the major powers.
Not all supplier states manufacture and trade in all dual-use technology areas. Membership among MECAs differs for practical technical reasons. Cooperation among supplier states (including the sharing of information) is made easier by the fact that different technological areas (nuclear, chemical, biological, missile, and conventional) involve separate multilateral arrangements and rules.
There was no consensus on the most likely nature or degree of threat (nuclear, chemical, or biological). The overall conclusion was that terrorist organizations tend to pursue methods and technologies that are dramatic and available. Terrorists will pursue the cheapest weapon that will make the greatest statement. Thus the dramatic effects of WMD are somewhat mitigated by the relative difficulty of acquiring or manufacturing them. In this regard, export controls can act as a "deterrent" to terrorist use of WMD by making WMD-related technologies much harder to acquire.
When comparing and contrasting the threats addressed by export controls and the threats posed by terrorists, the differences are more striking than the similarities. Export controls are generally linked with recognizable weapon types sought by state actors. On September 11 no such weapons types were used, and the terrorists were not connected with a state. Because of this fact, there was some skepticism about using state-based export controls to affect the actions of substate groups like freedom fighters, who act autonomously despite receiving aid from a state source.
Overall, a majority of participants agreed that:
For nonstate actors involved in commercial transfers, some steps to combat terrorism could assist export control regimes and vice versa. Steps now being taken to combat transnational terrorism include informationsharing, police work, border control, and banking control. The United States has already created lists of suspect organizations and is freezing their assets, examining visas, and monitoring their activities. Similarly, some preexisting state-to-state WMD export controls have already mandated the collection of information on companies, research institutes, and individuals within countries. In these specific cases, some features of state-to-state export controls could be brought to bear on the counterterrorism issue.
Although new controls are not required, there is a need for better information-sharing on existing export controls. In the future, supplier states must work harder to facilitate coherent exchange of valuable information on nonstate actors such as individual companies or institutes.
Physical security of materials during storage and transport are important in deterring terrorist access to WMD. In this regard, IAEA Director General Mohammed El-Baradei has identified four primary threats: theft of nuclear weapons; theft of nuclear fissile material; theft of other radioactive material; and attacks on, or sabotage of, nuclear facilities. States hold the primary responsibility for dealing with physical security issues, but international regimes and institutions such as the IAEA have a strong complementary role.
Indirectly, export control regimes have a role in scrutinizing state implementation of laws to prevent transfer of technologies to terrorist organizations within their own territory.
Nations must learn to monitor technology transfers to nonstate entities regardless of what state recipient may be involved. For instance, the United States gives licenses for dual-use items to friendly or allied states, and executive branch review requirements for these "friends and allies" are lower than for suspect states, if a review is required at all. However, if the United States is concerned about the activities of nonstate, transnational actors, it should be equally rigorous in monitoring technology end use for transfers to entities within allied territory. There is no reason why a terrorist organization would not want to set up a front company in a "friendly" state.