Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
~~~ ~-~- - : ~ r . OFF me,,_,,,,,_. - - ~ ,\` i... , - . - . ~~ ~ ~ en. - ... ~ . - ..~ ~ -...,._ ........ en, . I_ - Ages - ,. F ': =;~< _ ~''` ~ W" It'd -- ., _ . International Business-Government Counsellors, Inc. 818 Connecticut Avenue, N.W., 12th Floor, Washington, D.C. 20006 NATIONAL SECURITY AND FOREIGN POLICY EXPORT CONTROLS PRESENTED TO NATIONAL ACADEMY OF SCIENCES PREPARED BY INTERNATIONAL BUSINESS-GOVERNMENT COUNSELLORS, INC. (IBC) AUGUST 2, 1990 Telephone (202) 872-8181 · Fax: (202) 872-8696 · Telex: 440511 IBGC UI
International Business-Government Counsellors, Inc. I. THE DISTINCTION A. Definitions and Purposes The United States regulates exports both to protect the national security of the United States and its allies and to promote US foreign policy objectives. These two types of export controls -- "national security" controls and "foreign policy" controls -- are treated in law, regulation and discourse as quite distinct. National security Controls are authorized to prevent the export of products or technology that could significantly contribute to the military potential of other countries which would be adverse to US security. In practice, these national security "controlled" countries have been limited to communist countries. Foreign Policy Controls are controls justified and carried out for the purpose of more general international relations goals, usually to express displeasure with the policies or actions of other countries which the US finds abhorrent. The purpose of this paper is to consider the validity of the distinction between controls based on national security concerns and those based on foreign policy concerns. Have there been occasions where export controls have been used inappropriately as instruments of foreign policy? Can export controls function as
InternationalBusiness-GcYernmentCounsellors,lnc. effective instruments of unilateral foreign policy control without affecting multilateral national security objectives? B Legislative and Regulatory Foundations . Ever since the enactment of the Export Control Act of 1949, US law has authorized export controls for three basic reasons: security, foreign policy, and short supply. The 1949 Act, amended and extended from time to time, remained in effect for 20 years. Subsequent Acts of 1969 and 1979 reaffirmed these three 1949 objectives; but the 1979 Act added many conditions limiting the authority to impose foreign policy controls. These conditions have not been substantially revised since 1979. National Security Controls a. History - Post World War II National security controls in the post World War II period responded to concerns about the military threat that the Soviet Union and Eastern Europe posed. The US placed controls on goods that could potentially aid the Soviet Union -- either directly or indirectly -- in its military quests around the world. The Export Control Act of 1949 gave the President broad authority unilaterally to control "any articles, materials, or supplies, including technical date I' to achieve the objectives of the Act. Under this
International Business-Government Counsellors, Inc. Act virtually all trade with communist countries was restricted. A separate Act, the Mutual Defense Assistance Control Act of 1951, known as the Battle Act, authorized multilateral controls and threatened the cut off of aid to countries not cooperating. The US recognized that controls designed to protect the US militarily in the postwar period would not be effective if the commodities were controlled only by the US and were freely available from other sources. From discussions with allies in the post war period, the Coordinating Committee (COCOM) was set up in 1949 to carry out the embargo policy developed by its members. In the 1960s, national policies began to shift, so that national security controls became focused on those goods and commodities which could contribute to the military potential of another country to the detriment of US security. A recognition emerged that Communist countries varied in the degree to which they represented a threat to US security and that noncommunist nations could also constitute a threat. The Export Administration Amendments of 1977 directed US policy on national security controls to be developed not only with respect to whether a country is communist or noncommunist, but also in its present and potential relationship with the US and its ability and willingness to control the reexport of US exports. However, no noncommunist country has ever been designated as a controlled country for security export control purposes.
International Business-Government Counsellors, Inc. In 1979, the Battle Act was repealed, and the 1979 Export Administration Act picked up the authority for multilateral controls. COCOA today acts as an informal, voluntary, non-treaty organization. Working through its members' governments, COCOM controls the exports by its members of strategic goods and technologies to controlled or proscribed countries. The 1979 Act called for the development of a "Militarily Critical Technologies List" (MCTL) to further focus on controls for military security. The MCTL lists in detail development, production, and utilization technologies which the Department of Defense (DOD) has determined to be vital to the military capabilities of the US and which could be valuable to potential adversaries. The development of this list was mandated by Congress in 1979. b. Export Administration Act Exports with national security implications are currently regulated by the Export Administration Act of 1979, (EAA) as reauthorized and
International Business-Government Counsellors, Inc. amended in 1985. Sec. 3(2) authorizes the use of such controls, stating that the US seeks: "... to restrict the export of goods and -technology which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States;..' 5 National security controls are defined by identification of threatening countries and of products which could aid these countries. The President is required under Section 5(b) of the BAA of 1979 to establish a list of countries controlled for national security purposes, and he has discretionary authority to add or remove countries. This decision must be based on several factors, including: (1) the extent to which that country's policies are adverse to the national security interests of the US; (2) its communist or noncommunist status; (3) its present and potential bilateral relationship with the US and its present and potential bilateral relationship with countries friendly or hostile to the US; (4) its nuclear weapons capability and the country's compliance record with respect to multilateral nuclear weapons agreements to
International Business-Government Counsellors, Inc. which the US is a party; and (5) other factors the President may deem appropriate. Today, national security controls are directed at the People's Republic of China, the USSR and Eastern Europe, and the embargoed countries of North Korea, Vietnam, Cambodia, and Cuba. Section 5 of the Act allows the President to place controls "on any goods or technology subject to the jurisdiction of the United States or exported by any person subject to the jurisdiction of the United States". The Act also provides that such controls may not be placed on exports to COCOM or 5(k)1 countries with the exception of supercomputers, goods or technologies for sensitive nuclear uses, devices for surreptitious interception of wire or oral communications, and goods or technology whose end user is specified by regulation. c. Export Administration Regulations (EAR) The regulations implementing national security controls are found in the Export Administration Regulations (EAR) published annually by the Department of Commerce. The EAR lists commodities that are controlled to specified destinations for national security reasons ~ 5(k) countries are those countries with which the US has concluded an agreement with on export control regimes. 5tk) countries today include Switzerland, Austria, Sweden, Singapore and Finland. (See Amendment ] )
InternationalBusiness-GovernmentCounsellors,lDc. and also provides guidelines on the likelihood of obtaining a license for products to controlled countries. Guidance includes differentiation between China and other proscribed countries. 2. Foreign Policy Controls a. History The United States has historically regarded denial of trade with communist countries through export controls as a fundamental tool of its Cold War policy. Foreign policy controls originated in the Export Control Act of 1949. The aim was to channel exports to countries where the foreign policy interests of the US would be best served in the Post War period. Subsequent acts reaffirmed this policy but with an emphasis toward controlling exports to certain noncommunist and Communist countries to articulate further US foreign policy and to assist the US in fulfilling international responsibilities not necessarily directly related to the East-West power struggle. Under the authorization of the Export Administration Act of 1969, restrictions were placed on the exports of commodities and technical data for use in the development or testing of nuclear weapons, explosive devices, and maritime nuclear propulsion projects. The 1979 Act continued controls for foreign policy reasons but added criteria and a requirement for annual renewal. The Export
InternationalBusiness-GovernmentCounsellors,Inc. Administration Amendments Act of 1985 continued foreign policy controls but curtailed the authority of the President to impose new ones, particularly to authorize embargoes on agricultural exports. These limitations were added primarily in response to the grain embargo of the Carter Administration and President Reagan's pipeline sanctions. The Amendments Act added requirements for consultations with industry and Congress prior to the imposition of foreign policy controls, because industry and Congress were concerned that the US was "shooting itself in the foot" by cutting off exports for unattainable foreign policy goals while other trading nations supplied former US markets. Foreign availability of similar products was now to be considered in decisions to extend, expand, or impose export controls. Also under this Act, Presidential discretion was limited -- but not eliminated -- on new foreign policy controls imposed on exports subject to existing sales contracts. b. Export Administration Act {EAA) Sections 3 and 6 of the Export Administration Act of 1979, as amended, is the authority for todays foreign policy controls. The Act allows controls, under Section 3, "... to restrict the export of goods and technology where necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations...' Section 3 also provides for controls to discourage terrorist activities.
International Business-Government Counsellors, Inc. 9 Section 6 allows controls on any product to further the foreign policy of the US or support its obligations internationally. Controls are maintained to promote US foreign policy interests abroad. Controls are directed at both products and individual countries relating to human rights, anti-terrorism, regional stability, and chemical and biological warfare issues. Under the regulations, specific countries are targeted for such controls including Libya, Cambodia, Cuba, North Korea, Vietnam, and South Africa. Controls are also placed on certain commodities and technical data in order to limit the proliferation of missiles capable of delivering nuclear weapons, to increase regional stability, and to further the US nuclear non-proliferation policy. Unlike national security controls, multilateral cooperation is not required for implementation of foreign policy controls. However, there is some cooperation for some of the nuclear, missile and chemical or biological warfare (CBW) controls. Mixed Purpose Controls a. Munitions Controls The US controls, in the interests of both national defense and foreign policy, arms exports and imports, ammunition, and implements of war. The current authority for regulating commercial arms sales is found in section 38 of the Arms Export Control Act
Internationa]Business-GovernmentCounsellors,luc. ~0 (AECA) of 1976. These authorities are delegated to the Departments of State and Treasury. The Secretary of Treasury controls the import of defense articles and services on the US Munitions Import List while exports are controlled by State Department. Regulations implementing the AECA are found in the International Traffic in Arms Regulations (ITAR). b. Treasury Sanctions The Treasury Department under the authorities of the Trading with the Enemy Act (THEA) and the International Economic Emergency Powers Act (IEEPA) administers controls on exports and imports, as part of broader economic sanctions. The Office of Foreign Assets Control (OFAC) within the Treasury Department administers TWEA- based sanctions against the embargoed nations of North Korea, Vietnam, Cambodia, and Cuba and IEEPA-based sanctions against Libya. Treasury regulations also restrict Americans in offshore strategic trade with Communist countries. c. IEEPA The International Economic Emergency Powers Act (TEEPA), enacted in 1977, gives to the president broad authority to control commercial and financial transactions in the event -- short of war -- of a national emergency. TEEPA authority has been used by Treasury since 1977 to control exports to Iran, Libya, and Panama.
International Business-Government Counsellors, Inc. 11 Controls on Iran were substantially revised after the release of hostages in 1980 and controls on Panama and Nicaragua have been recently removed. President Reagan invoked IEEPA on March 30, 1984 as authority for Commerce's export administration regulations after the lapse-of the 1979 Export Administration Act. d. Implementation. Practice, and Case Examples Despite the legal distinctions between foreign policy and national security controls, in practice, the two are sometimes used together with national security controls imposed more to express the US's dislike of certain policies or programs, rather than because the export of specific products and technologies would significantly and specifically contribute to the military potential of the adversary country. Two examples are noted below. 1 . No Exceptions Pol icy The "no exceptions" policy regarding the Soviet Union was both a national security and a foreign policy control. COCOM allows the granting of an export license for an embargoed item to a controlled destination if the security risk of the transaction is found to be acceptable. Member governments submit exception requests to COCOM, where any one country may object under the COCOM rule of unanimity. From 1980, when the Soviet Union invaded Afghanistan, until after the 1989 pullout of troops, COCOM acquiesced to the US policy of
International Business-Government Counsellors, Inc. 12 "no exceptions" to the embargo for exports to the Soviet Union. This was a foreign policy reaction to the Soviet invasion of Afghanistan rather than a judgment that objections were required for security purposes. Nevertheless, it applied solely to transactions controlled for security purposes. In 1985, ''no exceptions" was incorporated in section 3(15) of the EAA, which stipulates that it is the policy of the US, particularly in light of the shooting down of Forean Air Lines Flight 7, to object to exceptions from the International Control List for exports to the USSR. Although exceptions are now being approved, the legislation remains on the books. 2. The Soviet Gas Pipeline The ''Soviet Pipeline" has become a prime case study of the ineffectual use of unilateral controls for foreign policy reasons. In December of 1981, President Reagan reacted to the imposition of martial law in Poland by expanding the list of oil and gas equipment and technology requiring a validated export license to cover transmission and refining in addition to exploration and production equipment. The control applied to reexports under pre- existing contracts even if the equipment had been exported from the United States prior to the imposition of the control. In June 1982, the Reagan Administration further expanded these controls to apply to exports of non-US origin by foreign
International Business-Government Counsellors, Inc. 13 subsidiaries of American companies and to the foreign-made products of US technology transferred before the control was imposed. They were intended to impede completion of a pipeline for deliveries of natural gas from Western Siberia to Western Europe. The Reagan Administration was concerned that Western Europe would become vulnerable because of dependence on Soviet gas, thereby providing the Soviet Union with economic and political leverage over Western Europe. Additionally, from a national security perspective, such a project would provide the USSR hard currency revenues which could be used to finance its military buildup. The extraterritorial and retroactive outreach of US controls caused an outrage in Western Europe, and European firms violated the US controls. The business lost by American firms was picked up by foreign competitors, and US businesses were damaged both financially and as reliable suppliers. The sanctions of December 1981 and June 1982 were lifted in November of 1982, and the earlier controls on oil and gas exploration and production equipment were lifted February 9, 1987 because, according to Commerce Secretary Malcolm Baldrige, the "economic burden of these controls clearly outweighed their intended benefits."
International Business-Government Counsellors, Inc. HI. CURRENT STATUS OF FOREIGN POLICY CONTROLS A. Description 14 Today, the US maintains a variety of foreign policy controls aimed at expressing national policy objectives and/or at changing policies and behavior in other countries. A brief overview of current controls is given below. Human Rights Pursuant to Section 502B of the Foreign Assistance Act of 1961, as amended in 1978, and Section 6(k) of the 1979 Export Administration Act, a validated license is required for foreign policy purposes to export crime control and detection instruments and equipment and related technical data to any destination, except NATO members, Japan, Australia, and New Zealand. The purpose of the control is to ensure that US-origin police equipment is not exported to countries whose governments do not respect internationally recognized human rights and to distance the US from human rights violators.
International Business-Government Counsellors, Inc. 2. Antiterrorism 15 Export controls are used to avoid contributing to the ability of certain identified countries to support acts of international terrorism. Commodities affected include those controlled for security purposes as well as some aircraft controlled only for foreign policy purposes. Countries now designated as supporting terrorism are North Korea, Cuba, Iran, Libya, and Syria. These countries have been designated by the Secretary of State under Section 6(j)(1)ta) of the Export Administration Act of 1979 as nations that repeatedly support acts of international terrorism. Libya, Cuba, and Syria were designated on March 1, 1982. North Korea was designated as a terrorist- supporting nation on January 20, 1988, but export controls have been in place on that country since 1950. Iran was designated January 1984 with controls added on a range of items October 1, 1987 and then again on November 27, 1987 when 14 broad product categories with military potential were added. Iraq was designated for a time but is not now. Controls to discourage terrorism distance the US from states that have repeatedly supported acts of international terrorism and function to demonstrate the commitment of the United States not to trade with nations that fail to comply with acceptable norms of international behavior.
International Business-Government Counsellors, Ine. 16 3. Regional Stability Regional stability controls can be directed at all destinations, except NATO countries, Australia, Japan, and New Zealand. Commodities affected include military vehicles and certain equipment used to manufacture military equipment. Applications for export to these destinations will generally be approved unless there is a reason to believe that the export could contribute to destabilization. Also considered is whether such equipment will be used to oppress a nation's citizens. Regional stability controls were first identified as such in 1979. The obj ective is to deny military items to certain regions of the world where conf 1 ict and tens ion prevail, and thereby ~ imit American contribution to the destabilization of such regions. The State Department maintains a floating list of countries subject to these controls. Regional stability controls can also be considered as a broader concept. The recent controls imposed on scuba gear to Iran -- which could be used to place explosives on ships -- were put in place in an attempt to stabilize a region. In addition, controls on chemical weapons and nuclear and missile technology controls have regional implications.
International Business-Government Counsellors, Inc. 4. Chemicals used for Chemical Weapons 17 Specified chemicals that could be used as precursors for chemical weapons are controlled for foreign policy reasons. The US imposes controls on 50 precursor chemicals. Currently, the exports of such products are prohibited to Iran, Iraq, and Syria if there is reason to believe that the chemicals will be used in the production of chemical weapons or otherwise be devoted to chemical warfare purposes. Controls for Iran and Iraq were imposed on March 1984, after it became apparent that attempts might be made to procure certain chemicals, with primarily an agricultural endure, that might be used in the manufacture of chemical weapons. In September of that year, more chemicals were added for control. Controls on Syria were put in place on June 5, 1986 and have been expanded since then. These controls are used to oppose the use of chemical weapons. The US also maintains these controls to demonstrate its commitment to multilateral cooperation to control chemicals identified as weapon precursors and to support obligations as agreed to in the 1925 Geneva Protocol.
international Business-Government Counsellors, Inc. 5. Embargoed Countries 18 virtually all trade is prohibited with certain countries for foreign policy reasons. These countries include: Cambodia, Cuba, North Korea, and Vietnam. Controls are regulated not only by Commerce under the EAA but also by Treasury under the Trading With the Enemy Act. Controls were placed on Cambodia in April, 1975; Cuba in 1960, North Korea in 1950; North Vietnam on May 5, 1964, and South Vietnam on April 30, 197S. Controls were originally imposed on each individual country for security reasons. While the original circumstances under which these controls were placed has changed, controls have been continued because of the foreign policy ramifications of removal. The objective of continued embargo is to demonstrate the US's unwillingness to maintain normal trade with these countries until they take steps to improve their relations with the US. 6. South Africa The US maintains controls on all commodities and technical data to South African military and police entities and on selected items to both South African entities under the authority of Section 6 of the Export Administration Act and the Comprehensive Anti-Apartheid
InternationalBusiness-GovernmentCounsellors,lnc. 19 Act of 1986. Namibia, which had been subject to these controls, was removed when it became independent from South Africa on March 21, 1990. Munitions are controlled to all entities pursuant to the UN arms embargo of South Africa. Aircraft, helicopters, crude oil and refined petroleum products are also controlled to all South African entities. All computers and software are controlled to apartheid-enforcing government entities. The UN embargo was imposed in 1963; controls on military and police entities and aircraft and helicopters were imposed in 1978. Computer controls were imposed in 1982, controls on oil and petroleum products were added pursuant to the Comprehensive Anti-Apartheid Act of 1986. The purpose of these controls is to demonstrate the continued opposition of the United States to the apartheid policies of the South African government, and in particular the actions of the police and military in South Africa carrying out that policy. 7. Libya Export controls have been imposed gradually on Libya by the Departments of Commerce and Treasury under the Export Administration Act and the International Emergency Economic Powers Act (IEEPA) over a number of years; they now affect all exports except medical equipment and agricultural commodities. Controls were first put into place in May, 1978 on aircraft for military use and tractors with military capabilities and then
International Business-Government Counseliors, Inc. 20 tightened each subsequent year until comprehensive controls were implemented in January, 1986. Controls are in place to inhibit Libyan receipt of US-origin material resources. These controls were meant to demonstrate the US's opposition to -- and distance the US from -- that nation's support for international terrorist acts, international subversive activities, and intervention in the affairs of neighboring states. 8. Biological Acrents The US maintains controls on biological organisms with weapons use to all destinations except Canada. Commodities affected include several classes of bacteria, protozoa, fungi, viruses and viroids. These controls are intended to prevent the development of biological weapons warfare. Before Congress required the Executive Branch to remove all unilateral controls imposed for "national security" reasons, these materials had been unilaterally controlled under Section 5 national security controls. The shift to foreign policy controls allowed four countries -- Iran, Traq, Syria, and Libya -- to be targeted. These controls are consistent with US obligations under the 1972 Biological Disarmament Convention. Foreign policy controls were established on February 23, 1989 based on the "Classification of Etiologic Agents on the Basis of Hazard" (US Department of Health, Education, and Welfare, 3rd Edition, June 1972).
InternationalBusiness-GovernmentCounsellors,Inc. 9. Nuclear Nonproliferation 21 Controls are maintained by the US for both national security and foreign policy reasons to all destinations, including Canada, of commodities and technologies having significance for nuclear explosive purposes, pursuant to Section 17(d) of the Export Administration Act and Section 309(c) of the Nuclear Non- Proliferation Act of 1978. Products and technologies affected include those that would be of significance for nuclear explosive purposes or would be used in the designing, developing, fabricating, or testing of nuclear weapons or nuclear explosive devices. In addition, all commodities and technical data are controlled to nuclear production or utilization facilities in all countries. . These controls were put in place in 1978. Their purpose is to increase the difficulty of nations attempting to acquire sensitive nuclear technology or equipment and furthering the US's nuclear non-proliferation policy. 10. Missile Technology Controls Foreign policy controls have been established on certain types of equipment and related technical data that could be used in the development and production of missiles with nuclear weapon delivery potential.
IntemationalBusibess-GovernmentCounsellors,Inc. 22 These controls were implemented on July 31, 1987 by the Department of Commerce in concurrence with the State Department as a result of the multilaterally established Missile Technology Control Regime (MTCR). Controls on Propellant Batch mixers have recently been added. The MTCR came about to respond multilaterally to the challenge of missile proliferation and the threat it poses to national security and world peace. No new licensing requirements for commodities were promulgated, since these commodities were already controlled for security purposes. However, new controls on technical data were imposed. Licensing policy is determined on a case-by-case basis, based on whether the export could contribute significantly to proliferation of nuclear weapon delivery systems. The guidelines developed under the MT CR are designed to limit the risks of nuclear proliferation by controlling transfers that could make a contribution to nuclear weapons delivery systems (other than manned aircraft) of other countries. B. Multilateral Cooperation National security controls are implemented through the multilateral COCON mechanism as well as by national law and regulation. There is no one multilateral forum for discussion of foreign policy controls, although some of the controls are the result of coordinated actions. National practices vary widely and can significantly affect the competitiveness of a country's exporting
International Business-Government Counsellors, Inc. 23 firms. Below is a brief summary of foreign policy control actions taken by or in concert with US allies. ]. Human Right=: Similar human rights controls on exports of crime control and detection equipment have not been implemented by other countries. Canada does not allow the export of offensive military equipment to countries with protracted human rights violations. Other countries may deny licenses on a case-by-case basis where human rights are an issue but according to the Department of State, there are no multilateral efforts. 2. Anti-terrorism: Other countries do not have similar antiterrorism controls directed against Cuba, North Korea, Tran, Libya and Syria. The EC has banned arms sales to Syria for antiterrorism reasons, although' with the exception of the UK, has maintained commercial ties with Syria. The EC, except for Greece, in November of 1986 banned arms sales to Syria. Commercial ties, however have been maintained between the EC (except the UK) and Syria.1 3. Regional Stability: Exports of military equipment to tension areas are limited by a number of other countries. The US - 1 1990 Annual Foreign Policy Report to the Conaress (January 21, 1990-January 20, 1991), U.S. Department of Commerce, Bureau of Export Administration, Office of Technology Policy and Analysis, Feb. 1990.
International Business-Government Counsellors, Inc. 7,. 24 commodities affected by this control, which are also found on the International Munitions List, are multilaterally controlled through this mechanism. Canada maintains an area control list which currently contains South Africa and Libya. Canada also forbids the exports of military equipment to countries where there is conflict or threat of imminent conflict. 4. Chemicals: Chemicals are controlled on a multilateral basis. The US is a member of the '"Australia Group", a group of 20 nations which seeks to prevent the spread of chemical warfare capabilities though the regulation of trade in certain chemical precursors. This group, chaired by the Australian Government and formed in 1984, focusses on chemical warfare proliferation and use. It is an informal group that acts by consensus to harmonize national export controls on precursors used for the development of chemical weapons. 5. Embargoed Countries: COCOM never agreed that security required a total embargo of North Korea, Vietnam, or Cambodia, nor did Cocom agree to consider Cuba a proscribed destination even for COCOM-listed items. Canada enforces US prohibitions on US products to destinations embargoed by the US. 6. South Africa: Arms are controlled by UN members. Canada maintains a stricter embargo on South Africa than the US. Since 1985 the European Community has banned the export of arms and para-
International Business-Government Counsellors, Inc. 25 military equipment, and the exports of sensitive equipment to the police and the armed forces.) 7. Libya: No other country has adopted comprehensive export sanctions against Libya, although in 1986 the EC and the seven major industrialized countries banned future arms sales.2 8. Biological organisms: Biological organisms are not multilaterally controlled worldwide. The US is party to the "Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin weapons and on their Destruction' of April 10, 1972, which entered into force March 26, 1975. This multilateral treaty mandates facilitation of the '[achievement of general and complete disarmament under strict and effective international control..." Some nations have been more receptive than others to discussions with the US regarding their use of export controls to halt the proliferation and use of biological weapons. There have reportedly been efforts to include biologicals in coverage of the Australia Group. 9. Nuclear: Multilateral cooperation on nuclear nonproliferation takes the form of International Atomic Energy Agency (IAEA) - Europa, Agence Europe SA, June 1990. 1990 Annual Foreign Policy Report to the Congress (January 21, 3990-January 20. 1991), U.S. Department of Commerce, Bureau of Export Administration, Office of Technology Policy and Analysis, Feb. 1990.
International Business-Government Counsellors, Inc. 26 safeguard arrangements, which are triggered by exports of a shorter list of items than the US nuclear referral list. The US has been party to various multilateral efforts to control the spread of nuclear weapon capabilities. An attempt to establish common guidelines began in London in 1975 by the seven major suppliers -- Canada, France, West Germany, Japan, the UK, the US, and the USSR -- in the wake of India's nuclear device explosion. This group became known as the "London Club" -- an informal agreement on common guidelines. $wenty-seven nations have subscribed to the London Club's guidelines. Another effort at multilateral cooperation came through the Non-Proliferation Treaty Nuclear Exporters Group, or Zangger Committee, which was set up in 1970 to interpret the Safeguards clause of the Non-Proliferation Treaty. The group was geared toward development of a "trigger list'' and is tied to the IAEA. 10. Missile Technology Controls: These controls are multilateral. Countries adhering to the MTCR are the US, Canada, the United Kingdom, France, West Germany, Italy, Japan and Spain. Countries adhering to this regime all have in place a set of similar policies controlling the export of missile related commodities.
International Business-Government Counsellors, Inc. 27 III. ANALYSIS OF THE RELATIONSHIP BETWEEN THE TWO TYPES OF CONTROLS A. Artificial Distinction The distinction made between ''security" and "foreign policy" is artificial and strained and is becoming more so as the nature of threats to US security changes. The security of the US and its allies is the prime goal of foreign policy. Thus security is, objectively, a subset of foreign policy rather than something distinct from foreign policy. Past history has defined security almost entirely in military terms vis-a-vis the Soviet Union. Today, and in the future, "security" threats may come as much from "foreign policy" concerns (terrorism, chemical weapons, biological organisms) as from a direct military threat from the soviet Union. B. Perceived Distinctions . In the administration of export controls, there is a fundamental difference in expectations between the two types of controls. Security controls are supposed to be more effective. Other perceived distinctions concern purpose' geography, and duration.
InternationalBusiness-GovernmentCounsellors,1nc. 1. Effectiveness 28 Security controls are intended to actually stop the export of strategic Western items to the East through multilateral efforts, whereas foreign policy controls are generally regarded as successful in terms of the USts symbolic opposition to policies or actions (e.g., apartheid, terrorism, or human rights abuses) even if the targeted destinations are not, in fact, denied access to the controlled items. This difference in expectations is clearly reflected in foreign availability provisions in the Export Administration Act. A finding of foreign availability is expected to result eventually in decontrol if the control is called "security" but not if it is called "foreign policy". Under foreign policy controls, only "feasible steps" need to be taken to remove foreign availability and, if there is a finding of foreign availability, decontrol follows only if "such action is appropriate." In fact, all foreign availability assessments and determinations to date have been made under security controls. Of course, security controls are often ineffective in stopping exports and foreign policy controls are sometimes at least partially effective in influencing actions or policies. But that does not change expectations that security controls will be more effective than foreign policy controls.
International Business-Government Counsellors, Inc. 2. Purpose 29 The difference in expectations is derived from a perception that security controls have a more serious purpose than foreign policy controls. Security controls have responded to concerns that high technology transfers to the Soviet Union would reduce the margin of superiority of US military systems as compared with Soviet military systems. Foreign policy controls, on the other hand, are viewed as pursuing other objectives not as militarily critical to US security. 3. Geography There are also geographical distinctions. Security controls target communist countries only, whereas foreign policy controls target noncommunist countries as well. However, under the heading of security controls, validated licenses are required for export to noncontrolled, noncommunist countries (to deter diversions), and many foreign policy controls have been aimed at communist countries (such as embargoes of North Korea, Vietnam, Cambodia, and Cuba and controls to the Soviet Union of oil and gas equipment and grain). The geographical distinction gives the appearance of a judgment that US security is threatened only by communist countries. However, this appearance is misleading. Nuclear non-proliferation,
InternationalBusiness-GovernmentCounsellors,Inc. 30 missile technology, and chemical and biological warfare controls, which are aimed at many noncommunist countries, are called "foreign policy"; but they have a security objective and are intended to be effective in stopping exports, i.e., not just to be symbolic. Nuclear non-proliferation controls are unique in being labelled both security and foreign policy under the Export Administration Act. 4. Duration There is also a duration distinction. Security controls have continued decade after decade whereas many foreign policy controls have been of relatively short duration (thus qualifying for George Shuts label of 'light-switch diplomacy". However, the foreign policy embargoes of North Korea and Cuba have been in effect for 40 years and 30 years respectively.
InternationalBusiness-Go`~ernmentCounsellors,Inc. 31 C. Inappropriate Use of Security Controls as Instruments of Foreign Policy 1. Before 1979 Before enactment of the Export Administration Act of 1979, security controls and foreig~policy controls were not separately identified on the control list. Items not controlled for security purposes required a validated license for export to noncontrolled countries to deter diversion, as is still the case today. However, before 1979, a foreign policy control could be piggybacked onto the security controls to noncontrolled countries without public notice. In other words, an export to a noncommunist country which an exporter had reason to believe would be approved in the absence of evidence of risk of diversion could be denied because of a new, unannounced foreign policy concern regarding exports to that noncommunist country for which there was no perceived risk of · ~ diversion. The Congress considered this to be an inappropriate use of security controls for foreign policy purposes. Partly for this reason, the 1979 Act required that foreign policy controls be separately identified on the control list and that they be rejustified each year. The House bill would even have provided for a Congressional veto of any new foreign policy control. The Conference Report stated that, in agreeing to eliminate this House provision,
International Business-Government Counsellors, Inc. the conferees emphasized their expectation that the executive branch would consult fully with congress prior to employing any such controls, and agreed to give further consideration to a Congressional veto mechanism in subsequent legislation in the event prior consultation on foreign policy controls proved inadequate under the provisions of this act. 32 Congressional ire in 1979 concerning foreign policy controls was prompted primarily by 1978 imposition of broad controls on exports to police and military entities in South Africa and on exports of oil and gas exploration and production equipment and technology to the Soviet Union which, for the most part, did not overlap security controls. But it was also prompted in part by 1978 piggybacking of security controls on exports to noncommunist countries designed to discourage human rights abuses. The 1979 EAA (and section 502B of the Foreign Assistance Act) limited the EAA-controlled items subject to denial for human rights purposes to crime control equipment. Anti-terrorism controls in 1978 also piggybacked security controls. However, in this case, the Congress was stimulating controls rather than trying to restrain them.
International Business-Government Counsellors, Inc-. 2. After 1979 - 33 Despite the statutory restraints on foreign policy controls enacted in 1979, immediately after the passage of the EAA of 1979 more foreign policy controls were imposed than had been for decades before. This was occasioned principally by the Soviet invasion of Afghanistan and Iranian hostage-taking of American Embassy personnel. One of the actions taken in response to Afghanistan was construed by some to be an inappropriate use of security controls for foreign policy purposes. The United States was unsuccessful in persuading its Allies to join it in embargoing grain, fertilizer, a steel mill, an aluminum smelter, or exports relating to the Moscow Olympics in 1980. The only success story was the ''no exceptions" policy. "No exceptions" was a clear example of a foreign policy use of a security control. Its continuation after the Soviet troop withdrawal was certainly regarded as inappropriate; but its imposition in 1980 was not considered sufficiently inappropriate to give rise to criticism at that time. The United States imposed a unilateral policy of no exceptions to Poland after the imposition of martial law in 1981 and thought that Allied acquiescence had been obtained through bilateral discussions. However, the Allies were critical of US objections
IntemationalBusiness-GovernmentCounsellors,Inc. 34 in COCOM to Polish cases which they regarded as unjustified by COCOM strategic criteria. D. Effect of Unilateral Foreign Policy Controls on the Multilateral Security Control Framework During the entire history of COCOM, US unilateral controls which other COCOM members considered to be unjustified under the COCOM strategic criteria have created problems in COCOM. Disruption in COCOM contributes to a weakening of the multilateral security control framework which COCOM supports. However, not all unilateral foreign policy controls have adversely affected multilateral security controls. I. Exceptions At COCOM ' s inception, agreement was reached to control, without exceptions, not only items contributing to military potential but also items contributing to economic potential. However, soon thereafter, the Allies refused to engage in what they regarded as economic warfare. US insistence on continued control of such items was regarded as a unilateral foreign policy matter rather than a multilateral security matter. A compromise was reached whereby many of the questionable items remained on the list. However, the United States agreement to approve exceptions has continued to the present, even though items contributing to economic, rather than
International Business-Government Counsellors, Inc. 35 military, potential were largely removed from the COCOM list in the l950s. Thus unilateral US controls led directly to a considerable weakening of the practical effect of the COCOM-agreed control list, and subsequently a weakening of multilateral security efforts. 2. China Differential From 1950 to 1957 COCON controlled many more items to China than to the Soviet Union. From 1953, after the Korean armistice, to 1957, the United States vetoed proposals by other COCOM members to remove this differential. In 1957, the United Kingdom announced unilaterally that it would no longer control exports to China for items which were not on the control list for the Soviet Union. Other COCOM members immediately followed the British lead. Even the United States had to recognize the demise of the COCOM China differential, although the United States continued to maintain its unilateral total embargo on exports to China for 15 more years, until 1972. Thus, US unilateral controls forced a weakening of the COCOM rule of unanimity. Indeed, the Europeans in 1990 might cite the British action in 1957 as a precedent for overcoming US resistance to removing a reverse China differential (they want to delete items on the list for control to the Soviet Union which are not now controlled to China).
International Business-Government Counsellors, Inc. 3. (;as Pipeline 36 In 1981 and 1982 the United States imposed extraterritorial foreign policy controls on equipment for compressor stations for a natural gas pipeline from the Soviet Union to Western Europe in reaction to the imposition of martial law in Poland. Ironically, the few affected security items qualified as exceptions to be no-exceptions policy under the rubric of facilitating access to Soviet supplies. Firms in the United Kingdom, Germany, France, and Italy, with the encouragement of their governments, violated the US controls. The United States thereupon denied future exports to the offending firms. Even though, in November 1982, the United States removed the controls and discontinued the sanctions against its Allies, this experience detracted from the atmosphere of voluntary cooperation on which an effective COCOM -- and an effective security regime -- depends. 4. Reexport Controls In the 1960's, the United States assured the United Kingdom that it would not use reexport controls to override agreements reached in COCOM that various products could be shipped at national discretion. However, the United States did not honor that commitment. As a result of this history plus the pipeline experience, 25 years later, in 1985, when the United States wanted to expedite China cases then backed up in COCOM, other COCOM
InternationalBusiness-GovernmentCounsellors,lDc. 5. Adverse Effects of Unilateral Controls Not Inevitable 37 members insisted that, as a condition for agreeing on national discretion to China, the United States must formally discontinue controls on reexport of such items to China. This the United States did. The result is that US controls are more liberal on reexports-to China than on reexports to friendly countries in the West. Each COCOM member controls at least a few items unilaterally. Such unilateral controls have not created any problems for COCOM. Indeed, some unilateral US controls have not adversely affected COCOM (such as human rights controls on crime control equipment). But the extraterritorial reach of other US controls has invariably caused problems as have US efforts to use COCOM to further obj ectives going beyond agreed COCOM strategic criteria. 6. Is the distinction valid today? Some might argue that political and military changes in the Soviet Union make it less of a threat to US security than aberrant states in the third world, such as Libya or Iraq, especially if such states were to achieve a nuclear weapons and a nuclear weapon delivery system capability or a chemical or biological warfare (CBW) capability. In this connection, some multilateral cooperation already exists concerning nuclear' missile J and CBW
InternationalBusiness-GovernmentCounsellors,luc. 38 exports, so that US controls are not completely unilateral and therefore are not merely symbolic. If nuclear, missile, and CBW controls to the third world are considered to be at least as important to US security as COCOM controls to communist countries and if the former are, or could become, at least as effective as the latter, then it would make no sense to continue to give a higher priority to measures to prevent foreign availability to communist countries than to third world countries. Indeed, it would then make sense to include communist countries in cooperative programs to deny nuclear, missile and CBW items to the third world. Thus the distinction between foreign policy controls and national security controls continues to blur. The security controls directed at Eastern Europe and the Soviet Union begin to take a back seat to foreign policy controls directed at those countries who pose a security threat to the US through terrorism or CBW. The previous perception that national security controls were more effective than foreign policy becomes irrelevant as the balance in Eastern Europe shifts. The distinctions and definitions of the past forty years are in need of reevaluation.
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International Business-Government Counsellors, Inc. the conferees emphasized their expectation that the executive branch would consult fully with congress prior to employing any such controls, and agreed to give further consideration to a Congressional veto mechanism in subsequent legislation in the event prior consultation on foreign policy controls proved inadequate under the provisions of this act. 32 Congressional ire in 1979 concerning foreign policy controls was prompted primarily by 1978 imposition of broad controls on exports to police and military entities in South Africa and on exports of oil and gas exploration and production equipment and technology to the Soviet Union which, for the most part, did not overlap security controls. But it was also prompted in part by 1978 piggybacking of security controls on exports to noncommunist countries designed to discourage human rights abuses. The 1979 EAA (and section 502B of the Foreign Assistance Act) limited the EAA-controlled items subject to denial for human rights purposes to crime control equipment. Anti-terrorism controls in 1978 also piggybacked security controls. However, in this case, the Congress was stimulating controls rather than trying to restrain them.
