Just a promise

The U.S. promises to support India's membership of multilateral export control regimes. But will it make a difference?

ONE of the outcomes of United States President Barack Obama's visit, which has been projected as a major achievement of the India-U.S. strategic cooperation, is the Partnership on Export Controls and Non-Proliferation'. Prime Minister [Manmohan] Singh and President Obama, the joint statement of November 8 said, committed to work together to strengthen the global non-proliferation and export control framework and further transform our bilateral export control cooperation to realise the full potential of the strategic partnership between the two countries.

The steps initiated towards this objective, which were announced during the presidential visit, included U.S. support for India's membership in the multilateral export control regimes in a phased manner; removal of India's defence and space-related entities from the U.S. Entity List'; realignment of India in the U.S. export control regulations for dual-use goods; and cooperation between the two countries on export control issues. These changes, said a U.S. Fact Sheet accompanying the announcement, together with the comprehensive reform of the U.S. export control system launched by President Obama last year, will bring fundamental change to the U.S. export relationship with India, consistent with U.S. national security objectives.

A lot of media hype followed these announcement. Some parts of it, in particular the bit on U.S. support for India's membership of the Nuclear Suppliers Group (NSG) and removal of Indian entities from the Entity List (EL), were hinted at to the press by officials from both sides as a build-up to Obama's visit days before he arrived. This article looks at the first of the four-component initiative.

Let us look at U.S. support to India's membership of multilateral export control regimes. What does membership of these regimes mean for India and what does it entail? There are four multilateral export control regimes of relevance to India the NSG, the Missile Technology Control Regime (MTCR), the Australia Group (AG) and the Wassenaar Arrangement (WA). India, given its nuclear weapons and missile programmes, had been barred from being part of these regimes for reasons arising from their respective principles and objectives of non-proliferation. This is not likely to change quickly in the near future as membership criteria for these will have to be amended for India's eligibility.

Moreover, a new member is accepted into a group strictly by consensus of the respective members. There are no legally binding obligations on the participants in these regimes. All of them are basically informal groupings with the stated goal of preventing the proliferation of weapons of mass destruction by controlling the transfer of sensitive technologies WA controls munitions items (defence goods and services) besides dual-use technologies to non-members under a set of consensually agreed guidelines.

As required by all the regimes, India does have an effective export control and licensing system for dual-use goods, including sensitive chemicals and biologicals, but not for munitions. Incorporating munitions in the list of controlled goods called SCOMET (Special Chemicals, Organisms, Materials, Equipment and Technologies) is under way. Membership of these regimes would, of course, mean greater flow to India of such technologies that are controlled by these regimes for non-proliferation reasons. At present this is only an expression of the U.S. intent.

Nuclear Suppliers Group

Formed following the Indian nuclear explosion of 1974, the NSG, as is now well known, is a group of nuclear supplier countries (with a present membership of 46) that seeks to control nuclear exports and nuclear-related exports towards nuclear non-proliferation through guidelines (Annex I and II). The member-countries implement these guidelines by incorporating them in their national laws and export-licensing norms. All decisions in the group are taken by consensus.

Factors that govern NSG membership include:

(a) The ability to supply items covered by Annexes I and II of the guidelines;

(b) Adherence to the guidelines;

(c) Enforcement of a legally based domestic export control system which gives effect to the commitment to act in accordance with the guidelines;

(d) Adherence to one or more of the NPT, the Nuclear Weapon Free Zone (NWFZ) Treaties of Pelindaba, Rarotonga, Tlatelolco, Bangkok or an equivalent international nuclear non-proliferation agreement, and full compliance with the obligations of such agreement(s); and

(e) Support of international efforts towards non-proliferation of weapons of mass destruction and of their delivery vehicles.

India satisfies all the conditions except (d). In particular, in the context of the India-U.S. nuclear deal, India had stated on September 5, 2008, that it had taken the necessary steps to secure nuclear materials and technology through comprehensive export control legislation and through harmonisation and committing to adhere to the MTCR and NSG guidelines. It is not a signatory to the NPT nor to any of the NWFZs and has consistently rejected being party to all of these, especially the NPT because of its discriminatory nature stemming from the treaty's definition of nuclear weapon states (NWSs) as countries that have manufactured and exploded a nuclear device before January 1, 1967. So it is not clear how the U.S. intends to pilot India's membership to the NSG unless it lobbies for a waiver of the condition just as it did for an India-specific waiver to the guidelines for the nuclear deal to take effect or India joins an amended NPT as an NWS.

Missile Technology Control Regime

Established in 1987, the MTCR is an informal and voluntary association of countries with the common objective of preventing the proliferation of unmanned delivery systems capable of delivering a 500-kg payload over a 300-km range and which seeks to coordinate national export licensing efforts aimed at preventing their proliferation. At present there are 34 members of the Regime. The MTCR rests on adherence to common export policy guidelines (MTCR guidelines) applied to an integral common list of controlled items (the MTCR Equipment, Software and Technology Annex).

Partners of the MTCR regularly exchange information about relevant national export licensing issues. All decisions, including the admittance of a new member, are taken by consensus. The following considerations apply in making membership decisions: whether a prospective new member would strengthen international non-proliferation efforts; whether it has demonstrated a sustained and sustainable commitment to non-proliferation and has a legally based effective export control system that puts into effect the MTCR guidelines and procedures, and whether it administers and enforces such controls effectively. Membership is by invitation, and the Regime's dialogue with prospective members is conducted through the MTCR Chair, visits to capitals by teams comprising representatives of four MTCR partners, and bilateral exchanges.

India would seem to be eligible for MTCR membership, given its non-proliferation track record and the instituted national export control regime. But sources say an informal decision was taken at an MTCR plenary meeting to include adherence to the NPT as a factor while inviting a country to become a partner. If that is the case, then MTCR membership does not seem possible for India.

Australia Group

The AG is a multilateral system of controls to prevent the proliferation of chemical and biological weapons (CBWs). It was established in 1985 as an informal arrangement among 40 countries plus the European Commission which, through the harmonisation of export controls, seeks to ensure that exports do not contribute to the development of CBWs. According to the AG website, countries interested in applying for AG membership should, in the first instance, forward a third-party note with an expression of interest to the AG Chair. The Chair will then discuss the issue at an AG plenary meeting. On the basis of the members' views, the Chair will liaise with the candidate country for a formal application with detailed information on the country's legislation and policy of export controls. The decision on whether to admit the country is taken by consensus on the basis of the information provided, and if the country meets the participation criteria.

According to the website, criteria for participation include, but are not limited to,

(a) A commitment to prevent the spread of CBW proliferation, including being a party to the Biological and Toxins Weapons Convention (BTWC) and the Chemical Weapons Convention (CWC);

(b) Being a manufacturer, exporter or transshipper of AG controlled items;

(d) Implementing an effective export control system which provides national controls for all items on the AG common control lists; and

(e) Creating relevant channels for the exchange of information, coordination of export control measures and accepting the confidentiality of the information exchange.

According to the website, the candidate country must meet all the criteria, and no exceptions or exemptions can be made. India would seem to fulfil all the criteria and so AG membership should not be a problem, but what is needed is a third-party note, which is what perhaps the U.S. is willing to initiate now.

Wassenaar Arrangement

Established in 1995 at Wassenaar in the Netherlands, the Wassenaar Arrangement is the new avatar of COCOM (Coordinating Committee for Multilateral Controls) of the Cold War period, which had technology barriers against the East as its primary focus. It was realised that this was not the appropriate basis for export controls any more, and the WA was established as a new global multilateral arrangement on export controls for conventional weapons (munitions) and sensitive dual-use goods and technologies. The participating states seek to ensure through national policies that transfers of arms and dual-use goods and technologies do not contribute to the development of or enhancement of military capabilities that undermine international and regional security and stability and are not diverted to support such capabilities.

WA members maintain effective export controls for the items on the agreed lists (which are largely based on the dual-use item lists of the U.S. Bureau of Industry and Security and the Munitions List of the U.S. Department of State) through coordinated national control policies and licensing mechanisms. Members are required to report transfers or denials of transfers of certain controlled dual-use items. The WA is stated to be open on a global and non-discriminatory basis to prospective adherents that comply with the agreed criteria, which include:

(a) Whether it is a producer/exporter of arms or industrial equipment respectively;

(b) Whether it has taken the WA control lists as a reference in its national export controls; and

(c) Its non-proliferation policies and appropriate national policies, including adherence to non-proliferation policies, control lists and, where applicable, guidelines of the NSG, the Zangger Committee, the MTCR and the AG; and through adherence to the NPT, the BTWC and the CWC.

So, clearly, one of the stumbling blocks for India's membership to the WA would be the requirement of adherence to the NPT. The other issue is the harmonisation of export controls, in particular the inclusion of munitions (conventional arms and defence services) in the Indian SCOMET list, with those of the WA.

The above discussion suggests that given the present eligibility criteria of the different regimes, only membership of the AG seems a possibility. But the Singh-Obama Joint Statement also says: The U.S. intends to consult with regime members to encourage the evolution of regime membership criteria consistent with maintaining the core principles of these regimes. This, of course, would mean fundamental changes in the regimes' principles. Whether the U.S. is able to achieve this remains to be seen.

Sources in the government say that even AG membership could take long because India is yet to demonstrate convincingly that it has effective monitoring and control measures against diversion of sensitive chemicals from the large and widespread chemical and fertilizer industry base in the country following the incident in the late 1990s when transfers of sensitive chemicals to the West Asian region by some Indian chemical companies came to light. Also, given that India has signed both the CWC and the BWTC, there has been a prevalent view in government circles until now against joining the AG. This perception may now change as the possibility of AG membership has been presented as part of a larger strategic partnership package with the U.S. that includes membership of other multilateral regimes as well.

The joint statement also had this significant remark: In the view of the U.S., India should qualify for membership in the AG and the WA according to existing requirements once it imposes export controls over all items on these regimes control lists. India is already in the process of including munitions items in the SCOMET list, the only lacuna in the present list of controlled items. But given that the WA's eligibility criteria include adherence to the NPT, the statement requires some clarification. In fact, there is lack of clarity in government circles as well in this regard because it is the government's understanding, too, that WA membership requires India to be an NPT signatory. Unless the U.S. is confident that it can influence WA members to drop this requirement in the case of India, it is not clear how India can qualify for WA membership.