Money for Guns: Changes in Arms Control Norms
Any American who has exercised their second amendment right understands the feeling of holding a firearm. It’s something that can only be described as an electric sensation, but this power comes great responsibility. As an instrument of life and death, it should be treated with the utmost respect. On the international stage, arms exports have traditionally been regulated through a series of multilateral agreements. Recently, the United States and China have begun to challenge this system through changes in their arms export policies. This has the potential to upset the international regulatory system with dire consequences, including a slow reversal of conventional arms agreements and an increase in the international flow weapons. Regulation of Arms Exports In the international arena, countries have traditionally risen to this responsibility by enacting export controls that focus on the national security and human rights aspects of arms shipments. Export controls are laws and regulations that restrict the movement of goods, technology, or information across international boundaries or to foreign persons according to the regulating country’s priorities. The foundation for much of the international order on export controls rests on multilateral agreements such as the Wassenaar Arrangement, which controls the export of arms and dual-use technologies. International agreements such as the Wassenaar Arrangement and the Missile Technology Control Regime (MTCR), provide a foundation for international peace by harmonizing export control requirements across different jurisdictions. However, these agreements are not binding and require the individual nations to enact local regulations to comply with their international requirements. Arrangements such as the Wassenaar call for an assessment of another country to determine whether an export could damage regional stability.  For example, an arms transfer policy guidance paper approved by the Wassenaar Arrangement includes questions such as, “[i]s there a clearly identifiable risk that the weapons might be used to commit or facilitate the violation and suppression of human rights and fundamental freedoms” and, “[w]hat would be the perception of the state’s accumulation of conventional weapons by other states in the region?” These questions reflect export control doctrine’s historical focus on national security and human rights. Changes in U.S. and Chinese Policy However, change has begun in China and the United States. These countries have signaled that the arms trade framework should incorporate a new element: economic benefits. The Trump Administration’s 2018 Arms Control Transfer Policy calls for recognition of “economic security” in assessing arms exports. This is a departure from prior administrations that have emphasized maintaining military superiority and defending U.S. national security interests. Economic benefits were promoted by President Trump when he continued a $450 billion arms sales to Saudi Arabia despite the country’s potential complicity in the death of Jamal Khashoggi and its involvement in the enduring conflict in Yemen. Since the United States is the largest exporter of military equipment, such a shift would have significant ramifications for world peace and security as it becomes easier for countries to acquire American military hardware. Similarly, China has demonstrated an interest in analyzing the monetary benefits associated with arms exports. During the drafting of its forthcoming Export Control Law, the National People’s Congress focused on the “发展利益等” (development benefits) associated with export controls. The Chinese Export Control Law encompass arms exports from China and will reverberate around the world as China continues to play a larger role on the world stage. Streamlining the regulatory framework may precede a continued increase in Chinese arms exports. Given China’s significant foreign arms sales of $1.08 billion in 2018, there are major consequences associated with China’s regulatory change in addition to the U.S.’s policy change. One arena where this economic competition is playing out is the market for armed drones. The U.S.’s membership in the MTCR has prevented it from exporting military drones such as the MQ-9 Reaper. China took advantage of this gap in the market and quickly became the international leader in selling military drones. As a result, many countries, such Egypt, Jordan, and Iraq, were able to acquire drones after being blocked by the U.S. due to concerns that the drones’ potential use on protesters or in other nefarious ways. In response, the U.S. has decided to reinterpret the MTCR to allow it to export military drones more liberally. This decision would allow American drone exporters to more effectively compete with Chinese companies, but also shows how economic priorities often are in tension with national security or human rights concerns. Making it easier for American companies to sell drones abroad will benefit major drone manufacturers. It will also enable regimes to use these weapons of war to suppress dissent and commit other human rights violations. If major arms exporting countries view significant arms control treaties and multilateral regimes as blocking the economic benefits that flow from arms exports, these regimes could begin to unravel. A new focus on economic benefits potentially opens other sectors that have been traditionally been closed off due to export controls. One of those areas is ballistic missiles. In 2018, China sold Pakistan technology that may assist it in the deployment of multiple warheads. As previously mentioned, China is not a party to the MTCR but pledged adherence to MTCR requirements in 1994 after significant international pressure. Without knowing more technical details about the missile system that was sold, it is impossible to determine whether it would fall on the MTCR’s technology control annex, but publicly available information suggests that it might be controlled on the on the Annex 21. While China might not be formally required to adhere to the MTCR’s requirements, even an informal divergence would call into question a cornerstone of international arms control agreements.” If these economic objectives begin to overshadow national security and human rights concerns, there could be a global loosening of export control standards that leads to the above-mentioned consequences. Hopefully, countries will understand that economic benefits should not overshadow safety concerns, but current trends suggest this is unlikely.  See generally Zeray Yihdego, The UN Arms Trade Treaty Negotiations: A Battle Between Codifying Frail and Robust Legal Principles, Arms Control L. Blog (July 7, 2012), (noting that there is open recognition that the arms trade is a “contributory factor to conflict, the displacement of people, crime and terrorism, thereby undermining peace, reconciliation, safety, security, stability and sustainable development”) https://armscontrollaw.com/2012/07/07/the-un-arms-trade-treaty-negotiations-a-battle-between-codifying-frail-and-robust-legal-principles/.  Technology is defined as “Information necessary for the ‘development,’ ‘production,’ ‘use,’ operation, installation, maintenance, repair, overhaul, or refurbishing of an item.” 15 C.F.R. § 772.1 (2020).  A “dual-use” item is one that has civil applications as well as terrorism and military or weapons of mass destruction (WMD)-related applications. 15 C.F.R. § 730.3 (2020). For example, a cell phone can be used for phone calls or to detonate a roadside bomb.  About Us, Wassenaar.org, https://www.wassenaar.org/about-us/ (last visited Oct. 4, 2020); Origins, Wassenaar.org, https://www.wassenaar.org/about-us/ (click “origins” tab) (last visited Oct. 4, 2020).  See generally Wassenaar Arrangement, Elements for Objective Analysis and Advice Concerning Potentially Destabilizing Accumulations of Conventional Weapons Explanatory Note (2011).  Id.  National Security Presidential Memorandum Regarding U.S. Conventional Arms Transfer Policy (Apr. 19, 2018).  Presidential Policy Directive – United States Conventional Arms Transfer Policy (Jan. 14, 2014); see also Rachel Stohl, Trump Administration’s New Weapons Export Policies Stress Benefit to U.S. Economy, Just Security (Apr. 30, 2018) (“the Trump administration’s [conventional arms transfer] policy represents a clear departure from the past, reflecting and reinforcing President Donald Trump’s ‘Buy American’ and ‘America First’ approach to both domestic and foreign policies”), https://www.justsecurity.org/55496/trump-administrations-weapons-export-policies-stress-benefit-u-s-economy/.  Joe Gould, Trump Statement Sticks with Saudis, Hyping Economic Benefits of Alliance, Defense News (Nov. 20, 2018), https://www.defensenews.com/2018/11/20/trump-statement-sticks-with-saudis-hyping-economic-benefits-of-alliance/.  See Press Release, Stockholm International Peace Research Institute, USA and France Dramatically Increase Major Arms Exports; Saudi Arabia is Largest Arms Importer (Mar. 9, 2020) (noting that “total US arms exports were 76 per cent higher than those of the second-largest arms exporter in the world, Russia”), https://www.sipri.org/media/press-release/2020/usa-and-france-dramatically-increase-major-arms-exports-saudi-arabia-largest-arms-importer-says.  Press Release, Nat’l People’s Cong., Chūkǒu guǎnzhì fǎ cǎo’àn tíqǐng shěnyì: Nǐ jiāngjūn pǐn, hé děng nàrù guǎnzhì wù xiàng (出口管制法草案提请审议: 拟将军品、核等纳入管制物项) [Comments on the draft export control law] (Dec. 24, 2019) (noting “出口管制是指一国为履行防扩散等国际义务、维护国家安全和发展利益等目的” [Export control refers to a country’s purpose of fulfilling international obligations such as non-proliferation, maintaining national security and development interests, etc.,]) (emphasis added in translation), http://www.npc.gov.cn/npc/ckgzlf002/201912/7d4d2742f84b4a0c9c0c0e74ce88d512.shtml.  Covington and Burling, PRC Export Control Law Comparison of December 2019 and June 2020 Drafts 1 (noting “第二条 国家对两用物项、军品、核以及其他与履行国际义务和维护国家安全相关的货物、技术、服务等物项（以下统称管制物项）的出口管制，适用本法。”[ Article 2 This Law applies to the State’s export control over dual-use items, military items, nuclear items and other goods, technologies, services and items relating to the performance of international obligations and maintenance of national security (collectively referred to as “Controlled Items” hereinafter).]) (https://www.cov.com/-/media/files/corporate/publications/file_repository/prc_export_control_law_comparison_dec_2019_to_jun_2020_ch_en.pdf).  China Power Team, How Dominant is China in the Global Arms Trade? (Mar. 13, 2020), https://chinapower.csis.org/china-global-arms-trade/.  Mike Stone, Exclusive: Trump Aims to Sidestep Another Arms Pact to Sell More U.S. Drones, Reuters (June 12, 2020), https://www.reuters.com/article/us-usa-arms-trump-exclusive/exclusive-trump-aims-to-sidestep-another-arms-pact-to-sell-more-u-s-drones-idUSKBN23J1HS.  Dave Makichuk, China Takes Lead in Military Drone Market, Asia Times (Dec. 31, 2019) (quoting an expert as stating “Chinese manufacturers appear to have spotted a gap in the market as a result of US restrictions on the sale of armed UAVs and have used this as a route to market”), https://asiatimes.com/2019/12/china-targets-world-uav-market/.  The Growing Appetite for Armed Drones in the Middle East, Economist (Mar. 9, 2019), https://www.economist.com/middle-east-and-africa/2019/03/09/the-growing-appetite-for-armed-drones-in-the-middle-east.  Mike Stone, supra note 14.  Id.  Scott Neuman, China Acknowledges Sale of Advanced Missile Technology to Pakistan, Nat’l Pub. Radio (Mar. 22, 2018), https://www.npr.org/sections/thetwo-way/2018/03/22/595967125/china-acknowledges-sale-of-advanced-missile-technology-to-pakistan.  Chin-Hao Huang, “Bridging the Gap”: Analysis of China’s Export Controls Against International Standards 7 (April 2012) (Research analysis commissioned by the U.K. Foreign and Commonwealth Office Strategic Program Fund); Jon Brook Wolfsthal, US and Chinese Views on Proliferation: Trying to Bridge the Gap, 1994 Nonproliferation Rev. 60, 60.  See Missile Technology Control Regime, MTCR Equipment Software and Technology Annex 57 (Oct. 11, 2019) (“Radar and laser radar systems, including altimeters, designed or modified for use in the systems specified in 1.A [which include complete rocket systems].”), https://mtcr.info/wordpress/wp-content/uploads/2019/10/MTCR-TEM-Technical_Annex_2019-10-11-1.pdf. The views expressed in this post represent the views of the post’s author only.