India’s approach to global export control regimes

SAMEER PATIL and ARUN VISHWANATHAN

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AFTER the end of the Second World War, as nuclear and other new weapons technologies began to be coveted by more states, western states that had advanced knowledge of these technologies, scrambled to control their spread. Dinshaw Mistry has described the aim of multilateral export control regimes as ‘technological containment’. This description is particularly astute given the fact that in a majority of the cases, the technological ‘haves’ were the developed countries and access to these technologies was being denied to developing countries.

Therefore, the geo-political and geo-economic dynamics driving the export control regimes cannot be disregarded. In fact, during the Cold War, the dynamics of competition between the western and Soviet power blocs further hastened these efforts. Given its destructive potential, nuclear weapons technology figured at the top of their efforts. While India, along with other non-aligned states vociferously canvassed nuclear disarmament, western states concentrated on nuclear non-proliferation and shaping a safeguards system. For restricting the spread of other military technologies, they focused on harmonizing national export laws. This article will trace the evolution of the international export control regimes and the changing nature of India’s engagement with these regimes.

These efforts materialized early on as the western countries in 1950 instituted the Coordinating Committee on Multilateral Export Controls (COCOM). It aimed to restrict transfers of military and dual-use goods and technologies to countries which were part of the Soviet bloc. It was followed by the formation of the ‘Ottawa Group’ in 1959, consisting of the United Kingdom, United States, Canada, South Africa and Australia. This grouping was primarily interested in assisting the creation of a nascent international nuclear safeguards system.

Initially, India led the global effort to create norms for nuclear non-proliferation and disarmament. Prime Minister Jawaharlal Nehru, as independent India’s first Prime Minister, External Affairs Minister and Minister of Atomic Energy, utilized every available global forum to champion nuclear disarmament. Yet, with the emergence of discriminatory Nuclear Non-Proliferation Treaty (NPT) regime in 1968, New Delhi effectively found itself against the emerging consensus on non-proliferation. Its peaceful nuclear explosion (PNE) in May 1974 at Pokhran, Rajasthan, further solidified this exclusion, as it expedited the creation of the Nuclear Suppliers Group (NSG) – the most dominant of the current global export control regime. The roots of the NSG can be traced to the ‘Ottawa Group’ of 1959, but both the International Atomic Energy Agency (IAEA) Information Circular 539 as well as the NSG documentation list out 1975 as the year of establishment of the NSG, initially known as the ‘London Club’.

The aim of the ‘London Club’ or the NSG was to prevent the spread of nuclear material and technology for the development of nuclear weapons. However, it became clear to the US that for the group to be effective, it had to include western European nations like France and Germany, which had access to enrichment and reprocessing and other critical technological processes. In fact, France, which had not signed the NPT, was included as a member of the NSG. Moreover, as Yogesh Joshi has pointed out, India too was courted by the US in June 1977, just three years after the 1974 PNE. This shows the United States’ interest in expanding NSG membership to all countries with access to nuclear and related technologies. The group continues to strike a delicate balance between proliferation concerns which were the US’s focus, and protection of national and commercial interests of European countries.

 

Today, along with the NSG, there are three other regimes which seek to restrict proliferation, sale and transfer of different weapons technologies and their delivery systems. These include the Missile Technology Control Regime (MTCR), the Wassenaar Arrangement (WA) and the Australia Group (AG). The principal focus of the MTCR lies in the domain of rocket systems and unmanned air vehicles, seeking to limit the spread of missiles and missile technology. The WA seeks to restrict transfers of conventional arms and dual-use goods and technologies, while control of chemical and biological weapons (CBW) is the domain in which the AG focuses. In sum, these four groupings function akin to ‘trade cartels’ by controlling the supply of materials, technology and ‘dual-use’ items in their respective domains.

These regimes are informal associations of countries sharing a common interest and do not have the sanctity of an international treaty. They operate on a consensus basis – giving these regimes the needed authority to interact and cooperate. Accordingly, member states agree to voluntarily implement the national export controls, in compliance with these regimes.

 

The MTCR was established in 1987 by the United States along with six other founding members – the UK, France, West Germany, Italy, Canada and Japan. MTCR’s establishment also saw the release of guidelines and annexe(s) listing technologies which MTCR members could not export. The regime focuses on ‘rockets and unmanned aerial vehicles which are capable of delivering a payload of at least 500 kg to a range of at least 300 km and on equipment, software and technology for such systems.’ Initially, these restrictions were voluntary and to be applied by members on an independent basis, especially if the technology or item was to be used in a nuclear weapons delivery system, which was subsequently expanded to cover all WMDs.

The initial MTCR membership mainly covered the western countries; after the Cold War, however, it expanded at a rapid pace. Currently, the MTCR has 35 partner countries and three adherents – Estonia, Kazakhstan, and Latvia.

The AG regime was established in 1985 following the UN investigation team’s discovery in April 1984 that Iraq had used chemical weapons in its ongoing conflict with Iran, thereby violating the 1925 Geneva Protocol. Investigations revealed that Iran and Iraq had manufactured chemical weapons by purchasing materials from the chemical industry worldwide. To prevent such behaviour, the AG regime seeks to control the export of equipment, materials, technology and software that could contribute to CBW activities. It maintains six common control lists related to the chemical weapon precursors, dual-use chemical manufacturing facilities and equipment, dual-use biological equipment, biological agents and plant and animal pathogens.

After the end of the Cold War in 1991, these regimes have expanded in scope and coverage to accommodate former Soviet bloc states and tackle specific cases of proliferation like the illicit network of Pakistani nuclear scientist A.Q. Khan. In 1992, for instance, the NSG adopted the full scope Warsaw Guidelines, which ensured that only NPT members and states that had full-scope safeguards in force could engage in nuclear trade with NSG members. Similarly, after the 1991 Gulf War, the MTCR guidelines were updated in January 1993 to cover delivery systems for weapons of mass destruction not just for nuclear weapons delivery systems.

 

In 1996, the Wassenaar Arrangement was born, replacing the COCOM. Just like its predecessor, WA sought to harmonize export control policies and implementation of national controls related to the trade in strategic goods and technologies related to computing, aviation, sensors and the telecommunications sector. It specifically focused on rogue regimes and the terrorist groups’ efforts to acquire these technologies.

India remained outside these regimes, but its unblemished non-proliferation record signalled adherence with the spirit of these regimes. Ironically, whereas the Pokhran 1974 PNE solidified the creation of the NSG, the Pokhran 1998 nuclear tests marked the beginning of efforts to integrate India into the global export control regimes.

The United States, which had imposed sanctions following the 1998 tests, quickly reversed gears to engage India. In 1999, India and the US commenced their dialogue on security, non-proliferation, disarmament and related issues between Jaswant Singh (then Deputy Chairman, Planning Commission and subsequently the External Affairs Minister) and Strobe Talbott (the Deputy Secretary of State), stretching to 14 rounds. The Singh-Talbott talks proved inconclusive as a key part of the deal that India will sign the Comprehensive Test Ban Treaty fell through due to domestic opposition. Nonetheless, the dialogue gave the Clinton administration and the Capitol Hill a better understanding of the Indian worldview and its security concerns.

 

One of the critical watershed moments in the evolution of the India-US relationship was the September 2001 terrorist attack. This event led to the de-hyphenation of US’ relations with India and Pakistan, generating greater strategic convergence between New Delhi and Washington. In January 2004, the two countries announced the Next Steps in Strategic Partnership (NSSP) initiative, where both agreed to expand cooperation in the areas of civilian nuclear cooperation, civilian space programmes, and high technology trade.

This development was followed by the 2005 Joint Statement by President Bush and Prime Minister Manmohan Singh, which initiated the dialogue for an Indo-US civilian nuclear agreement which heralded America’s intention to overturn decades of non-proliferation policy, ushering India into the global nuclear order. The July 2005 Joint Statement and the passage of the 2006 Hyde Act in the US Congress resulted in the Indian commitment to harmonize its export control legislations and adhere to the NSG and MTCR Guidelines.

 

The India-specific exemption secured from the NSG in 2008 as a result of the 2005 Indo-US joint statement was critical for the future success of India’s nuclear power programme which was suffering from a fissile material supply crunch. In fact, the fissile material stockpiles had reached such critical levels that the Indian nuclear plants were operating at around 50% of their capacity in 2007-08 as opposed to a high of over 80% of plant capacity in 2003-04. This deficit was due to the NSG’s stranglehold on the global uranium supply chain as NSG member states control over 80% of global uranium reserves and production.

With NSG’s adoption of the Warsaw Guidelines in 1992, India could not trade with the group members. These guidelines posed a problem as India was neither an NPT member nor could it accept full-scope safeguards given its nuclear weapons programme. In 2001, when the Tarapur nuclear power plant faced fuel shortage, Russia stepped in to supply fuel using the ‘grandfather’ clause in the NSG guidelines. However, given the pressure from the American and other NSG members, Moscow was unable to re-supply the plant in 2004 using the same clause. Thus, for India, the only way out was to secure an exemption from the NSG full-scope safeguards requirements, which it obtained in 2008. This also enabled it to import uranium for its nuclear power reactors from various countries, including Canada, Kazakhstan, and Australia and sign civil nuclear cooperation agreements with close to 15 countries.

With the shift in American policy to treat India as a partner in strengthening non-proliferation and export controls, Washington also began to put its weight behind India’s case by bringing New Delhi into the fold of these regimes. Consequently, New Delhi acquired the membership of these regimes barring the NSG, in quick succession.

MTCR was first off the block as India became its member in June 2016. India’s entry into the group can also be seen as turning a full circle, primarily because the group’s origin can be traced back to concerns within the United States of the Indian SLV-3 test in 1980. Then in December 2017, India became the 42nd member of the WA. Before this, India had updated its export control lists for SCOMET (special chemicals, organisms, materials, equipment, and technologies) items, to harmonize with international and WA standards. Similarly, India became a member of the Australia Group in January 2018. This was an important recognition for India because chemicals are one of the most significant Indian exports.

 

While India’s responsible non-proliferation record contributed in securing these memberships, what also worked in India’s favour was that unlike the NSG, China is not a member of the WA, AG or the MTCR. Hence, Beijing was in no position to stonewall India’s membership as it did in the case of the NSG, demanding membership for Pakistan too. Interestingly, though China has provided the US with a written commitment to abide by the MTCR, its membership application has been pending since 2004.

There has been a remarkable change in India’s engagement with the export control regimes, with concrete benefits of these memberships manifested in the nuclear trade, defence modernization and civil space sector. In 2000, for instance, the US Bureau of Industry and Security (BIS) required export control licenses for close to 25% of exports to India. The change in the nature of the India-US relationship and India’s growing acceptance in American export control frameworks is apparent from the fact that post-2009, a majority of the exports did not require any clearance from the US Department of Commerce with less than 1% of American exports to India requiring a BIS export licence.

Similarly, a few months after the AG membership, in August 2018, Washington granted New Delhi, Strategic Trade Authorization-1 (STA-1) status, enabling the latter’s access to high technology items in the civil space and defence sectors. Traditionally, the US has placed only those countries in the STA-1 list, which are members of all the four export control regimes. This status helped to advance the already thriving India-US defence trade, which has added considerable value to the Indian military’s power projection capability.

 

Moreover, MTCR partner states get access to the international market for space launch of satellites by the US and other countries. Given India’s low-cost advantage in this sphere, MTCR membership can benefit the Indian Space Research Organization (ISRO), if it is able to ramp up its capacity. Also, while the MTCR formally does not make a distinction between members, adherents and non-members, several of the regime’s adherents have restrictions on working with non-members due to their domestic export control rules and regulations. Now with the MTCR membership, India will have access to important technologies in the domain of avionics, diagnostics, testing and evaluation, which could have been denied to India by the US and other western countries, as a non-member.

Membership of the MTCR, WA and AG is undoubtedly expected to serve as a stepping stone for India’s membership to the NSG. An important reason why the NSG membership is vital for India is the fact that the group’s membership will allow India to influence future modifications in the group’s guidelines. Having the right to do so is important given India’s growing investment in nuclear power as part of its climate change mitigation strategy. Besides, the NSG membership will grant India ease of access to the global nuclear market and provide it with ‘equal partnership’ in the R&D of new reactor systems. Without NSG membership, India’s integration in the global nuclear security order will remain incomplete.

 

While these regimes have had much success in controlling the exports of conventional and CBWs, controlling exports of emerging dual-use technologies has proved to be challenging. A case in point is the non-members’ exports of dual-use surveillance software. The revelations in November 2019 about the use of Pegasus spyware in India, demonstrated how software sold by the private industry could be misused to target human rights activists and journalists. The Israel-based company NSO GROUP sold the spyware; it claims the software helps governments in tackling terrorism and serious crime. But many organizations have documented the misuse of the software to target human rights groups, activists and journalists by several countries, without any proportionate accountability.

Israel has informally complied with the WA control lists that cover the dual-use software. Yet Tel Aviv’s approach to export controls has waxed and waned; in 2016 it adopted stringent controls, but subsequently reduced the scope and strength of the license requirements for intrusion software exports.

 

In June 2019, the United Nations Special Rapporteur on freedom of opinion and expression, David Kaye, highlighted the role of tools such as computer intrusions, mobile device hacking, network intrusion and facial recognition used by the states for surveillance, with severe implications for the right to privacy. Kaye called for an immediate moratorium on the sale, transfer and use of surveillance technology until human rights-compliant regulatory frameworks are in place.

Ensuring accountability for human rights violations caused by the dual-use software exports will remain the next big challenge for the WA. And India, given its own domestic digital experience, is in a position to shape global debates surrounding the issue. It also gives India an opportunity to reprise its role as a contributor in shaping global norms, seven decades after Prime Minister Nehru advocated the cause of universal nuclear disarmament.

 

References:

David Kaye, ‘The Surveillance Industry is Assisting State Suppression: It Must be Stopped’, The Guardian, London, 26 November 2019.

Deborah A. Ozga, ‘A Chronology of the Missile Technology Control Regime’, The Non Proliferation Review 1(2), Winter 1994, pp. 66-93.

Dinshaw Mistry, ‘Technological Containment: The MTCR and Missile Proliferation’, Security Studies 11(3), Spring 2002, p. 91.

International Atomic Energy Agency, ‘Information Circular 539’, April 2000, pp. 1-11.

Leonard Weiss, ‘Safeguards and the NPT: Where Our Current Problems Began’, Bulletin of the Atomic Scientists 73(5), August 2017, pp. 328-336.

National Security Archive, ‘60th Anniversary of the International Atomic Energy Agency’, October 2017, Briefing Book No. 609.

Yogesh Joshi, ‘Between Principles and Pragmatism: India and the Nuclear Non-Proliferation Regime in the Post-PNE Era, 1974-1980’, The International History Review 21(2), January 2018, pp. 110-149.

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