Submission from Dr Derek Averre,
Senior Research Fellow Centre for Russian and East European Studies,
University of Birmingham
1. This is an individual submission, written
from the point of view of an academic who follows current developments
in Russia's foreign and security policy and has researched non-proliferation
issues. It provides a brief analysis of Russia's policy on WMD
non-proliferation in the sphere of export controls, in other words
policy aimed at checking and averting "horizontal" proliferation.
(Issues relating to "vertical" proliferation, that is,
increases in Russia's nuclear potential, or to counter-proliferation,
are not dealt with in this submission).
2. The problem of proliferation of WMD and
the means of their delivery has received constant attention by
the Russian government in the post-Soviet era and constitutes
one area in which Moscow has generally been cooperative, in spite
of occasional disagreements over approaches to specific problems.
In the recent period the issue has acquired greater urgency in
view of official Russian assessments of the risks posed to national
security by potential terrorist use of WMD. The adoption of the
Principles of Russian Federation State Policy in the Sphere
of the Non-proliferation of Weapons of Mass Destruction and Means
of Their Delivery, the Comprehensive Programme on the Non-proliferation
of Weapons of Mass Destruction and Means of Their Delivery for
the Period Until 2010, as well as a series of normative legal
documents concerning issues of non-proliferation and export control,
have been accompanied by a white paper, The Russian Federation
and Non-proliferation of Weapons of Mass Destruction and Delivery
Systems: Threats, Assessments, Problems and Solutions (unofficial
English translation at http://cns.miis.edu/pubs/other/rusfed.htm),
which describes in some detail Russia's international commitments
and initiatives in the sphere of WMD arms control, disarmament
and non-proliferation.
3. Russia inherited both a substantial infrastructure
from the Soviet Union for the development and manufacture of nuclear,
chemical, biological and dual-use goods and technologies (G &
T) and the USSR's obligations and commitments in the area of WMD
disarmament. The Yeltsin government, evidently aware of the extent
and urgency of the potential proliferation problem, immediately
pledged support for international efforts to control exports of
WMD-related G & T and began to put in place a system of export
controls. An initial step was the establishment in 1992 of
an Export Control Commission charged with coordinating the export
control system and establishing a unified state policy, as well
as participating in the work of international organisations dealing
with these issues. Subsequent presidential decrees were issued
which established lists pertaining to each class of export-controlled
G & T. Legal penalties for violating export controls were
introduced during this period, with the passing of the Federal
Law establishing the Russian Federation (RF) Criminal Code; it
contained a number of articles determining penalties for violating
export controls and stated that the illegal export of WMD-related
G & T was punishable by between three and twelve years' imprisonment.
4. The legal and normative basis for export
controls was strengthened by the 1999 Federal Law on Export
Control which, accompanied by a reorganisation of the export controls
system during the administrative reform of 2000, laid the groundwork
for the current system. The Law established legal definitions
for export control and introduced a mechanism for "catch-all"
controls; also, whereas formerly the government had recommended
firms to establish internal export control systems, this now became
mandatory for organisations engaging in scientific or production
activities in the defence or security sphere linked with foreign
trade in controlled items. It also established state accreditation
of organisations promoting internal company export control programmes
and created a system of independent expertise to assess foreign
trade deals involving export controlled G & T to identify
export controlled items. Amendments were introduced to the Law
in 2007 which tightened up what were rather general provisions
in the original 1999 draft and introduced a specific reference
to the importance of export controls in the fight against terrorism.
5. Concerns about the ability of the Russian
customs service—lacking personnel, infrastructure and technical
equipment—to cope with monitoring shipments of sophisticated
G & T across Russia's extensive land borders, led to measures
to improve the service by introducing a comprehensive customs
code, increasing the number of staff in the State Customs Committee
and augmenting border controls. The RF customs code specifically
designated nuclear, chemical and biological G & T as contraband
items. Efforts were also made by the newly-created Federal Border
Service, directly subordinated to the President's office, to organise
and maintain border controls and regulate cooperation between
border and customs services. In 2003 a new Customs Code simplified
customs rules and procedures with the ultimate goal of reducing
red tape and arbitrary actions of customs officers and making
foreign trade operations more stable and predictable, including
with respect to export controls, including improving identification
procedures and checks on goods shipped across Russia's borders.
Efforts to establish a coordinated Commonwealth of Independent
States policy with common schedules and criteria for the issue
of licences initially made little headway; however a programme
of long-term cooperation with CIS countries in the sphere of WMD
non-proliferation was approved in 2003, which inter alia
provides for advice and technical assistance to the latter in
improving national legislation on export controls. Cooperation
within the framework of international agreements, for example
the Collective Security Treaty, is also ongoing. The most important
of these is an Agreement among the member states of the Eurasian
Economic Community, namely the Russian Federation, Belarus, Kazakhstan,
Kyrgyzstan, Tajikistan and Uzbekistan, to ensure harmonised norms
and rules and a unified system of export controls in their states.
6. The Law on Export Control provides the
legal basis for export control lists for each class of controlled
G & T which, including via a number of technical and procedural
amendments, have brought Russia in line with its international
commitments in the sphere of non-proliferation of WMD and their
means of delivery. These lists are:
— Chemicals, equipment and technologies
which can be used to create chemical weapons; the list includes
chemicals listed in the Schedules in the appendix to the Chemical
Weapons Convention.
— Human, animal and plant pathogens,
genetically modified organisms, toxins and associated equipment
and technologies.
— Dual-use G & T used for nuclear
purposes, including equipment and parts for separation of uranium
isotopes, equipment linked with heavy water production units,
testing and measuring equipment for development of nuclear explosive
devices; and components for nuclear explosive devices.
— Equipment, materials and technologies
which can be used to create missile weaponry.
— Dual-use G & T which can be used
to create weapons and military technologies.
— Nuclear materials, equipment, special
non-nuclear materials and associated technologies.
7. Other important measures include:
— A decree "On the control of
exports from the Russian Federation of nuclear materials, equipment
and technologies", issued in 1992 and updated in 2000.
The original decree stated that exports of such items can only
be made to a non-nuclear weapons state in the case that all nuclear
activity of the state is under International Atomic Energy Agency
guarantees. The amendments state that in exceptional cases exports
from the RF can be made to states not subject to IAEA guarantees
by individual decisions by the RF government if the export does
not contravene the RF's international obligations; if the government
of the receiving state provides official assurances that the exported
items will not be used to create nuclear explosive devices; if
the export is exclusively to ensure safety of exploitation of
nuclear units in the territory of the receiving state; and if
IAEA guarantees apply to the said units.
— Two decrees issued in support of
UN Security Council resolutions. The first is related to UNSC
resolution 1718, which envisages a number of restrictions concerning
North Korea in connection with its nuclear testing programme;
the decree bans exports from Russia or transit through Russia
of a range of heavy armaments as well as goods, materials, equipment
and technologies identified by the UNSC resolution and listed
in Russian export control schedules which may assist North Korean
nuclear weapons programmes and other WMD and ballistic missile
programmes. The second relates to UNSC resolutions 1737 and
1747 and bans exports from Russia or transit through Russia
of goods, materials, equipment and technologies which may be used
in Iran's programme of nuclear enrichment, including the production
of uranium hexafluoride, the processing of spent nuclear fuel,
or heavy water (including research reactors with heavy water moderators),
or which may assist the development of means of delivery of nuclear
weapons (an exception is made for G & T designated for use
in light water nuclear reactors and uranium enriched to no more
than 5% isotope uranium-235 when it forms part of fuel assemblies).
It also bans the export or transit of any items identified in
UNSC resolution 1737 which may assist enrichment or reprocessing
of heavy water or means of delivery of nuclear weapons. A range
of restrictions on dealing with certain Iranian organisations
and persons designated in a list appended to decree no 1593 is
also introduced.
8. The 1996 Federal Law establishing
the abovementioned RF Criminal Code contained a number of articles
determining penalties for violating export controls. In addition,
the Code for Administrative Violations entered into force in 2002,
covering violations of legislation on export control and of customs
laws, both of which introduced a fixed system of heavy administrative
fines. A Federal law was passed in 2006 which introduced
more stringent state surveillance of export controls, including
increasing the level of administrative fines and term of limitation
for breaching export controls, and established a higher normative
threshold for responsibility of individuals responsible for export
controls to follow established procedures and provide full and
accurate information to export control organs.
9. Effective communication between government
and industry and the cooperation of the latter are essential to
the success of non-proliferation export controls, both in terms
of ensuring that breaches of controls do not inadvertently take
place and of making use of the technological knowledge which industry
and the scientific community can provide when schedules of controlled
items are being drawn up. Russia has addressed the issue of introducing
a code of practice on export control compliance. The Center for
Export Controls, a nongovernmental not-for-profit organisation,
provides information, educational and consulting services in the
sphere of export controls and has been promoting industry awareness
in collaboration with RF government agencies; it carries out a
regular programme of seminars to provincial industrial centres
in Russia focusing on export controls compliance procedures, the
methodology of identifying and classifying dual-use G & T
according to control lists, licensing documentation and procedures,
customs controls and related themes. With overseas assistance
export control programmes have been established both at enterprises
and in organisations under the jurisdiction of government agencies.
10. Regarding decision-making structures,
a 2001 presidential decree established a new interdepartmental
Export Control Commission, formed under the Law on Export Control
and composed of representatives of all relevant agencies, to ensure
a unified export control policy. In addition, as a result of a
reorganisation of executive agencies, the high-profile Federal
Service for Technical and Export Control (FSTEC) was established
with effect from 1 January 2005; FSTEC, as well as acquiring
responsibility for guaranteeing security of information in key
systems of the country's information and telecommunications infrastructure,
was also charged with the functions relating to export control
formerly carried out by the Ministry for Economic Development
and Trade; it is thus currently the Russian licensing agency responsible
for export controls (the Law on Export Controls having established
the legal basis for licensing procedures) and provides organisational,
technical and information support to the Export Control Commission.
Export control directorate departments within the FSTEC administration
deal specifically with the various categories of controlled items;
there are also territorial directorates in each of the RF regions.
One important change was that FSTEC was subordinated to the RF
Ministry of Defence, despite the fact that the RF President formally
oversees direction of the Service. A vertical decision-making
structure has thus been developed in Russia in the sphere of export
controls.
11. As mentioned above, the Law on Export
Control legally enshrined the principle of catch-all controls,
in other words to include items not included in export control
schedules; if the exporter has reason to believe that exported
item might be used in producing WMD or means of their delivery,
as a result of information from state agencies or of the exporter's
own investigation, the latter has to apply to the Export Control
Commission for guidance and permission to export. The exporter
is obliged to check the reliability of the buyer and end user
of the controlled G & T, whether the deal will contravene
Russia's non-proliferation commitments and whether the interests
and security of the state are damaged. A further government resolution
appeared in 2005 which strengthened the catch-all principle.
12. Russia thus has an export control system
recognisable as one conforming to international practice, with
an executive infrastructure, an effective licensing system and
a legal and normative basis, including end user guarantees, catch-all
controls, controls over intangible technologies and technology
transfer and internal company educational programmes. Russian
lists of controlled G & T have been brought into line with
those of international control regimes, most of which—with
the exception of the Australia Group—Russia is a member.
Training of customs and licensing officials, including under programmes
carried out with international assistance, have improved practice
in these areas. Moreover, provisions have been established for
legal sanctions against persons contravening export control laws.
According to specialists, successive Russian administrations have
"never questioned the need to control proliferation or to
impost effective export controls" since Russia's interest
lies conforming to international practice in order to ensure that
export markets are open to Russian G & T and that Russia has
access to imported high-tech items. A three-year project between
FSTEC and an EU subcontractor, which has established direct contacts
between Russian and EU export control officials, was put in place
in 2006; work is ongoing on recommendations aimed at harmonisation
of Russian legislation with the EU export control system, including
a single list of controlled goods, enhancement of transparency
for industry and increasing exporters' awareness.
13. The abovementioned white paper explicitly
declared the need for transparency and cooperation among states
in the struggle against WMD proliferation in the interests of
national security, and reflects Russian concerns about the risks
of radioactive "dirty" bombs; of biological proliferation
in the absence of a BTWC verification regime; of the development
of non-lethal chemical and biological weapons; and of the absence
of clear international regulation of missile-related G & T.
The paper contains a section on export controls and states that
in the last few years alone over 60 criminal cases involving
charges relating to unauthorised exports of controlled items have
been brought and more than 30 attempts by foreign persons
or companies to smuggle sensitive items have been forestalled.
The numerous instances of alleged export control violations by
Russian organisations have mainly involved nuclear- and missile-related
G & T, and have generally become less frequent in recent years.
While US Central Intelligence Agency assessments have stated that
Russian entities remain a key source of dual-use items, particularly
for Iran, independent Russian experts have stated that US claims
are "grossly exaggerated"
14. Nevertheless the white paper candidly
asserts that further improvement in Russian export control legislation,
structures and procedures are needed. Expert analysis has identified
a number of continuing problems facing Russian export controls:
— Political disputes between states,
in an international system which is characterised by alternating
impulses to cooperation and competition, still intrude into export
controls. Despite the recent decree which places limitations on
trade with Iran, disagreements with the US over Russia's nuclear
cooperation with that country is a well-known case in point. One
authoritative source states that Russian officials privately tend
to admit that, as a result, nonproliferation issues do not enjoy
great prominence in Russia's foreign policy considerations, especially
compared to other perceived threats arising from such as US missile
defences or NATO enlargement.
— The balance between trade and security
considerations still affects export controls, particularly in
dual-use G & T; although prepared to play a responsible role
in the sphere of non-proliferation, Russia is reluctant to sacrifice
its economic and political interests, particularly where it perceives
double standards in Western states' policies.
— Whereas European companies themselves
are obliged to keep track of whether a particular product they
make is subject to licensing by the controlling authority and
submit applications to the latter, there is no such practice in
Russia. Also, in Europe it is more difficult to set up "fly-by-night"
companies, while in Russia it is still possible and many are taking
full advantage of legal loopholes.
— The customs service remains a weak
link in the export control system; it is still short of the requisite
equipment and experienced personnel and is still beset by lack
of professionalism at best and corruption at worst. In practice
customs officials are often not able to assess whether goods should
be placed in the category of controlled items or not, leading
to unauthorised exports or to delays in processing legitimate
exports. The system of independent identification expertise introduced
by the Law on Export Control has, however, improved the identification
of controlled items.
— Despite an improvement in recent
years, enforcement (while not a problem confined to Russia) is
still regarded as relatively weak by both Western and Russian
specialists, with penalties applied unevenly and few violations
being taken to court and resulting in criminal prosecution. Acts
covering administrative responsibility for violations of export
controls are also not rigorously enforced. In general there is
little in the way of an effective counterweight to powerful state
agencies or organisations interested in exporting controlled G
& T.
— In spite of ongoing efforts to promote
internal company export control programmes, industry representatives
complain that they do not have the resources to ensure effective
compliance or to carry out a pre-licensing check on prospective
end users; there has also been the problem of lack of trust in
government non-proliferation policy.
— The catch-all concept is not well
understood by many in industry and even by some in government;
the latter rarely provides information on suspicious end-users
and lacks the resources to implement checks. Again, the Russian
government is making efforts to tackle this problem, and more
information sharing at the international level, for example the
EU-Russia initiative described above, is improving this situation.
— Control over the transfer of intangible
technologies—again, an international problem given the information
revolution—has been discussed in interdepartmental government
meetings but legislation in this sphere requires improvement.
21 October 2008
|
