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 nonproliferation 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 counterproliferation, 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 Nonproliferation of Weapons of Mass Destruction and Means of Their Delivery, the Comprehensive Programme on the Nonproliferation 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 nonproliferation and export control, have been accompanied by a white paper, The Russian Federation and Nonproliferation 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 nonproliferation.

 

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 nonproliferation 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 nonproliferation 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 nonproliferation 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 3-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 nonproliferation, 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 nonproliferation 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