CIAO DATE: 02/02

Implementation of Multilateral Arms Control Agreements: Questions of Compliance
The case of the Missile Technology Control Regime

Yuri Nazarkin
GCSP Faculty

1999 - 2000

The Geneva Centre for Security Policy (GCSP)

Introduction

The Missile Technology Control Regime (MTCR) is a non-treaty, non-legally binding association of states, with the purpose of limiting the risks of proliferation of means of delivery (other than manned aircraft) of weapons of mass destruction (nuclear, chemical and biological weapons). It has established a mechanism of certain control over transfers that could contribute to obtaining such delivery systems.

Thus, in comparison with international legally binding agreements, the MTCR is a special case from the point of view of compliance. It has neither verification procedures nor any other multilateral and juridically formulated means of compliance enforcement. Moreover, due to the closed nature and confidentiality of its meetings, the MTCR cannot be monitored from outside. This makes the task of analysing the efficiency of the regime very difficult. However, it is the purpose of this paper to make such an analysis, and, on its basis, to consider prospects for better compliance with the regime and for raising its efficiency.

Membership and mechanism

In 1982, the United States took the initiative in discussing possible restraints on the proliferation of missile technologies within the G-7, which resulted, in 1987, in the establishment of the Missile Technology Control Regime (MTCR), an informal arrangement designed to curb the proliferation of missile technology. Its original participants were the "G-7" nations - the United States, the United Kingdom, France, Germany, Italy, Canada and Japan. Later, the membership was expanded. Now the MTCR encompasses 32 states on all five continents, besides the G-7: Argentina, Australia, Austria, Belgium, Brazil, the Czech Republic, Denmark, Finland, Greece, Hungary, Iceland, Ireland, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, Russia, South Africa, Spain, Sweden, Switzerland, Turkey and Ukraine are all member states.

In addition, a number of other countries (China, Israel, and Romania) have made unilateral statements of their intention to adhere to the MTCR Guidelines, but they are not members. They seek to control exports of military and dual-use equipment and technology that would be useful to a "proliferant" state. However, unilaterally adopting export control measures based on MTCR guidelines and proclaiming oneself to be an adherent does not necessarily imply that the "adherent" state will automatically be recognized as such - members have independent policies for the determination of whether a state is an official adherent. For example, in the past the United States recognized adherent states only after a bilateral accord has been reached.

There are three major spheres of activities:

• export control;

• exchange of information; and

• coordination of policies.

The MTCR members are guided by the Missile Technology Control Regime (MTCR) Guidelines, which define their purpose as "to limit the risks of proliferation of weapons of mass destruction (i.e. nuclear, chemical and biological weapons), by controlling transfers that could make a contribution to delivery systems (other than manned aircraft) for such weapons." The Guidelines establish the basis of co-ordination of export control policies and appropriate procedures in the field of transfers of missile technologies and equipment. The Guidelines emphasize that they are not designed to impede national space programs for international co-operation in such programs as long as such programs could not contribute to delivery systems (other than manned aircraft) for such weapons. The Guidelines, including the Annex, form the basis for controlling transfers to any destination beyond the member-state government's jurisdiction or control of all delivery systems (other than manned aircraft) capable of delivering weapons of mass destruction, and of equipment and technology relevant to missiles whose performance in terms of payload and range exceeds stated parameters.

The Guidelines are being implemented in accordance with the national legislation of each member-state. The Annex contains 20 item groups divided into two categories.

Category I (items 1 and 2) are the items of greatest sensitivity. These include complete missile and other unmanned air vehicle systems capable of exceeding the 500-kg/300-km parameters, their major subsystems, and their production facilities and technology. If a Category I item is included in a system, that system should also be considered as falling under Category I, except when the incorporated item cannot be separated, removed or duplicated.

The 300 km range limit correlates to the distances, in a majority of strategic theatres of conflict, where nuclear missile use might be considered. This range was also considered to be a convenient, workable, and achievable parameter around which international export controls could be established. The 500 kg payload limit recognizes that emerging nuclear states are likely initially to develop relatively heavy and rather crude nuclear weapons. The 500-kg/300-km parameters apply to the inherent capability of a system. That is, they take into account the ability to trade off payload and range. So Scuds, with the advertised ability to deliver a 1000-kg payload to a range of 299 km, are included in Category I.

The other 18 items belong to Category II. It includes lower-level items of hardware and technology, which can be used for a variety of purposes, including the production of missile systems and subsystems covered by Category I. Since chemical and biological warheads might be lighter, the MTCR establishes Category II restrictions for complete rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) and unmanned air vehicles (including cruise missile systems, target drones and reconnaissance drones) not covered in item 1 and capable of a maximum range equal or superior to 300 km regardless of payload (item 19, adopted in 1993). Item 19 is supplemented by item 20, covering the subsystems and components of missiles.

To guide the export decisions on these items, the MTCR prescribes three levels of export control: prohibitions, presumption of denials, and case-by-case reviews.

"Prohibitions" apply to the transfer of complete production facilities, or complete production technology for Category I items.

A "strong presumption to deny" transfers is to be exercised in the consideration of Category I transfers regardless of their purpose. The same approach also applies to unmanned delivery systems of any payload and range and to Category II items, if the supplier government is persuaded that they are intended for NBC weapons delivery. The transfer of Category I items, other than production facilities or technology, might be authorized only on rare occasions and where the supplying Member-State Government (A) obtains binding government-to-government undertakings embodying the above mentioned assurances from the recipient government and (B) assumes responsibility for taking all steps necessary to ensure that the item is put only to its stated end-use.

A "case-by-case review" must be undertaken in all cases of transfers of Annex items. It is understood that the decision to transfer remains the sole and sovereign judgement of the supplying Government. The transfer of design and production technology directly associated with any items in the Annex should be subject to as great a degree of scrutiny and control as is the equipment itself, to the extent permitted by national legislation.

In the evaluation of transfer application for Annex items, the following factors should be taken into account:

A. Concerns about the proliferation of weapons of mass destruction;

B. The capabilities and objectives of the missile and space programs of the recipient state;

C. The significance of the transfer in terms of the potential development of delivery systems (other than manned aircraft) for weapons of mass destruction;

D. The assessment of the end-use of the transfers, including the relevant assurances of the recipient states; and

E. The applicability of relevant multilateral agreements.

Where the transfer could contribute to a delivery system for weapons of mass destruction, the supplying member state government may authorize transfers of items in the Annex only upon receipt of appropriate assurances from the government of the recipient state that:

A. The item will be used only for the purpose stated and that such use will not be modified nor the items modified or replaced without the prior consent of the supplying Government; and

B. Neither the items nor replicas nor derivatives thereof will be re-transferred without the consent of the supplying Government.

In furtherance of the effective operation of the Guidelines, the member-state governments should, as necessary and appropriate, exchange any relevant information. A key element of information exchange is intelligence, particularly lists of "projects of concerns", i.e. Category I systems targeted by the regime.

The most frequent elements of information exchange are the minutiae of export cases and technical questions that enable export control organizations to avoid unintentionally undercutting each other. The regime includes a "no undercutting rule", which obliges members generally to reinforce each other's export denials.

The Guidelines welcome the adherence of all the states to these Guidelines. As for membership, in each specific case the decision is taken by consensus.

In 1997 the MTCR members made public the following criteria for membership decisions - whether a prospective new member would:

1. Strengthen international non-proliferation efforts;

2. Demonstrate a sustained and sustainable commitment to non-proliferation;

3. Have a legally based, effective export control system that puts into effect the MTCR guidelines and procedures; and

4. Administer and enforce such controls effectively.

Before the Tokyo meeting the US had demonstrated a more restrictive policy toward new members, insisting that new members, with the exception of China and Russia, agree not to possess Category I offensive missiles.

Until March 1998, the US had blocked Ukraine's admission to the MTCR on the ground that Ukraine did not destroy short-range missiles it inherited from the Soviet Union. However, this condition was dropped as a result of a deal reached during Secretary Albright's visit to Kiev 3 March 1998: Ukraine agreed to cancel a contract with Iran and not to provide turbines to the Iranian "Bushehr Project" and the US agreed to support Ukraine's accession to the MTCR. With Ukraine's accession to the MTCR, all the limitations in the space market, particularly within the Sea Launch and the Global Star launches projects, were removed.

Officially, there is no discrimination in transferring missile technology to MTCR member states and non-member states. However, MTCR states, in taking decisions on each particular transfer, might regard membership in the MTCR as a strong argument in favor of the transfer. Some Russian experts express the view that "from the very beginning the MTCR was established as a club of selected nations, without restraints on transfers of missile technologies among them". One of their arguments was that "the US does not see any obstacles in the MTCR for their supplies of SLBMs for Trident-2 and SLCMs Tomahawk."

There is a big problem concerning the desire of some states to develop their ballistic missile capability for space launches. On the one hand, this desire is completely legitimate, because every nation has the right to have an access to benefits from peaceful exploration of the outer space. Conversely, there are no substantial technological difference between space launchers and intercontinental ballistic missiles. Of course, there are some differences in the guidance systems. There might be other parameters in space launches that make them inconvenient as intercontinental weapons. But their technology is the same.

An additional problem has appeared in connection with the implementation of the Treaty on the Reduction and Limitation of Strategic Offensive Arms (START) in Russia and Ukraine, due to proposals for using space launch vehicles derived from the first stages of ICBMs for launches outside of these countries. The START Treaty requires that the country of origin maintain ownership and control of these ICBM-derived space launch vehicles if they are launched out of country, but it is not clear what ownership and control means, and whether it is consistent with the MTCR's intentions. The solution to this problem might be found in the realization of the sea launch project being prepared with the participation of Russian and Ukrainian space companies as well as Boeing of the United States and a Norwegian firm, which is supposed to construct the platform.

MTCR members conduct three types of meetings: plenary, technical and special. They meet at least once a year for a plenary session. Here they exchange intelligence information regarding missile proliferation development, discuss proliferation policy issues, and explore ways of improving the regime's performance. Activities between sessions are dealt with by the chairman of the last session. At technical meetings, representatives examine the regime's specific control parameters to refine and expand the Annex. Special meetings have been called for recruitment purposes: two such meetings were for non-MTCR Western European states and for the newly democratized nations of the Eastern block.

Decisions taken by members, such as approval of membership applications and annex changes, require a consensus vote. Meetings are usually closed and records of meetings and negotiations remain confidential. Member states volunteer to host MTCR meetings. The host nation provides the chairman and determines the meeting's agenda.

The MTCR has no permanent bodies (e.g. a secretariat). The French Ministry for Foreign Affairs acts as the permanent secretariat, fulfilling the regime's normal administrative functions, which include serving as the point of contact.

There is no multilateral verification mechanism. However, participants exchange information on proliferation or threats of proliferation of missile technologies and, possibly, discuss measures of compliance, though such discussions, if they are conducted, are kept confidential.

Assessment of threats and of the efficiency of the MTCR

Missile capabilities of countries, which either already possess weapons of mass destruction (India, Pakistan, Israel) or are suspected to have them (N. Korea, Iran, Iraq), are growing. The US Secretary of Defence in his 1997 Report stated: "Proliferation of NBC/M presents a daunting challenge". The MTCR 13th Plenary meeting held in Budapest 5-9 October 1998 also acknowledged: "The danger of the proliferation of weapons of mass destruction and of their delivery means is growing. Events in the current year, inter alia, in South and North East Asia and in the Middle East have come to illustrate eloquently the sensitive nature of missile technology development". A similar assessment was made by the 14th Plenary meeting (Noordwijk, 11-15 October 1999).

The latest assessment of missile threats comes from CIA Director George J. Tenet's statement before the Senate Select Committee on Intelligence 1 February 2000. He said: "Many states in the next ten years will find it easier to obtain weapons of mass destruction and the means to deliver them. ... Our cities will face ballistic missile threats from a wider variety of actors - North Korea, probably Iran, and possibly Iraq. In some cases this is because of indigenous technological development, and in other cases, because of direct foreign assistance." Having noted Russia, China and North Korea as the main suppliers of ballistic missiles and related technology, he stressed that long-standing recipients - such as Iran, Iraq and Syria - may emerge in the next few years as suppliers as they develop domestic production capabilities.

Does this give grounds to blame the MTCR for its ineffectiveness? That would not be fair, because the MTCR by definition was not conceived to stop proliferation of missile technology. Its task has been much more modest: to curb it. It was established during the Cold War, and, in contrast to the NPT, it did not unite all suppliers in their strive to curb missile technology proliferation. The MTCR was arranged too late when some countries had already obtained some basic technology, which permitted them to launch their indigenous production of missiles.

Efficiency of the MTCR and the continuous efforts of its members to enhance its efficacy are, however, challenged by less controllable regional arms races and new forms of trade, both of which diminish the MTCR's effectiveness. Existing constraints in missile technology proliferation do not seem to be sufficiently strong and practical. Besides that, institutional difficulties appear to impede the reinforcement of the MTCR.

Proponents of the MTCR allege that, despite its failures, the regime slowed down the process of missile technology proliferation. While acknolwledging limited success of the regime, some scholars attribute to its achievemments the termination of South Africa's ballistic missile/space launch vehicle program, the unravelling of the Argentine-Egypt-Iraqi Condor II program - intended to produce a clone of the US Pershing II ballistic missile, Iraq's failure to realise its missile ambitions etc. However, even if the MTCR played a role in those achievements, there were much stronger reasons and circumstances behind them.

A survey of world opinion on the functioning of the MTCR shows that there is a lot of criticism against it. Some accusations are based on a lack of information about the subject, others are better informed, but they do not take into account all the complexities of the real political situation. Some criticism reflects the annoyance of recipient countries - non-members of the regime (my previous paper on the MTCR presented to the 3rd International Security Forum contains a long list of such accusations, and there is no need to repeat it here).

According to the assessment of the CIA, "the MTCR has been moderately successful at slowing the transit of missile related technology between member and non-member countries".

The key issue now is to assess to what extent the MTCR is positioned to address current and future missile threats. The answer to this question is not complimentary for the regime - it does not correspond with existing requirements. There are a number of reasons for that, namely:

1. A number of countries (Israel, India, North Korea, Iraq and some others) had received foreign missile technology - mainly from the current members of the MTCR - before the regime was established. They used it to build a solid technological basis for missile production, and now it is out of the MTCR mandate to reverse the process. It does nothing about the thousands of ballistic missiles and the substantial technical endowments already present in Latin America, the Middle East and East Asia;

2. The membership of the regime is too large and heterogenous to transform it into a more rigid and compulsory arrangement and too narrow to put restraints on all suppliers. That is why issues of compliance are considered in this paper from the perspective of possible institutional changes of the MTCR;

3. The regime is not legally-binding. Moreover, certain guidelines may be criticized as vague and excessively open to interpretation. This gives its members great "flexibility": they can take decisions on transfers in each specific case, taking due account of the political and financial aspects of the case. It is convenient for them, but it does not make the missile technology non-proliferation regime as effective as, for example, the nuclear non-proliferation regime. The "flexibility" of the MTCR gives its members the possibility of applying double standards to "good" and "bad" countries. When the membership of the regime was politically homogenous and assembled only allied states, it was not a big problem, because they used other mechanisms for unifying their approaches to other countries. Now, after the enlargement, the situation is different, because some members may disagree over which potential recipient non-member state is "good" and which is "bad." The situation can be illustrated with the Iranian case. The United States regards Iran as one of its worst enemies. Some other countries, particularly Russia and China, do not share this assessment, and pursue different policies towards Iran, which follow from their geopolitical and commercial interests. For Russia, for example, Iran is an important neighboring country, which has a definite political and religious impact upon the Muslim population of the Russian Federation;

4. Not all of the missile-producing states participate in the MTCR (China, North Korea, Israel, India, and Pakistan). Some of them very actively pursue the export of missile technology. The MTCR enlargement diminishes this loophole, but the absence, for a number of years, of big suppliers among the MTCR participants had negative consequences for non-proliferation;

5. Further enlargement of the regime would make it inevitably more politically heterogeneous and would increase difficulties in pursuing an agreed policy. This would result in a growing trend towards inefficiency;

6. On the other hand, if the MTCR does not expand further, it will lose its effectiveness because an increasing number of supplying states will be outside of its control and restraints;

7. The regime does not address every aspect of missile technology proliferation due to the technology's nature (i.e., smaller systems are regularly traded on world markets). Basic limits (500 kg for payload and 300 for range) officially permit the proliferation of missile technology. This approach is justified as far as weapons of mass destruction represent a danger for the survival of mankind and missiles are the most effective means of delivery of these weapons. However, missiles in the possession of rogue states represent grave dangers even if they are used for delivery of conventional armaments against sensitive targets, particularly against nuclear, chemical and biological facilities, which would result in the dispersion of these poisonous substances. Besides, any missile technology facilitates the development of indigenous technology for the production of missiles capable to deliver weapons of mass destruction;

8. There is another loophole: the MTCR does not solve the problem of the proliferation of cruise missile technology, because aircraft technology, which is not covered by the Annex, can be used to a certain extent for the production of cruise missiles;

9. The regime does not have any tools and means to influence recipient countries, non-members of the MTCR, to abstain from receiving missile technology. It suggests nothing to address their national security, which is the major motive for proliferation, because regional powers believe that long-range missiles are essential for their national security. Equally it does not offer any economic benefits for recipient countries;

10. In some member states, national mechanisms of coordination among the responsible ministries and agencies are not effective enough; and

11. The regime does not provide for any mechanism for monitoring compliance. There is no means for collective response in case of violations. There is no international mechanism for supporting the activities of the regime.

It is evident that the MTCR suffers from both political difficulties and institutional shortcomings. The regime has passed its Rubicon, after having opened its membership to countries which are not allies of the US. This move was definitely justified from the point of view of non-proliferation, but now the MTCR requires appropriate readjustments, in order to realize its potential.

The non-proliferation mission of the regime collides more and more with the unilateral political and commercial interests of some members, while the technological possibilities of the "proliferants" are growing. It is evident that the MTCR is in a serious crisis.

Concerns about missile technology proliferation play an important role in the world politics. These concerns were clearly expressed at the G8 Okinawa Summit (July 2000), which recognized the necessity of the strengthening of the MTCR. Its Communiqué says: "We welcome the reinforcement of global regimes to prevent proliferation of weapons of mass destruction and their delivery systems. We also recognize the need to examine and promote further multilateral measures to curb missile proliferation. In this regard, we strongly support the important work of the Missile Technology Control Regime (MTCR) and will consider the proposal for a Global Monitoring System."

The proposal mentioned in the Communiqué (GMS) was put forward by the Russian President on June 20, 1999, in Cologne during the G8 summit and later elaborated in bilateral talks with the US. Though the full text of the Russian proposal was not published, its main parameters look as follows:

• GMS would serve the same purposes as MTCR but at the same time it would be an autonomous mechanism using its own instruments;
• It could include: (a) global monitoring of missile launches for any purposes (notification regime of ballistic missile launches, detection mechanism of missile launches and an international monitoring center); (b) security assurances for the states-parties of this system, which do not possess or refused to possess missile means of delivery; (c) incentives, including aid to national space programs for states that turn away from possessing missile systems; and (d) consultation mechanism;
• GMS should be open for participation and function under the auspices of the United Nations; and
• The system is intended to complement existing non-proliferation arrangements but not to replace them.

The US side agreed with that part of the proposal which related to global monitoring for missile launches (a). Later, at the Moscow Summit of June 4, 2000, it resulted in the US-Russia Memorandum of Agreement on the establishment of a joint center for the exchange of data from early warning systems and notifications of missile launches. Safeguarding the security of states that hold their missile programs (b) was rejected as "unfeasible".

The US side expressed its reservations on the third element (c) relating to incentives, though it did not rule out the possibility of continuing a dialogue on this issue.

As regards the consultation mechanism (d), the US side does not believe that "broad multilateral discussions will be productive at this time" and speaks in favor of holding regular consultations among countries involved in this matter. It stressed that "these issues should be discussed within the framework of the MTCR (and groups of MTCR partners) before they are moved outside this framework.

The Okinawa communiqué implies that the idea of such consultations was approved by the G8. However, a number of important questions remain open.

What measures could stop missile technology proliferation? Are they feasible? If they cannot be implemented today, how to prepare their feasibility in the future? What to do in order to prevent dangerous developments? The next section, without claiming to answer these questions, will consider them.

Prospects for compliance with the MTCR

There are at least three layers that will be discussed under this title, namely:

1. Compliance with the MTCR in its current form;

2. Compliance with a modified version of the MTCR; and

3. Compliance with a radically changed regime.

There might be a number of ideas of increasing the effectiveness of the missile technology non-proliferation regime on each of the layers. Every idea has its own advantages and disadvantages, as well as different degrees of feasibility. They are not mutually exclusive, but might find effectiveness at different times. It is worthwhile to consider various options for increasing the effectiveness of the regime, even if at present some of them may look unrealistic. Let us consider possible (and even impossible - at least at present) ways of increasing effectiveness of the MTCR.

Compliance with the MTCR in its current form implies some improvements in functioning of the regime within the existing arrangements, without changing them institutionally.

The major reserve for such improvement lies in national efforts of member-states aimed at raising the efficiency of their national export control regimes. Strict export control regulations, measures of their enforcement, better coordination among national ministries and agencies involved in export control activities as well as exchange of experience in this field within the MTCR are measures that lead to this end.

Conditions for better compliance would be improved, if the purposes of the MTCR and its functioning were more widely explained and clarified. Why do the records of the meetings and negotiations remain confidential? This raises suspicions towards the MTCR or at least towards the G-7 countries which founded the regime. 32 states cannot keep their joint activities secret, and the leaks which happen from time to time only give force to the suspicions. If member states share intelligence information among themselves and this serves as a pretext for confidentiality, this information ceases to be confidential at the moment when it is put on the table.

On the other hand, if non-members were to know more about the MTCR, it would help them to improve their export control systems, and to bring them closer to the MTCR Guidelines, and it would raise their responsibility in the field of missile technology non-proliferation as well as facilitating mutual understanding between members and non-members.

An effective measure to this end might be international/regional workshops/seminars on missile technology proliferation problems, with the participation of official and non-official representatives from both member and non-member states. These problems should also be more widely discussed at international non-governmental symposiums, but scholars should have access to information on those MTCR activities that are now confidential.

Missile proliferation issues should be considered in the context of the political and geopolitical situations of specific regions. This is why regional seminars would be particularly helpful.

MTCR non-members could also be informed about the regime and its purposes and functions by MTCR members including through diplomatic channels.

In short, a friendly and constructive dialogue between members and non-members is required. As a result of such a dialogue, non-members would understand that the MTCR is an honest endeavor to increase international security and not a conspiracy against them or a supermarket of missile technology for members and a threat to the security of non-members, and that its activities do not create obstacles for the peaceful exploitation of outer space.

The openness of the regime would make it possible for NGOs to contribute to monitoring the compliance with the MTCR and to react to cases of non-compliance.

The practice of the MTCR should include the possibility of discussing cases, when some MTCR members suspect that others are acting not for the sake of non-proliferation but in the interests of their national firms competing with foreign firms. Such a possibility would need to be legitimized by a special decision of the MTCR members, if such a decision has not yet been taken. Such measures would improve the image of the MTCR as a non-proliferation regime, but not as a tool against trade competitors.

Compliance with a modified version of the MTCR would require, naturally enough, changes in the existing arrangements. Such a modified version might be based on a number of changes mentioned below.

1. Membership enlargement is not a new phenomenon in the MTCR: it has expanded already from 7 countries in 1987 to 32 now. However, there are certain criteria for the adoption of new members (see above), which keeps the MTCR as a closed club. Certainly, in order to be more comprehensive, the MTCR must cover all suppliers, including those, which now import more than they export. As a matter of fact, any current recipient might, over the long run, reach the stage when it becomes a supplier. China, India, Pakistan and some others should place their export of missile technologies under some restraints. The membership of such states as South Korea, Slovakia, Romania, Belarus and Kazakhstan, which have missile technologies, is also promising. North Korea, Israel, Iran and Iraq are very controversial candidates, but at the same time one should not ignore their capabilities in the field of missile technologies, which might some day be exportable. Disadvantages of the MTCR enlargement were considered in the preceding section. In order to diminish them some institutional changes should be made.

2. Elimination of the double standard approach towards non-members. Each individual MTCR member has the right, in accordance with the existing Guidelines, to judge for itself ("on the basis of all available, persuasive information, evaluated according to factors including those in paragraph 3, that they are intended to be used for the delivery of weapons of mass destruction" - paragraph 2 of the Guidelines) for or against the transfer of an item. The same approach is also applied to the most sensitive Category I item, though there should be "a strong presumption to deny such transfers." In practical terms, however, the political orientation of a potential recipient has much more significance than its adherence to non-proliferation norms. Under the existing Guidelines it is not possible to neutralize this political factor. If the arrangement provides for an open discussion of questionable cases, it would help to diminish the possibility of the double standard approach.

3. Advantages for members. Of course, the MTCR should not be a supermarket for missile technologies. Restraints should remain for its members. But if the MTCR partners' requests for licenses on transfers to other MTCR members (on the basis of unified export control systems), are considered on the basis of simplified procedure, that would stimulate a better climate and co-operation inside the regime.

4. Tougher restraints for non-members. Theoretically, the MTCR's restraints can be made tougher through eliminating the criterion of payload for Category I items or reducing the criterion of range for Categories I and II, or both. There is also a possibility of moving some technologies, particularly those for advanced cruise missiles, to Category I (see below "Cruise missiles issue"). A move concerning the payload criterion for Category II items was already made in 1993. Concerns have been expressed since that time that missiles, even if not necessarily armed with warheads for weapons of mass destruction, might not be less dangerous. It is known that radioactive, chemical or biological contamination can be induced with conventional missiles targeted against nuclear, chemical or biological facilities (certainly, higher accuracy is required for this purpose). Thus, missiles, even without nuclear, chemical or biological warheads, could possibly be used as means of blackmail. James Woolsey, former director of the CIA, referred to this possibility during hearings of the US Senate Committee on Intelligence held 4 December 1996. In this context he specifically mentioned launches by China of missiles near Taiwan in order to influence the presidential elections there, and the use by Iraq of conventional missiles against Israel.

5. Technologies for advanced cruise missiles to the MTCR's should be moved to Category I. States that possess cruise-missile technology should discuss the problem and elaborate a list of specific items related to the proliferation of cruise-missile technology.

Verification and compliance. Inasmuch as the MTCR is not a treaty, and its rules have no legally binding character, verification and compliance measures in their classical form are not applicable. However, the regime would be more effective if some of such structures are established within it, for monitoring the implementation of the changed Guidelines, and for the consideration of controversial cases and situations. This would diminish possible suspicions among members and contribute to the consolidation of the regime.

"A radically changed regime" could mean a legally-binding arrangement on non-proliferation of missile technology, i.e. a treaty.

In principle, the conclusion of an international instrument, which would make the MTCR restraints legally binding and encompass as many states as possible, would be the most radical and effective step in curbing missile proliferation (it is unfeasible to stop it completely).

From time to time the question of giving the MTCR a more formal and mandatory character has been raised and discussed among experts.

In May 1989, the Soviet representatives, in the process of negotiating with the United States on possible participation in the MTCR, suggested to establish an international agency modeled on the IAEA, with the power to make decisions about which technology transfers were in line with the peaceful use of space and which were contributing to missile programs. This idea was elaborated by the Soviet Union in 1991, with the clarification that in such an agency, both supplier states and states interested in receiving missiles and missile technologies for their use in peaceful purposes, particularly for the peaceful use of the space, could participate. The American side rejected both suggestions.

A special meeting of the MTCR partners was arranged in the late summer of 1995 to consider the possibility of some sort of global INF Treaty as a way of preventing missile proliferation. A consensus emerged against the idea - a consensus so powerful that the government that presented the idea withdrew it before it could be discussed at the meeting. It was considered that this event "soundly killed" the idea of directing missile technology non-proliferation efforts towards an international treaty.

No details of the aforementioned proposal are available. However, it is evident that if it was really based on the idea of "a multilateral INF Treaty", such a multilateral treaty would not only have prohibited the proliferation of missile technologies, but first and foremost would have provided for the elimination of all intermediate-range and shorter-range missiles and launchers of such missiles, and have prohibited the production and flight tests of such missiles and their launches. This was an equally far-reaching and unrealistic idea. The United States and the Soviet Union, possessing enormous arsenals of strategic missiles, could afford to eliminate and prohibit these two classes of missiles, but other countries, with more modest arsenals, could not.

It failed, because it is not possible to deprive some states of missiles, which they possess already, while allowing others to keep them. If such a treaty is concluded, no states would have missiles of intermediate and shorter ranges, i.e. of 500-5500 km ranges, but missiles of more than 5500 km range would be allowed. This would mean that for purely practical reasons those who hold such missiles will keep them, while those who do not will never get them.

But what kind of an agreement would be appropriate to consider? One, which would be analogue to the NPT, but in the field of means of delivery? To a certain extent, yes. But there are factual differences that make a comparison unwieldy: when the NPT was concluded, there were only five nuclear-weapon states; the NPT fixed this status quo. Now there are at least a few dozens of states possessing missiles. Should all of them be permitted to keep them? Yes - no other option is realistic. A MTCR Treaty, like the NPT, should keep the status quo and, thus, recognize the right of those who possess missiles to keep them and deny the right of those who do not possess missiles to obtain them. But at the same time it should "freeze" or, speaking more realistically, curb the capability of its members to develop their missiles with the assistance of other states.

Some "special cases" might be exempted from the treaty through reservations not challenged by other parties. There are precedents for such exemptions. START prohibits transfers of strategic armaments to third countries, but the US and the USSR agreed that "the existing pattern of co-operation in missile technology field" such as US-UK on SLBMs for Trident-2 and SLCMs Tomahawk should be exempted from that prohibition. One can find another example of the same kind in the MTCR practice: Russia joined the regime on the condition that the Guidelines would not be applied to its co-operation with Ukraine, because within the Soviet Union they had a common technological and industrial base for the production of missiles.

Such an approach might be regarded as discriminatory, but it would be compensated by advantages from the participation in the treaty, namely with benefits from space launches (see below) and privileges in obtaining permitted (or, rather, not prohibited) technologies for tactical offensive (of a range of less than 300 km) and defensive (anti-aircraft and anti-missile) missiles. The last point is, of course, very controversial. On one hand, it is of particular importance, because regional security reasons weigh more heavily for many countries than the possibility of space launches. On the other hand, technology for tactical missiles can contribute to the development of longer-range missiles, so it would be necessary to take measures against it. What kind of measures? At this stage it would be premature to say. If the whole idea of a MTCR treaty has the follow-up effect, this question, as well as many others, might be answered as a result of broader consultations and discussions on a more practical level.

However, for the purpose of this paper we should outline basic parameters of such a treaty to consider what measures of compliance might be applied.

The major characteristics of the Treaty would be as follows:

1. Its purpose is to curb effectively missile technology proliferation on the basis of legally binding obligations (and not to eliminate existing missiles that would be a subject for other possible treaties);

2. States Parties should undertake to deny unconditionally all transfers of items specified in the Annex to the Treaty to non-parties;

3. Transfers among signatories should be regulated on the basis of the existing Guidelines, with probable amendments to the Annex, but, unlike the existing MTCR, a decision taken by a supplier should be approved by a special body ("Board of Governors" - see below) established by the treaty. The MTCR Guidelines might be transformed, with appropriate adjustments, into respective treaty provisions, supplemented by an Article providing that a decision of a supplier-state should be reported to the Board for its consideration and possible clearance;

4. The Treaty should clearly ensure the right of its Parties to participate, in international co-operation, in the peaceful exploitation of outer space. Special arrangements should be made within the treaty to this end. They should provide, in particular, for the establishment within the Organization for Treaty Implementation (see below), of appropriate structures to facilitate such co-operation;

5. A supplying State Party, when requested by another Party and a non-Party to consider transfers of items not prohibited by the Treaty, gives preference to the Party; and

6. The Treaty should be open to all states and should have the widest possible membership.

The compliance procedures for such a treaty should be based on the "Organization for the Implementation of the Treaty". It would consist of the General Conference (all States-Parties should be represented there), the Board of Governors (it should be of limited membership) and the Secretariat headed by the Director General. He would be appointed by the Board of Governors with the approval of the General Conference. Decision-making rules are to be negotiated.

The Organization would conduct verification (exchange of information, consultations, a reporting system, fact-finding missions and special inspections). The Secretariat should have special divisions implementing these functions.

States-Parties, which might not be in compliance with the treaty, e.g. with verification procedures, would be subject to sanctions. They might include limitation or suspension of benefits from the membership (permissions to deliver or receive transfers, access to space launches) or complete suspension of the membership. The Board of Governors may recommend wider economic sanctions against violators. It may present a case of violation to the UN Security Council.

There are definite advantages in establishing such a Treaty: increased effectiveness due to its legally binding nature and verification procedures, wide participation based on its attractiveness, a non-discriminatory approach among signatories, etc. However, strong objections might be anticipated against it.

Though this kind of a non-proliferation treaty looks more feasible than the multilateral INF Treaty Draft, careful preparatory work should be done before this idea might be discussed on the governmental level. But this subject is outside the purpose of this paper.

Conclusion

The MTCR remains a closed club with no publicity, with the exception of short press releases after annual plenary meetings. This makes the task of analyzing and assessing its activities difficult. As might be concluded under the current circumstances, MTCR members, at least some of them, are not inclined to change the regime into a more effective and binding arrangement.

NGOs could play an important role in creating public opinion in favor of a more effective regime, with verification and compliance tools and means.

Further studies on this subject could contribute to broader international discussions on measures aimed at increasing effectiveness of the MTCR.