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"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."
– Senator Joe Biden
January 28, 2004
June/July 1997
Edition Date: 
Sunday, June 1, 1997

Senate Calls for Sanctions on China

Following Iranian tests of a new air-launched anti-ship cruise missile acquired from China, the Senate, on June 18, approved a non-binding "sense-of-the-Senate" resolution offered by Senator Robert Bennett (RUT) urging the Clinton administration to enforce the Iran-Iraq Arms NonProliferation Act of 1992 and sanction China for selling the missiles to Iran.

Testifying in April, Deputy Assistant Secretary of State Robert Einhorn said the law "does provide for a substantial list of actions" against anyone providing Iran or Iraq with destabilizing numbers or types of conventional weapons, or assisting them in the acquisition of weapons of mass destruction. The administration has maintained since March 1996 that China's sale of the C802 Silkworm land and sea-launched anti-ship missile to Iran are not sufficiently destabilizing in numbers or type to trigger sanctions. That judgment, however, was called into question by the Senate after Defense Secretary William Cohen's June 17 announcement of Iran's successful tests of the C801 Sardine, a variant of the Silkworm.

According to a senior defense official, U.S. ships in the Persian Gulf now face "a 360degree threat which can . . . come up on you very, very quickly." Iran has deployed the C802 on its coast and on more than 20 patrol boats and frigates; the addition of the air-launched C801 variant provides Iran with an additional anti-ship capability that can be launched from any direction. The official pointed out, however, that the U.S. Navy "can certainly track and engage any cruise missile in the Gulf today."

U.S., North Korea Meet for Missile Discussions

More than a year after the United States and North Korea initiated talks aimed at limiting Pyongyang's missile development programs and missile exports, U.S. and North Korean officials held a second round of talks June 11-13 in New York. The talks produced no agreements, but a senior administration official described the talks as businesslike, and said "they provide a good basis for further discussions," and possibly additional talks this summer. North Korea has been developing medium-range (about 1,000 kilometer) missiles that would allow it to strike all of South Korea and nearly all of Japan, and has sold Syria and Iran improved Scud missiles capable of delivering chemical or biological warheads.

The two sides first met to discuss the issue in April 1996, however, intervening events such as the submarine incident of September 1996 kept additional rounds of talks from being scheduled. The United States has linked North Korean performance on the missile issue with the improved political and economic relations mandated by the 1994 U.S.North Korean Agreed Framework that froze North Korea's nuclear weapons program.

The U.S. delegation was led by Deputy Assistant Secretary of State for Non-Proliferation Robert Einhorn; his North Korean counterpart was Li Hyongchol, director of American affairs in the Ministry of Foreign Affairs. A senior administration official said the U.S. goal was to get Pyongyang to practice restraint in its missile activities, but did not comment on specific options being discussed. Topics in the first round of talks included a request by Pyongyang for compensation for forgone missile sales, which was denied by the United States. Also discussed in April was the possibility of North Korea joining the Missile Technology Control Regime, a voluntary arrangement of nations who have adopted a common policy proscribing the sale of ballistic missiles and their components and technology, for systems capable of carrying a 500-kilogram payload 300 kilometers or more or for any system (other than manned aircraft) intended to carry weapons of mass destruction.

Security Council Responds to Iraqi Intransigence

On June 21, the UN Security Council unanimously adopted a resolution (S/1115) condemning Iraq's interference with UN Special Commission (UNSCOM) efforts to rid it of its weapons of mass destruction and proscribed missile programs. Demanding Iraq's full cooperation, the Security Council threatened to apply further punishment and postponed a review of sanctions (imposed on Iraq following its 1990 invasion of Kuwait) until October, when it will receive UNSCOM's latest progress report. The unanimous vote was also seen as a triumph for U.S. diplomacy, which overcame a Chinese veto threat and Russian and French intentions to abstain.

The council's latest action on Iraq followed a series of incidents in early June in which Iraq prevented UNSCOM from gaining access to requested inspection sites and Iraqi officials endangered the lives of UNSCOM personnel by attempting to wrest control of UNSCOM helicopters or flying their own helicopters on near-collision courses.

During his visit to Baghdad on July 21, Richard Butler of Australia, who took over for Rolf Ekeus as UNSCOM's executive chairman on July 1, said Iraq should see Ekeus' departure as an opportunity to make a fresh start with UNSCOM and comply with the UN mandate to eliminate its prohibited weapons programs. Butler warned that the unanimous Security Council vote in June shows that Iraq can expect no relief from sanctions until it cooperates fully with UNSCOM.

NMD Sensor Test Successful

After two aborted test attempts in midJanuary and subsequent delays, the Ballistic Missile Defense Organization (BMDO) on June 24 conducted the first flight test of an exo-atmospheric kill vehicle sensor for the Clinton administration's national missile defense (NMD) program. BMDO has characterized the test as successful based on the available data thus far.

According to BMDO, the test sought to assess the ability of the sensor, which was developed by Boeing North American, to track and identify objects in outer space—not to intercept a ballistic missile target. The test involved a modified Minuteman II ICBM carrying simulated targets and launched from Vandenberg Air Force Base, California, and a payload launch vehicle (which contained the sensor) launched from Kwajalein Missile Range in the central Pacific Ocean.

Under its so-called "3-plus-3" program, the Clinton administration is developing the initial elements of an NMD system by 2000, at which time it will evaluate the long-range ballistic missile threat to the United States and have the option of deploying such a system by 2003 if necessary. If the threat does not warrant NMD deployment in 2000, the administration will continue the development of its NMD system while maintaining a rolling three-year deployment capability. The next NMD flight test, scheduled for January 1998, will evaluate a competing sensor built by Hughes Aircraft. Thereafter, two NMD intercept attempts are planned for 1998 followed by an integrated system test in 1999.

Rokhlin Warns Yeltsin on State of Nuclear Forces

In late-June, General Lev Rokhlin, chairman of the Russian Duma's Defense Committee, cautioned that Russia's strategic nuclear forces are not being properly maintained and are "doomed to extinction." Rokhlin's warning sharply contrasts with recent statements made by several high-level Russian officials, including Prime Minister Viktor Chernomyrdin and newly appointed Defense Minister Igor Sergeyev, who maintain that Russia's nuclear command and control system is safe and reliable. The warning came in an open letter to President Boris Yeltsin and members of Russia's armed forces, in which Rokhlin blasted Yeltsin's government for attempting to institute large-scale military reforms.

Meanwhile, on July 8, Russia flight-tested its single-warhead SS-27 ICBM (designated in Moscow as the Topol-M) for the fourth time. The missile, which will have both mobile and silo-based variants, is now ready for serial production and is expected to be deployed by the end of the year. Commenting on the significance of the test, which was conducted at the Plesetsk test range, General Vladimir Yakovlev, the new commander-in-chief of the Russian Strategic Rocket Forces, said, "Today it is possible to say that in the 21st century Russia will remain in the ranks of the leading nuclear states, thereby helping to guarantee strategic stability in the whole world." The single-warhead SS-25 and follow-on SS-27 will comprise the backbone of the Russian ICBM force if START II is fully implemented.

'Rolling Text' for BWC Protocol Introduced

On July 14, members of the Ad Hoc Group (AHG) to the Biological Weapons Convention (BWC) began their second meeting of the year in Geneva with a "rolling text" for a verification protocol ready for negotiations and a number of difficult issues still on their agenda.

The AHG, which will meet through August 1, has a mandate to consider appropriate measures to improve compliance with and strengthen the treaty's provisions. The BWC requires the 140 states-parties not to develop, produce, stockpile or acquire biological agents other than for defensive or peaceful purposes. It has been repeatedly criticized for its lack of an enforcement regime.

The chairman of the AHG, Ambassador Tibor Toth of Hungary, presented the rolling text in early June, based on the work of four "Friends of the Chair" committees. The document was hailed by negotiators as a significant step toward completion of the compliance protocol. However, as presented, many pages of the rolling text and even entire articles, such as the one describing the organization that will oversee verification, are blank.

In early July, Toth identified four major issues that would be discussed at the Geneva meeting: determining the modalities and procedures for on-site inspections; delineating the contents of data declarations; defining terms and criteria relevant to protocol issues; and resolving conflicts over export controls and the peaceful exchange of technical information, a source of ongoing contention between industrialized states and developing countries.

Donald Mahley, head of the U.S. delegation to the AHG, said July 15, the most critical national security issue during negotiations will center on compliance inspections, with an emphasis on safeguarding commercial proprietary information. The final AHG meeting of the year is scheduled for September 15 to October 3.

Brazil to Consider Joining the NPT

Brazilian President Fernando Cardoso submitted the nuclear NonProliferation Treaty (NPT) to the Brazilian congress for ratification on June 20, nearly 20 years after the treaty was opened for signature. Should Brazil accede to the NPT, only four nations (Cuba, India, Israel and Pakistan) would remain outside of the regime. In 1990, Brazil renounced the nuclear weapons program it had been pursuing since the 1970s, and, in 1991, it signed an agreement with Argentina to establish a bilateral nuclear accountancy and control system to verify that each state's nuclear activities would be for peaceful uses only.

Brazil followed Argentina in joining the Treaty of Tlatelolco (a nuclear-weapon-free-zone accord covering Latin America and the Caribbean) in May 1994, but continued to resist joining the NPT on the basis of the treaty's discrimination between nuclear "haves" and "have-nots." Argentina acceded to the NPT in 1995.

Neither house of Brazil's bicameral legislature is likely to act on the treaty before fall 1997. Currently in extraordinary session to conclude its normal business, neither the Chamber of Deputies nor the Senate has been able to include the treaty in its agenda. Little domestic opposition to the NPT is expected, since Brazil has already accepted the principle of nuclear nonproliferation through its bilateral agreement with Argentina and the Treaty of Tlatelolco.

Closing In On a Landmine Ban: The Ottawa Process and U.S. Interests

 

Jim Wurst

Jim Wurst is a journalist based at the United Nations specializing in disarmament and international security issues, and is a consultant on light weapons disarmament for the Council on Econimic Priorities

When the new convention banning the production and use of antipersonnel landmines (APLs) is signed in Ottawa in early December, it will be more than a disarmament agreement achieved in record time. It will also be a victory for humanitarianism over military expedience and an unprecedented example of cooperation between governments and nongovernmental actors in the arms control arena. Dubbed the "Ottawa Process" because the drive for a ban convention was launched by the Canadian foreign minister, Lloyd Axworthy, in Ottawa in October 1996, there are now nearly a hundred countries pledged to complete the ban by December.

The latest step in the Ottawa Process was a meeting held June 24-27 in Brussels attended by representatives from 153 governments; the United Nations; international agencies including the International Committee of the Red Cross (ICRC); and 138 nongovernmental organizations (NGOs), including the International Campaign to Ban Landmines (ICBL), a coalition of more than 1,000 NGOs from 54 countries. This was the fourth meeting—after Ottawa in October 1996, Vienna in February and Bonn in April—where delegates worked toward producing a draft convention, referred to as the "Austrian Text" for the Austrian officials who have taken the lead in drafting the treaty. A draft convention is currently in its third revision, and states participating in the Ottawa Process will attempt to finalize the accord when they next meet in Oslo September 1-19.

At the Brussels meeting, 97 nations signed a declaration pledging themselves "to pursue an enduring solution to the urgent humanitarian crisis caused by antipersonnel landmines. They are convinced that this solution must include the early conclusion of a comprehensive ban on antipersonnel landmines . . . ." The delegates affirmed that the "essential elements" of such an agreement should include:

 

  • a comprehensive ban on the use, stockpiling, production and transfer of antipersonnel landmines;
  • the destruction of stockpiled and removed antipersonnel landmines; and
  • international cooperation and assistance in the field of mine clearance in affected countries.

     

The signatories also "affirm[ed] their objective of concluding the negotiation and signing of such agreement banning antipersonnel landmines before the end of 1997 in Ottawa, [and] invit[ed] all other States to join them in their efforts towards such an agreement."

The 97 signatories in Brussels included most of the mine-infested states and the key European mine producers; 13 of NATO's 16 states signed. Conspicuously absent from the list of signatories, however, is the United States, the self-proclaimed leader in the international effort to negotiate a global ban on antipersonnel mines. Despite the strong support for a global ban from the American public, Congress and many in the executive branch, the Clinton administration is keeping the Ottawa Process at arm's length.

Although the United States has attended Ottawa Process meetings as an observer (meaning it cannot take part in the negotiations), the administration has continued to argue that the Geneva-based UN Conference on Disarmament (CD) is the appropriate forum for negotiating a global ban. Besides the United States, other key countries missing from the Ottawa Process include Russia (the Brussels meeting was the first it attended, as an observer), China (which has steered completely clear of the process), India, Pakistan, Greece, Turkey, South Korea, North Korea and most of the countries of the Middle East.

The Clinton administration is now trying to find a way to deal with a global campaign it can neither stop nor control. In July, the administration initiated a "bottom-up" policy review to help it decide how it will deal with the Ottawa Process. With the December signing deadline rapidly approaching, President Clinton must soon decide whether the United States will remain outside the process. If the United States is to assume a leading role in the final phase of the negotiations at Oslo in September, the administration will have to complete its review by the end of August.

Most observers believe that if the United States does not attend the Oslo conference as a participating state, that is, to negotiate the final draft of the convention, it will certainly not attend the Ottawa meeting to sign the treaty. Many pro-ban states and leading NGOs would, in fact, prefer that the United States not attend the Oslo meeting with the intention of substantially altering the letter or spirit of the current Austrian draft. Jody Williams, the coordinator of the ICBL, said at the Brussels meeting, "Our main objective is to have a true ban treaty, without exceptions, reservations or loopholes . . . . We do not think that concessions undermining the integrity of the treaty should be made for any government."

The Austrian Text'

The Ottawa Process was initiated in response to the widespread dissatisfaction, particularly among humanitarian organizations, with international efforts to address the global landmine crisis. Although antipersonnel mines are covered by the 1980 Convention on Conventional Weapons (CCW), advocates of a global ban have argued that the treaty, even after a new landmine protocol was approved during the 1996 CCW review conference, remains woefully inadequate to stem the continuing crisis. While the CCW negotiators did make some progress in strengthening the treaty's landmine protocol (such as an eventual ban on so-called "dumb" mines that do not have self-destruct and self-deactivation mechanisms, and extending the treaty's restrictions to include internal conflicts), many loopholes remain (such as leaving virtually untouched the deployment of "smart" mines with self-destruct and self-deactivating features). During the review conference only four states backed language that called for a comprehensive ban. (Although nearly 60 states are party to the CCW, only six countries have ratified the revised landmine protocol.)

The Austrian text represents an unprecedented openness and cooperation between governments and non-governmental bodies. The ICBL, for example, prepared its own draft convention and a number of its elements are in the current draft convention. Robert Lawson, a Canadian Foreign Ministry official working on the convention, said the Ottawa Process "breaks many of the rules of diplomacy" by bringing nongovernmental actors into the negotiations. Since this is a humanitarian issue as much as it is an arms control one, "there can be no secrets in this process," he said.

The current draft is relatively short for an arms control treaty—20 articles that could easily fit on less than 10 pages—and direct, as exceptions are not included for certain types of weapons or for their conditional use and reservations are not permitted. The Chemical Weapons Convention, in contrast, comprises 24 articles and three annexes on 172 pages while the Comprehensive Test Ban Treaty runs to nearly a hundred pages.

The landmine convention's first article, on "general obligations," is direct and thorough:

 

  • 1. Each State Party undertakes never under any circumstances: To use antipersonnel mines; To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, antipersonnel mines; To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this convention.

     

  • 2. Each State Party undertakes to destroy all antipersonnel mines in accordance with the provisions of this Convention.

    Article 2 of the draft defines an antipersonnel landmine as:

     

  • . . . a mine designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered antipersonnel mines as a result of being so equipped.

    The controversial word "primarily" has been dropped from earlier drafts, reflecting the desire among participating states to create a comprehensive ban. Because many of the governments now on board would drop out if antitank mines were banned, the draft's definition clearly exempts antitank mines from the convention although the ICBL is concerned that this provision will weaken the convention. According to Stephen Goose, chairman of the steering committee of the U.S. Campaign to Ban Landmines, antitank mines "pose a very similar danger to the population as do antipersonnel mines. They are the functional equivalent of APLs." In addition, some critics of the definition worry that countries may simply play semantic tricks by reclassifying APLs as something else. Goose cited the example of Britain, whose government, before endorsing the Ottawa Process, had reclassified one APL model as "a runway denial mine."

    As befitting a weapon whose numbers exceed 150 million, the draft convention is specific on the destruction of APLs. Under Article 4, all stockpiled mines (except for a small number needed for the development and teaching of mine detection, clearance and destruction techniques) a state-party "owns or possesses, or that are under its jurisdiction or control" are to be destroyed within three years of the convention entering into force for that state. Article 5 mandates that all mines laid within minefields under a state-party's jurisdiction or control are to be destroyed within 10 years of the treaty's entry into force for that state. Until these mines have been destroyed, the minefields must be "perimeter-marked, monitored and protected by fencing or other means, to ensure the effective exclusion of civilians." Convention Article 6 requires each state-party to destroy, "as soon as possible, all [mines] laid in areas under its jurisdiction or control outside minefields."

    Under the transparency measures outlined in Article 8, each state-party must, within one year of the convention's entry into force for that state, submit to the UN secretary-general (the treaty depositary) information on the types and quantities of all stockpiled mines; the location of all minefields under its control or jurisdiction; and "to the extent possible," the location of all areas outside of minefields in which mines are known or suspected to be present. Each state-party must thereafter report this information to the secretarygeneral on an annual basis.

    The article on compliance (Article 9) is probably the most unsettled, having changed drastically between the second and third drafts as the result of a technical experts meeting in Bonn in April. Most significantly, the terms "verification" and "on-site challenge inspection" have disappeared entirely from the text. In the case of an alleged violation, a special meeting of states-parties is now empowered to authorize a fact-finding mission, whereas previously a panel of experts appointed by the secretary-general would have authorized such inspections.

    However, because states-parties are to meet annually or at a special meeting convened at the request of a party lodging a complaint (and approved by at least one-third of the states-parties), this provision would have the effect of slowing down the inspection process. One Western negotiator called this an example of the disarmament-humanitarian hybrid. Because the landmine ban is designed to eliminate the humanitarian crisis caused by millions of indiscriminately laid mines, a "breakout" from the convention would not necessarily affect the overall humanitarian situation. Thus, the deployment of a few hundred mines is less critical to the viability of this arms control treaty than, say, a nuclear weapons test conducted in violation of the Comprehensive Test Ban Treaty. The Western negotiator described the issue as not involving "hot pursuit," rather "[it] is a question of how important hot pursuit is . . . . The focus is on use as the real problem and this points the finger of international opinion against widespread use."

    Under draft Article 16, the convention would enter into force "on the first day of the sixth month after the month in which the 40th instrument of ratification . . . has been deposited." For a state that deposits its instrument of ratification after the date of the deposit of the 40th instrument of ratification, the convention will enter into force six months after the date of its deposit.

    The Austrian text includes a relatively new provision for a multilateral treaty, which bars reservations to the convention (Article 17). Proponents of this provision argue that permitting reservations might permit a state to create a "national exception" that allows it to violate the spirit if not the letter of the treaty. Some observers believe this could be one of the most difficult provisions to keep in the final draft of the convention.

    According to Article 18, the convention will be of unlimited duration, and each state-party will have the right to withdraw if it determines that "extraordinary events" jeopardize its "supreme interests." However, the provisions for withdrawal raise the bar for any party wishing to opt out of the convention. Rather than permitting withdrawal a few months after invoking "supreme national interests" (as does, for example, the nuclear NonProliferation Treaty—the NPT), the draft specifies that a year must pass before the withdrawal is effective, and if the withdrawing state-party is engaged in an armed conflict at the end of the one-year period, "the withdrawal shall not take effect before the end of the armed conflict." In other words, if the country is at war, it would have to play by the rules of the convention until the war ends. This provision was added to the third draft to reflect the fact that the scope of the convention includes internal armed conflict.

     

    The CD Option

    In contrast to the momentum with which states participating in the Ottawa process have produced a draft treaty, the Clinton administration's preferred venue for negotiations—the 61member CD—has still not agreed on an agenda for its 1997 meetings, blocking the establishment of a negotiating committee for a landmine ban. The CD did, however, take its first step toward talks on mines on June 26 when it appointed Ambassador John Campbell of Australia as special coordinator on the issue, with a brief "to conduct consultations on a possible mandate on the question of antipersonnel landmines." In other words, he will conduct talks about having talks. Even this modest progress did not come easy for the CD, which operates by consensus; the Syrian delegate, a proponent of the nonaligned states' proposal that nuclear disarmament negotiations be dealt with at the same time, had to leave the room during the vote so consensus could be achieved.

    Because the CD concludes its 1997 session on September 10 and will not resume until January 1998, even if Campbell is able to develop a framework for negotiations, the conference will not be able to begin talks until more than a month after the signing ceremony in Ottawa. Despite the continuing stalemate at the CD and the endgame for the Ottawa Process clearly in sight, the United States appears determined to keep its focus on Geneva. In a July 31 address to the conference, Ralph Earle, deputy director of the Arms Control and Disarmament Agency (ACDA), said:

    The value of negotiating an APL ban in the CD can be confirmed simply by looking around this chamber. As of June 27 more than half of the CD members, including the United States, had not associated themselves with the Brussels Declaration . . . . [T]hese countries make up half or more of the world's population and economic output and half or more of the world's historical activity with regard to antipersonnel landmines. Many of them have security concerns about eliminating their landmines in the near future. We believe negotiations in the CD can take these concerns, including our own, into account. Thus, while the CD's task will take longer to accomplish than the Ottawa Process, the resulting treaty will, unlike the Ottawa Process, extend the reach of an APL ban to the major producers, stockpilers and exporters of APLs . . . . The only way to stop the irresponsible use of antipersonnel landmines is to eliminate the source of those mines. To accomplish that objective, an agreement must include the potential exporters. Many such exporters are far more likely to support an agreement negotiated by them, among others, in this Conference that, inter alia, would ban the export of antipersonnel landmines.

    The United States, however, is not standing alone in its support of the CD. Last fall Russia's ambassador to the United Nations, Sergey Lavrov, told the General Assembly's First Committee (which deals with disarmament issues) that Moscow considered the CD "the most suitable forum" for talks on landmines. He also praised the CCW as:

     

    [being] based on a careful balance of interests of all participants at the Review Conference, which duly takes into account the existing situation, the real potential of the parties as well as their security and defense interests . . . . Any attempt to forcefully accelerate the banning of mines . . . is counterproductive. Furthermore, there is the danger of revising the agreement achieved in May in Geneva, which is totally unacceptable . . . . It is difficult to imagine that states who are major producers of [APLs] could become, in the future, parties to such an agreement—in the drafting of which they did not participate. Without their full participation, however, such an instrument would be senseless.

     

    However, the eventual accession by China and France (as well as dozens of other countries) to the NPT, although nearly 25 years after the treaty opened for signature, suggests a precedent for key states joining a treaty they did not help draft.

    Both the Ottawa Process and the CD have their limitations. In the CD, which operates on the basis of consensus, opposition to a ban is strong and originating from two directions: those states that do not want to discuss a ban at all and those that prefer the CD focus on nuclear disarmament as its primary responsibility (for example, Mexico). Therefore, both of these camps have to be satisfied before any meaningful progress can be made. Because many of the CD's nonaligned members will settle for nothing less than a mandate for negotiating nuclear disarmament (a move the United States strongly opposes), it is hard to see how this knot can be untangled quickly. Ottawa, on the other hand, is free of such complications.

    In the CD's favor, its membership is far more relevant to the landmine crisis; it includes all the major producers of mines (the United States, Russia, China, India and Pakistan); those states that have recently renounced production (France, Britain and South Africa); and those countries that have led the campaign for a global ban (Canada and Sweden). Unfortunately, few of the mostly heavily mine-infested countries belong to the CD.

    In contrast to the CD, any state actively participating in the Ottawa Process is already predisposed to a global ban. When pro-ban countries meet in Oslo to negotiate the final text of the convention, a twot-hirds majority will be necessary to approve any changes to the treaty. This requirement may dissuade some nonparticipating states that would like to see major changes in the Austrian text from joining at the 11th hour.

    Even if China, Russia and Pakistan remain outside the Ottawa regime, it does not mean the convention is useless or that the humanitarian crisis is left unaddressed or that these three states will have the landmine market all to themselves. All three countries agreed to the revised landmine protocol to the CCW, which places certain restrictions on exports, in particular to non-state parties. Moreover, any country which signs the landmine convention in Ottawa in December will be pledging not to import, export (to states or non-state clients) or use APLs, thus further reducing the market. Therefore, these key landmine-producing states would eventually be largely restricted to domestic use, and countries are generally more restrained in deploying mines on their own territory.

     

    The U.S. Dilemma

    The United States occupies a unique, and at times awkward, position in the debate over a global ban. At the same time it claims leadership in the campaign to ban mines, the United States maintains policies that seek to carve out exceptions to a ban. While it is the largest contributor of human and material resources to humanitarian demining, Washington insists its "smart" mines are not the ones contributing to the humanitarian disaster caused by the landmine crisis. Critics of the Ottawa Process may rightly ask how a global ban can be effective without the participation of the United States, Russia, China or Pakistan. While there appears to be no easy answer as to how to bring China, Russia and Pakistan on board in the near term, the shear number of countries that support the Ottawa Process (including former producers) may help mitigate their absence. But the absence of those three and the United States would leave a large gap in the drive to make the ban comprehensive.

    Therefore, for most of this year, supporters of the U.S. Campaign to Ban Landmines, a coalition of some 225 NGOs, have been lobbying executive branch officials as well as the U.S. military to convince the Clinton administration to endorse the Ottawa "fast track." Letters and reports focusing on the humanitarian disaster caused by mines and on the lack of valid military reasons for their use have been produced. Personalities not normally associated with arms control, including Elizabeth Dole and Norman Schwarzkopf, support a ban. The Department of Defense presents the only major obstacle to the United States joining a ban.

    Congress is also becoming more active in the debate. On June 12, 164 members of the House of Representatives addressed a public letter to President Clinton asking him to endorse the Ottawa Process. "While we agree that ultimately it would be preferable for the handful of countries, like China, which oppose a ban, to join a treaty," the lawmakers wrote, "we do not believe they are indispensable to an effective treaty nor that [CD negotiations are] the best approach to win their support."

    In the Senate, Patrick Leahy (D-VT) and Chuck Hagel (R-NE) have 57 cosponsors for a bill called "The Landmines Elimination Act of 1997," which would ban new deployments of antipersonnel mines by the United States after January 2000. Leahy, the leading ban advocate in Congress, has sponsored legislation that has stopped the export of U.S. mines since 1992. The Leahy-Hagel bill has not been attached to any pending legislation; a companion House bill is circulating for cosponsors. Mary Wareham, the coordinator of the U.S. Campaign to Ban Landmines, said, "In the past year the U.S. has taken few steps domestically toward a ban and has shown no leadership internationally. The legislation fills the gap left by the Clinton administration in creating a policy which is strong and unambiguous in its meaning."

    Not surprisingly, the Clinton administration does not agree that it has abdicated its leadership role. During an early July press briefing on the landmine issue, two Department of Defense officials claimed the administration's policy "commits this country to a course without landmines." One official said, "Regardless of what happens in Geneva or regardless of what happens in Ottawa, we are unilaterally taking . . . steps right now to do without landmines." As to opposition by the military to the United States joining a ban, the briefers pointed to Clinton's May 1996 policy statement that renounced the use of "dumb" mines (except on the Korean Peninsula), committed the United States to the destruction those mines by 1999, but "reserve[d] the right to use . . . self-destructing mines as necessary} until a global ban is negotiated. "That policy was written with the advice and the full support of the Department of Defense," the official said, adding, "We are willing—unilaterally—to ban the high-tech self-destructing type landmine that we have and few other nations have, even though this landmine does not contribute to the humanitarian problem." According to one official, "We have already unilaterally forsworn operational use of the type of [APLs] that are the cause of the humanitarian problem, and that is the non-self-destruct devices."

    The dilemma presented by "smart" vs. "dumb" mines is probably the most important problem for the United States. While the country is rich enough and technologically advanced enough to painlessly eliminate "dumb" mines, banning "smart" mines (meaning banning all antipersonnel mines) would have a direct effect on tactical planning. Importantly, the Austrian draft convention makes no distinction between "smart" and "dumb" mines.

    Another stumbling block is the U.S. insistence that mines on the Korean Peninsula be exempt, at least for the foreseeable future. During the July briefing, the Department of Defense official said landmines "are integral to the defense of the Republic of Korea . . . . They're used for valid tactical reasons." A landmine convention that does not allow for some geographic exception would be a hard sell to some conservative members of Congress, who have used the Korean argument to attack the ban as a move that would endanger U.S. troops on the peninsula. The Leahy-Hagel bill makes an exception for Korea.

    The Pentagon is also opposed to the absence of the word "primarily" in the definition of antipersonnel mines both in the Leahy bill and the Austrian draft text. According to the Department of Defense briefers, without "primarily" qualifying the intended design of the weapon, "this definition [could] be stretched if someone chose to do that." They said a study of the legal ramifications showed that "not only do they capture four or five [types of] landmines that we expected, it caught a total of 35 systems, some as far afield as ATTACMs, various types of bombs and many munitions that have nothing to do with land mines . . . . If we're going to ban landmines, we are, in fact, banning landmines and we're not banning a number of high-tech systems that our military is really depending upon with our reduced forces." Although the list has not be made public, the systems reportedly include 155millimeter howitzer projectiles, cluster bombs with delayed activation submunitions, and grenade launchers for the Multiple Launch Rocket System.1 The inclusion of the word "primarily" in the revised landmine protocol to the CCW was one of the key weaknesses ban advocates saw in the new accord.

    Despite the Pentagon's insistence on the need to keep open the option of using mines on the Korean Peninsula, there is open disagreement among military officers. In an open letter published in April 1996, 15 retired senior military officers (including General Norman Schwarzkopf and former commanders of NATO and U.S. forces in Korea) said, APLs "are not essential. Thus banning them would not undermine the military effectiveness or safety of our forces, nor those of other nations." The 15 also said, "We view such a ban as not only humane, but also militarily responsible." An ICRC report came out at the same time in which 55 former military personnel from 19 countries endorsed the findings that the use of APLs to be of "questionable" value. "The material which is available on the use of AP landmines does not substantiate claims that AP mines are indispensable weapons of high military value," the report said.2

    In July, following up on the April letter and ICRC report and obviously timed to influence the administration's policy review, two pro-ban NGOs—Human Rights Watch Arms Project and the Vietnam Veterans of America Foundation—produced a report drawn from the U.S. Army's records of the Korean and Vietnam wars to argue that mines, both "smart" and "dumb," not only were not useful in those conflicts, but seriously endangered U.S. military personnel.3

    On the commercial side of U.S. production, an increasing number of companies involved in the manufacture of landmines are getting out of the business. A report by the Human Rights Watch Arms Project, released in April, identified 47 companies that have been involved in producing mines.4 The report notes that "no single company is responsible for the production of antipersonnel mines from beginning to end." Usually, the Pentagon awards one contractor and that company subcontracts various components, thus the large number of companies involved in the business. The report goes on to list 17 of those companies which have renounced future involvement in the production of APLs, and another 17 which have "declined to renounce future involvement." (The remaining 13 firms did not respond to the Human Rights Watch appeal.)

    The report also details the extent of U.S. involvement in the landmines trade. It says there are currently stocks of 14 million mines (10 million "smart" mines and 4 million "dumb" mines). Of the 4 million "dumb" mines, 1 million are reserved for use on the Korean Peninsula and the rest are to be destroyed. According to Human Rights Watch, the Pentagon's last order for mines was completed in November 1996 and no new orders have been placed. On the export side, the report says between 1969 and 1992, the United States exported 4.4 million mines to at least 32 countries. In 1992, President Bush signed into law the first U.S. moratorium on exports; additional legislation (largely the work of Leahy) has kept the moratorium in place.

     

    The Bandwagon

    The changes in national policies have been dramatic. At the time of the CCW review conference, only four nations supported language calling for a comprehensive ban. By the time of the first meeting in Ottawa in September, 74 governments sent representatives. There were 111 governments at the Vienna meeting (more than attended the CCW review conference) and 153 at Brussels.

    According to the ICBL, more than 50 nations have moratoria on the export of APLs, 15 countries have begun or completed destruction of stockpiles, 30 countries have banned or suspended their use and 20 have announced they have stopped production of all APLs. In addition, several countries not involved in Ottawa, including Russia and Singapore, have announced moratoria on exporting "dumb" mines. The ICBL identifies 35 nations as past producers of mines which have not declared the end of production.

    Outside of the Ottawa Process, national and regional initiatives have proliferated:

     

    In what is arguably the most dramatic change in policy for a NATO state on this issue, one of the first major foreign policy initiatives of the new Labor government in Britain was to drop the Tories' heavily qualified landmine ban. On May 21, the government announced that it "will accelerate the phasing out of stocks of antipersonnel land mines, and complete it by 2005 or when an effective international agreement to ban their use enters into force, whichever comes first. In the meantime, the [United Kingdom] has introduced a complete moratorium on their operational use." The previous government's policy had already banned the export of mines, but left open the option of retaining some of its stocks and importing smart mines.

     

    In September 1996, the Central American states declared their intention to ban APLs, thus making Central America the world's first official mine-free zone. In December, the Caribbean nations of CARICOM declared they would join the mainland nations' zone and the Organization of American States called for the creation of a mine-free zone for the entire Western hemisphere.

    In Africa, which has more mine-infested territory than any other continent, a conference of Southern Africa states in May endorsed the Ottawa Process, called for the creation of a mine-free Africa and developed strategies for coordinated land mine clearance and assistance to victims.

    Five central Asian states—Kazakstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan—held a conference in June to consider the ban and ways to improve mine clearance. Representatives of Afghanistan, India, Iran, Pakistan, Russia and Turkey also attended.

     

    Conclusion

    This is an extraordinary moment for both governmental and nongovernmental arms control proponents. What started as a grassroots campaign of a handful of NGOs in 1991 is now a certifiable global movement. By framing the issue as a humanitarian disaster as well as a disarmament imperative, APL opponents have constructed a cross-disciplinary, inclusive movement never before seen in an arms control campaign. Thus, it places the United States in the unusual position of playing catch-up rather than defining the parameters of the debate. A landmine ban will be signed in Ottawa in December, if the United States is not there, it will ultimately be more of a problem for the United States than for the landmine convention.

     

    NOTES

    1. George I. Seffers, "Pentagon May Resist Effort To Ban Antipersonnel Mines," Defense News, June30July 6, 1997, p. 11.

    2. International Committee of the Red Cross, "Antipersonnel Landmines: Friend or Foe?" Geneva, March 1996.

    3. Human Rights Watch Arms Project and Vietnam Veterans of America Foundation, "In Its Own Words: The U.S. Army and Antipersonnel Mines in the Korean and Vietnam Wars," July 1997.

    4. Human Rights Watch Arms Project, "Exposing the Source: U.S. Companies and the Production of Antipersonnel Mines," April 1977.

  • Sino-U.S. Nuclear Cooperation at a Crossroads

     

    Jennifer Weeks

    Jennifer Weeks is executive director of the Project on Managing the Atom at Harvard University's John F. Kennedy School of Government. She worked as a congressional defense staffer and as an arms control lobbyist for the Union of Concerned Scientists from 1991-97.

    High-level engagement with China has become a central element of the Clinton administration's foreign policy agenda. This "strategic dialogue," as officials describe it, seeks to promote China's emergence as a stable, non-aggressive state that plays a constructive role in the world community and participates in addressing a broad range of foreign policy issues, including arms control. As one step, the administration is considering implementing the bilateral nuclear cooperation agreement signed by the United States and China in 1985 and approved by Congress later that year.

    Several provisions of the Sino-U.S. agreement differ significantly from other U.S. nuclear trade agreements, and were criticized when Congress considered the agreement. Opponents also argued that Beijing's non-proliferation guarantees were not credible, based on reports that China had exported unsafeguarded nuclear technology and materials to countries with clandestine nuclear weapons programs. As a result, Congress approved the agreement in a qualified form, requiring the president to make several certifications to Congress before export licenses can be issued for the transfer of major nuclear technology and materials. No administration to date has been able to do so.

    Opening peaceful nuclear trade with China would further a number of the Clinton administration's foreign policy objectives. It would provide China with a positive incentive to continue tightening its nuclear non-proliferation policies and improving its export controls. Implementing the agreement would also allow U.S. companies to bid for contracts in China, one of the few strong growth markets worldwide for nuclear power. And if China takes certain steps to meet U.S. legal requirements for nuclear trade, such as joining the Zangger Committee for nuclear exports, it will become more tightly integrated into the international non-proliferation community.

    However, any move to implement the Sino-U.S. agreement will raise major policy and political issues, and it could prove very difficult for the administration to win broad support. U.S. relations with China have been an issue of major contention between Congress and the executive branch since the Bush administration. Many current members of Congress are openly critical of the Clinton administration's efforts to engage China, and many view Beijing as an emerging challenger to U.S. economic and security interests. And China clearly has not yet tightened its nuclear exports sufficiently to meet the standards required under U.S. law for implementing the agreement.

    If the Clinton administration acts prematurely to implement the 1985 accord, or fails to produce compelling evidence that China will adhere to its nuclear non-proliferation commitments, Congress could well reject its efforts. Such action would likely damage Sino-U.S. relations and further sour the domestic politics that surround this issue. In addition, if the administration is perceived to be downplaying concerns about China's nuclear, chemical and missile-related exports in order to win business for U.S. nuclear companies, the credibility of U.S. non-proliferation policy will be undercut. In sum, given the many controversial aspects of the issue, implementation of the agreement could become one of the most significant non-proliferation debates of President Clinton's second term.

     

    The U.S.China Agreement

    Under the 1954 Atomic Energy Act, as amended by the 1978 Nuclear Non-Proliferation Act, nuclear cooperation agreements are required before U.S. companies can export nuclear materials, technologies and services. Recipient countries must guarantee that U.S. exports will be used strictly for peaceful purposes, place transferred U.S. equipment and materials under safeguards, and maintain adequate physical security over imports and nuclear materials produced through their use. These countries must obtain prior U.S. consent to retransfer U.S.origin technology or materials, and to reprocess or enrich U.S.origin materials or materials produced in U.S.supplied facilities.

    The 1985 Sino-U.S. agreement, negotiated by the Reagan administration between 1981 and 1984, authorizes sales of nuclear reactors, major reactor components and low-enriched uranium (LEU) fuel (enriched to less than 20 percent uranium235). The accord was the first U.S. nuclear trade pact with a communist country and the first bilateral agreement with another nuclear-weapon state.1 However, critics interpreted three sections of the agreement as qualifying U.S. control over China's use of U.S. nuclear exports.

     

    Implementation Obligations

    Article 2, Section 1, which describes the scope of Sino-U.S. nuclear cooperation, includes a statement that was not contained in prior agreements:

     

    The parties recognize, with respect to the observance of this agreement, the principle of international law that provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

     

    This sentence raised concern that Congress might not be able to pass laws affecting issues covered by the Sino-U.S. accord after the agreement was implemented. China reportedly asked for an explicit statement addressing this point in an effort to avoid future confrontations with Washington over possible revisions to U.S. export control standards. (Such disputes arose between the United States and other nuclear trade partners after passage of the Nuclear Non-Proliferation Act in 1978.)

    Reagan administration officials maintained that the provision reiterated an established principle of international law that bound the United States whether or not it was explicitly stated, and that the president could not execute an international obligation if it was barred by passage of subsequent domestic legislation. Further, they noted that the Sino-U.S. agreement established a framework for U.S. nuclear exports to China, but did not commit the United States to make any transfers. Failure to allow an export, therefore, would not be a breach of the agreement.

    According to a legal memorandum prepared by the State Department, nuclear exports were "a matter of implementation, not a matter of obligation," governed by the provision in Article 2 that "Each party shall implement this agreement in accordance with its respective applicable treaties, national laws, regulations and license requirements . . . ."2

     

    Prior Consent

    Article 5, Section 2 addresses the issue of U.S. prior consent for reprocessing or enrichment of U.S.supplied materials, or of materials produced using U.S.supplied materials or facilities. Nuclear cooperation agreements typically state that the recipient country cannot undertake such activities without U.S. approval. In contrast, the Sino-U.S. agreement pledges the parties to "promptly hold consultations to agree on a mutually acceptable arrangement" if China should seek to alter U.S.origin material. The language stipulates that "The parties undertake the obligation to consider such activities favorably," and that if Washington and Beijing cannot negotiate a long-term arrangement within six months, they will seek to negotiate measures for reprocessing or enrichment to proceed on an interim basis.

    Opponents argued that the obligation to consider Chinese reprocessing requests "favorably" would make it nearly impossible for the United States to justify vetoing them. Because the agreement does not define what constitutes a "mutually acceptable arrangement," a "long-term arrangement," or an "interim basis," critics predicted that the vague measures prescribed for handling Chinese requests would undercut congressional review of U.S. decisions. Moreover, critics charged that approving a cooperation agreement with such loose consent requirements would undermine U.S. efforts to persuade other countries not to develop civilian plutonium stockpiles.

    The Reagan administration held that China could not alter U.S.origin materials unilaterally. In its 1985 Nuclear Proliferation Assessment Statement on the Sino-U.S. agreement, the Arms Control and Disarmament Agency (ACDA) emphasized the two-phased process for handling requests in the event China and the United States could not agree on a long-term prior consent arrangement.

     

    During the second phase when the United States and China are seeking to make interim arrangements, the Chinese cannot undertake reprocessing, enrichment or alteration if the United States objects on grounds that such activity "would prejudge the long-term arrangements or adversely affect cooperation." Thus China cannot unilaterally proceed with reprocessing, enrichment or alteration in the face of U.S. objection.

     

    Officials also noted that China had no plans at that time to reprocess or enrich U.S.origin material, and that even if U.S. companies quickly won contracts, it would be a decade or longer before China produced plutonium subject to U.S. controls. In the interim, they said, the United States would monitor China's nuclear fuel cycle plans and non-proliferation policy, and its observations would form a basis for future decisions.

     

    Verification Issues

    The third controversial provision of the Sino-U.S. agreement addresses safeguards. Article 8, Section 2 declares that because both parties are nuclear-weapon states, bilateral safeguards on transferred items are not required. It pledges the United States and China to "use diplomatic channels to establish mutually acceptable arrangements for exchanges of information and visits to material, facilities and components subject to this agreement."

    Under Section 123 (a)(2) of the 1954 Atomic Energy Act, as amended, International Atomic Energy Agency (IAEA) full-scope safeguards are required on U.S. exports to non-nuclear-weapon states. However, Section 123 (a)(1), which does not distinguish between nuclear-weapon states and non-nuclear-weapon states, requires that nuclear cooperation agreements include:

     

    [A] guaranty by the cooperating party that safeguards as set forth in the agreement for cooperation will be maintained with respect to all nuclear materials and equipment transferred pursuant thereto, and with respect to all special nuclear material used in or produced through the use of such nuclear materials and equipment . . . .

     

    To critics, a pledge to negotiate reciprocal information exchanges and visits did not equal a full-fledged safeguards arrangement, and would not provide sufficient assurance that U.S. exports were being used solely for peaceful purposes. They noted that China had accepted reciprocal IAEA safeguards in nuclear cooperation agreements with Argentina, Brazil and Japan, and that the United States required its civilian nuclear exports to Britain and France (both nuclear-weapon states) to be subject to European Atomic Energy Community (EURATOM) safeguards.

    The Reagan administration acknowledged that it had sought to persuade China to accept IAEA safeguards on U.S. exports, but that Beijing had refused on the grounds that it was a nuclear-weapon state and should be treated equally with the United States. However, administration officials testified that information exchanges and visits would be negotiated before any exports were approved.

     

    China's Non-Proliferation Policy

    Beyond these specific provisions loomed a larger question: How credible were China's non-proliferation commitments? Section 129(2)(B) of the Atomic Energy Act requires termination of U.S. nuclear exports to any country that assists non-nuclear-weapon states in developing nuclear weapons. Many critics of the Sino-U.S. agreement argued that China did not meet this standard.

    Throughout the 1960s and 1970s, Chinese leaders had openly rejected international non-proliferation norms, and China was not a party to any major non-proliferation agreement when negotiations on the bilateral nuclear accord began in 1981. Over the next four years, a series of press reports described unsafeguarded Chinese nuclear exports to countries seeking to develop nuclear weapons. Chinese transfers reported during this period included:

     

    • Sixty tons of LEU to South Africa in 1981;
    • Heavy water and LEU to Argentina;
    • and Assistance with uranium enrichment and possibly a tested bomb design to Pakistan.3

    As the Reagan administration sought to persuade Beijing to place its own nuclear exports and its nuclear imports from the United States under safeguards, U.S. intelligence produced a flow of information documenting Chinese unsafeguarded nuclear transfers. A classified 1983 State Department assessment of Pakistan's nuclear program bluntly stated China's role:

     

    We have concluded that China has provided assistance to Pakistan's program to develop a nuclear weapons capability. Over the past several years, China and Pakistan have maintained contacts in the nuclear field. For some time, China's involvement was limited to operational aspects of the KANUPP power reactor at Karachi. We now believe cooperation has taken place in the area of fissile material production and possibly also nuclear device design.4

     

    Nonetheless, the Reagan administration continued to pursue the nuclear cooperation agreement, which it viewed as an incentive for China to adopt stronger nuclear non-proliferation policies. In mid1983, Beijing indicated that it would join the IAEA. In January 1984, Chinese Premier Zhao Ziyang stated, "China does not advocate or encourage proliferation. We do not engage in proliferation ourselves, nor do we help other countries develop nuclear weapons." These developments paved the way for Reagan and Zhao to initial a draft agreement in April. Zhao repeated his declaration in May to the Sixth National People's Congress, which endorsed the statement and published it as official policy. China also notified the United States that it would begin requiring IAEA safeguards on its nuclear exports to non-nuclear-weapon states.

    But shortly after the draft was initialed, U.S. intelligence reported that Chinese scientists had been sighted at Pakistan's unsafeguarded uranium enrichment plant at Kahuta, raising suspicions that China was still helping Pakistan in this vital area. The Reagan administration had hoped to submit the agreement to Congress promptly for approval, but was forced to seek new non-proliferation guarantees from Beijing.

    Chinese officials adamantly rejected this demand, which they termed insulting and an infringement on Chinese sovereignty. The closest China came to offering a public guarantee was a January 1985 statement by Vice Premier Li Peng that "China has no present or future intention to help non-nuclear-weapons states develop nuclear weapons . . . . China's present or future cooperation with other countries is confined to peaceful purposes." In June 1985, the U.S. ambassador-at-large for non-proliferation, Richard Kennedy, presented Chinese officials with a memorandum summarizing U.S.Chinese discussions of what actions were barred by U.S. legal prohibitions against helping other countries to develop nuclear weapons. The Chinese verbally endorsed the document. Although it was not signed or incorporated into the bilateral accord, this joint statement provided sufficient assurance for the Reagan administration, which signed the agreement in July and transmitted it to Congress.

     

    The 1985 Congressional Debate

    Reagan administration officials testified to Congress that China had substantially improved its nuclear export policy and could be relied on to fulfill its nonproliferation pledges. During a House Foreign Affairs Committee hearing on the proposed agreement, ACDA Director Kenneth Adelman stated: "In the short span of two years, China has embraced non-proliferation policies and practices, which it had eschewed so vigorously for a quarter of a century. This clearly is a turnabout of historic significance in our efforts to prevent the spread of nuclear weapons."

    U.S. officials projected major economic benefits from nuclear trade with China. Citing Beijing's plans to install 10,000 megawatts (electric) of nuclear generating capacity between 1985 and 2000, they estimated the potential Chinese reactor market at $20 billion, with U.S. companies in position to win a share worth $3 billion to $7 billion. The administration also predicted that winning a share of China's nuclear energy business would enhance U.S. companies' chances of penetrating China's other energy sectors.

    However, the Sino-U.S. agreement drew bipartisan criticism on Capitol Hill from liberal Democrats and conservative Republicans, who predicted that the loose provisions of Articles 2, 5 and 8 would not prevent China from retransferring U.S. technology and materials to non-nuclear-weapon states. The General Accounting Office (GAO) found the accord acceptable on balance, but noted that the agreement:

     

    . . . does contain certain vague and unclear language which could lead to misinterpretations. In several respects the language in this agreement differs from that in other nuclear cooperative agreements, but for the most part these differences appear to have more symbolic than practical effects. Nevertheless, the changes represent a departure from the longstanding U.S. practice of encouraging more stringent controls on the use of U.S. nuclear exports.5

     

    The Nuclear Regulatory Commission (NRC) echoed this view during Senate Foreign Relations Committee hearings in response to questions from Senator William Proxmire (D-WI). The NRC supported the agreement but stated concern that the language in Article 2 on compliance with international agreements might reduce future U.S. flexibility. The commission also said it would have preferred that the agreement "contain a clear statement of U.S. consent rights" over Chinese reprocessing.

    Congressional skeptics argued that China's non-proliferation pledges could not be trusted, especially since Beijing had refused to provide any written guarantees beyond the bilateral agreement itself. (The June 1985 memorandum that Ambassador Kennedy had persuaded Chinese leaders to approve was provided to Congress in classified form, but was not made public.) Critics further contended that approving what they viewed as an overly permissive cooperation agreement would undercut the credibility of U.S. non-proliferation policy. The strongest critics asserted that China did not meet the standards required under the Atomic Energy Act for peaceful nuclear trade, and called for the administration to withdraw the agreement and resubmit it to Congress with a waiver of statutory requirements, thereby acknowledging that China did not meet U.S. nuclear non-proliferation criteria. (This route would have required an affirmative congressional vote for the agreement to take affect, rather than letting it automatically enter into force unless Congress passed a resolution of disapproval.) However, opponents were unable to secure majority support for this approach. Congress approved the agreement in December 1985.

    As part of the legislation that authorized implementation of the accord (P.L. 99-183), Congress mandated that before any export licenses could be issued, the president had to certify to Congress that:

     

    • The visits and exchanges to be negotiated under Article 8 were "designed to be effective" in ensuring that U.S. exports would be used strictly for peaceful purposes;
    • Based on all information available to the U.S. government (including additional assurances from the Chinese government), China was not assisting any non-nuclear-weapon states to develop nuclear weapons;
    • and The obligation in Article 5 to consider favorably Chinese requests to alter U.S.origin materials would not prejudice U.S. decisions.

       

    The resolution also required the president to submit a report on the history and current status of China's non-proliferation policies to Congress, and allowed 30 days of continuous legislative session to review this information before the agreement could enter into force.

     

    Developments Since 1985

    U.S.Chinese nuclear trade remained in limbo for the next several years, due to growing U.S. concern over China's nuclear and missile-related exports. Most significantly, Beijing continued to support Pakistan's nuclear weapons program despite its non-proliferation pledges. In addition, China sold CSS2 intermediate-range ballistic missiles to Saudi Arabia and began marketing M-series missiles to Iran and Syria.

    After Beijing's violent suppression of pro-democracy demonstrators in Tiananmen Square in June 1989, President Bush imposed sanctions on China, including suspension of arms sales and military-to-military contacts. Congress subsequently wrote these and additional sanctions into law, including a ban on U.S. nuclear exports to China (P.L. 101-246). Subsequently, U.S.Chinese nuclear relations were subsumed in a broader debate between President Bush and Congress over China's most-favored-nation (MFN) trading status. Under the Jackson-Vanik Amendment to the Trade Act of 1974, MFN status can be granted to a "non-market economy" (communist country) only if the president certifies yearly to Congress that that nation does not restrict emigration. From 1990 through 1992, however, members of Congress who viewed the Bush administration as too deferential toward China passed annual bills conditioning extension of MFN status on presidential certifications that China had made "overall significant progress" on trade, human rights and weapons proliferation issues. Bush vetoed these bills and pressed for engagement with Beijing as the best way to achieve reforms, but mustered scant political support.

    China's post-Tiananmen Square exports provoked further controversy. Notably, in November 1989, China announced that it planned to sell a 300-megawatt (electric) nuclear reactor to Pakistan. Although Chinese leaders pledged to require safeguards on the reactor, this action broke an international moratorium on major nuclear sales to Pakistan. In the spring of 1991, U.S. intelligence discovered that China was supplying a research reactor to Algeria, which then was not a member of the nuclear non-proliferation Treaty (NPT). Later that year, the Bush administration imposed sanctions on China for selling components for nuclear-capable M11 ballistic missiles to Pakistan. Nonetheless, U.S. diplomatic pressure arguably produced some results. In March 1992, Beijing signed the NPT and agreed to adhere to the guidelines of the Missile Technology Control Regime (MTCR). In response to the latter step, the Bush administration waived the 1991 missile sanctions and other high-technology export restrictions imposed after Tiananmen Square.

    After strongly criticizing the Bush administration's China policy as too lenient during the 1992 presidential campaign, Clinton initiated a review of U.S. China policy upon entering office. In a May 1993 executive order, Clinton delinked China's MFN status from trade and arms control considerations, conditioning it solely on Beijing's human rights record. (Clinton later severed this link as well.) With this step, existing U.S. laws and international agreements once again became the venue for addressing proliferation concerns in U.S.Chinese relations.

    Throughout Clinton's first term, the United States and China swung between cooperation and confrontation over arms control issues. On the positive side, China signed the Chemical Weapons Convention in 1993; agreed to adhere to revised MTCR guidelines and endorsed the negotiation of a treaty banning production of fissile material for weapons in 1994; supported unconditional extension of the NPT in 1995; and stopped testing nuclear weapons and signed the Comprehensive Test Ban Treaty in 1996. China also played a positive role in promoting the 1994 U.S.North Korea agreement under which Pyongyang agreed to freeze and eventually eliminate its nuclear weapons program.

    On the other hand, China continued to make controversial exports, often in contravention of its non-proliferation commitments. The Clinton administration imposed sanctions on various Chinese agencies, firms and front companies in 1993 for missile technology transfers to Pakistan and in 1995 for sales of chemical weapon precursors to Iran. In 1996, it threatened to impose sanctions for China's export of custom-built ring magnets (a component of gas centrifuges used to enrich uranium) to Pakistan. However, the administration concluded that there was insufficient evidence to determine that Chinese officials had known about or approved the transfer. Critics called this decision an overly narrow reading of U.S. law, and argued that the sale violated China's NPT commitments not to help other countries develop nuclear weapons or to transfer such items outside of international safeguards.

    Today, further improvement in China's export control system and adherence to international non-proliferation norms are central issues in U.S.Chinese relations. U.S. officials categorize China's non-proliferation record as mixed; they stress the degree to which Chinese policies have improved over the past five years, especially in the nuclear area, while acknowledging continued concerns about Beijing's export policies. Chinese transfers to Iran and Pakistan are of particular concern.

    China has suspended a planned sale to Iran of two 300-megawatt (electric) nuclear reactors, which were to be placed under safeguards but which the United States argued would support Iran's nuclear weapons ambitions. U.S. officials remain strongly concerned about Chinese conventional arms sales and missile technology exports to Iran. In May 1997, the Clinton administration imposed sanctions on seven Chinese entities for exporting dual-use items with chemical weapons applications to Iran.

    With respect to Pakistan, China agreed in October 1994 that transfers of M-11 missiles were barred under MTCR guidelines. However, according to subsequent press reports citing U.S. intelligence officials, China continued to transfer M-11 technology and is helping Pakistan to build a factory that will manufacture M-11s or a similar missile. China also is reportedly helping Pakistan to build a plutonium production reactor outside of safeguards, a potential violation of Beijing's NPT commitments.6

    It is important to note that from China's perspective, international arms control regimes often impose major costs on Beijing and are invoked selectively by Western countries, especially the United States. Chinese leaders frequently contend that they are accused of violating imprecise standards which they were not involved in negotiating. Moreover, they accuse the United States of flouting its own arms control commitments—most significantly, by selling advanced conventional weapons to Taiwan. An analysis of Chinese perspectives on arms control compliance issues is beyond the scope of this article, but two points bear emphasis. First, China has deeply held concerns about issues such as sovereignty that rightly or wrongly shape its behavior in relation to arms control treaties and agreements. Second, China's views of what it can legitimately be asked to do to fulfill its non-proliferation commitments are an important constraint on U.S. negotiators. At some point, Chinese leaders could simply refuse to take all of the steps that the Clinton administration sees as necessary to enable it to ask Congress to allow the nuclear cooperation agreement to be fully implemented.

     

    Engaging Through Nuclear Trade

    Notwithstanding these controversies, the Clinton administration appears optimistic that China will improve its non-proliferation record sufficiently in the near future to allow implementation of the 1985 nuclear accord. U.S. officials involved in this issue give several reasons for the administration's interest in implementing the agreement.

    First, China wants access to U.S. nuclear technology to help meet its rapidly growing electricity needs. Currently, China operates three nuclear plants that generate a total of 2,167 megawatts (electric). In 1996, China's three reactors supplied less than 2 percent of the country's total electricity needs. Last year Beijing announced plans to add 20 gigawatts of new capacity by the year 2010, a tenfold increase. The Sino-U.S. nuclear agreement thus offers a positive incentive for China to improve its nuclear non-proliferation credentials.

    Second, implementing the 1985 nuclear accord exemplifies the Clinton administration's broader strategy of expanding areas of U.S.Chinese cooperation at the same time that it addresses areas of contention. According to Gary Samore, National Security Council senior director, "We are trying to demonstrate that the U.S. and China can produce concrete results in areas that have been contentious." Administration officials present U.S. policy toward China on non-proliferation issues as a mix of cooperation, high-level diplomatic engagement and targeted sanctions, aimed at integrating China into the international order rather than isolating it.

    Third, the administration views China as indispensable to international efforts to control the proliferation of weapons of mass destruction by virtue of its status as a nuclear-weapon state, its standing as a permanent member of the UN Security Council, its role as a major nuclear supplier and its diplomatic influence. U.S. officials emphasize the importance of persuading China that it shares a common interest with other world powers in curbing the spread of weapons of mass destruction.

    Finally, expanding peaceful nuclear trade with China promotes a major element of the Clinton administration's international economic strategy. China is the biggest of the so-called "big emerging markets," a concept developed during Clinton's first term to describe 10 countries and regions whose high-growth-rate economic plans make them the largest potential markets for U.S. exports in the coming decades. The administration's strategy calls for sustained U.S. commercial diplomacy and engagement with these countries, and asserts that the United States can pursue these emerging trade opportunities at the same time that it addresses problematic issues such as human rights, intellectual piracy and weapons proliferation.

    Not only is China a "big emerging market," energy is a "big emerging sector" in China, according to the Commerce Department, which predicts that China will spend as much as $65 billion between 1995 and 2000 on energy and power projects, including eight nuclear plants. One nuclear industry estimate suggests that U.S. companies could earn as much as $55 billion from the Chinese market over the next 30 years.7

     

    Prospects for Implementation U.S.

    officials are reluctant to predict how soon the administration may attempt to implement the Sino-U.S. nuclear agreement. President Clinton and Chinese President Jiang Zemin have agreed to conduct reciprocal state visits in 1997 and 1998, with Zemin scheduled to arrive in Washington in late October. These meetings may lend momentum to U.S. implementation efforts so that the full implementation of the nuclear accord can be celebrated at the summit level. China has indicated that it expects the Washington summit to yield "concrete results," and the 1985 agreement will no doubt be high on the agenda. During a joint news conference with Secretary of State Madeleine Albright in Kuala Lumpur, Malaysia, in late July, Chinese Foreign Minister Qian Qichen said "early implementation" of the agreement would benefit both countries. "On this matter," he said, "the two sides have held positive and productive consultations and made some progress." Nevertheless, the timing will depend on Chinese actions and on how Congress evaluates the case for nuclear cooperation.

    Given the Sino-U.S. agreement's lack of explicit safeguards over U.S. exports, congressional skeptics will look closely at how the administration plans to verify that China is using U.S.supplied technologies and materials for peaceful purposes. This issue has caused problems recently between the United States and China. In 1995, the GAO reported that the United States could not ensure that U.S. missile technology-related exports to China were being kept away from sensitive end-users, in part because the Chinese government resisted U.S. end-use checks.8 In 1995 and 1997, respectively, China diverted advanced machine tools and a supercomputer from their authorized users to military facilities.9

    Congress can also be expected to scrutinize China's relationships with proliferant countries such as Pakistan and Iran. Administration officials assert that China is living up to its most recent pledge—made in the context of the May 1996 ring magnet controversy—not to provide assistance to unsafeguarded nuclear facilities. Testifying before a subcommittee of the Senate Governmental Affairs Committee in April, Deputy Assistant Secretary of State Robert Einhorn said, "While we have raised concerns with Beijing about certain activities and incidents, we have no basis to conclude that China has acted inconsistently with its May commitment."

    However, the administration is not speaking with one voice on this question. In a June 1997 report on the spread of technologies related to weapons of mass destruction, the CIA stated that China was "the primary source of nuclear-related equipment and technology to Pakistan, and a key supplier to Iran during [the second half of 1996]." Overall, the report termed China "the most significant supplier of [weapons of mass destruction]related goods and technology to foreign countries," including "a tremendous variety of assistance to both Iran's and Pakistan's ballistic missile programs" and exports of chemical weapons production equipment and technology to Iran.10

    In order for Sino-U.S. nuclear cooperation to go forward, President Clinton must certify not only that China is committed to its non-assistance pledge, but that it can enforce it. Currently, China is just developing an export control system. According to Einhorn, while the Chinese government appears to have centralized procedures for controlling specialized technologies for weapons of mass destruction:

     

    . . . dual-use items in the nuclear, chemical, biological and missile areas . . . are not necessarily controlled by centralized or senior-level review and approval mechanisms. Indeed, we have considerable evidence that decisions to export potentially sensitive dual-use nuclear, chemical and missile items are often taken by Chinese manufacturing or exporting entities—even government-owned or government-operated entities—without referral to central or high-level authorities.11

     

    An analysis of Chinese export controls by the University of Georgia's Center for International Trade and Security scores China's current system at 50 on a scale of 1 to 100. (The score indicates the status of elements that typically make up an effective export control system, but does not measure that system's effectiveness.) In comparison, the center scores Japan's export controls at 97, Russia at 82 and Kazakstan at 69. According to this assessment, the most problematic aspects of China's export control system are relatively low levels of verification, both in China and in recipient countries; Chinese officials' reluctance to share information with foreign observers and businesses and with Chinese non-proliferation experts; and little evidence that licensing and enforcement personnel are trained to execute non-proliferation export controls. The report points out that there is great potential for cooperation between China and other governments to address some of these gaps.12

    U.S. officials note that China is developing nuclear export control regulations that will establish a legal and regulatory basis for carrying out its non-proliferation commitment. At the conclusion of a meeting of the Executive Committee of the State Council August 1, a draft regulation on the control of nuclear exports was reportedly approved, indicating China's interest in the early implementation of the 1985 agreement. In addition to putting these controls in place, the Clinton administration is urging China to take the following steps:

     

    • Continuing to uphold its May 1996 commitment not to help other countries develop nuclear weapons, and amplifying on that commitment. (During his March 1997 trip to Beijing, Vice President Al Gore was reportedly unable to persuade Chinese leaders to make additional assurances)13;
    • Joining the Zangger Committee, through which nuclear supplier countries coordinate their export procedures and standards (China attended the May 1997 Zangger Committee meeting as an observer, and is actively considering joining the committee, according to U.S. officials);
    • and Curtailing its nuclear trade with Iran, in response to the current U.S. policy not to carry on nuclear cooperation with countries that conduct nuclear commerce with Iran.

       

    Significant progress on these issues would clearly benefit Chinese and U.S. interests, and would further China's evolution from a holdout to a supporter of arms control. However, a congressional debate over nuclear trade with China could still prove extremely difficult, and potentially even harmful to Sino-U.S. relations. Clearly, the administration must resolve any internal conflicts over China's compliance with its non-proliferation commitments, such as the contrasting statements cited above on Beijing's current relationship with Pakistan. Congress will not overlook such differing assessments, nor should it.

    More broadly, the administration should take the domestic politics of this issue very seriously. Proliferation and China are highly charged issues on Capitol Hill, and legislators will bring up other policy questions when they review the Sino-U.S. nuclear accord. China's missile and chemical exports will certainly be considered. Administration officials assert that they are handling those issues through appropriate channels, but Congress is unlikely to draw fine distinctions between China's nuclear, missile and chemical sales as it assesses China's arms control commitments, especially since the report to Congress on China's non-proliferation record required under the 1985 legislation is not limited to nuclear issues.

    Many members of Congress see China as an increasingly assertive power in Asia that is expanding its military reach. For example, some interpreted the 1995 remark by a Chinese official (in the context of the United States defending Taiwan in a conflict between Taiwan and China) that Washington would not sacrifice Los Angeles to defend Taipei as an overt threat. This year, Congress has passed measures requiring the U.S. intelligence community to track Chinese espionage activities against U.S. citizens and establishing a new center for analysis of China at the National Defense University. Members of Congress who see China in this light as an aggressive military power may argue that U.S. exports could be used to enhance China's nuclear arsenal, or that China might use U.S.origin plutonium for weapons. These concerns are debatable because China has already produced several hundred weapons and a stockpile of weapons-grade plutonium, but they may well come up nonetheless during congressional consideration of the nuclear accord.

    The recent debate over renewing China's MFN status offers some signs of how Congress might treat a proposal to implement the 1985 cooperation agreement. While efforts to deny MFN were defeated relatively easily (by a vote of 259173 in the House), many legislators expressed concern over China's arms control record and frustration with U.S. handling of this issue. For example, Representative Howard Berman (D-CA) said:

     

    . . . what I want is for this administration to scream as loudly about the proliferation of weapons of mass destruction as it has about the manufacturing of counterfeit CDs and stolen computer software and video games. I want this administration to threaten the import controls and higher tariffs on key products imported here from China as forcefully and effectively as it has waved and wielded that weapon to remedy violations of intellectual property agreements.14

     

    Many congressional advocates of a tough policy toward China are looking for a better forum than the MFN-trade-status debate to voice their concerns. In the wake of this year's vote, a number of bills have been introduced that address other aspects of Sino-U.S. relations, including proposals to deny visas to Chinese officials responsible for illicit arms sales and to withhold MFN treatment from products of commercial suppliers operated by Chinese military companies.

    If the administration cannot satisfy critics of its overall China policy, the 1985 nuclear cooperation agreement will become a vehicle for Congress to address its trade and security concerns. Opponents probably cannot muster a two-thirds majority of both houses of Congress for a resolution of disapproval, but they might repeat the 1985 scenario by passing legislation that would impose further conditions on nuclear cooperation with China. Congress could link implementation of the accord with progress on other issues, such as missile and chemical exports, or bar the use of any U.S. funds for activities in support of nuclear exports to China, such as trade promotion. Congress might also require certifications from China in a form that Chinese leaders are certain to reject.

    A likely best-case scenario for the administration would be for Congress to let the 1985 agreement be fully implemented, but to put its concerns on record (possibly through a non-binding resolution) and require additional subsequent reports from the administration on China's compliance with its nuclear non-proliferation pledges. The Clinton administration will need to hold extensive consultations with Congress if it hopes to win certification while avoiding legislation that invokes other issues on the U.S.Chinese agenda.

    One potential administration strategy may be to make some kind of partial certification that would allow U.S. companies to negotiate with China for nuclear contracts, although they would have to wait for full certification to proceed with exports.15 This approach could allow the administration to reward China for some improvements, while demonstrating to Congress that it will not accept less than full Chinese adherence to the standards required to implement nuclear trade.

    Using peaceful nuclear cooperation as an incentive to improve China's non-proliferation behavior makes sense in many respects, but it is far from guaranteed to succeed. China has greatly improved its arms control policies over the past decade, but major non-proliferation concerns persist. The Clinton administration will bear a heavy burden of proof in certifying that China meets the conditions for implementing the 1985 nuclear cooperation agreement. And given the high level of political feeling surrounding issues related to China and proliferation in Congress, the administration should consider very carefully whether the potential economic benefits of nuclear trade with China will outweigh the political costs and possible collateral damage to Sino-U.S. relations.

    Gaining access to the Chinese market clearly would benefit U.S. nuclear companies, but its impact on the U.S. trade deficit with China should not be exaggerated. Nuclear power will only meet a fraction of China's energy requirements in the next several decades, and other avenues such as natural gas and renewable energy sources also offer major export opportunities. non-proliferation, not trade, should be the determining factor in the administration's calculus of whether and when to implement the 1985 agreement. In light of the many controversies between the United States and China since 1985, and of repeated U.S. failures to extract leakproof commitments from China in this area, close congressional review is appropriate and justified.

    Most importantly, nuclear trade should not be implemented unless and until every problematic aspect of China's nuclear non-proliferation behavior is resolved to U.S. satisfaction. China is moving toward full adherence to international non-proliferation regimes, but a premature certification effort by the Clinton administration will convey the impression that the United States is bending its non-proliferation standards. Today, U.S. leaders have an opportunity to achieve major new nuclear arms control commitments from China. Now is precisely the wrong time to settle for less.

     


    NOTES

     

    • 1. U.S. nuclear trade with Britain and France is regulated through a nuclear cooperation agreement negotiated with the European Atomic Energy Community (EURATOM), of which they are members.
    • 2. Legal Memorandum prepared by the Department of State, in United States-People's Republic of China Nuclear Agreement, hearing, Senate Foreign Relations Committee, October 9, 1985, p. 159.
    • 3. Summarized in Leonard S. Spector, Nuclear Ambitions, Boulder, CO: Westview Press, 1990, pp. 38-39, 42-43 and 274.
    • 4. U.S. Department of State, "The Pakistani Nuclear Program," June 23, 1983, SECRET/NOFORN/ORCON, released under the Freedom of Information Act to the National Security Archive, January 17, 1991.
    • 5. General Accounting Office, Nuclear Agreement: Cooperation Between the United States and the People's Republic of China, NSIAD-86-21BR, November 1985.
    • 6. Leonard S. Spector, et. al., Tracking Nuclear Proliferation, Washington, DC: Carnegie Endowment for International Peace, 1995, pp. 97-99.
    • 7. Nucleonics Week, March 23, 1995, p. 2.
    • 8. General Accounting Office, Export Controls: Some Controls Over missile-related Technology Exports to China are Too Weak, NSIAD-95-82, April 1995.
    • 9. General Accounting Office, Export Controls: Sensitive Machine Tool Exports to China, NSIAD-97-4, November 1996; and "Albright Says China Broke Export Rules by Using U.S. Computer at Military Site," Wall Street Journal, July 1, 1997.
    • 10. Director of Central Intelligence, "The Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, July-December 1996," June 1997.
    • 11. Testimony before the Subcommittee on International Security, Proliferation, and Federal Service, Senate Governmental Affairs Committee, April 10, 1997.
    • 12. Richard T. Cupitt and Yuzo Murayama, Export Controls in the People's Republic of China: Status Report—1997, University of Georgia, 1997.
    • 13. Programme for Promoting Nuclear non-proliferation Newsbrief, Number 38, p. 6.
    • 14. Congressional Record, June 24, 1997.
    • 15. Joshua Michael Boehm and Zachary S. Davis, "The U.S.China Agreement for Nuclear Cooperation: Moving Towards Implementation?" Congressional Research Service, April 10, 1997.

    Congress Considers Tightening Export Controls for Supercomputers

     

    Howard Diamond

    FOLLOWING THE transfer of several U.S.made high-performance computers to Russia and China, possibly for use in their nuclear weapons programs, Congress is considering legislation that would tighten supercomputer export controls which were eased by the Clinton administration in 1995. An amendment to the fiscal year 1998 defense authorization bill that is pending in a House-Senate conference committee would require prior written approval from the U.S. government for sales of computers capable of at least 2,000 million theoretical operations per second (MTOPS) to countries of proliferation or security concern.

    The amendment, cosponsored by Floyd Spence (R-SC), chairman of the House National Security Committee, and Ron Dellums (D-CA), the panel's ranking minority member, was adopted June 19 in the House by a vote of 332-88. Although the Senate rejected a similar amendment offered by Thad Cochran (R-MS) and Richard Durbin (D-IL), it approved, by a vote of 72-17, a substitute measure offered by Senator Rod Grams (R-MN) that would retain the current system for controlling computer exports, but would require a General Accounting Office study of the issue.

    Given the lopsided but contradictory votes in the House and Senate, the future of the Spence-Dellums amendment remains uncertain. Congress will ultimately resolve the issue after the conference committee finalizes the 1998 defense bill when legislators return from summer recess.

     

    'Tier3' Controls

    When the Clinton administration relaxed export controls on supercomputers in 1995, it created four "tiers" of states within a system of increasing levels of controls and limits, progressing from almost no controls on sales to close allies such as Canada, Western European countries and Japan in "tier-1," to near total prohibition for Iran, Iraq, Libya and North Korea in "tier-4." The key concern is the status of export controls on the so-called "tier-3" countries that include China, India, Pakistan, Vietnam, much of Eastern Europe, all of the Middle East and the former Soviet republics.

    For "tier-3" countries, computers capable of 2,000-7,000 MTOPS may be sold under a general license without prior approval from the Commerce Department. Sales to military or proliferation-related buyers in this group require an individual validated license from the department, as do any sales of computers operating above 7,000 MTOPS. Sales of computers operating above 10,000 MTOPS may require additional safeguards at the end-user's location.

    Critics of the administration's policy have argued that the government, rather than the computer companies, should determine whether a potential buyer is a military or proliferation-related end-user. According to one congressional staffer involved in the issue, computer companies, which are responsible for making this determination under the current system, lack the intelligence information needed to make such judgments, and, as the illegal sales to Russia and China indicate, some companies fail in their obligation to "know their customer."

     

    Congressional Inquiry

    Congressional concern about supercomputers was stimulated earlier this year when Russia's Ministry of Atomic Energy (MINATOM) announced that it had acquired five American-made supercomputers—four from Silicon Graphics, and one from IBM—for use in maintaining the safety and reliability of the Russian nuclear arsenal in the absence of nuclear testing. (See ACT, March 1997.) A modern desktop computer using a 200-megahertz Intel Pentium processor is capable of roughly 200 MTOPS, approximately the same level that was used to define a supercomputer in 1991. In comparison, the machines acquired by Russia's weapons labs under the guise of modeling soil and water pollution, operate at 4,400 and 10,000 MTOPS.

    The sales led the Military Procurement Subcommittee of the House National Security Committee to hold an April hearing and prompted the Senate Governmental Affairs Subcommittee on International Security, Proliferation and Federal Services to hold a hearing on June 11. Commerce Department Undersecretary William Reinsch said in testimony before the House subcommittee that 1,100 supercomputers worth more than $550 million had been exported from the United States between January 1996 and March 1997, including 46 to China worth $17.5 million and eight to Russia worth $19 million.

    Reinsch told the Senate subcommittee that the Commerce Department has taken steps to help exporters comply with the 1995 policy, including consulting with companies if they are in doubt about certain buyers; holding seminars for the few U.S. producers of supercomputers; and, where possible, publishing in the Federal Register the names of buyers requiring an individual license. Despite the three cases under investigation, Reinsch said, "by and large these companies have not had a lot of difficulty figuring out . . . who the military end users are and who [are] not." Reinsch also told the Senate subcommittee that additional names of organizations requiring Commerce Department approval would be made public shortly, though, he said, "we have not done it extensively so far [because] there are intelligence sources and methods issues that come up frequently on this issue." On June 30, the department published in the Federal Register the names of 13 entities in China, India, Israel, Pakistan and Russia which exporters should consider to be military-related, and said more would be added in the future. Prior to the June hearing, the Commerce Department had publicly identified Ben-Gurion University in Israel and Bharat Electronics of India as entities of proliferation concern.

    The Justice Department is currently investigating the Silicon Graphics and IBM supercomputer sales as well as a sale by Sun Microsystems to a Hong Kong company that subsequently transferred the computer it bought to a weapons lab run by the Chinese Academy of Sciences.

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