News Commentary (1)
Comments on the Chinese Regulation on Missile Technology
Export Control
by Li Bin
August 26, 2002
On August 22, the Chinese government signed the Regulations of the People's Republic of China on Export Control of Missiles and Missile-related Items and Technologies (see http://www.fmprc.gov.cn/eng/33980.html) and its annex The Missiles and Missile-related Items and Technologies Export Control List (see http://www.fmprc.gov.cn/eng/33981.html). Here are my personal observations and comments on the documents.
Paragraph 1: Brief Introduction to the Regulations of the People's Republic Of China On Export Control of Missiles and Missile-Related Items and Technologies (Hereinafter Referred to as Control Regulations) and Its Annex The Missiles and Missile-related Items and Technologies Export Control List (Hereinafter Referred to as Control List)
The Control Regulations are a law controlling export of missiles and missile-related items from China to other countries. Its purpose is to safeguard the Chinese national security and social and public interests. As an annex of the Control Regulations, the Control List defines a scope of control including detailed technical criteria. In the Control Regulations, the concept of "export" includes not only profit business but also non-profit activities, for example, presenting gifts; the control scope includes not only hardware of missile equipments but also software of missile technologies; it covers not only complete missile components but also other materials and technologies which could be used to develop missiles capable of carrying weapons of mass destructions. In another words, some civilian (dual-use) technologies are under the control. The Regulations do not mean to completely ban the transfer of items on the Control List. Instead, they mean to prevent the exported items from being used on missiles carrying weapons of mass destructions through end use and end user assurance.
Paragraph 2: The Control Regulations and National Security and Chinese National Security and Social and Public Interests
Strengthening national defense and public security capabilities are important means to protect China's national security and social and public interests. But they are not sufficient for this purpose. To constrain the export of some weapons and their technologies can help prevent other countries from threatening China's national security with these weapons and prevent terrorists from harming the Chinese public security with these weapons. If hostile forces aim their missiles carrying weapons of mass destructions at China, it poses serious threats to the Chinese people. It is in China's interests to prevent the spread of missiles technology through export control. As indicated in the Control Regulations, the promulgation of the Regulations is to safeguard "the State security and social and public interests."
Paragraph 3: The Control Regulations and Promoting Export
The Control Regulations do not simply forbid the export of items on the Control List. After the entry into force of the Regulations, the export of items in Part I of the Control List (equivalent to Category I of MTCR) and items for military purposes of Part II (equivalent to Category II of MTCR ) shall be subject to the Regulations of the People's Republic of China on Administration of Arms Export and other relevant provisions. The Control Regulations does not ban the export of Part II items for civilian purposes. The Regulations are to prevent these civilian items from being used for developing missiles capable of carrying weapons of mass destructions by other countries. They require the exporters apply to the government for licenses and the applications should include certificates of end-user and end-use of exported items. As long as the exporters can guarantee that their products will not be used by other countries for developing missiles, their export business will be allowed. The promulgation of the Regulations does not harm the efforts in promoting China's international trade and it is in accordance with the main stream of reform and openness in China.
Some of the Part II items may not be able to apply directly to making high-performance missiles. The reason they are on the list is because they are approaching the danger and therefore some special cautions are needed. So, Part II is actually a trigger list. If an export case includes items on the Control List, it automatically triggers a licensing process, which the exporter needs to follow.
It is noticeable that the Control Regulations are relevant to not only the defense industry but also many high-tech and traditional civilian industries and research institutes. We suggest all relevant entities to pay enough attentions to protect their legal export business. Here is a hypothetical case. A construction supplier company received an order of a foreign company purchasing aluminum powder with diameter less than 0.5 millimeters for painting heating equipments in houses. Although the order has nothing to do with missiles, the construction supplier company still needs to apply for an export license according to the Control Regulations and to provide explanation about the end-user (the foreign company), end-use (painting heating equipments in houses) and the recipient's assurance. This is because tiny aluminum powder could be used as missile fuel. As long as the end-use can be guaranteed, the exporter should be able to receive the license. The export will be denied by the custom without a license, or be delayed if applying the license later. If the aluminum is shipped without a license, the exporter will receive administrative or legal punishment.
Note: In Part II of the English-version Control List, the unit of the sizes of item 4 (Solid Propellant and Propellant Constituents) is incorrect. They should be 500 µm (micron), not 500 mm (millimeter).
Paragraph 4: The Control Regulations and the Development of Market Economy in China
Before the reform and openness, China's international trade was not so active. In the planning economy system, only few Chinese companies had the privilege to be engaged in international trade. The Chinese government had strict control over export of military and dual-use technologies based on the perception of threats at that time. After China began to adopt the policy of reform and openness, its international trade had had a great increase and more and more Chinese companies were involved in international trade. The administrative approach of limiting export privileges became more and more difficult in controlling the export of dual-use technology. Therefore, China gradually made some new export control laws to meet the need of developing market economy. In making the new laws, China could borrow some experiences of the developed market-economy countries, for example, licensing system. In the process of fully joining the international society, China is revising old domestic laws and making new ones to make good junction to international norms. The promulgation of the Regulations is part of the efforts. As China makes a sound law system that is suitable for market economy and makes good junction to international norms, the Chinese people and entities will be smoothly join economic, political and cultural activities in the world.
In the Control Regulations, we can still find some relic of planning economy. For example, Article 7 of the Regulations requires the exporters of missile-related items and technologies to register themselves with the government. This is still an administrative concept of limiting export privilege. Actually many civilian entities do not know that they are "exporters of missile-related items and technologies" until their export items trigger the licensing process. Their application will be denied because they are not registered exporters according to the Regulations. This may add difficulties to the Chinese efforts in promote international trade. If the government tries to find all potential "exporters of missile-related items and technologies", it will be a big burden to the government.
Paragraph 5: The Control Regulations and International Nonproliferation Regime
One of the international efforts in preventing the proliferation of weapons of mass destructions is export control. China had had joined some universal and multilateral nonproliferation regimes, for example, the International Atomic Energy Agency, Nuclear Non-proliferation Treaty and Chemical Weapon Convention, made the Chinese implementation regulations and built national enforcement authorities. Because there is no universal international regime on missile nonproliferation, China had to make such export regulations as a domestic law. This is why the Chinese law making in missile export control is much later than that in nuclear and chemical areas. The promulgation of the Regulations is a new nonproliferation effort made by China , which will further promote international peace and stability.
Paragraph 6: The Control Regulations and Missile Technology Control Regime
Missile Technology Control Regime (MTCR) is a text of domestic missile export control law shared by some countries, who refer to each others as MTCR partners. The MTCR partners have some coordination among themselves on text revisions and so on. In practice, some countries adopting MTCR can implement more strict control over missile export by making supplementary laws or agreements with other countries. Some of them can also loose the control by providing waiver conditions. Although some of the practice has been apart away from the original requirements of MTCR, customarily it is regarded as part of the Regime.
The Control Regulations have some similarities and differences with the MTCR, which are summarized as follows.
First, Both the Control Regulations and the MTCR are domestic laws to supervise the activities of natural and legal persons under national governances. The difference is that the Regulations are domestic law only implemented in China. China is independent in making, revising and implementing the law, while the MTCR partners have some coordination mechanism and supplementary agreements among them so that they are more or less bound in revising and implementing the law.
Second, the Control Regulations and MTCR have very similar approaches in controlling export. The priority of the both is to prevent the export of long-range (300 kilometers) and big-payload (500 kilograms) missiles and their components and technology. The control over dual-use technology by the both is to verify its end-use and end-user.
Third, the Control Regulations and MTCR have almost the same structure in text. They both have main texts plus annexed lists, which include two parts. Part one is long-range, big-payload missiles and their complete components, which are items strongly restricted for export; Part two is dual-use items suitable for missiles, which need end-use and end-user guarantee in their export.
Forth, most parameters in the Control Regulations and MTCR are the same, for example, the aforementioned 300 kilometers/500 kilograms missile parameters and the 0.5 millimeters size of aluminum powder. Some requirements of the Control Regulations are obviously much more strict than MTCR. For example, in the Control List, missile stealth technologies (Items 14-19) are treated as Part I items (equivalent of MTCR Category I items) under strict control, while the MTCR Annex does not have these items in Category I. A few Category II items of MTCR are not included in the Control List, for example, item 19, 300 kilometers missile with zero payload. Maybe this is because some other restrictions (e.g., engine limitations) and their combinations can cover this item.
The similarities between the Control Regulations and MTCR shows that China had borrowed the experiences of MTCR in making the Regulations. The similarities make it easy for China to communicate with countries adopting MTCR. The fact that China promulgated the Control Regulations as a separated domestic law indicates that China may not simply follow possible future revisions and adjustments of MTCR on missile export control and that China may not fully accept the practice of MTCR different from the original requirements MTCR.
Paragraph 7: The Control Regulations and Chinese Foreign Relations
(1) US-China Relation
Although it is based on the calculation of the Chinese security and economic concerns, the promulgation of the Regulations can help remove some disputes between China and the US over missile export. First, The high similarities between the Regulations and MTCR provides a strong basis for dialogues and cooperation on export control mechanism and parameters. Second, the implementation of the Control Regulations make the Chinese export control more transparent. The Americans will better understand the efforts made by the Chinese government in export control. This will help the two countries build trust and confidence in nonproliferation. Third, the export of relevant items without licenses by any natural and legal persons in China after the promulgation of the Regulations will be illegal. This will make the two governments communicate better when they exchange information about some illegal export activities. Nevertheless, I do not believe that the Regulations will stop all distribute between the US and China on military sale. First, it is unlikely the US will stop weapon sale to Taiwan while China will continue criticizing the US weapon sale. Second, the US has additional requests for the Chinese export control besides that based on MTCR. These additional requests are based on special US concerns and they are not as universal as MTCR requirements. The two countries may have new disbutes if the US requests are not about items in the Control Regulations and MTCR.
(2) India-China Relation
The Indians have complicated feeling about the Chinese progress in nonproliferation. On one hand, they hope that China would continue criticizing the discriminatory nature of some nonproliferation regimes as it did before together with India. On the other hand, they hope China enhance its export control to get rid of the Indian suspicions about Chinese assistance in Pakistan. Now China made the Regulations as a pure domestic export control law. So it should be a good thing for India from the above two points of view. The promulgation of the Regulations will have positive impact on the India-China relations.