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24Jul/20Off

The New U.S. Policy on UAS Exports Under the MTCR

Note:

Below are remarks Assistant Secretary Ford delivered at Hudson Institute on July 24, 2020.  They may also be found here, on the website of the U.S. State Department's Bureau of International Security and Nonproliferation.

Good afternoon, Rebecca [Heinrichs].  It’s a pleasure to be back at Hudson Institute, where I myself spent five years as a Senior Fellow.  I’m sorry that we are still having to do events like this through video connectivity, so our audience is just a “virtual” one, but I’m glad to have the chance to speak to you.

It’s been some time since I was on the rostrum at Hudson with my colleague Tim Morrison — who was then at the White House but is now a Senior Fellow with Hudson — to talk about U.S. efforts to reform the Missile Technology Control Regime (MTCR).  That was back in February of 2019, so what I’d like today is to let you know how that effort has been developing since then.

The problem about which we spoke at that event was that the 1980s-era technological benchmark built into the MTCR Guidelines — which urge a “strong presumption of denial” for exports of “Category I” systems, which are defined as unmanned craft capable of carrying a payload of at least 500 kilograms to a range of at least 300 kilometers — has not held up well.  Advances in unmanned aerial systems (UAS), have led to a great explosion in the capabilities and beneficial uses of UAS that technically meet this Category I definition, but which don’t present the kind of nuclear weapon delivery threat that the MTCR was established to help forestall.  As applied to many UAS, in other words, the MTCR is in danger of becoming out of date.

With respect to actual missiles and rockets, or the sort of high performance cruise missile that one might actually use to deliver a nuclear weapon, of course, we had – and have – no quarrel with the MTCR standard.  Quite to the contrary: we still believe that a strong presumption of denial for transfers of such systems makes eminent sense.

The difficulty came with less capable varieties of UAS, in connection with which the presumption of denial has had the effect of largely shutting MTCR partners out of an important and growing UAS market.  Since non-MTCR partners remain free to sell whatever they wish, however, this was not only a net loss for those countries responsible enough to join the MTCR, but also a net loss for the cause of nonproliferation — as the market for such non-threatening UAS was effectively ceded to the least proliferation–responsible international players, who don’t worry about things such as MTCR standards.

This is why, in March 2018, the United States proposed an adjustment to MTCR controls that would carve out a subset of Category I UAS, based on their maximum airspeed, for treatment as if they were Category II systems — thus making these slower, less-threatening systems no longer subject to the “strong presumption of denial.”  This reform proposal would have protected what needed to be protected in that important regime, while yet allowing a degree of relaxation for transfers of lower-threat systems in order to permit all of humanity to take better advantage of the myriad ways in which UAS are increasingly used in both governmental and private sector applications.

For more than two years, therefore, we have been promoting this reform initiative in MCTR fora.  We have also repeatedly made technical changes and various other adjustments to our reform proposal in response to issues raised and ideas suggested by other MTCR partners.

Nevertheless, the MTCR is a consensus-based organization, in which even a single country can hold things up indefinitely.  We are pleased that many of our partners have supported our reform proposal, but thanks to foot-dragging by some, it is not yet possible to amend the MTCR controls by consensus.

We will still keep promoting this reform proposal, for we still feel it represents the right way to update the MTCR regime in the face of technological change and thus save it from obsolescence, while yet preserving what is most important in it and protecting nonproliferation equities.

But as Tim and I signaled at our February 2019 event here at Hudson, the United States isn’t willing to let U.S interests be forever held hostage by consensus decision-making.  While we’ll still keep pushing MTCR reform, therefore, we are now announcing a modest adjustment to U.S. national policy as to when the “strong presumption of denial” can be overcome in exporting slower, and thus less threatening, UAS.

The key to the new U.S. policy lies in remembering that a presumption can sometimes be rebutted.  A “presumption of denial” is not a prohibition, and it has always been permissible to make Category I transfers when there is a compelling reason to overcome the presumption and such a step is well justified in terms of the nonproliferation factors specified in the MTCR Guidelines.

We are all familiar with this idea in other contexts; presumptions are used in lots of policy areas.  Perhaps most famous is the “presumption of innocence” in criminal law — that is, the principle that one should be presumed innocent of wrongdoing until actually proven guilty.  As that example makes clear, however, the central feature of any presumption is that it can be overcome.  If not, it wouldn’t be a presumption at all, but rather just an ordinary rule.

“Rebuttability,” if you will, is thus inherent in the concept of a presumption.  There would be no criminal justice system at all, for example, if the presumption of innocence could not be overcome by appropriate evidence, and it is a central purpose of criminal procedure to provide a way to determine when that has occurred.  That’s just one example of how presumptions are used, but the point should be clear: presumptions, by their nature, are things that can be overcome in sufficiently compelling circumstances.

So while observers of the MTCR scene often casually assume that the “strong presumption of denial” for Category I exports is simply a prohibition, it clearly isn’t – and this understanding is built in to the MTCR Guidelines.  And so, with our new policy on Category I UAS exports, the United States is now setting forth a careful and balanced approach, within the MTCR Guidelines, that for the first time offers a clear explication of certain circumstances in which the “strong presumption of denial” can be overcome.

This new U.S. policy largely tracks the basic structure of the reform initiative we proposed for the MTCR a couple of years ago, except that we are implementing the MTCR’s “strong presumption of denial” within the national discretion permitted us in the MTCR Guidelines.

Under this new policy, the “strong presumption of denial” for MTCR Category I UAS transfers will be overcome for a subset of unmanned aerial systems with a maximum airspeed of less than 800 kilometers per hour.  This policy will change nothing about how we handle faster UAS, which present higher risks for WMD delivery – systems such as cruise missiles, hypersonic aerial vehicles, and advanced unmanned combat aerial vehicles.  Those systems will continue to be effectively non-exportable, except perhaps on rare occasions.

Our new approach will merely mean that we will deal with lower-threat, lower-speed UAS more flexibly, as if they were Category II systems.

I should also emphasize that this new policy does not mean that we will subject transfers of these slower, lower-threat systems to a strong presumption of approval; all we are doing is exempting them from the strong presumption of denial.  There will be no presumption of approval, and all proposals will be evaluated on their own merits.

Nothing will change, moreover, in the strict U.S. standards that today go into deciding whether or not a transfer should occur.  We will continue to approach each transfer on a case-by-case basis as a whole-of-government decision that takes into account all relevant factors and policies, including U.S. national security, nonproliferation, and foreign policy objectives, as well as the recipient country’s capability and willingness to effectively and responsibly use and safeguard U.S.-origin technology.

We will continue our extensive assessments of the risk of controlled items falling into the hands of unauthorized end-users, irresponsible actors, state adversaries, and terrorists.  We will continue to evaluate all transfers against the MTCR Guidelines, and to require appropriate end-use and end-user certifications and end-use monitoring.  All military UAS transfers will continue to be subject to State Department-led assessments under the Conventional Arms Transfer Policy, as well as to Defense Department-led assessments of technology security, as applicable.  And all civil UAS exports will continue to be subject to the Export Administration Regulations.

The United States will continue to abide by its MTCR commitments, including those related to pre-notifying Category I transfers.  We will also continue to promote responsible standards of behavior in UAS export and use, such as in the “Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled [Unmanned Aerial Vehicles]” and we’ll seek to develop further international standards for the export and use of armed UAS.

It is true that that the best way to proceed would have been to clarify these issues across the entire MTCR regime through adoption of our modest reform proposal there, so that all partners could harmonize approaches around a sensible maximum airspeed threshold.  As I indicated, however, at least one MTCR participant seems to have prioritized reflexive opposition to anything the United States proposes over sensible reform of the MTCR Guidelines in the face of technological change.  That’s unfortunate for the regime, for unless naysayers change course, the MTCR’s technological standards — set more than three decades ago, in 1987 — will simply become more and more out of date with the passage of time, and stress upon the regime will needlessly increase.

In this context, we’re pleased to be able to take a small step forward on our own, by implementing an analogous reform entirely consistent both with the letter and with the spirit of the MTCR Guidelines.  We continue strongly to support the MTCR as an important element of the broader global nonproliferation regime.

Thank you.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford took office in January 2018 as the U.S. Assistant Secretary of State for International Security and Nonproliferation. In October 2019, he was delegated the authorities and responsibilities of the Under Secretary of State for Arms Control and International Security. Previously, he served as Special Assistant to the President and Senior Director for WMD and Counterproliferation on the U.S. National Security Council staff, and before that as Chief Legislative Counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. In September 2017, he was promoted by Queen Elizabeth II of England to the rank of Commander in the Most Venerable Order of the Hospital of Saint John of Jerusalem. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses on this website are entirely his own, and do not necessarily reflect those of anyone else, nor those of the U.S. Government.
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