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CHINA'S MISSILE GAME: Trick or Treat?

 

Paper 514                             30.08.2002

by B. Raman

(To be read in continuation of my earlier article titled CHINA'S MISSILE EXPORTS TO PAKISTAN at http://www.saag.org/papers3/paper294.html )

In the article cited above, I had pointed out as follows: "China considers that it is in its national security interest to help Pakistan maintain a nuclear weapon and missile delivery capability against India.  For nearly two decades now, it has, therefore, been clandestinely providing to Pakistan nuclear and missile material, expertise and technology in violation of international control regimes, such as the Missile Technology Control Regime (MTCR).  It is not a member of the MTCR, but has repeatedly pledged that it adheres to its provisions.  Whenever its clandestine supplies to Pakistan are detected by US intelligence agencies, it first denies any such shipments, then claims that any shipments were not in violation of control regimes, then blames non-Government entities (as if there are non-Government entities in such sensitive fields in China) for making the shipments without the Government's knowledge, proposes experts' level talks with the US to remove misunderstandings, makes another pledge to observe the control regimes and violates it once again.  This has been going on and on.  It has been estimated that since the 1980s, China has made 15 such pledges and subsequently violated each and every one of them.  The same has been the fate of the pledge made by it to the US on November 21, 2000."

2.The present Bush Administration came to office with a pledge to take strong action against China if it continued to violate its pledges.  During his visit to Beijing in the last week of July, 2001, Gen (retd). Colin Powell, US Secretary of State, took up with the Chinese leaders the continuing shipments of Chinese missiles and components to Pakistan in violation of the November 21, 2000, pledge.  The Chinese once again denied any such violation and proposed another round of experts' talks to go into this.  Instead of imposing sanctions against Beijing, Gen.Powell  agreed to the Chinese proposal.

3. The experts level talks between the two countries continued after Powell's visit. However, since Gen.Pervez Musharraf,Pakistan's military dictator, agreed to help the US in its war against terrorism in Afghanistan last year a suble change became evident in the attitude of the Bush administration towards this subject. While the US intelligence officials during their periodic briefings of relevant Congressional committees continued to draw attention to China's unterminated missile technology supply relationship with Pakistan, neither the Administration nor the Congress highlighted their concerns over this in the same vigorous and continuous manner as they used to do before September 7, 2001.

4. Before September 7, 2001, US intelligence officials, whenever they were dissatisfied with the non-action of the Administration against China, used to leak instances of violation by China to the media in order to bring pressure on the Administration to act. Instances of such leakages became few and far between as the CIA itself, in its anxiety for co-operation from Pakistan's Inter-Services Intelligence (ISI) in its hunt for Osama bin Laden and his Al Qaeda, did not apparently want to create unnecessary embarrassment for Pakistan's military dictator.

5. After India mobilised its troops following  the attack on its Parliament House by Pakistan-based terrorists on December 13, 2001, China organised an emergency movement of military equipment by sea and by road through the Karakoram Highway. The equipment included not only new planes for the Pakistan Air Force, but also a new consignment of missiles and missile components. It was from this consignment that Musharraf carried out his missile-rattling tests of May,2002, in an attempt to intimidate India. One can be certain that the US intelligence agencies, which had in the past never failed to detect such Chinese movements, particularly of nuclear and missile related equipment, would not have missed them. Despite this, there were no indications of Washington DC having taken up the matter as vigorously with Beijing as it used to do before September 7,2001. The anxiety to keep Musharraf in good humour seems to have overtaken past concerns over the Chinese habit of violating its pledges when it came to Pakistan.

6.Unfortunately in India too, this matter has not received the attention it deserves.  In our anxiety to secure US support against Pakistan on the cross-border terrorism issue, which has been forthcoming only in a half-hearted manner, New Delhi has failed to project in an appropriate manner its concerns over Beijing's actions in clandestinely strengthening Pakistan's power of intimidation against India and the US silence on this issue.

7.As a result of the dialogue between US and Chinese experts since last year's visit of Gen.Colin Powell, Secretary of State, to Beijing in July,2001, China has issued on August 25,2002, a day before the visit of Richard Armitage, US Deputy Secretary of State,a formal set of regulations on the export control of missiles and missile-related items and technologies.  These have come into force from the date of promulgation. The US has welcomed it as a good step, which needs further follow-up. The text of the regulations are in Annexure I and the text of the comments of the US State Department spokesman on the regulations during his daily press briefings are in Annexure II.

8. The problem with China has been  that it has always contended that its pledges would not have retrospective effect and would not affect supplies under old agreements concluded before its pledge of November21,2000. So long as it does not give retrospective effect to its pledges and regulations, it could and would continue to exclude supplies to Pakistan under the pretext that these were under a pre-November,2000, contract.

(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt, of India, and, presently, Director, Institute For Topical Studies, Chennai. E-Mail: corde@vsnl.com )

ANNEXURE I
Text of the Regulations of the People's Republic of China on Export Controlof Missiles and Missile-related Items and Technologies issued by the Government of China at Beijing on August 26,2002:

Article 1 These Regulations are formulated for the purposes of strengthening export control of missiles and missile-related items and technologies, and safeguarding the State security and social and public interests. 

Article 2 The export of missiles and missile-related items and technologies referred to in these Regulations means the export for trade of missiles and missile-related equipment, materials and technologies listed in "The Missiles and Missile-related Items and Technologies Export Control List" (hereinafter referred to as the Control List) attached to these Regulations, and the gift to, exhibition in, scientific and technological cooperation with, assistance to, provision of service for as such and other forms of technological transfer thereof to foreign countries and regions. 

Article 3 The State shall exercise strict control on the export of missiles and missile-related items and technologies so as to prevent the proliferation of missiles and other delivering systems listed in the Control List that can be used to deliver weapons of mass destruction.

Article 4 The State shall practice a licensing system for the export of missiles and missile-related items and technologies. Without being licensed, no unit or individual shall export missiles and missile-related items and technologies. 

Article 5 The export of items and technologies listed in Part I of the Control List shall be subject to the Regulations of the People's Republic of China on Administration of Arms Export and other relevant provisions.

To export items and technologies listed in Part II of the Control List (hereinafter referred to as missile-related items and technologies), the exporter shall follow the examination and approval procedures provided for in Articles 7 to 13 of these Regulations; however, the export of missile-related items and technologies for military purpose shall be subject to the provisions of the preceding paragraph. 

Article 6 The receiving party of missile-related items and technologies shall guarantee not to use missile-related items and technologies supplied by China for purposes other than the declared end-use, nor to transfer missile-related items and technologies supplied by China to any third party other than the declared end-user without the consent of the Chinese Government.

Article 7 Exporters of missile-related items and technologies shall register themselves with the competent department in charge of foreign economic relations and trade of the State Council (hereinafter referred to as the competent foreign economic and trade department of the State Council). Without such registration,no unit or individual shall export missile-related items and technologies. The specific measures for such registration shall be formulated by the competent foreign economic and trade department of the State Council. 

Article 8 Anyone who intends to export missile-related items and technologies shall apply to the competent foreign economic and trade department of the State Council, fill in the export application form for missile-related items and technologies (hereinafter referred to as the export application form), and submit the following documents: 

(1) identification of the applicant's legal representative, chief managers and the persons handling the deal; 

(2) duplicates of the contract or agreement; 

(3) technical specifications of the missile-related items and technologies; 

(4) certificates of the end-user and end-use;

(5) documents of guarantee as defined in Article 6; 

(6) other documents as may be required by the competent foreign economic and trade department of the State Council.

Article 9 An applicant shall truthfully fill in the export application form. 

Export application forms shall be uniformly produced by the competent foreign economic and trade department of the State Council. 

Article 10 The competent foreign economic and trade department of the State Council shall, from the date of receiving the export application form and the documents set forth in Article 8 of these Regulations, examine the application, or examine the application jointly with other relevant departments of the State Council and relevant departments of the Central Military Commission, and make a decision of approval or denial within 45 working days. 

Article 11 Where the export of missile-related items and technologies entails significant impact on the State security, social and public interests, the competent foreign economic and trade department of the State Council shall, jointly with relevant departments, submit the case to the State Council and the Central Military Commission for approval. 

Where the export of missile-related items and technologies is submitted to the State Council and the Central Military Commission for approval, the timing restriction set forth in Article 10 of these Regulations shall not be applied. 

Article 12 Where an application for the export of missile-related items and technologies is examined and approved, the competent foreign economic and trade department of the State Council shall issue a licence for the export of missile-related items and technologies (hereinafter referred to as an export licence), and notify the Customs in writing. 

Article 13 An export licence holder who intends to change the missile-related items and technologies originally applied for export shall return the original export licence and file a new application to obtain a new export licence according to relevant provisions of these Regulations.

Article 14 While exporting missile-related items and technologies, the exporter shall present the export licence to the Customs, complete the customs procedures and accept supervision and control of the Customs in accordance with the provisions of the Customs Law. 

Article 15 Where the receiving party contravenes the guarantees made according to the provisions of Article 6 of these Regulations or there is a risk of proliferation of missiles and other delivering systems listed in the Control List that can be used to deliver weapons of mass destruction, the competent foreign economic and trade department of the State Council shall suspend or revoke the export licence granted and notify the Customs in writing. 

Article 16 Where the exporter knows or should know that the missile-related items and technologies to be exported will be used by the receiving party directly in its program for developing missiles and other delivering systems listed in the Control List that can be used to deliver weapons of mass destruction, the export shall be subject to the provisions of these Regulations even if the items or technologies are not listed in the Control List. 

Article 17 Upon approval by the State Council and the Central Military Commission, the competent foreign economic and trade department of the State Council may, jointly with relevant departments, temporarily decide to exercise export control on specific items and technologies other than those listed in the Control List in accordance with the provisions of these Regulations. 

Article 18 Those who export missile-related items and technologies without being licensed, or export missile-related items and technologies beyond the scope of the export licence without authorization, shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of smuggling, the crime of illegal business operations, the crime of divulging State secrets or other crimes; if such acts are not serious enough for criminal punishment, by distinguishing different circumstances, they shall be punished in accordance with relevant provisions of the Customs Law, or be given a warning, confiscated of their illegal income, and fined not less than one time but not more than five times the illegal income by the competent foreign economic and trade department of the State Council; the competent foreign economic and trade department of the State Council may concurrently suspend or even revoke the licensing for their foreign trade operations. 

Article 19 Those who forge, alter, buy or sell the licence for the export of missile-related items and technologies shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of illegal business operations or the crime of forging, altering, buying or selling official documents, certificates or seals of a State organ; if such acts are not serious enough for criminal punishment, they shall be punished in accordance with relevant provisions of the Customs Law, and the competent foreign economic and trade department of the State Council may concurrently revoke the licensing for their foreign trade operations. 

Article 20 Where a license for the export of missile-related items and technologies is obtained by fraud or other illegal means,the competent foreign economic and trade department of the State Council shall revoke such an export license, confiscate the illegal income, impose a fine of not more than the illegal income,and suspend or even revoke the licensing for their foreign trade operations. 

Article 21 Where, in violation of Article 7 of these Regulations, the export of missile-related items and technologies are operated without registration, the competent foreign economic and trade department of the State Council shall ban such illegal activities according to law, and relevant competent departments of the State shall impose punishment thereon in accordance with relevant laws and administrative regulations. 

Article 22 Where the State functionaries in charge of control on the export of missile-related items and technologies abuse their powers, neglect their duties or extort or accept money or properties from others by taking advantage of their positions, they shall be investigated for criminal liability in accordance with the provisions of the criminal law on the crime of abuse of power, the crime of neglect of duties, the crime of accepting bribes and other crimes; if such acts are not serious enough for criminal punishment, they shall be given administrative sanctions according to law. 

Article 23 In light of actual situations, the competent foreign economic and trade department of the State Council may, jointly with relevant departments, amend the Control List and submit it to the State Council and the Central Military Commission for approval before implementation. 

Article 24 These Regulations shall be effective as of the date of promulgation.

ANNEXURE II

Text of the State Department's comments on the Chinese regulations made at Washington DC on August 26, 2002:

QUESTION: Any comment on the action taken by the Chinese with respect to nonproliferation?

MR. Richard BOUCHER: I think our Deputy Secretary has had some comment out there.

QUESTION: He said he didn't understand it.

MR. BOUCHER: I think he said he has not read the whole thing yet. I'll find it.

We welcome the publication and promulgation by the Chinese on August 25th of controls on missile exports. As you all know, we have been discussing with the Chinese for some time the Chinese commitments that they made in November of 2000 to put in place a comprehensive set of missile-related export controls. This is potentially an important step. It may help advance China's efforts to prevent the proliferation of dangerous missile technologies. It's also a good step in the run-up to the October summit, although I have to point out it's not the only step that needs to be taken. There have been a number of issues under discussion with the Chinese, one of which is how they can make effective a system of export controls.

So the real measure of China's control over missile-related exports will be the effectiveness with which controls like these are enforced, and a real reduction in problematic exports by Chinese entities. We would intend to continue our discussions with the Chinese on the November 2000 missile nonproliferation arrangement, and I'm sure that Assistant Secretary for Nonproliferation John Wolf will continue to be in touch with his Chinese counterparts and will be following up with them.

QUESTION: Do you happen to know what -- the countries to which Chinese entities have sold problematic items in this regard are which?

MR. BOUCHER: I would have to go back to the actual sanctions, announcements that we've made. And I think in some, in many of those cases we were able to say, for example, some of those actions were taken under Iran and Iraq nonproliferation sanctions; therefore, we indicated what countries they were. But you would have to give me some time. I have to go back and see to what extent we are able to disclose the actual transactions, or at least destinations of equipment.

QUESTION: Can you say what impact this move would have in any way on sanctions that we have placed on some of these Chinese companies?

MR. BOUCHER: We'll have to see. As I said, there are a number of issues involved in our discussions with the Chinese of how to implement the November 2000 framework agreement, the agreements of that time. It all involves the Chinese putting in place an effective system of controls over missiles exports and making that system real -- take effect in a way that reduces proliferating activities by Chinese companies. So this will be -- certainly it's a welcome step, it's a positive step and one of the things, one of the things, that we've been looking for, and we'll follow-up in our discussions with the Chinese in the future on this topic.

QUESTION: Can I get back to the missiles for one second? You say that this is -- you see this as positive and it's a welcome step, but it's only one of the things. And I can't remember if someone asked you, what steps are you looking for further? Are you looking for the Chinese to punish these perpetrators, your friend QC Chen and others who keep getting slapped with sanctions? Or are you looking for steps beyond simply going after the violators of these provisions?

MR. BOUCHER: There have been a number of discussions with the Chinese about this whole area involving different steps. One that I want to put the emphasis on today is enforcement and actual real reduction in proliferating behavior by Chinese entities. That's where promulgation of regulations is an important step. There also needs to be enforcement of that and making the system effective.

QUESTION: You don't want to go beyond, what other steps you're looking to see?

MR. BOUCHER: No, I won't go beyond that now. Sorry.

QUESTION: I don't know if you can answer this, but what impact would this have on the sort of lingering and lonstanding issue of US licenses for American companies for satellites, I guess to help build satellites in China?

MR. BOUCHER: Those are all part of the understandings that were reached in November of 2000, and as you know, we haven't moved forward on licensing for US satellites because of our concerns that the Chinese have not moved forward to put in place an effective system of missile controls. So this is a positive step towards resolving those issues, but I wouldn't say it has any specific change in that regard right now.

QUESTION: The enforcement, is there a time limit? Like you're looking into maybe two years of this act and then decide?

MR. BOUCHER: No, I don't think we'll address it in those terms. We want to talk to the Chinese about the steps that they'll be taking to enforce this, to make this an effective system, about the kinds of instructions they're giving, about the kinds of actions they're taking to make sure that there is -- in the end, the bottom line for all of us is to see a reduction in missile exports by Chinese entities, and we need to know the Chinese Government is doing everything it can to prevent those kind of exports.

QUESTION: Is there anything you can say about what you're looking for in terms of verifiability now and the enforcement side on the missile exports, based on the fact that, I believe, that at least the State Department in the Clinton Administration believed they had commitments from the Chinese in November 2000 that obviously didn't work out very well.

MR. BOUCHER: We've always felt we had commitments from the Chinese in November of 2000 to implement an effective system of controls on missile exports to curb any exports by Chinese entities that might violate international standards on missile exports. That continues to be our goal. Unfortunately, we have not seen that carried out. We have seen activities by Chinese entities that don't respect international standards and we've looked for action by the Chinese government to stop and curb those activities.

So we continue our dialogue with the Chinese on how to see these commitments effectively implemented. We will continue to discuss with the Chinese how these new regulations can be put in place, can be implemented, can be made effective and can result in a real result of curbing, stopping activity by Chinese entities that would violate international standards on missile exports.

So this is a step forward. It's an important part to have the regulations in place. It's an equally important part to see that they are enforced, and we want to talk to the Chinese about the actions that they'll take to enforce them, the actions on they'll take. And we'll be watching. We always watch to see if there is, in fact, a real reduction in missile exports.

QUESTION: Well, is it fair, then, to say that you really are not going to consider lifting sanctions on some of these Chinese companies or processing some of their licenses for satellites until you see action, until you see enforcement? No longer are you looking for just commitments or, like, a very good regulatory plan or something like that?

MR. BOUCHER: Well, part of the action we were looking for was the issuance of detailed regulations. So part of our discussion all along with the Chinese has been about their issuance of detailed regulations, and they have assured us, including in discussions with the Secretary, and others, that they were moving ahead on that front.

So we welcome this. This is a positive step, but it's one piece of the puzzle in getting the kind of result that we and the Chinese have both said we're committed to.

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