Jun 25, 2020
Last week, Reuters reported that the United States was set to reinterpret a decades-old international agreement that would allow the U.S. defense industry to sell drones with less restraint and fewer restrictions. While drone manufacturers — who have long pushed for the loosening of such restrictions — greeted the announcement with cheers, the decision could have serious consequences for international and U.S. security. In short, the United States has decided to use its unilateral national authority to interpret its responsibilities under the Missile Technology Control Regime — a politically-binding, voluntary association that was founded in 1987 and is comprised of 35 states that share common interests in limiting the risk of WMD proliferation by imposing export restraints on potential delivery vehicles (other than manned aircraft). The MTCR established a common control list for member states, classifying relevant technology as Category I and/or Category II items. At the time of the MTCR’s negotiation, states were particularly concerned with mitigating the spread of Category I systems — which are capable of delivering at least a 500 kilogram (1,000-pound) payload to a range of at least 300 kilometers (180 miles) — and placed the greatest export restraints on these systems. Much of what we think of today in terms of lethal drone systems that are hallmarks of U.S. counterterrorism operations fall under Category I of the MTCR. The MTCR requires that Category I items be subject to a strong presumption of denial for export licensing. To be clear, this presumption of denial is not a prohibition on the sale of Category I systems. Instead, it means that governments must work to yes before exporting these systems. When the MTCR was created, drones in their commonly understood form did not yet exist that met the 300km/500kg parameters for Category I systems. However, manufacturers soon developed unmanned systems that matched those specifications and then exceeded them. As a result of the rapid developments and evolutions in unmanned technology, in the late 2000s, MTCR members considered making exceptions to the Category I export rules for certain drones that exceeded the 300km/500kg threshold, but over the years, have decided not to do so. Thus, for several years, the United States proposed expanding the parameters for the determining factors for Category I items from thresholds on payload and distance to include one on speed. The change, however, never gained support amongst the MTCR members. Now it seems the White House has grown impatient in waiting to see if MTCR members might support and accept its proposed change. Rather than waiting until the next MTCR plenary meeting (which hasn’t been scheduled due to COVID-19), the White House is poised to adopt a policy of national discretion with regard to Category I unmanned aerial vehicles (or UAVs) and simply treat them as Category II systems. Although this is seen as a victory for exporters and recipient countries, it is not yet clear which countries the policy change will impact. It is also unclear how this policy will be enacted. Under U.S. law, drones will still be subject to existing export control laws, regulations, and policies — such as the Conventional Arms Transfer (CAT) Policy and unmanned aerial systems (UAS) export policy, both of which the Trump administration revised in 2018. Critics of the MTCR say that the presumption of denial for Category I UAV drone exports has allowed non-MTCR members to gain a more significant share of the global drone market. China, for example is often cited as taking advantage of the existing MTCR restraints to become a considerable competitor in the global drone market. Yet, the United States should be more, not less, cautious when pursuing potential changes to the MTCR, as it opens the risk of encouraging non-MTCR members to sell more drones to less-desirable actors. There are always risks and unintended consequences when you change an existing agreement. Moreover, MTCR limits do not affect the U.S. drone industry’s access to U.S. Department of Defense procurement, which is a large portion of the world market. The global market is also increasingly focused on smaller UAVs, where Category I restraints would not apply. For example, a fleet of small UAVs could have a highly lethal and highly evasive “swarming” capability or have other characteristics that may present significant concerns such as robust surveillance payloads, low observable features and anti-aircraft countermeasures. The policy change will not give the United States more access to those markets. In June 2014, the Stimson Task Force on U.S. Drone Policy, which I directed, recommended specific steps the United States could take to review its export controls and develop a strategy that accounts for ongoing national and international security risks and priorities. The task force recommended establishing drone-specific non-proliferation objectives and to preserve U.S. interests in maintaining an adequate defense industrial base, a military technological edge in UAV systems, and influence over global UAS markets. Rather than taking a comprehensive view, the Trump administration has focused solely on the perceived economic benefit of drone sales. A presumption of denial is NOT a no. It just means you have to work a little harder to get to yes. When we’re talking about capabilities that can change the nature of conflict, have generated questions and concerns about the legitimacy, legality, and strategic efficacy of their use, and directly impact civilian lives and livelihoods on the ground, more caution, not less, is warranted. The Trump administration has notably focused on short-term economic gain it sees as provided by all arms exports, rather than the potential medium- to long-term security impacts. This decision is no different. If the U.S. exports more weaponizable drones, it will face the same risks as any other weapon system. Once these drones leave U.S. control, it loses its ability to influence how and where they are used. Of course, U.S. government officials can prohibit future sales, but many countries know it’s an empty threat. The U.S. can ask countries to sign on to principles of use (as U.S. policy requires) but the U.S. government has limited means to enforce them. And if we’re really being honest, the United States has spent more than a decade setting a dangerous precedent with its own extraterritorial drone use and lack of transparency and accountability and has lost the moral authority to convince governments to “do as I say, not as I do.” In light of the U.S. decision, Congress must step up and exert its oversight role. At a minimum Congress should ask for a hearing on the decision and the potential implications of a unilateral U.S. interpretation of the MTCR. Congress could also seek to require that all drone exports would have to go through a congressional approval process, rather than forcing a resolution of disapproval to stop a sale. That would allow Congress to weigh in to ensure that a drone sale would not have an adverse impact on U.S. security or human rights/violations of international humanitarian law/laws of war. The U.S. has already been overtaken as the prominent drone exporter. The genie is now out of the bottle as countries such as China, Israel, and Turkey are aggressively marketing increasingly capable drones. It seems folly to chase after economic benefits at the expense of U.S. national security, foreign policy, and human rights concerns with regard to future drone sales. The U.S. needs to make export decisions based on what is in its best interests – which are not solely limited to economic opportunity. Just because everyone else is selling drones, doesn’t mean the U.S. has to undermine an international agreement that could lead to further erosion of global norms.