My concerns relating to overly stringent export controls on UAS have been unfortunately prescient and it is time for the U.S. to lead not only in technological advances, but in policy. The former administration ran its drone program quietly – hopefully this administration will confront the issue head on. In a below the fold front page article in yesterday’s Wall Street Journal (July 18, 2017), Jeremy Page and Paul Sonne write “Unable to by U.S. Drones, Allies Place Orders with China.” The article is subscription-based, so I won’t link to it here. It is a good read and I strongly encourage readers to check it out.
Not only are they more accessible, but Chinese UAS are cheaper. “A Wing Loong, meanwhile, costs about $1 million compared with about $5 million for its U.S.-made counterpart, the Predator, and about $15 million for a Reaper, whose Chinese competition is the CH-5.” And even if our allies can get a U.S. military UAS, they contain numerous restrictions based on the “re-export” concept – which, in short, is the legal concept that the U.S. maintains jurisdiction over the item even after export.
I discuss export controls on UAS in detail in a previous post, so you can read the details there. What is the primary issue in regard to military long-endurance UAS such as the Predator or Reaper is the Missile Technology Control Regime, also discussed at my previous post. Mssrs. Page and Sonne go into the MTCR:
- “Weapons makers have been buoyed by President Donald Trump’s statements of support for U.S. manufacturing and for a $110 billion arms sale to Saudi Arabia that includes some items that were blocked by the Obama administration. The administration in June approved the sale to India of 22 Guardian drones, an unarmed maritime version of the Reaper.
- Bart Roper, executive vice president of General Atomics Aeronautical Systems Inc., said the U.S. is ceding the drone market to Chinese and others ‘due to obsolete and arbitrary restrictions.’
- He expressed hope the Trump administration would revise policy to better promote U.S. industry.
- In April, 22 members of Congress—led by Rep. Duncan Hunter, who represents the San Diego district not far from where General Atomics is based—asked the administration to approve Reaper exports to Jordan and the U.A.E. They argued that the Arab allies in the fight against Islamic State are buying Chinese drones instead, and that export approval would save U.S. jobs.”
This tracks with an earlier story I wrote about Jordan being denied American UAS shortly after the horrific murder of their pilots at the hands of ISIS.
There needs to be a balance. Part of the goal of the MTCR and export controls in general is to prevent proliferation of means of highly destructive warfare. But on the other hand, we are fighting a daily battle against cyber warfare (and the resultant theft of our technology) and legitimate advances by other countries. They will fill the void if we do not.
I call your attention to an article I discuss in my Drone Law class at Antonia Scalia Law School (at George Mason U.). It’s entitled “Pandora’s box? Drone strikes under jus ad bellum, jus in bello, and international human rights law,” written by Dr. Stuart Casey-Maslen and published by the International Committee on the Red Cross. While I do not agree with all of the conclusions, it raises a number of good points. First, Drone warfare is here to stay. We’ve “opened Pandora’s box” and shown the effectiveness at lower cost of UAS in battle. Second, other countries desperately want to get their hands on UAS so they do not have to rely on us or risk a better-armed enemy state supplied by China. Finally, while not addressed by the author, I argue that his concerns are not new. Whether the railroad and industry in the American Civil War, the repeating rifle in the Spanish-American War, the advances in WWII or NCB weapons, the rules of war must adapt to each technological advance. Drones are a bit different though – the proportionality/discrimination determination is marginally different, but we are not talking about the advance in explosive capability – merely the means of delivery.
If you read through the MTCR, I am confident you will agree that it was written with ballistic missiles capable of delivering warheads in mind, not UAS like the Predator or Reaper. It is a voluntary protocol, not a treaty, so we can deviate, but it is time for the parties to consider how to best address UAS in this new era.