Drones aren’t missiles, so don’t regulate them like they are

This year marks the 30^th anniversary of the Missile Technology Control Regime (MTCR), a voluntary arrangement founded by seven countries in 1987 to prevent the spread of longer-range cruise and ballistic missiles with the potential to carry weapons of mass destruction. Today, the MTCR has 35 member states, and while containing cruise missile proliferation has proven difficult, it has effectively slowed the spread of long-range ballistic missiles.

With any regime focused on controlling specific technologies, though, there is always a risk that advances in the field will outstrip the initial regulatory framework. Unfortunately, that is exactly what has happened to the MTCR in at least one respect. When the regime was set up in the 1980s, remotely-piloted aircraft—better known as drones—had a lot in common with missiles. They were generally either target drones with limited utility, designed for one-way missions to test missile accuracy, or very short-range surveillance platforms. The MTCR was therefore set up to control them too.

Current-generation drones, however, are much more akin to aircraft than missiles, because they are recoverable airframes designed to conduct increasingly sophisticated surveillance missions or launch weapons at a target and then return to base. The MTCR was never intended to regulate aircraft, a ubiquitous technology that cannot be controlled with export regimes. Regulating the export of drones and drone parts using range and payload standards relevant for missiles represents a mismatch between technology and reality, which could have negative effects. Advanced and armed drones are proliferating rapidly, many exported by China. Drone proliferation threatens to undermine the MTCR as a whole, signaling its general lack of effectiveness, if the regime purports to control the technology while clearly failing to do so. Sustaining the original intent of the regime—to halt or at least slow the spread of missiles capable of delivering weapons of mass destruction—may therefore require a new path forward. Placing drones in the same exempt category as crewed aircraft would reflect the technological reality and help preserve the integrity of the regime.

How does the MTCR work? The MTCR seeks to prevent the spread of Category I missile systems, or missiles that can travel more than 300 kilometers (km) and carry a payload of more than 500 kilograms (kg). Under the regime’s guidelines, members are not permitted to export Category I items except on rare occasions. (The phrase used by the regime is that there is a “strong presumption of denial” against exporting such systems.) Compliance is voluntary, though states commit to announcing any Category I exports. Given that many airplanes can also travel more than 300 km and carry a payload of more than 500 kg, crewed aircraft are exempt.

Though it is not a treaty, making it more informal than agreements such as the Nuclear Nonproliferation Treaty, many analysts believe that the MTCR has played at least a modestly useful role in restricting long-range missile proliferation. Long-range rocket engines and guidance systems are difficult to design and build. Given the technological hurdles necessary to acquire long-range missiles and the membership of nearly all advanced missile producers in the MTCR, voluntary compliance has meaningfully moved the needle. Even the People’s Republic of China, though not a member, has committed itself to following MTCR guidelines since 1991.

Drone evolution. If current-generation drones are more like crewed aircraft than other systems, how did they end up wrapped up in the MTCR in the first place? Drones were once considered a subset of cruise missiles because they had active guidance, and were generally used for target practice. However, developments in drone technology over the last few decades mean that the real-world uses of drones by national militaries bear little if any resemblance to the technologies of the late 1980s and early 1990s. The regime originally included drones out of fear they could be used as cruise missiles armed with weapons of mass destruction. Today’s drones, though, are much more like aircraft than cruise missiles. Like aircraft, drones such as China’s CH-4, Israel’s Heron TP, or the United States’s MQ-9 Reaper can stay in the air for hours or days to conduct surveillance missions, and they increasingly have the ability to launch precision-guided missiles, such as the Hellfire in the case of the MQ-9 Reaper. The RQ-4 Global Hawk used by the United States even carries much of the same surveillance equipment as the crewed U-2 aircraft. While one could still put a weapon of mass destruction on a drone and fly it into a target, rather than use it as a recoverable airframe, the same is true of aircraft.

Yet the MTCR has not changed, meaning that members including the United States subject themselves to export control rules for drones with range (300km) and payload (500kg) restrictions meant to apply to missiles. These restrictions are arbitrary when applied to current-generation drones, since they do not represent any meaningful break-point in capability. Furthermore, given that drone technology continues to advance, the conceptual mismatch between the reality of military drones and their inclusion in the MTCR will only become clearer in the years ahead. The restrictions also mean that, functionally, it is harder for a country such as the United States to export an unarmed MQ-9 Reaper drone to a NATO ally than it is to sell them an F-35, precision guided munitions, or a tank.

A path forward. Politically there is no easy way to proceed, because the MTCR operates by consensus, but an exemption for drones similar to the one for crewed aircraft could represent a credible step forward. Such an exemption would reflect today’s technological realities and help the regime move forward. The goal should be to strengthen its ability to do what it was designed to do in the first place: prevent the spread of long-range ballistic and cruise missiles with the ability to deliver weapons of mass destruction.

A substantive criticism of this proposal might be that, even if including drones in the MTCR is arbitrary based on the reality of today’s technology, an overly restrictive policy is good because it helps prevent the spread of systems that could be used for targeted killings or domestic repression. Unfortunately, the current approach to drones within the MTCR framework is not substantially limiting drone proliferation, as a new report from the Center for a New American Security makes clear. (Full disclosure: I am one of the authors of the report.) Drone exports are increasing anyway, and both states and non-state actors have a growing ability to use commercial technology to build their own armed drones. Put another way, drone proliferation is inevitable: About 17 countries already have armed drone capabilities and more than a dozen are pursuing them. Of those countries, six or seven have acquired them in just the last two years, meaning the rate of proliferation is accelerating.

The United States has only exported armed drones to one country, the United Kingdom, though it also approved a sale that would arm previously unarmed MQ-9 Reaper drones it sold to Italy in 2011. China, however, has reportedly exported armed drones to 10 countries (Egypt, Iraq, Jordan, Kazakhstan, Myanmar, Nigeria, Pakistan, Saudi Arabia, Turkmenistan, and the United Arab Emirates), and another six countries have built armed drones themselves (China, Iran, Israel, Russia, Turkey, and the United States). Iran has allegedly exported drones to Hezbollah, a non-state militant group. Essentially, suppliers exist that can deliver significant capabilities, and countries are beginning to have success at designing their own advanced and armed drones.

Moreover, to claim technical compliance with MTCR guidelines, the armed drones China exports (the CH-3, Wing-Loong, and CH-4B) tend to have publicly announced payloads that fall just under 500 kg. (Countries voluntarily declare whether their platforms pass the Category I threshold, but there is no way to verify whether their statements about payload size are accurate.) Similarly, later this year, the Israeli firm IAI will deliver 10 armed Heron TP drones to India as part of a contract signed in 2015. IAI says that the exported variant of the Heron TP has a payload of 450 kg, in contrast to the more capable Israeli-operated variant, which is a Category I system. Why does this matter? There is nothing inherently consequential about the difference between 450 kg and 500 kg when it comes to the capabilities of a current-generation drone. In fact, what enables a country to operate a drone effectively is not a 50 kg difference in payload, but whether it has the organizational capacity to integrate large amounts of intelligence, surveillance, and reconnaissance data in real time. Nevertheless, continued gaming of the system undermines the MTCR as a whole by demonstrating that it cannot succeed over time in significantly restricting the number of states with militarily relevant drones.

If drone proliferation is inevitable, the logic of using arbitrary and overly restrictive MTCR guidelines to govern their export is unpersuasive. Rather than making drone proliferation less likely, the MTCR as presently constructed simply shifts who supplies armed drones, and incentivizes countries to develop their own.

A threat to the MTCR. Inaction also creates risks. The current approach to grouping drones in the MTCR threatens to undermine the regime as a whole.

First, it links two disparate issues, drones on the one hand and cruise or ballistic missiles on the other, so that exports by MTCR members of the former could undermine the regime’s rules against exporting the latter. Countries seeking to sell surveillance drones to allies, for example, could see their exports used by another member to justify that member’s ballistic missile sales.

Second, the spread of drones despite the MTCR framework undermines its perceived effectiveness.

Third, the MTCR is under pressure from other avenues. Intermediate-range cruise and ballistic missiles could represent an important capability for US allies and partners seeking to build their capacity to impose costs on potential aggressors, especially in the Pacific. Addressing the legitimate issues that MTCR members may have with regards to missile proliferation will become harder due to distraction caused by the drone export debate.

Another option, and one that could be pursued in tandem with an exemption, would be for current members, or a broader set of nations, to pursue a separate export agreement for drones.

Regardless of what path members choose, the status quo appears increasingly unsustainable as advanced and armed drones spread widely; they could become as widespread as fighter aircraft or tanks within a generation. Therefore, while opening a discussion on MTCR reforms might seem risky, failing to pursue reforms might be even riskier, because if the regime as a whole is weakened, broader proliferation of long-range ballistic and cruise missiles would become more likely.