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UKRAINIAN DUAL USE EXPORT CONTROL EVOLUTION: HISTORICAL PICKLES
Egor Kartuzov
Department of Technology Transfer, Frantsevich Institute for Problems of Materials Science National Academy of Science of Ukraine, Kyiv, Ukraine
E-mail: egorkartuzov@gmail.com
ORCID: https://orcid.org/0000-0001-7493-674X
ARTICLE INFO
Article history: Received date 04.01.2023 Accepted date 22.02.2023 Published date 28.02.2023
Section: Strategic Planning
10.21303/2313-8416.2022.002859
KEYWORDS
sensitive technology
export control
legislation
law makers
technology transfer
dual use technologies
weapons of mass destruction
Ukrainian export control system
ABSTRACT
A prime object of this effort was to evaluate the premises of appearance and historical evolution of export control and transfer of dual use (DU) technologies emerged in Ukraine after 1991. Investigated problem: Liquidation of Soviet's monopoly on foreign trade in 1990s, a change in relations between the state and commodity producers, and a massive entry of unprepared exporters chasing maximum profits into the world market could not be envisaged in a full swing at that time by young and unexperienced Ukrainian export control system. The paper looks into Ukrainian DU technology transfer (TT) through a prism of historical premises. Those premises have been formed and are still found standing amongst technology offeror/ end user and other TT players. Needless to say, that a technology transfer is a complicated, multi-leveled and multi-players process being impacted and followed with few factors and historically pre-set conditions that constrain its success or failure at the end. The development of DU technologies continues in a quagmire of conflicting interests, the ongoing war in Ukraine, national security and export control rationales.
For the time being, debates on Ukrainian DU technologies and their misuse so far lack creativity and rather blurred; political and diplomatic initiatives came finally to nowhere trying to find turnkey solutions, all this is quite a challenge nowadays.
The results of this analytical endeavor make a further solid floor for further debates in terms of politics, legislation and export control.
© Thc Author(s) 2023. This is an open access articlc under thc Creative Commons CC BY liccnsc
1. Introduction
1. 1. The object of research
The object was to evaluate the premises of appearance and trace a historical evolution of export control system and transfer of dual use technologies emerged in Ukraine after 1991.
1. 2. Problem description
The export control regime takes a special place in a policy of foreign economic regulation of many developed and still developing countries since at the same time it is an important policy tool. Per se, it is one of those tools to protect state's national interests, aimed at preventing a leakage of militarily or sensitive goods and technologies suitable for creating weapons of mass destruction (WMD). This activity is due to historically established need of a society to build up a guaranteed barrier against a propagation of knowledge and material resources critical for WMD creation. The regime is based on a prohibitive-permissive (licensed) procedure for the export of certain goods and technologies that are included in special control lists. At the same time, export is understood broadly, in fact, all foreign economic transactions affecting the transfer of controlled goods or technologies are meant.
Since the early 1990s, Ukraine had to reform Soviet's realities and established a new export control system for strategic and sensitive goods, adapting it to new legal (both national and global) treaties. Its' creation was based on the experience of legal support for operation of previously existing mechanism in the USSR for controlling the export of military and dual use products and legislation of economically developed countries in this field.
Indeed, the transfer of dual-use commodities can be a latent form of propagation of WMD components and technologies for their creation. In addition, the uncontrolled transfer of dual-use products, which does not exclude illicit and deemed information exchange on technologies of production of various elements of WMD among individual countries and/or terrorist groups in violation
of existing international legal agreements, may bring to a "synergistic effect". The synergistic effect could be described as increasing the efficiency of activities as a result of connections, acceleration, merging of individual parts into a single system at the expense of such a systemic effect (in other words, the selected property of the system has a much higher (numerically and qualitatively) level than this level of property has any constituent element of this system). The challenge of preventing its occurrence increases the importance of export controls as means to eliminate any possibility of controlled products reaching unauthorized users. Thus, the very minute Ukraine gained its' independence on August 24, 1991 [1], a situation appeared in which a surplus of military and sensible technologies arsenals inherited from Soviet times could pour onto the international market without any appropriate control. There was an urgent need to create an effective internationally recognized mechanism for controlling a movement of those technologies implementable and acceptable to all players.
Needless to highlight that a process of technology transfer as a whole is neither simple nor systematic and far from being that perfect and crystal clear, especially when it comes to dual-use technologies and at present reduced to a short relationship between supplier/recipient only. The experience and real cases [2] show that it is a rather complicated, multi-leveled and multi-players process which is impacted and follows several factors and conditions that determine its success and/or failure at the end [2]. The development of Ukrainian dual use technologies is still ongoing in a quagmire of conflicting interests and technology transfer export control rationales. There are historical, mental (by this concept therein a reader should understand "a way of thinking and behaviof' of people, being built under an influence and during the time of communist system of the Soviet Union, as well as at the time of formation of Ukraine as the independent state) and political-military considerations where a state's decision to develop disruptive weapon systems or related applications can be assessed not only as a function of perceived levels of threat to its security, but also as a need to respond and/or step forward to potential technological innovations; and second, the fundamental conceptual differences in appreciation among countries of the right to possess different advanced weapons systems for either defensive or offensive purposes. Thus, today's realities call for a quite meticulous reassessment of national priorities related to international security which affects a way of global and regional geopolitical policies and a prime importance to this concern is the transfer of dual-use technologies and its consequences (conventional and sensible technology misuse and possible WMD proliferation). Even though for the time being, debates on sensitive technologies and their misuse had been so verbose, yet even nowadays lack creativity and rather blurred, meanwhile political and diplomatic initiatives are painted themselves in the corner . So far this set of factors in a hybrid way affects an efficient and proper functioning and optimization of transfer and a strategic export control of disruptive technologies process, is quite a challenge nowadays and a matter of further scrutinized research and tough discussions.
1. 3. Suggested solution to the problem
So, dual-use technologies are advanced technologies deriving from civilian or defense industries with military and commercial end uses, it has been always disputable subject in Ukraine, the EU and worldwide. While having a legal access to Ukrainian dual-use technologies due to the conversion announced in 1991 [3], an access to those has been restricted worldwide. Thus, a lot of solely defense and dual use technologies in Ukraine has been unclassified and legalized for its further civil and commercial applications and/or transfer of those thanks to this governmental program, however the actual transfer of these technologies is still dimmed and stymied and truly needs a further loop of evolution. Nonetheless, sensitive technologies R&D have been ongoing at the intersection of interests of military and civil domains and technology transfer export control rationales. First, there are national security and political-military considerations where a country's decision to develop disruptive weapon systems or related applications can be assessed not only as a function of perceived levels of threat to its security, but also as a need to respond and/or step ahead of potential technological innovations. Second, the fundamental conceptual differences in appreciation among countries of the right to possess different disruptive weapons systems for either defensive or offensive purposes. This is not only a question limited to a dual use issue. It has been always at a heart of all debates and non-proliferation talks about dual-use and conventional commodities employed by nuclear, chemical, and biological industries for decades. Third, there are certain broad economic implications, which impact is perhaps the least well-known and debated. Amid of these and other interests intangible technology transfer is stuck somewhere in between severe export control regulations on the one hand and the absence of a kinda ubiquitous agreement - of
mutual interest signed in between a potential seller and buyer of a technology - on the other. Transfer of dual use technologies does not occur in "a space". At present, it is strongly affected by the echo of the USSR disintegration and a bunch of suctions appeared worldwide due to recent aggressive hybrid challenges and threats coming from Russia, China and North Korea in the few decades. In conjunction with the above said, a new era definitely calls for a reassessment of national priorities related to international security across the board, which affects a way of global and regional geopolitical policies and a crucial importance to this concern is the transfer of dual-use materials science technologies. For the time being, verbose discussions on sensitive technologies still suffer creativity and bold plans; political and diplomatic initiatives came to nowhere as well.
The objective of this research is a quick analytical recap to historical evolution of export control system and transfer of DU technologies in Ukraine after acquiring the Independence and those developed of today.
2. Materials and Methods
A rather intricate nature of sensitive technologies and their potential for enhancing Ukrainian and other economies make them fundamental to both R&D and political debates. It should be mentioned that there has never been a clearly defined line between defense and civil R&D and this border is still blurred. DU technologies must have an increased attention from developers, policy, and law makers. The blurring of civilian and defense industrial bases and the increase in issues with uncertain dual-use features make distinguishing between civilian and military products and platforms more difficult and complicate the issues of export control.
Thus, this endeavor makes an attempt to analyze and scrutinize historical evolution of export control in Ukraine since 1991. The work also undertakes an attempt to examine Ukrainian legislation passed and today's issues associated with dual use technology transfer control regulations. The study employs qualitative methodology and is under the umbrella of a descriptive research design to agree on historical premises of export control evolution and political implications for a transfer of DU technologies. Political, and legal analysis are conducted in relation to evolution of export control, law premises and questions appeared nowadays associated. This descriptive research portrays a rather accurate profile of past and current situation happened around the export control and on-time evolution of transfer of sensitive technologies in Ukraine. This design offers a profile of described relevant aspects of the problem of interest from author's individual perspective.
3. Result
3. 1. Controlling the Strategic Goods
Ukrainian Export Control System Evolution.
The minute of the Soviet Union epic fail, Ukraine faced a strong elevation of a number of actors in foreign economic activity. For many of them, own commercial interests were much more attractive, important and understandable than state's national economy and security. Under the umbrella of disappearance of many administrative mechanisms, it elevated a physical volume of sales of strategic goods and advanced technologies abroad, which jeopardized the national security, regional and global stability, and a competitiveness of domestic economy.
Another reason for a catastrophic aggravation of situation with critical exports was the fact that in Ukraine, the export control system developed simultaneously under the influence of Western and inherited Soviet models. Formally, the basis of Western and Ukrainian models is a licensing procedure for the export of critical goods, which is included in one form or another as soon as the goods leave the state's jurisdiction. The Soviet model of export control was designed to abort all transactions that did not meet the national interests even before they were concluded, based on complex and informal internal and interdepartmental procedures for coordination with a final stage of discussion of each significant contract at the highest level, up to the Politburo of the Communist Party.
After 1991, the situation was on the point out drastic changes. The elevating decentralization of control led to the fact that not every transaction went through the existent and well developed channels of Soviet's era. The emerging Western model was far from being that perfect at that time in Ukraine, covering the most visible and least important sphere of control from the point of view of criticality: the export of strategic goods outside the customs during the transactions between independent counterparties. As a result, multiple "open windows" appeared, rushing at those whose goal
was only the earliest possible and fast enrichment, and even more those windows appeared every year because of underfunding of the Ukrainian military-industrial complex and research. Ukraine as a critical exporter is quite unique primarily because it has a significant stock of scientific developments and a large number of R&D teams who are not in demand due to government's blind eyes to science nowadays; thus, a control over R&D results and sensitive technologies is quite cumbersome. In addition, the existing system of international relations is overstressed with numerous internal and external conflicts and contradictions, both political and economic nature. This creates favorable conditions for development of demand for Ukrainian critical goods and advanced technologies.
Transfer of dual-use technologies in Ukraine is based on export control legislation. It appeared from the first days of Ukraine's independence and possess its own specifics associated with the fact that, at the time of declaration of independence, the Ukraine used to deploy the third nuclear potential in the world, as well as the most advanced disruptive weapon systems inherited from Soviet's time.
Another reason for rather fast introduction of export control mechanisms in Ukraine was government's efforts to protect its economic and national security interests. The vast majority of enterprises capable to produce military or dual-use items were state-owned at that time; thus, they had unique technologies that could provide the state with a high competitiveness in the world weapons market. Some domestic technologies and developments, particularly in the field of materials science and missiles production, were reasonably recognized by the world experts as the most advanced all over the world. Top Ukrainian management well understood a petrifying risk of uncontrolled (illegal) proliferation of those technologies abroad.
In Ukraine, and other CIS, a state policy in sphere of state export control is being formed on the basis of total protection of national interests (political, social, economic, industrial and military), as well as accounting for undertaken international obligations. At the same time, in Ukraine, a feature of state export control policy, as well as other spheres of state policy, became a consideration due to restricted state funding, which was a natural consequence of «chronic» economic crisis, and therefore, the refusal to create potentially effective technologies of government administration.
The first steps towards creation of a national comprehensive export control mechanism were made in 1991, when the Law on Foreign Economic Activity was enacted. Under Article 20, export and import of arms, ammunition, military equipment and special components for its production, explosives, nuclear materials, technologies, equipment, as well as other types of products and services, have to be made solely by entities of foreign economic activity authorized by Ukraine at the state level [4].
A number of regulatory acts were adopted in which the first control lists of strategic goods subject to export control were submitted in 1992. The state's control of exports was introduced by the Cabinet of Ministers of Ukraine Decree No. 153 as of March 25, 1992, which established the Governmental Expert Technical Commission headed by the Minister of Mechanical Engineering, Military-Industrial Complex and Conversion [5]. On January 3, 1993, a Decree of the President of Ukraine "On Improvement of State Export Control" was signed, which established the Governmental Commission on Export Control [6]. Among the main tasks of this commission were the following: to ensure the proper control over the export / import of weapons, military equipment, certain types of raw materials, equipment, and technology that can be used to create weapons, military and special equipment, and compliance with Ukraine's international obligations as to WMD non-proliferation. The functions, objectives and staff of the Governmental Commission on Export Control were approved by the Cabinet of Ministers of Ukraine Decree No. 160 as of March 4, 1993 [7]. The Expert-Technical Committee under the Cabinet of Ministers of Ukraine was also established, which prime task was an appropriate examination and duties of the Governmental Commission on Export Control. Resolution No. 159 of the Cabinet of Ministers of Ukraine as of March 4, 1993, approved the list of types of raw materials, materials, equipment and R&D technologies, which can be exported outside Ukraine only with a special permission [8]. This list appeared, in fact, as the first list of strategic goods (dual use list) subject to the state's export control.
The Bilateral Agreement on Humanitarian, Technical and Economic Cooperation, dated December 5, 1993, was concluded between the Governments of Ukraine and the US, which envisaged measures provided by the US to assist in establishing and developing a national export control system in Ukraine [9]. The Decree of the President of Ukraine of May 14, 1997, N433/97 established the Automated Export Control System (AECS) [10], and AECS local network was deployed in 1998 only. In November 1994, Ukraine acceded to the Treaty on Non-Proliferation of nuclear weapon, the Treaty was ratified by the Law of Ukraine as of November 16, 1994, by the Verkhovna Rada of Ukraine [11].
A Memorandum between Ukraine and the United States of America on the control of missile equipment and technology was signed in 1994. It became the first international act in the field of export control concluded with direct participation of Ukraine. Provisions of this Memorandum envisaged an implementation of measures aiming to preserve civilian direction of the national space rocket industry. Thus, Ukraine secured the status of a state that launches civilian spacecrafts. Ukraine also obtained «quotas» to launch foreign spacecrafts using domestic rocket technologies.
The Resolution No. 563 of the Cabinet of Ministers of Ukraine as of July 27, 1995, established separate mechanisms for state's export control of "missile" items and approved the list of associated goods [12].
In order to meet its international commitments under the Treaty on the non-proliferation of nuclear weapons, which Ukraine accessed in March 1994, in March 1996, the Cabinet of Ministers of Ukraine adopted Resolution No. 302, which established a mechanism for state's export control of dual goods of «nuclear» expertise and approved a list of associated goods [11]. In 1996, Ukraine became a member of the international export control regimes, the Nuclear Suppliers Group [13] and the Wassenaar Arrangement [10] and others. During 1996-1997, a number of regulatory acts were adopted aimed at implementing the relevant international obligations, including the establishment of an export control mechanism for transfer of conventional arms and associated dual-use items.
According to the Decree of the President of Ukraine of December 28, 1996, No. 1279/96, the State Export Control Service and the Governmental Commission on Export Control Policy were established [11]. In 1997 the mechanisms for state export control of dual goods of «chemical» and «biological» nature were introduced, as well as the appropriate trigger lists were approved (see Decree of the Cabinet of Ministers of Ukraine as of December 22, 1997, No. 384) [12].
Due to an administrative reform in accordance with the Decree of the President of Ukraine as of December 15, 1999, No. 1573, the State Export Control Service of Ukraine was liquidated, and its functions were transferred to the Ministry of Economy of Ukraine [14]. However, in 2001, in order to increase the efficiency of state export control and ensure the international authority of Ukraine, the Decree of the President of Ukraine No. 1265 as of December 27, 2001, re-established the State Export Control Service of Ukraine as a central executive body with a special status that ensures the implementation of state policy as to the export control [15]. During 1999-2002, a draft of the Law of Ukraine «On State Control over International Transfers of Military and Dual-Use Items» was prepared, as well as drafts of legislation acts introducing criminal and administrative liability for violation of export control legislation. These bills were approved in early 2003. First edition of the Law of Ukraine on State Control over International Transfers of Military Goods and Dual Use [16] implemented rigid state export control mechanisms aimed at unconditional enforcement of imperative regulations related to the need to fulfill international obligations and protect the economic interests of the state. At the same time, there was a continuing trend in the world to establish flexible export control models [13]. The concept of "required and sufficient control" become a rather widespread, which envisaged the gradual softening of state export control procedures for dual use items that are morally obsolete from the military point of view and objectively cannot be employed for military purposes anymore. The process was strongly reinforced by the global economic crisis of 2008, when economists and business owners increasingly urged government officials to mitigate restrictions on export controls, falling from "practical expediency".
In view of it, the Amendments to the Law on State Control of International Transfers of Military Goods and Dual Use was adopted [17] in 2010. The required changes were undertaken to make a transition from "classic-dogmatic" rigid model of export control to a model "required and sufficient". At the same time, a gradual transition to the new model updated the task of introduction of flexible control mechanisms, including so-called «indirect» control methods.
Thus, having analyzed the legal acts, four stages of historical evolution of export control system in Ukraine may be identified as follows: 1991-1998 - adoption of the first legal acts in the field of state export control and adherence to multilateral export control regimes; 1998-2003 - creation of the bases of "classic-dogmatic" model of state export control, characterized by strengthening of rigid (imperative) control procedures; 2003-2010 - legislative consolidation and further normative development of «rigid» export control mechanisms; 2010-till present - introduction of flexible control mechanisms, transition to the model of "required and sufficient" control, improvement of state export control mechanisms.
The efforts of today are to improve legal regulations and standards adopted in state's export control. However, the proposed changes should aim at creating attractive conditions for foreign
exporters to pursue foreign economic activity with flexible restrictions on state's export controls, accounting at the same time for the present geopolitical and geo-economic situation. Ukraine faced new challenges with : a military conflict with Russian Federation in the East followed by occupation of Donbas and Lugansk regions and annexation of Crimean Peninsula in 2014; Russian mind-boggling large-scale invasion of Ukraine on February 24, 2022; the need to fulfill obligations in terms of European integration; Covid-19 [18] outbreak, which drastically affected all systems throughout the world, and probably trigged cascading unpredicted geopolitical, economic and societal consequences of tomorrow. The economic effects of these events on the Ukrainian system have been profound. In light of those, together with others such as the case of Novichok nerve agent used in Salisbury [19], the export control system is still facing the hybrid threats of today's reality. In fact, the states' parties to the Chemical Weapons Convention (CWC) have long resisted adding Novichoks to the CWC's [20] so-called Schedule 1 list of chemical weapons, which compels signatories to declare and destroy any stockpiles. Indeed, the U. S. government for years classified the Novichok agents as top secret. "There was a desire among Western countries to keep the information low profile and as limited as possible to avoid proliferation issues," Gregory Koblentz and Stefano Costanzi say, the nonproliferation experts at the American University in Washington, D.C., in a review in the issue of The Nonproliferation Review ("Controlling Novichoks after Salisbury: revising the Chemical Weapons Convention schedules") [21]. Apart from the above, an extremely destabilizing and long protracted existing economic and politician crisis in Ukraine is also of particular concern and to conclude this idea - the export control system nowadays should be developed with a time and be rather flexible to meet new hybrid challenges and threats of today and tomorrow. For this, much closer relationship with the State's Intelligence Service should be undertaken to timely inform any illegal intentions, suspicious and unauthorized intangible transactions and/or shipments to be able effectively prevent future hypothetic threats.
Therefore, the export control system that Ukraine has put in place consists in the following: set of legal norms and acts national export control authorities (regulators), export control infrastructure,
A key act of national legislation in the field of state export control is the Law of Ukraine on State Control over International Transfers of Military Goods and Dual Use [22]. The preamble to this Law states that the law regulates the activities related to the state control over international transfer of military and dual-use goods to ensure a full protection of national interests of Ukraine, its compliance with international obligations on WMD non-proliferation and means of its delivery, restrictions on transfer of conventional weapons and measures to prevent the use of those strategic goods for terroristic and other unlawful purposes. The law also implies that state's export control is defined as a set of measures to control and monitor the international transfer of strategic goods, its use by a legal or person, carried out by a central body of executive power implementing state's policy in the field of state export control and other state bodies
The existing export control procedures for international transfer of military and dual-use items in Ukraine, as well as the corresponding lists of these items, according to leading experts, fully comply with the guidelines of the appropriate international (mostly EU) export control regimes. Procedures for control and lists of military goods are defined in the Procedure for State Control over International Transfers of Military Goods, which was approved by the Cabinet of Ministers of Ukraine as of November 20, 2003, No. 1807 [23], and the control procedures and lists of dual-use items are defined in the Procedure for Implementation of State Control over International Transfers of Dual-Use Items approved by the Cabinet of Ministers of Ukraine as of January 28, 2004, No. 86 [24, 25].
Being a member of all multilateral export control regimes, the Ukrainian list of dual use items subject to state export control are drawn up in light of the international obligations which Ukraine has committed to by participating to the mentioned regimes [26].
According to leading foreign [27] and national [28] experts, the system of export control in Ukraine, as a whole, meets requirements of international documents and international standards of export control, including the part of compilation of lists of dual use goods subject to state export control.
3. 2. Main Points to Highlight
The elaborate analysis of historical evolution and formation of export control mechanism in Ukraine revealed:
1) Ukraine has a rather powerful export control mechanism being driven by economic and definite historical factors;
2) during the Soviet Union era, a development of military-industrial complex was strongly supported by the government; thus, it is resulted in a significant number of enterprises which produce military and dual use products in Ukraine;
3) in Ukraine, as in other countries, state's policy in the sphere of state export control is formed on the basis of total protection of national interests (political, social, economic, industrial, military), as well as takes into account the international obligations;
4) in 2010, an updated version of the Law of Ukraine on State Control over International Transfer of Military and Dual-Use Goods was adopted. It resulted in a transition from "classic-dogmatic" rigid export control model to "required and sufficient" one;
5) current model of state export control is determined by:
a) the need in radically reformation of activities of state apparatus aimed at democratization of power, to establish a solid partnership between the state and society;
b) a significant reduction of expenditures on public authorities, due to the crisis of public finances;
c) an improvement of public authorities network, aimed at further reduction of bodies and institutions with supervisory and control functions;
d) an increased global instability, including those associated with unfriendly acts and Russian invasion to Ukraine;
e) the export control mechanisms evolution and change all over the world.
3. 3. Historical Paradigm
A transfer of disruptive technologies for Ukraine over its independence years and nowadays has been one of a key factor in stabilizing a development of strategic industries (defense-industrial complex, aerospace, engineering, etc.). A concept for implementation of state policy on import substitution and diversification of imports of goods supplies for strategic industries needs was developed by the Cabinet of Ministers (Resolution N471 dated of June 12, 2020) [29] and outlines how to resolve traditional problems of transfer of dual-use technologies and strategic goods.
The need to resolve this issue at external state level is caused by a specificity of evolution of political and mental factors affecting a transfer of technologies in transition period from the totalitarian Soviet regime to an economically difficult format of the Union of Independent States (CIS). The factors influencing technology transfer, whether it is a common technology or a dual use technology, may be divided into four main groups [2]:
1) political;
2) legal;
3) socio-cultural (mental);
4) technical.
It should be emphasized that in reality they are so intertwined that sometimes it is almost impossible to clearly determine which group this or another factor belongs to, as well as assess its impact on technology transfer and take into account its value and twisting with others. From the point of view of an effectiveness of implementation of transfer of dual-use technologies in Ukraine, a deep significance and problematic nature of each group differ drastically. The final determinants of success are groups of political and mental factors, as they are more mobile in time, meanwhile, legal and technical factors are properly documented over a fairly long period of time. It is the fixed provisions adopted under certain political and mental factors that cause problems with changes in politics and society's mental behavior. These changes in Ukraine are found rather kaleidoscopic. The technical and legal factors affecting technology transfer are well developed by the international community and do not elicit and rise many comments. They were officially adopted and reflected in the appropriate Ukrainian documents, however, their implementation in real life due to a transformation taken in political and mental driving forces led to a deep collapse of transfer of dual-use technologies in Ukraine. Therefore, a transformation of political and mental factors during the transition of Ukraine from the position of a key republic of the Soviet Union into a sovereign "independent" European country has to be evaluated and elaborated more carefully.
The process of technology transfer as a whole is not a straightforward to use, especially when it deals with dual-use technologies and at present reduced to a short relationship between supplier/recipient only. An experience shows that it is a rather complicated process which is impacted with a few factors and conditions that determine its fate at the end. A development of Ukrainian dual use technologies con-
tinues in a quagmire of conflicting interests and technology transfer export control rationales. There are historical, mental, political and military-driven conceptions where a state's decision to develop weapon systems or related applications can be assessed not only as a function of perceived levels of threat to its security, but also as a need to respond and/or step forward to potential technological innovations; and second, the fundamental conceptual differences in appreciation among countries of the right to possess different advanced weapons systems for defensive or offensive purposes. Thus, the mantra of the day is that new realities call for a reassessment of national priorities related to international security which affects the way of global and regional geopolitical policies and the importance to this concern is the transfer of dual-use technologies and its consequences. Also, the present time calls a society for unpacking the special consideration being given to the correlative concepts of dual-use technologies, emerging technologies deriving from civilian to military sector or vice versa. Additionally, one should consider an ecosystem of technology transfer dominated by structural challenges, political decisions, economic imperatives, but also by high-level strategic restrictions of secrecy.
4. Conclusions
Thus, first off, a question éternelle comes and is pending up in the air: which country developed or still develop the legislative measures in this area better? Does this really work and sound in practice, and to what extent? Second, at a time of fundamental change in a nature and order of international relations, the wisdom of ad hoc control regimes must not escape scrutiny. Although experts are very much aware of these problems, the future of control regulations remains still blurred and uncertain, so what are their potential implications for international security? Hence, a reassessment of problems surrounding present export control regulations have to be made - both in terms of their potential improvement and/or possible new universal multilateral agreements among the states involved in technology transfer. This further argues the need for appearance of new international mechanisms to ensure a transparent transfer of dual use technologies, while not boosting and empowering proliferation opportunities for weapon systems both common and WMD. This argument is not just ideological but rather sophisticated. It could constitute the basis of a policy that could be implemented if certain specific initiatives are agreed and taken. To build ensured confidence and transparency between supplier and recipient countries of intangible technologies, adhesion to bilateral agreements on materials science technologies, limitation agreements on weapons of mass destruction, and other measures would offer elevated and required transparency in development of disruptive technologies of tomorrow. Of course, the roles of both supplier and end user and vice versa in unilateral, reciprocal measures would have to be carefully evaluated. Concession issues would need to be given the highest priority due to improve predictability and creation of mechanisms of crisis management, risks assessment and resolution.
There should also be an agreement to establish a quite transparent dialogue between supplier's and recipient countries, to enable mutual political objectives to be complemented by compliance and enforcement procedures. Central to the debate would be a discussion of fundamental and practical issues associated with transfer and export control of dual-use technologies. For example: is it appropriate to undertake multilateral negotiations? Then if so, in what form and type they should be? However, scrutinizing ways of establishing new relationships between actors in transfer of sensitive technologies can easily be a zero-sum-game endeavor. The challenge is to initiate and boost impartial and innovative thinking between technology supplier and recipient's teams. Steps towards cooperation simply for the sake of ensuring a transfer of dual-use technologies are not the case. Moreover, while international organizations play a role, they are not a panacea at all, for example, as the comprehensive test ban treaty discussions have shown or conclusion of Budapest Memorandum [30] signed on December 5, 1994, for the Ukrainian national security, which was unprecedently violated.
In conclusion, a question whether there should be a better restructuring of dual-use technology transfer would now appear to be irrelevant and cumbersome without a better understanding of present relationship between Ukraine and the rest of the world in a vital scientific domains venue and national security debates. A quest for improved relationships in respect to technology transfer and dual use must first start with an assessment of political, military, technical, and economic implications of DU technologies. Any such assessment must therefore consider a relevance that access to these technologies has for different geopolitical situations. Only by close and trustful cooperation can a supplier/recipient relationship be established in a sound, durable and open manner. However, any such cooperation must be reinforced by solid and crystal clear agreements to ensure a transparency and predictability on issues which direct-
ly affect the states' security and development. The right of any state to develop advanced technologies is unquestionable nowadays. In practice, problems appear when technology development approaches a very fine and blurred interface civil/military application, as most of disruptive technologies can be used for military and civil purposes. This dichotomy raised a number of political, military, and other many concerns which affect transfer of cutting-edge technologies, and particularly between established and emerging materials science-competent of Ukraine and for example, the USA and EU. This effort was to expose the historical interests ofboth supplier/recipient players which can best be served not only through strict control regulations and management but through joint cooperative measures, because it is the most efficient way to control civil use of military technologies, meanwhile ensuring their successful transfer.
Therefore, it is necessary to develop strategic planning for the international community to embark on new bold and transparent approaches, elaborating new ways of management of dual-use technologies. It is imperative that collective reflection (government, export control and academia members) be fulfilled with highlighting of the main arguments that could stimulate the state's position in support of a policy of cooperation rather than confrontation. Central to this is a need to formulate a crystal clear description of practical means that could enable such a paradigm shift in policy itself and the policy of export control, which should be based on the principle of establishing fresh and healthy atmosphere of confidence and security between states. Of course, the goals of such strategic planning require the simultaneous efforts of both Ukraine and the rest world.
Finally, it is most expedient to introduce the most flexible, non-trivial solutions to export dual use technologies that create opportunities for their scaling and reproduction. Such the solutions do not allow to achieve maximum beneficial effect within a particular process, but their development is associated with low risks of avoiding illegal technology transfer. The introduction of flexible (adaptive to hybrid threats and today's challenges) technological solutions for dual-use technology transfer will allow implementing an approach of evolutionary development of methods of export control, where a solution for transfer of a particular technology will be specialized in each subsequent step for each specific case. Of course, it will not happen overnight yet at the end let's hope that a technology transfer should not be any more considered as a mammoth task and conundrum wrapped up in an enigma. All bets are off!
Conf lict of interest
The authors declare that there is no conflict of interest in relation to this paper, as well as the published research results, including the financial aspects of conducting the research, obtaining and using its results, as well as any non-financial personal relationships.
Funding
The study was performed without financial support.
Data availability
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Acknowledgments
This effort draws my PhD research supported by the grant of the EU Commission and STCU technical support, associated with evolution of Ukrainian export control and technology transfer of sensitive technologies, being held in the University of Liege. Herewith I would like to thank to all who inspired me during my four and a half PhD endeavor. Also, my special thanks extended to prof. Quentin Michel, Dr. Eddie Maier, academician NAS of Ukraine Anatolii Belous and corresponded member of NAS of Ukraine Igor Pritula for their initial impetus, fruitful and plain discussions of the ideas implied therein.
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