LESSON LEARNED ON EXPORT REGULATIONS

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Egbert Willis
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1 LESSON LEARNED ON EXPORT REGULATIONS FROM KOBE TO CAEN Prof. Philippe Achilleas University of Caen - Normandy Director of the IDEST Institute

2 What did we learn in Kobe? Q & A on export control

3 Q & A on export control 1. The objective of export control is security? Yes and No Security Crime control Anti-terrorism Humanitarian law Human rights Official objectives Unofficial objectives Protectionism Slow down technology development of enemies / competitors

4 Q & A on export control 2. Export controls deals only with military items? No Arms Dual use

5 Q & A on export control 3. Export controls deals with goods? No Goods Technology Knowledge

6 Q & A on export control 4. «Export» means actual shipment? No Shipment Electronic transmission Oral discussion

7 Q & A on export control 5. The nature of the control is international? Yes & No International regimes National law

8 What is export control? Export control regimes aim to regulate trade of sensitive goods and technology : facilitate trade and transfer among friendly and reliable States and prevent hostile and dangerous States, sub-states, terrorist organizations and individuals from acquiring those listed items Economic sanctions aim to restrict trade via coercive economic measures taken against one or more countries to force a change in policies, or at least to demonstrate a country's opinion about the other's policies

9 Outline I. International regimes II. National implementation

10 I. International regimes A. Sources B. Regimes

11 A. Sources 1. Export control regimes 2. Connected regimes

12 1. Export control regimes a. Weapons of Mass Destruction (WMD) b. Conventional weapons and dual use items

13 a. WMD Nuclear Biological Chemical Treaty on the Non- Proliferation of Nuclear Weapons (1968) IAEA Safeguards Convention on the Prohibition of biological weapons (1972) Convention on the Prohibition chemical weapons (1993) Zangger Committee (1971) Nuclear Suppliers Group (1974) Australia Group Guidelines (1985) Delivery systems HCOC (2002) MTCR (1987)

b. Conventional weapons and dual use items Convention on

excessively injurious or to have indiscriminate effects (1980)

fragments; landmines, booby traps; incendiary weapons; laser

armoured combat vehicles; large-calibre artillery systems;

missile launchers; SALW Firearms protocol (2001) Programme of

14 b. Conventional weapons and dual use items Convention on certain conventional weapons which may bee deemed to be excessively injurious or to have indiscriminate effects (1980) Mine Ban Treaty (1997) Arms Trade Treaty (2013) non-detectable fragments; landmines, booby traps; incendiary weapons; laser weapons Convention on Cluster Munitions (2008) Battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; SALW Firearms protocol (2001) Programme of action on SALW (2001) International tracing instrument (2005) Wassenaar arrangement (1995)

15 Export control regimes participants Zangger Committee participants Nuclear Suppliers Group participants Australia Group participants MTCR participants

16 2. Connected regimes a. UN Security Council Resolution 1540 (2004) b. International sanctions

17 a. UN Security Council Resolution 1540 (2004) Adopted the 28 April 2004 unanimously by UNSC Based on Chapter VII of the UN Charter Affirms that the proliferation of WMD and their means of delivery constitutes a threat to international peace and security Obliges States to refrain from supporting by any means non-state actors from developing, acquiring or using WMD and their delivery systems adopt adequate legislation take and enforce effective measures to establish domestic controls including border controls and trans-shipment controls Establishes an international Committe

18 b. International sanctions International sanctions are actions taken by IGOs or States against other States for political reasons, either unilaterally or multilaterally Distinction : Diplomatic sanctions / Military sanctions / Economic sanctions Economic sanctions : coercive economic measures taken against one or more countries to force a change in policies, or at least to demonstrate a country's opinion about the other's policies Economic sanctions may target countries or private persons (individuals or companies) E.g : embargoes; restrictions on particular exports or imports; denial of loans and investments; control of foreign assets and economic transactions; travel ban; asset freeze

19 b. International sanctions United nations (multilateral) Under Chapter VII of the Charter, the Security Council can decide economic sanctions to maintain or restore international peace and security E. g. Libya (2011); Irak (1991) Unilateral sanctions measures taken by some States sometimes in conformity with the UN Security Council resolutions Sometimes without authorization from the UN E. g. US-EU/Russia (2014)

20 b. International sanctions The US sanctions in 2014

21 Export control / Export regulations Export regulations Export control - Zangger Commitee (1971) - NSG (1974) - Australia Group (1985) - MTCR (1987) - Wasenaar Arrangement (1996) Disarmament law International sanctions Customs regulations International trade law (GATT) Transportation law Financement of exportations Foreign investment

22 B. Regimes 1. Scope and method of control 2. International coordination

23 a. Scope and method of control List of controlled items + guidelines Form of Gentlemen agreement Zangger Committee List of Items of equipment or material especially designed or prepared for the processing, use or production of special fissionable material (1974) NSG Guidelines for Nuclear Transfers (1974) Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Materials, Software and Related Technology (1992) Australia Group Guidelines For Transfers of Sensitive Chemical or Biological Items (2002) MTCR The Equipment, Software and Technology Annex, lists the items controlled (1987) Guidelines for Sensitive Missile-Relevant Transfers (1987) Wassenaar Arrangement Lists of Dual-Use Goods and Technologies (1996) Munitions List (1996) Military + dual use

24 a. Scope and method of control Reasons to regulate transfer International security Crime control Anti-Terrorism Human rights

25 b. International coordination Exchange of information Survey of participants application of the guidelines Consultation on specific sensitive cases Annual meetings Secretariat

26 II. NATIONAL IMPLEMENTATION A. Levels of implementation B. Effectiveness

27 A. LEVELS OF IMPLEMENTATION 1. States level 2. Industries level

28 1. State level Territorial implementation National administration Transposition of the lists of controlled items License Sanctions Extraterritorial implementation Re-export provision US policy theory of contamination

29 1. State level - USA Arms export International Traffic in Arms Regulations (ITAR) Administered by the Department of State (Office of Defense Trade Controls) United States Munitions List (USML) - 21 categories Dualy-Use items export Export Administration Regulations (EAR) Administered by the Department of Commerce (Bureau of Export Administration) Commerce Control List (CCL) - 10 categories

30 2. Industry level From a free trade environment to a regulated trade framework Setting up a service dedicated to Export Controls Establishment of internal procedures Insertion of specific provisions in contracts Sanctions in case of non compliance with national regulations

31 B. EFFECTIVENESS 1. Risks 2. Limits

32 1. RISKS 1. Commercial and economic risks 2. Legal risks

33 a. Commercial and economic risks Effect on competitiveness of industrial sectors Heavy procedures Costs incurred by the export control regimes and regulations Loss of markets Limitation of international cooperation Limitation of international trade

34 b. Legal risks Legality of international export control regimes Possible breach of the following principles : Economic freedoms Protection of foreign investment Right to technological and economic development Territorial application of laws Human rights (freedom of information, right to education ) Freedom of outer space

35 b. Legal risks GATT, art. XXI, Security exceptions A contracting party has the right to take measures to which it considers necessary for the protection of its essential security interests (i) relating to fissionable materials; (ii) relating to the traffic in arms; or (iii) taken in time of war or other emergency in international relations A contracting party has the right to take any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security

36 B. LIMITS 1. Technical limits 2. Political limits

37 1. Technical limits Limit inherent to the control regimes Export / import of non-controlled goods and technologies Use of exceptions (goods and technologies freely available in the market) Bypass control regimes provisions Degrading the performance of controlled goods and technologies Exporting goods incorporating non-controlled goods and technologies (eg neutralize the extraterritorial effect of US law ) Solution: regular updating of lists

38 2. Political limits Effectiveness of export control regimes It is possible to slow technological development, but not to prevent a state to drive its policy How to take into account emerging issues? Terrorist risk Transfer technologies via Internet

39 ALIGATO MERCI

National Action Plan for the Implementation of United Nations Security Council Resolution 1540 (2004) MEXICO

2014-2017 National Action Plan for the Implementation of United Nations Security Council Resolution 1540 (2004) 1. Introduction MEXICO Mexico recognizes that the proliferation of weapons of mass destruction