Export control

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Export control is an area of legislation that regulates the export of goods, software and technology. Some items could be potentially useful for purposes that are contrary the interest of the exporting country. These items are considered to be controlled. The controlled items are prevented to some degree from being sent to destinations where it is perceived they will be used in a harmful way.[1] Many governments in the world implement Export Controls.[2] Typically there will be legislation that causes potential exporters of controlled items to make a request to a local government department, and that department will assess the desired exports and either grant or deny licences as appropriate.

History[edit]

Export control has been in place in the USA since the time of the American Revolution, although the modern export control regimes can be traced back to the Trading with Enemies Act in the USA in 1917, and the Import, Export and Customs Power (Defense) Act of UK in 1939[3] A significant piece of legislation was the USA Export Control Act of 1940 which inter alia aimed to restrict shipments of material to pre-war Japan.

Principles[edit]

In most export control regimes, there is legislation that lists many items which are deemed 'controlled', and lists destinations to which sending items is restricted, by different degrees. The lists of what is controlled sometimes arise from some Harmonised Regime.

Categorisation[edit]

Usually goods are subject to categorisation such as the USA's Export Control Classification Number (ECCN)[4] or India's SCOMET list[5] or Japan's METI lists.[6]

Some items will be considered "Designed or modified for military use", some will be considered Dual Use, and some will not be export controlled.[7] Dual Use means that the device has both a civilian and a military purpose.[8]

In several jurisdictions, the classifications will consider Goods, Equipment, Materials, Software and Technology. The last two are often considered intangible. Classifications may also be by destination purpose, including cryptography, Laser, and torture equipment.

Destination[edit]

Each exporting country will have different relationships with other countries as per International Relations. Sometimes countries will have Trade agreements or arrangements with a group of other countries, and this agreement means there are no licences required for certain goods. For example, within the EU licences are not required for shipping civilian goods to other member states,[9] however for restricted, military goods licences are required.[10]

For any exporting country, some destination countries may be Sanctioned, some may require Licences, some may require record keeping (e.g. using an OGEL) and some have no restrictions.

The End User of the goods, or some 'broker' will typically be declared, and similar restrictions apply as to countries.

Some individuals or entities may be listed, so even if the item can could normally be sent to the country without a licence, additional restrictions apply for that individual or entity.[11]

Licence[edit]

For any given item being exported, the categorisations will typically lead to different treatments for a given destination, e.g. 'No Licence Required' (NLR) or 'Licence Required'.[7]

When a licence is required, typically some declaration from the End user will be required. This could be an End User Undertaking (EUU)[12], an End User Statement (EUS)[13] or an End-user certificate. These EUUs will typically include intended use, and make assurances as to the applications for the goods, e.g. not to be used within missiles.

Licences can subsequently be obtained from the appropriate government department in the exporter's jurisdiction.

Circumvention[edit]

During the development of the Lockheed SR-71 Blackbird supersonic spy plane, the USA used 'Third-world countries and bogus operations' in order to obtain sufficient ore to create the titanium for the aircraft[14]

Worldwide[edit]

Organisations for harmonisation of controlled items[edit]

These are known as Multilateral export control regimes

USA[edit]

The coordinating body is the Export Enforcement Coordination Center[15]

Companies engaging in export may be required to establish an Export Management and Compliance Program.

There are some particular treatments for Cryptography exports, where the NSA may require separate notification of intent to publish cryptographic software.[16]

EU[edit]

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items[17] is the EU Regulation demanding all member states include legislation that supports export control.

The regime for "Dual Use" was established in 2000.[18]

UK[edit]

The principal legislation is the Export Control Order 2008.[19] There is the similar-sounding Export Control Act of 2002 which grants powers to the Secretary of State to impose such rules.[20]

Items are listed in the UK strategic export control lists[21]

It is administered by the Export Control Joint Unit, part of the Department for International Trade[22]

Licences[23] include Standard Individual Export Licences (SIEL),[24] Open Individual Export Licences (OIEL)[25] and Open General Export Licences (OGEL)[26] sometimes also known as an OGL.

See also[edit]

References[edit]

  1. ^ Department Of State. The Office of Electronic Information, Bureau of Public Affairs (March 8, 2011). "Overview of U.S. Export Control System". state.gov.
  2. ^ "Information Note 15th Export Control Conf Prague" (PDF). un.org.
  3. ^ "Historical Background of Export Control Development in Selected Countries and Regions" (PDF). cistec.or.jp.
  4. ^ "Flexport Glossary Term | Export Control Classification Number (ECCN)". www.flexport.com.
  5. ^ "Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) export of which is regulated" (PDF). dgft.gov.in. Retrieved 2020-03-10.
  6. ^ "Overview" (PDF). www.cistec.or.jp. Retrieved 2020-03-10.
  7. ^ a b "But Export Controls are nothing to do with ME" (PDF). www.egad.org.uk. 2015. Retrieved 2020-03-10.
  8. ^ Stockholm International Peace Research Institute. "Dual-use export controls". SIPRI. Retrieved 2020-03-10.
  9. ^ "Dual-use trade controls - Trade - European Commission". ec.europa.eu.
  10. ^ "NOTICES FROM MEMBER STATES" (PDF). trade.ec.europa.eu. Retrieved 2020-03-10.
  11. ^ "Denied Persons List". www.bis.doc.gov.
  12. ^ "End-user undertaking (EUU) form". GOV.UK.
  13. ^ "export.gov". www.export.gov.
  14. ^ Lockheed SR-71 Blackbird#Acquisition of titanium
  15. ^ https://2016.export.gov/e2c2/index.asp
  16. ^ https://www.eff.org/deeplinks/2019/08/us-export-controls-and-published-encryption-source-code-explained
  17. ^ "Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items". eur-lex.europa.eu.
  18. ^ "Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology". eur-lex.europa.eu.
  19. ^ Participation, Expert. "The Export Control Order 2008". www.legislation.gov.uk.
  20. ^ "The Export Control Act 2002". www.legislation.gov.uk.
  21. ^ "UK strategic export control lists" (PDF). GOV.UK.
  22. ^ "Export Control Joint Unit". GOV.UK.
  23. ^ "Licence types: FAQs". GOV.UK.
  24. ^ "Standard Individual Export Licences". GOV.UK.
  25. ^ "Open individual export licence (OIEL) undertaking template". GOV.UK.
  26. ^ "Open general export licences (OGELs)". GOV.UK.