The "cold war" between the West and the communist countries, begun at the end of the war by the problem of the occupation of Germany, has been exacerbated by very fast technological espionage action by the world Soviet. Early findings of illicit transfers of Western technology occurred in 1949 after the development of nuclear weapons in the former Soviet Union. This was entirely copied from the American Nagasaki bomb by communist spy networks of action which included the Rosenbergs, convicted in 1950 and executed in the electric chair in 1953. In the course of 50 years, from the first tests of thermonuclear weapons by the US, the former Soviet Union achieved equivalent tests of super-powerful bombs that clearly resulted from illicit transfer of US technology by the networks Russian espionage. Later, in the 70s and 80s, several countries have managed the development of nuclear, chemical and biological weapons and their means of delivery by obtaining the civil use equipment and technology in international trade. These events were behind the creation of several international bodies with a view to implementing controls on dual-use (civil and military) to fight against the proliferation of weapons of mass destruction.
International bodies
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The former COCOM
From the beginning of the "cold war", the US has engaged in bilateral talks with France, Italy, the United Kingdom, the Netherlands, Belgium and Luxembourg to create an informal advisory group made up of government representatives to to prevent the circumvention of strategic materials to the countries of the Soviet bloc. In 1950, by adding a permanent secretariat, the advisory group has evolved Coordinating Committee for the Control of multilateral trade (English acronym COCOM) ; which subsequently joined, Canada, Denmark, Germany, Japan, Australia, Spain, Greece, Australia, Portugal and Turkey. Four of the six founding countries of COCOM shared the key roles, namely: the Italian presidency, the British staff, the US headquarters (US Embassy in Paris), meetings exclusively in France, and French / English bilingualism. In 1982, following the Farewell (see below), the advisory group policy guidance COCOM was replaced by a high-level meeting that this intergovernmental body reactivated and has organized several structures real effectiveness: the Executive Committee, the regular committee and its various formations, subcommittees, working groups and ad hoc groups. All decisions of the COCOM followed the procedures established by the upper structures and were taken unanimously. Many high-level meetings were held in the years 80 to increase the fight against the transfer of technology to countries in the east and in the early 90s to accommodate the rapid evolution of technology and to end the embargo following the fall of the Berlin Wall. The objective of the COCOM was to create three lists of strategic goods (nuclear list, military list and list of dual-use goods) and to deny or allow exports to countries of the "Soviet bloc" and China of these materials and sensitive technologies. These exports were proposed by member states following license applications from their industrial, but they were often refused after unfavorable opinions of governments or their intelligence services. The embargo is due to the action of COCOM allowed democratic states to maintain a military technology ahead of the totalitarian states, but the lead was always caught by following many diversions final destination. COCOM was dissolved in 1994 following a last high-level meeting under the Dutch Presidency, which, noting the evolution of the international situation and the globalization of techologiques progress, decided to convert it into a "new forum",which is became, two years later, the Wassenaar Arrangement.
The Wassenaar Arrangement (WA)
The Wassenaar Arrangement (WA acronym), its full name the Wassenaar Arrangement on export controls for conventional arms and dual-use goods and technologies, is a multilateral export control regime set up by forty States to coordinate their policies on exports of conventional weapons and dual-use goods and technologies. It was established May 12, 1996 in Wassenaar, the Netherlands, and succeeds the COCOM. It incorporates most of the countries of the former Soviet bloc and gathers 42 states. The main document is an instruction document, the Purposes, Guidelines and Procedures, Including the Initial Elements,which describes the goals, procedures, shareholdings and administrations of the treaty. A secretariat is based in Vienna, where meetings are held, usually once a year in December. Thereunder, the only obligation is to notify the transfer of arms.The decision to transfer only returned to the seller. The Wassenaar Arrangement publishes several checklists: - lists of dual goods and technologies (notes on technologies and software; categories of dual-use goods, 0-9; list of sensitive goods; list of highly sensitive goods);
- munitions list (list of war material).
The Zangger Committee and the Nuclear Suppliers Group (NSG)
Parallel to the COCOM, other informal groups fighting against illegal transfer of highly sensitive equipment were formed to prevent the spread of nuclear weapons technology, but they remained independent with respect to the COCOM whose sole purpose was to maintain qualitative restrictions against "Soviet bloc" and China. The Zangger Committee (named after its first president the Swiss Claude Zangger) is a multilateral export control regime which was formed in 1971 by exporting States and producers of nuclear goods and technology, following the entry into force of the Treaty of Nuclear Non-Proliferation Treaty (NPT. The Committee's objective, which still exists, is to ensure that nuclear technology exported to non-nuclear-weapon States that have not joined the NPT, are not diverted for military purposes. The checklist is limited to a "Trigger List 'on fissile materials and related production equipment. The Zangger Committee ensures civilian use of guarantees provided products and technologies. Thus he authorized the export to India of uranium and conversion and enrichment facilities subject to exclusively civilian use, while India had not signed the NPT and proceeded to a nuclear industry for military purposes from thorium (for lack of uranium). It is precisely because the Committee was focusing only on those States that are not parties to the NPT that producers and exporters of nuclear technology states decided in 1974, following the nuclear test by India, to create the Nuclear Suppliers Group (NSG acronym) to harmonize their export policies in this matièreet prevent nuclear proliferation. First, nuclear Suppliers Group was called "London Club". This was a new multilateral export control regime covering nuclear exports to all States, whether or not parties to the NPT. The NSG was created three years after the Zangger Committee to complete and overcome its shortcomings. Thus, the prerogatives of the NSG are not limited to the provisions of the NPT: the controls put in place by the Group may therefore cover a wider range of goods and technologies and evolve with technological progress. On the other hand, the controls established by the NSG concerning exports to all countries, even those who are not members of the NPT. The NSG publishes two lists: - in Part I, the list of dual-use nuclear items corresponding to the "Trigger List 'of the Zangger Committee;
- in part II, the list of dual-use goods and technologies required to manufacture nuclear weapons.
The NSG has experienced a period of relative decline between 1978 and 1990. In 1992, the revelations about the nuclear program of Iraq (which had been prepared, among others, through goods and dual-use technologies previously estimated bit likely to be diverted for military purposes) were an opportunity to revitalize the multilateral control regime and strengthen its provisions (in particular in order to control dual-use goods and technologies).
The Missile Technology Control Regime (MTCR)
The Missile Technology Control Regime (MTCR acronym) is a multilateral export control regime to limit the proliferation ofweapons of mass destruction by controlling transfers of missiles that can serve as a vector for these weapons. The MTCR was established in 1987 by Canada, France, Germany, Italy, Japan, the United Kingdom and the United States. Since then, the MTCR now has thirty-four country, and all have an equal right within the Plan.
The Australia Group (AG)
In 1985, following the finding by the United Nations of use of chemical weapons by Iraq during its war against Iran and knowing that the construction of Iraqi chemical plants resulted from transfers of equipment and free Western technologies export, it was established at the initiative of Australia a new international body, the Australia Group (AG acronym), chaired by Australia, meeting only to the Australian Embassy in Paris and consists exclusively of Australian personnel. The Australia Group was also interested in the products and equipment following the biological evidence of biological weapons programs in some countries. Its purpose is to establish lists of products and chemical equipment and biological control (and to exchange information for the fight against the proliferation of chemical and biological weapons).
The Organization for the Prohibition of Chemical Weapons (OPCW acronym) was created as a result of the Chemical Weapons Convention. This official body based in The Hague. Its purpose is to ensure the destruction of chemical weapons produced in the signatory states of the Convention and monitor chemical plants likely to conceal clandestine activities. The list of chemicals subject to control is that annexed to the agreement; it includes chemical precursors of the list of the Australia Group and hazardous products capable of misuse.
The "Control of final destination" in the years 80 The effectiveness of COCOM has been questioned in the early 80s as a result of technological pillage in favor of the former Soviet Union revealed by KGB officer called Colonel Vetrov and known as the "Farewell", which sold to the French espionage against (former DST) Russian secret documents for the "Supreme Soviet" making the financial statement of flights with multiple top-secret military technology including the USA collected in Britain and France .. This discovery disaster was revealed to US President Reagan by French President Mitterrand at the beginning of his first seven. Farewell This has been a diplomatic incident between France and the former Soviet Union following the expulsion in April 1983 forty "diplomats" Russian based in Paris. Colonel Vetrov was murdered during a reckless return to Russia. The 17 states of the COCOM was rallied by publishing, in 1985, a new list of sensitive goods and technology and strengthening their multilateral controls. Therefore, in France, the services of espionage against (former DST) and customs revealed and sanctioned the illicit transfer of goods and technology to civil and military use, particularly to the former USSR. At the time of Farewell, regulation on "control of the final destination" existed in France in the form of a notice to importers and exporters gazetted of the French Republic (JORF) in 1976. This text publishing the list of goods subject to controls established by the COCOM was based on a decree of 1944 which aimed to establish a protection of foreign trade due to the precarious economic situation of the release time. The decree referred to a 1938 law on the organization of the economy in times of war. Given the tremendous development of computer science and military technology in the early 80s, the current regulations had become totally obsolete, misunderstood and passed into oblivion. In addition, its legal basis was particularly questionable. The French authorities have re-entered the JORF by publishing the Notice to importers and exporters of 5 December 1985 containing the list of strategic goods a hundred pages revised that year to COCOM. In July 1987 a diplomatic incident between the United States and Japan occurred during export of machine tools coordinated five axes simultaneously (using a Norwegian CNC), a Japanese company to manufacturing silent propellers for Russian submarines, while Japan was a member state of the ECs. The Japanese authorities have so eager to immediately disclose that a large French company had made a similar mistake by exporting to the former Soviet Union of large machine tools to build jumbo jets. This information has resulted in the same way to a diplomatic incident between the US and France, active member and founder of COCOM. This French affair led to the former DST to indict five leaders of the undertaking concerned and to place them in custody for several months "with the enemy". The United States expressed concern about the sale of machine tools as easy five-axis coordinated simultaneously not only for the official reason given, but also because export risk machining means of curved surfaces and perfectly accurate to from complex mathematical equations for the envelope production of nuclear weapons. From this scandal and other American diplomatic protests against the failure by France of its commitments COCOM, several illicit transfer of technologies were recognized by the National Directorate of Customs Intelligence and Investigation (DNRED) and their authors were the subject of legal proceedings on the part of the customs administration. COCOM member states were indeed increasingly aware of illegal transfers of sensitive technologies in all areas, especially regarding microelectronics and computer whose military uses, at the time, were only advance France has found unlicensed exports of materials and production technologies of silicon integrated circuits or gallium arsenide organized by a well-known business intelligence for its trading activities of high technology products with countries of the "communist bloc". In 1987, a French equipment under control of the final destination and exported without a license to the former USSR in this industry become "the enemy # 1" in Europe has been intercepted in transit by the Luxembourg customs. The person concerned has been the subject of a lawsuit in Luxembourg in which he claimed that an export ban on the part of a member state of the European Community was contrary to European law, as well as sanctions penal imposed in this case. The Luxembourg Court of Cassation then before the Court of Justice (ECJ) for a preliminary ruling on the case. The European Justice delivered a judgment that the export policy was the responsibility of the European Community, but rarely a member state could prohibit transit goods to internal or external security reasons and to impose proportionate penalties the gravity of the infringement (see Case C-367/89 of 4 actobre 1991). Similarly, from 1984 to 1988, several industrial facilities in organic chemistry, subject to review in Germany by a text called Außenwirtschaftsverordnung (AWV) of 14 May 1984 concerning foreign trade, were exported to Iraq without a license and intercepted by Customs Hamburg. The manufacturers concerned have challenged both the regulations in force and the criminal proceedings against them, which prompted the German court to file a preliminary question to the ECJ which finally delivered a judgment that the export policy was the competence of the European Community but that a member state could exceptionally prohibit or control certain exports for reasons of internal security and extrieure and impose criminal penalties commensurate with the gravity of the infringement (see Case C-83/94 October 17, 1995). Following the mission of the subsequent UN investigation on the use of chemical weapons during the Iran-Iraq war, and given the absence of regulations for the control of chemical and biological products and equipment in many exporting countries The industrialized states, aware of the diversion of their precursors and industrial uses special equipment for the production of chemical warfare, gathered at the Australian Embassy in Paris from 1987 to prepare lists control and form an intergovernmental body they called the Australia Group. At the same time, and following an appeal to the Council of State from a French company against the regulations in force, the budget minister (in charge of customs) implicitly linked the notice to importers and exporters challenged a decree under Article 215 of the Customs Code that it published 24 September 1987. This fragile and provisional legal basis, simply based on control by customs officers in the detention and transport of prohibited goods to under international commitment was instituted pending the finalization of a bill often announced but never presented to the Cabinet. In 1988, many serious cases have been updated. That year, Iran imported Explosives products in France; Iraq procured in England capacitors and spark gaps for the initiation of nuclear weapons; Pakistan is stocked with nuclear weapons production facilities in different Western countries ... etc. The press release of the Ministry of Economy, Finance and Budget, entitled "Customs in 1988 - Activities and results" has reported "58 significant findings in control of the final destination of the material relating sister of a total value of CHF 566 million made in 1988 (about 91 million euros) It wasspecified. "Most of the violations reported (54) consist of false export declarations species to avoid production a license or permit the shipment of supplies to a destination for laqiuelle no authorization to export peurt be issued. The Customs Code shows that a false declaration of nature of species to evade measures of prohibition, ie a fraudulent declaration on the nature of the goods, equivalent to an export without declaration (action contraband). To avoid these kind of false statements, the Directorate General of Customs and Excise initiated at the time the update of the list of products (ex-NDP), where the items were subdivisions of tariff subheadings and statistics of the nomenclature of the Common Customs Tariff to mention the property under the control of the final destination. The work of customs in collaboration with industry service lasted long enough given the large volume of goods to codify and the difficulty of correlating customs codes of goods and codes of goods subject to the final destination control logic which were different.Following an initiative by France, correlation work between the COCOM list and subheadings of the Harmonized Commodity Description and system COCOM took place between officials of the member countries of this international customs authority. The work of integrating the list of codes of products listed at the COCOM in the former NDP eventually lapsed, firstly due to the redesign of the list by a "hard core" of 10 new categories (corresponding the 10 US categories of sensitive goods) and partly due to the melting of the Common Customs Tariff with the European statistical classification (former NIMEXE) pursuant to Regulation No 2658/87 on the tariff nomenclature and Statistics Common Customs Tariff came into force on 1 January 1988. This regulation created an eight-digit Combined Nomenclature (CN) obtained by subdivision by-six-digit Harmonized System of codification and description of goods (HS) and a Community Integrated Tariff (TARIC) to ten figures obtained by subdivision of the CN subheadings to eight digits and intended to take account of specific Community measures. The customs administration was then in the situation where strategic products had lost their specific coding on which were based customs controllers to monitor exports of goods called "strategic goods" The notice to importers and exporters on the control of the final destination of high technology products has undergone a redesign March 5, 1988 following the revision of the COCOM list of 1987. But illegal exports continued despite the vigilance of customs officers were warned of the proliferation of weapons of mass destruction risk by diversion of civilian goods for malicious purposes. In particuler, the National Directorate of Customs Intelligence and Investigation (DNRED) was seized by the DGDDI many investigations following information on the turpitude of certain French companies. In particular, in February 1989, an ion implanter loaded into a truck and exported without a license to the former Soviet Union via Italy was intercepted by customs in Grenoble to prevent him from leaving, and was the subject a complaint from DNRED. But this case has been the subject of procedural incidents and expert battles on the nature of the goods and ultimately did not result in a judgment in favor of the customs. The Customs Administration, under the Ministry of the Budget, lacked legal means to prevent technology leaks allowing malicious state to produce weapons "unconventional". At the time, customs could prosecute that under the Customs Code as a "writ of tax authority" (prescription limited to three years). Moreover, the former DST could prosecute under the Criminal Code (with prescription of ten years), but the qualification of "intelligence with the enemy" in force at the time was intended only for illegal activities carried out in time of war and not for international trade transactions, which was also a questionable legal basis. Despite the wide discretion of the French authorities on their participation in the work of COCOM and their fight against proliferation, French turpitude covered by secrecy defense were denounced and described in detail by an American journalist oddly very knowledgeable, Kenneth Timmerman, in his book "La
grande fauche" published by Plon in 1989. This publication shows that the US authorities were aware of the illegal conduct on the part of many French companies, lobbied France, a founding member of COCOM for it respects its commitments and is stepping up controls on strategic goods and technologies available to it as a great industrial and military power In France, many consecutive business to offenses relating to the "control of the final destination" ended in court by non-place that, even now, can not be revealed. These judicial failures on the part of French authorities have resulted from the lightness of the text, the slow procedures and many legal loopholes arising from the non transposition into French regulation of agreements in intergovernmental bodies dealing with the fight against the proliferation of weapons of mass destruction (nuclear, chemical, biological, and their delivery). Indeed, the lists of the Australia Group, the Nuclear Suppliers Group and Missile Technology Control systems, all created in 1987, were not immediately included in the notice to importers and exporters such as COCOM . Thus, unlike Germany, France was unable to obtain convictions for illegal exports to Libya, Iraq, Pakistan, and others, following the clandestine assistance provided to developing nuclear programs, chemical and ballistic those countries. Many countries have been slow to issue regulations for the control of the means of production of chemical and biological weapons, despite their participation in the Australia Group control of certain chemicals was set by the European Council Regulation No. 428/89 of February 20, 1989 following the international conference on chemical weapons which took place in Paris from 7 to 11 January 1989. Illicit transfers to the former USSR contitué to the point that the embargo against the "communist bloc" had become virtually irrelevant given the profits to be made by unscrupulous intermediaries, to the point that the President of the former USSR, Mikhail Gorbachev would have said at the time that "Western businessmen would be able to sell the rope with which they would hang"
The evolution in the 90s
The fall of the Berlin wall has completely changed the international situation in the fight against proliferation. COCOM reshuffled the list of products covered by a "hard core" of 10 categories according copied the American model, representing the bulk of sensitive goods and technologies. Then Italy lost the presidency of the COCOM to the benefit of the Netherlands. High-level meetings and various committees are longer held in Paris (as was the case forty years). French was abandoinné and English became the sole language of work. Finally, COCOM was dissolved in 1994 and replaced by an intergovernmental organization based in Wassenaar was installed in the Netherlands and its secretariat in Vienna, Austria. The Gulf War and the Libyan threats have led modern country to increase their vigilance over the trade of products of high technologies likely to malicious use. Especially since the supply networks use nuclear equipment for Pakistan and North Korea, well known but never dismantled, represented a threat to international stability; and that nuclear tests and ballistic India, China and Pakistan, showed that developing countries were able to obtain all the material necessary for the development of nuclear weapons despite the existence of controls. At that time, the fight against proliferation of weapons of mass destruction was supervised at the interdepartmental level by the Secretariat of National Defense (NWMO), has now become General Secretariat for Defence and National Security SGDSN). The opening of European borders was completed on 1 January 1993 and the state might not be able to exercise any control over strategic assets. But with the initiative of the former NWMO has recognized this serious drawback from the October 1992 war materials and goods and technology to both civil and military use continued to be the subject to export restrictions under international agreements (informal but real) of "fight against the proliferation of weapons of mass destruction" by presenting an amendment to the Government before the vote and the promulgation of the Law of 31 December 2012 on various administrative and tax provisions. This law, which was a "catch-all" of texts on many different subjects, voted and promulgated emergency on the eve of the liberalization of trade between European states, thus allowed, in extremis, to maintain control over strategic products. Finally, the EU has supported the fight against the proliferation of weapons of mass destruction by issuing Regulation (EC) No 3381/94 of 19 December 1994, based on Article 113 of the European Treaty (political common commercial) "establishing a Community system of export controls of dual-use goods" supplemented by Decision No 94/942 / CFSP of 19 December 1994 under the common foreign and security policy combining the lists of all international monitoring bodies into one list of dual-use goods (BDU). The European Union considered in particular to: - that in achieving the internal market, free movement of goods, including dual-use goods, must be ensured in accordance with the relevant Treaty provisions; that intra-Community trade in certain dual-use goods were subject to controls by Member States; a condition for the lifting of those controls was the implementation by Member States of controls as effective as possible, on the basis of common standards, export of such goods as part of a Community regime export control of dual-use goods; that the removal of these controls would improve the international competitiveness of European industry;
- it was also the aim of this Regulation to subject to effective control on dual-use goods in their exports to the Community;
- an effective control system for the export of dual-use goods on a common basis was also necessary to respect the international commitments of Member States and the European Union, especially regarding non-proliferation;
- as common lists of dual-use items, destinations and guidelines were essential elements of an effective control system;that decisions on the content of these lists are of a strategic nature and fell, therefore, within the jurisdiction of Member States; that these decisions were subject of a joint action under Article J.3 of the Treaty on European Union.
This "cross-pillar system," judged upon its adoption as being transient, was struck by two judgments of the Court of Justice of the European Communities in 1995, following an appeal to a German company, judging that the control should meet only the common commercial policy. The French texts adopted under the EU regulations were as follows: - the Order of 5 May 1995 concerning the export controls to third countries and the transfer to Member States of the European Community of dual-use goods;
- the Order of 5 May 1995 concerning the export control of dual-use goods within the fight against chemical and biological proliferation;
- the decree of 3 August 1995 on the control of export of dual-use industrial of the Community strategic control;
- the decree of 14 June 1996 on the G. 205 general license for the export of nuclear grade graphite;
- the decree of 8 August 1996 on the control of export of dual use items relevant to the fight against nuclear proliferation;
- the Order of 18 July 1997 on the export control of dual-use goods under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their destruction.
But in 1995, upon the election of Jacques Chirac as President of the Republic and the appointment of Alain Juppe as head of the Government, the Prime Minister of the service has undergone a profound reform that has reduced its staff by two thirds.Therefore each ministry had become autonomous to handle the fight against the proliferation of weapons of mass destruction and the action was in fact conducted by the Ministry for Industry, which only had three engineers to review license applications and participate international expert meetings. The disinterest of France with regard to the COCOM consecutive to the collapse of the Soviet Union after the fall of the Berlin Wall has led to a loss of vigilance on illegal trafficking of civilian property could another use , terrorist or military. This is when the European Union has recognized the need for joint action eu and security and the list of dual-use goods has been updated by the European Council Decision 1999/193 / CFSP March 9, 1999. This system was valid for honest businesses properly declaring their goods in their export licenses, but it remained a"Maginot line" not preventing the illicit supply of components of weapons of mass destruction by false declaration of species, due to the absence of a codification of strategic products necessary for the work of supervision by customs inspectors.
The control of "dual use goods" in the 2000s
A new control system based exclusively on the "first pillar" of the European Union was adopted by the publication of Regulation No 1334/2000 of 22 June 2000 pursuant to Article 115 of the Treaty. The list of dual-use items (including software and technology) was then published in Annex 1 to this regulation, rather than be subject, as before, a separate decision in the context of foreign policy and Common security policy (CFSP). The French text made under the EU regulation was the order of the Minister of Economy and Finance of 13 December 2001, signed by General Director of Customs and Indirect Taxes who was responsible for the implementation of the new provisions material BDU. Following the attacks of 11 September 2001 in New York and subsequent terrorist threats to the events in Iraq and Afghanistan, the European Union expressed concern about the risk of mass destruction from terrorists organistaions at two meetings of the European Council in July and December 2003 and the United Nations Security Council called for tighter controls on dual-use goods under resolution No. 1540/2004 of 28 April 2004. This resolution has led the European Union to issue regulations establishing restrictive measures against Iran (423/2007) and North Korea (1110/2008) under the common foreign and security policy. The Security Council was forced to renew that resolution in 2008 was because the 2004 was not followed with regard to dual-use goods. This action UN eventually translated, at European level, an overhaul of the basic Regulation on dual-use goods by Regulation No 428/2009 entered into force August 27, 2009. For the effective implementation of these regulations by European customs administrations, the European Commission has included in the database of the Community Integrated Tariff (TARIC) sections and paragraphs of goods subject to restrictive measures under lists the fight against proliferation. In 2006 she published a correlation list between TARIC subheadings to 10 digits and the articles and paragraphs of the list of dual-use goods, which was taken in the computer systems of operational customs declaration in countries European (DELTA in France) In fact, there was a correlation between the Combined Nomenclature to 8 digits and the list of dual-use goods since the last two digits were 00. This list, which was vaguely updated in July 2012, was wearing not on all subheadings of the Combined Nomenclature contains sensitive goods. Conversely, it was framed in specific goods subheadings covering a multitude of goods with no strategic character. Moreover, this correlation list included numerous classification errors. All this has led to numerous bottlenecks in customs-free goods for export and has been in practice an obstacle to European exports and an encouragement to illegal transfers of dual-use goods. For sixty years, control of the final destination and subsequently that of dual-use goods (BDU) were managed by the Customs Administration. License applications were sent to the service of business and financial authorizations (former Safico), then called service of the securities of foreign trade (ex-SETICE) which depended on interregional customs directorate of Ile de France. These licenses were issued after consultation with the Ministry of Industry who consulted, where appropriate, relevant ministries (interior, defense, foreign affairs ...). The differences of opinion between ministries were mediated at the level of the Prime Minister's Services. Decree No. 37 of 17 January 2009, in its initial version, ended the central role of the customs control of goods creating a dual-purpose mission under the authority of a chief engineer of the armament . This mission was composed of the SETICE customs personnel and several engineers recruited by the former Directorate General of Competitiveness, Industry and Services (formerly DGCIS) of the Ministry for Industry, now become the general direction Business (DGE) for the processing of license applications and participation in interdepartmental and international meetings. This was a temporary stage in the 2010 reform. The provisions against proliferation of weapons of mass destruction were the subject of a complete overhaul by the publication of Regulation No 428/2009 of 5 May 2009 "establishing a Community system of export controls, transfers ., brokering and transit of dual-use goods "This text in force in any European kl'Union is fed by two major recitals indicating its legal basis (recitals Nos 14 and 15):
The introductory recital 14
It refers to "action plan Thesalonique" adopted at the European Council in June 2003, supplemented by the "WMD Strategy of the European Union" then passed at a new European Council of December 2003. (14) The Heads of State or Government of the European Union adopted in June 2003 an action plan on non-proliferation of weapons of mass destruction (hereinafter referred to as the "Thessaloniki Agenda "). This was complemented by the EU Strategy against Proliferation of WMD adopted by the European Council December 12, 2003 (hereinafter referred to as "WMD strategy of the European Union"). In accordance with Chapter III of this strategy, the European Union must use all the instruments at its disposal to prevent - especially through deterrence - to halt and, where possible, eliminate proliferation programs, which are a cause for concern at World. Point 30. A) 4) of that chapter specifically addresses the need to strengthen policies and practices on export control. |
The
introductory recital No 15
He recalled that the United Nations Security Council, by Resolution No. 1540 (2004) of 28 April 2004, inviét states to establish domestic controls to prevent the proliferation of nuclear, chemical or biological or their vectors. (15) In its Resolution 1540 (2004) adopted on 28 April 2004, the United Nations Security Council decided that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall, among others, establish transit control devices and brokerage. Related materials are materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the purpose of designing, developing, manufacturing or the use of nuclear, chemical or biological weapons or their delivery systems. |
The Proliferation
Initiative Security (PSI)
At the beginning of 2000, fearing an even more murderous attack than the September 11, 2001 in New York from terrorist organizations and knowing the real risks of proliferation of weapons of mass destruction (nuclear, chemical, biological and ballistic) the US announced in May 2003 the creation of a Proliferation
Initiative Security
(acronym PSI) whose 11 founding states were Germany, Australia, Spain, the United States, France, Italy, Japan, the Netherlands, Poland, Portugal and the UK. The PSI was created during a check for non-compliance with the rules of maritime law, for the Spanish Navy December 10, 2002, a North Korean ship en route to Yemen, which hid under a false cargo 15 complete SCUD missiles, 15 warheads "conventional" explosive and oxidant for these missiles. At their first plenary meeting held in Paris on 3 and 4 September 2003, the 11 founding states of PSI issued a "Statement of Interdiction Principles" containing concrete goals for air traffic control, maritime and Terrestrial high technology products by a cooperation means and the implementation of coercive means. Subsequently, many other states have joined this initiative and 21 of them have formed a working group of experts (English acronym OEG) constituting the PSI pregnant coordination and meeting each year to set objectives according to the "Paris Principles" based on the information and means that each participant could provide. Currently, one hundred countries have joined the PSI and can be called to cooperate to prevent illegal trafficking of goods mainly in the lists of inter-governmental bodies in the fight against proliferation. The Foreign Ministry has officially know the existence of this international cooperation in the following manner in its website http://www.diplomatie.gouv.fr: Challenges The Security Initiative against Proliferation (PSI) aims to fight against illegal transport of weapons of mass destruction, their delivery systems and related materials, whose proliferation is described as a threat to peace and international security through the United Nations Security Council (resolution 2004/1540). It aims to strengthen operational cooperation among the participating States to stop the proliferation flows by sea, in the air and on land. The PSI is not an organization but an international initiative, which is characterized by its flexibility (strictly voluntary participation and lack of permanent structure) and pragmatism (meeting between experts and professionals). It does not replace the existing instruments against proliferation (treaties and regimes suppliers) but relies on these and complements through operational measures. It is in compliance with national laws and rules of international law, particularly those emanating from the UN Security Council or the International Convention on the Law of the Sea (Montego Bay 1982). The Initiative is open to all countries willing to fight against the proliferation of weapons of mass destruction, and have the will to cooperate to end the transfers of property that can be used in the manufacture of such weapons. At the end of 2012, 102 countries supported this initiative and voluntarily adhered to its objectives, developed in Paris in 2003 (called "Paris Principles"). The 21 countries most involved in their implementation form the Group of operational experts (OEG). The commitment of France France is involved from the beginning to the PSI. It hosted the 3rd plenary meeting on 3 and 4 September 2003, at which the participating States agreed to the Declaration on Interdiction Principles (called "Paris Principles") which sets the objectives of the Initiative and the commitments of States to achieve it. She also hosted in September 2008 a new meeting of OEG which was the occasion of significant advances, notably by intensifying exchanges between partners on concrete cases. Special emphasis was also placed on educating new countries and the area of transport operators. In addition, France has planned the organization of several multinational exercises maritime interception (2003 Basil Mediterranean and GUISTIR 2008 in the Gulf of Aden) and air (ASPE HADES 2004 and 2006 in France). She regularly participates in exercises organized by its partners (Leading Edge; Eastern Endeavor). In the future, the strengthening of PSI involves both expand the initiative to new partners and complement the tools available to all States to counter proliferation flows. |
From an operational standpoint, the PSI allowed the participants to conduct many operations that have proven successful, that is to say who actually interrupted trafficking of materials proliferating and illicit goods or equipment.
Reinforcing controls from 2010
France has strengthened its legal system by publication in the Official Gazette of 20 March 2010 a series of decrees and arrétés changing the organization of controls (Last updated: April 1, 2010). The main text is the Decree No. 2010-292 of 18 March 2010 concerning the export licensing procedures, transfer, brokering and transit of dual-use goods and with transfer of powers from the Directorate General of Customs to the Directorate General of Competitiveness, Industry and Services (DGCIS), now become the Directorate General for Enterprise (DGE). The decree of 13 December 2001 on the management of dual use items has been amended by the Decree of 18 March 2010. After a year of operation, the dual-use goods control mission to the former DGCIS has become the dual-use service (SBDU) to strengthened workforce. Created by order of 18 March 2010, the dual-use goods department was responsible for:
- to implement, under the conditions laid down in Article 3, the regulation on the control of exports, transfer, brokering and transit of dual-use goods and technologies, including instructing requests authorizations, certificates and classification as well as perform the related notifications;
- to contribute its expertise to the interdepartmental coordination of work on dual-use goods and technologies, and provides, in this respect, the secretariat of the Interministerial Committee on dual-use goods;
- maintain relations with foreign organs export control of goods and dual-use technologies and with the European Commission, for the purposes of Regulations (EC) of the aforementioned Council;
- to be associated with the preparation and conduct of European and international negotiations on the control of exports of dual-use goods and technologies;
- develop expertise and a prospective analysis of dual-use goods and technologies, in consultation with the ministries concerned;
- driving information and awareness of companies, related ministries
Furthermore, it was established an interdepartmental commission of dual-use goods (CIBDU) to the Minister of Foreign and European Affairs by decree 2010-294 of 18 March 2010. This Committee provides advice on all matters relating to export, transfer, brokering and transit of dual-use goods and technologies, particularly in matters of classification and regulation; to adjudicate on the application of Article 4 of Regulation No 428/2009 to prohibit or impose license of goods not listed on checklists etc ... Finally, the French criminal legislation has been clarified. Article 706-167 of the Code of Criminal Procedure, created by Act No. 2011-266 of 14 March 2011, has indeed listed the offenses punished by the code of defense, the Customs Code and the Penal Code of proliferation of weapons of mass destruction, namely:
- offenses relating to materials and nuclear weapons and related goods to nuclear material under 1 ° and 2 ° of I of Article L. 1333-9 and Articles L. 1333-1311, L. 1333-13-1 to L. 1333-13-6 and L. 1333-1 4 of the Defence Code;
- biological weapons offenses or toxin-based laid down in Articles L. 2341-1, L. 2341-2, L. 2341-4 and L. 2341-5 the same code;
- the weapons offenses and chemical products provided by Articles L. 2342-57 to L. 2342-61 of the same code;
- offenses related to the proliferation of weapons of mass destruction vectors provided by Articles L. 2339-14 to L.2339-16 of the same code;
- smuggling offenses, import or export referred to in second and last paragraphs of Article 414 of the Customs Code, when they relate to dual-use, civilian and military;
- delivery of information to a foreign power offenses under articles 411-6 to 411-8 of the Criminal Code when the offenses are related to the offenses referred to in 1 to 5 of this Article;
- the offense of participation in a criminal association provided for in Article 450-1 of the Criminal Code when it is intended to prepare one of the above offenses.
The lists of goods subject to export restrictions measures to certain countries (Iran, North Korea ...) have been continuously updated since 2010 depending on the international situation and of resolutions United Nations. As for Annex I to Regulation No 428/2009 concerning the list of dual-use goods, it was revised by Regulation No 388/2012 of 19 April 2012. It is still being reviewed by following the updates date lists of international bodies carried out since 2012; the new list of BDU now soon be published.
The threat of dictatorships and terrorist organizations
The risks of proliferation of weapons of mass destruction are increasing. A threat of destruction by fire was clearly expressed by the President of the Democratic People's Republic of Korea (North Korea). This state has managed for a long time to clandestinely procure production equipment and technology of nuclear weapons and ballistic missiles by purchasing dual-use goods in Western countries. This country has benefited from the existence of networks organized by a Pakistani scientist well known in the past of all the intelligence agencies and the specialist press. They have never been dismantled.Any other totalitarian state could well threaten us with mass destruction. The US may have been wrong to go to war against Iraq to remove Saddam Husseim, and France may have erred in attacking Libya to neutralize that of Muammar Gaddafi, but these two dictators had a real desire to acquire weapons "unconventional". The plant in Rabta in Libya and that of Fallujah in Iraq (dismantled under the supervision of the United Nations after the Second Gulf War) were well chemical weapons production units built by engineering and 'European equipment. The presence of weapons of mass destruction in Iraq (nuclear and biological) was certainly a pretext by the US to go to war again against Iraq, but we must remember that before invading Kuwait Saddam Hussein had boasted to journalists around the world have managed to procure spark gaps required for manufacturing detonators for nuclear weapons. He did not hesitate to be filmed showing a Kryton, bought in England, which he held in his hand. Houssama killing bin Laden, considered the instigator of the suicide attack of 11 September 2001 against the World Trade Center in New York, did not remove the problem of terrorism in the world. Terrorist actions have only increased over the first two decades of the XXI century. Either by shootings to kalashnikof or by car bombs or suicide attacks by the explosive belt ... etc. Almost every week we hear on the radio or on television that an explosion caused somewhere tens or hundreds of deaths and injuries. Moreover, the use of roadside bombs is unfortunately became common. Just do a mixture of fuels and oxidizers and fill in an empty gas bottle or a household pressure cooker (bomb the casserole). This happens not only in the Middle-East where this kind of attack is common, but also in England, Spain, the United States (Boston Marathon).Particularly murderous attacks were committed using a nitrate mixture of ammonium and fuel oil (ANFO) in Northern Ireland. More recently, in 2011 in Oslo, a Norwegian extreme right individual has committed a massacre in Oslo by detonating a truck loaded with ANFO obtained from several bags of agricultural fertilizer killing at least 10 people, before killing fifty teenagers gathered on a small nearby island for a long shootout. The risk of bomb attacks is increasing as revenue homemade bombs and firing systems are disclosed on the Internet by terrorist movements; they are often encrypted and transmitted through social networks. For several years of threats from terrorist organizations have developed as a result of the dismantling of the Libyan state, Iraq and Afghanistan, and civil war in Syria that has continued to fester. Invasions Islamist movements in black Africa necessitated French ground and air operations. The territorial growth of the Islamic state in the middle east (now DAESH) required air strikes in Iraq and Syria on the part of great powers. France wanted to limit themselves to bombing Iraq, but was eventually forced to neutralize radical Islamic training camps for reasons of "self-defense". The crimes against humanity committed by this terrorist movement was a major pretext for military intervention on the part of Russia to support the Syrian political regime in power. We must therefore fear that the escalating violence will lead to a major attack in the United States, Europe, North Africa, the Middle East, and elsewhere, by means of mass destruction "unconventional". To prevent all these cal, Law No. 2015-912 of 24 July 2015 concerning the information allowed the various French specialty services to use surveillance techniques by adding an eighth book of the Code of Homeland Security, whose title indicates V the means and Article L 811-3 of the objectives to be pursued: "Art. L. 811-3. To-alone performance of their respective duties, specialist intelligence services may use techniques covered by Title V of this book to the collection of information concerning the defense and promotion of the interests fundamentals of Nation follows: - National independence, territorial integrity and national defense;
- The major interests in foreign policy, enforcement of European and international commitments of France and prevention of all forms of foreign interference;
- Economic interests, major industrial and scientific of France;
- The prevention of terrorism;
- Prevention :
a) attacks on the republican form of the institutions; b) action aimed at maintaining or reconstituting groups dissolved under Article L. 212-1 of; c) collective violence likely to cause serious harm to the public peace; d) The prevention of crime and organized crime; - The prevention of proliferation of weapons of mass destruction. "
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Weapons of mass destruction
The notion of mass destruction in the regulation of dual-use goods
Having regard to Resolution 1740 (2004) of the UN Security Council, and on the other hand saw the introductory preamble to Regulation No 428/2009 modified the European Council cited above, and Articles and Annex I, WMD are exclusively nuclear, chemical, biological, and their delivery systems. Unlike the US regulation that adds Use Goods malicious purposes to lists drawn up by intergovernmental bodies, the European regulation is not intended for civilian use goods which could be diverted for terrorist purposes. The attacks of recent decades mentioned above have certainly produced some very important human damage, but the number of victims was limited to a few hundred dead and wounded. For mass destruction, means of destruction equivalent to those of the first world war resulting from continued firing of conventional and chemical shells sent by artillery batteries; or devastation during the Second World War where whole towns were destroyed and tens of thousands were killed by German bomber raids in France, England, Poland, Russia and elsewhere; as well as raids by Japanese and American bombers in the Far East, and American bombers and English in France and Germany. True mass destruction had taken place towards the end of the war when the Germans sent to England thousands of unmanned bombers (V 1), which were the first cruise missiles; then thousands guided rockets by inertial means (V 2). These bombings have caused massive damage on English cities. The worst occurred in 1945 with the dropping of nuclear bombs on Hiroshima and Nagasaki that caused immediately tens of thousands of deaths by the fireball, gamma radiation, shock wave and blast; and probably hundreds of thousands in the long run by burns and diseases produced by radioactivity. Populations frustrations continued in the multiple local conflicts in Vietnam, where US warplanes dumped thousands of tons of conventional bombs, and incendaires défoliantes; the Iran-Iraq front in two belligerents have used mustard gas as much as those of the First World War; Iraqi Kurdistan where the inhabitants of an entire valley were eliminated by poison gas; in Afghanistan; Syria etc ... Annex I listing the dual-use goods was changed again by the Delegated Regulation (EU) No 1382/2014 of the Commission of 22 October 2014, with effect from 31 December 2014. This list corresponds to the " related items "to these weapons of mass destruction introductory cited in recital No 15 of Regulation No 428/209 modified.
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Nuclear weapons
The Hiroshima bomb was dropped by four-engine B29 bomber flying at high altitude and produced an explosion with a power of about 20 kilotons of trinitotoluène (TNT), ie power equivalent to that the explosion of 700 mega-trucks each loaded 30 tons of TNT. That of Nagasaki, the same power, but different design and yet very heavy, was also dropped at high altitude for the aircraft to move rapidly away from the explosion site. Current bombs are thermonuclear weapons more powerful but the size and weight can be equivalent to those of a shell. However, having never realized nuclear tests, "proliferating states" or large terrorist organizations can not in any case have miniaturized nuclear weapons and may be washed away by a civil aircraft whose speed, altitude and load capacity are limited, or even by a SCUD missile. However, one can always worry carriage by sea container or truck of a nuclear device from 10 to 30 tons be stationed near a big city before exploding To do so would require the state or terrorist organization can procure a few kilograms of plutonium 239 (and very pure metal) of the steel to very high mechanical strength, special machine tools, priming explosives, tungsten carbide, beryllium, a neutron source, electronic synchronized ignition, electric spark ... etc. It seems unthinkable, but there may be a real attacker will obtain all these components smuggled in our European countries to realize a nuclear attack.
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Chemical weapons
The chemical weapon is terrifying but it is much less effective than nuclear weapons because it requires sending thousands of bombs or shells into an urban area for mass destruction equivalent to those of a nuclear weapon. Mustard gas was used extensively during the First World War and the Iran / Iraq conflict. This toxic war is quite easy to manufacture by a state that has corrosion resistant equipment to the hydrogen chloride (HCl). Used in the liquid state but very volatile, it can be taken away by aircraft able to carry hundreds of liters, and be spilled like a spreading of agricultural pesticides, if the pilot is able to protect against toxicity of this "poison gas". The neurotoxic products, such as sarin, soman, which require smaller amounts away, are much more deadly, but they present a greater hazard for the pilot if they were spread by air. In addition, they are very difficult to manufacture because of their instability in time. UN inspections (UNSCOM) made during the 90 years have indeed shown that Iraq had implemented German manufacturing processes from the years 40 and sarin contained in the shell stocks dating back several years was completely decomposed. This risk may be unlikely, but it is not zero Paragraph 9A350 on the list of dual-use goods and aims spraying or fogging systems, specially designed or modified for fitting to aircraft, lighter than air vehicles or unmanned aerial vehicles, and components specially designed; ie aerosol generating units capable of very fine droplets High volume from liquid products. In other words, the spray booms fixed in helicopters or crop spraying aircraft type Piper PA-25, and provided with a dozen AU5000 and AU7000 atomizers Micronair may be prohibited or subject to authorization in 'export.
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Biological weapons
The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin up for signature by the United Nations 10 April 1972 entered into force in 1975. It currently has 163 States Parties. The Convention prohibits the development, production, stockpiling and transfer of biological weapons, and requires its members the destruction of any stocks or peaceful use of these. It does not directly prohibit the use of "biological weapons", but refers to the Geneva Protocol in 1925 makes this binding ban under international law. Some non-signatories to the convention have sought country (or seek) to realize what kind of weapon trying to massively produce pathogenic microorganisms to extract the corresponding toxins. Toxins are non-living products, ultra-toxic, secreted by these pathogens; these biobased chemicals do not have the drawback to reproduce, multiply and so cause uncontrollable pandemics, as could their pathogens producers. The manufacturing technologies are the same as those manufacturing vaccines that require manipulation under suits of pathogens in laboratories P4 very high protection, equipped with specially adapted equipment, also subject to control as dual-use goods.
The
lounchers of mass destruction weapons
- "Missiles"
Regarding
ballistic rockets scud A, derived from German V2, and produced in the
50s by the former USSR under the name of SS-1b, their payload was of
several hundred kilograms with a range of 130 km.
The
Scud B (SS-1c), with a payload of 1000 kg, with a range of 300 km and
a 900 précisison my then produced in the former USSR in thousands of
copies, and then he been copied under different names in many
countries and massively used by the two sides during the Iran / Iraq
war, taking particular mustard gas or sarin.
Later
versions of this ballistic missile have been improved. Indeed,
the Scud C and D, which have been widely spread, now have payloads of
more than one tonne, a range of several hundred kilometers with
respective accuracies of 900 m and 50 m.
As
for the newer missiles produced by the major nuclear powers, they
have long been an intercontinental range and can issue multiple loads
at accuracies of around one meter.
Information
on missile guidance was provided in the latest version of the
Militarily Critical Technology List (MCTL) published in 1998 by the
US Department of Defence. For
example, regarding inertial navigation systems, US military
authorities explain this:
An inertial navigation system (INS) is a self-contained,
covert navigation system That Provides continuous Estimates of
Some or all components of a vehicle state, Such As position,
velocity, acceleration, attitude, angular rate, and Often
guidance or steering inputs.
The INS is made from a
navigation computer and a set of gyroscopes and accelerometers,
inertial sensors Generally called Expired That measure in
Newton's inertial axes. Gyroscopes
measure angular rotation or spleen, and accelerometers measure
acceleration. Integrating
the output from an accelerometer Gives speed,
and speedIntegrating Gives
Traveled distance. The gyroscopes Provide information
is Where the accelerations are directed, and heading and distance
The Therefore, the essential ingredients for dead reckoning, are
Known.
The inertial sensors might be mounted in a set of gimbals so
That They (1) stay in a fixed level management no matter how the
vehicle moves, ie, space INS steady; or (2) remains
parallel to the reference ellipsoid, ie, a local INS level.Both
of These are called Expired a gimbaled system. As
alternative an, the inertial sensors might be attached to the
vehicle, in case qui They measure icts motion components in the
vehicle axes by transforming the measurements from the vehicle
axis to the reference axis. This is called Expired a
strapdown system.
Inertial measurement equipment includes the inertial
navigation unit, inertial measurement unit, inertial reference
unit, inertial sensor assembly, or inertial sensor unit are
subassemblies of an inertial navigation system; a
self-contained, covert system That Provides continuous Estimates
of Some or all components of a vehicle state, Such As position,
velocity, acceleration, attitude, angular rate, and guidance
Often gold steering inputs. It aussi includes an
Attitude Heading Reference System (AHRS) or gyrocompass That
Provides magnetic heading and attitude, goal Does not Provide a
full navigation solution. An AHRS gold gyrocompass
May Provide velocity, angular rate, acceleration and data in
addition to attitude and heading. This system May be
combined into hybrid systems to Complete the navigation function.
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Thus
components, accessories and missile guidance systems fall under the
regulation of dual-use goods. These
are listed in the attached appendix to this report reproduces the
relevant paragraphs of Chapters 7 and 9 of the list of dual-use
goods.
The
same guiding technologies can be used for "drones."
Indeed, the general definition of 'missile' given by the Wassenaar
Arrangement, and included in the list of dual-use
goods, integrates s "aerial vehicle
systems without crew, whose scope is at
least equal to 300 km and capable of carrying a payload of
500 kg. "Paragraph 9A110 to the
transposition of the definition of MTCR again shows the same minimum
range of 300 km, but specifies no payload threshold.
A
European Parliament document from 2007 entitled "UAVs
and UCAVs: Developments in the European Union", an
excerpt of which is reproduced below, provides an update on these
devices and distinguishes the bearers of a bomb UCAVs and UAVs used
mainly observation:
2.3
UCAV
A
UCAV is a sub-category of UAVs. Basically
it is nothing more than an armed UAV. The
border entre UAV and UCAV is a thin and gray one. Generally,
all UAVs-have an inherent capacity battle - one just HAS to
replace a non-deadly payload with a deadly one. The
US Predator Was modified from a reconnaissance UAV to a UCAV
simply by Adding Hellfire missiles.
UCAVs-have
Evolved, experimentally, When normal aircraft-have been modified
to operate without a pilot. Iraq
is Reported to-have modified L-29 Trainer aircraft into
remote-controlled weapon chemical sprayers.
The
term UCAV, HOWEVER, is Generally used for a high-performance
vehicle capable of high speed, long range and heavy weapon load -
more or less the equivalent of a manned ground-attack aircraft
bomber gold. The
armed Predator, The Therefore, would not really count as a UCAV,
while the L-29 Iraqi modification Would Be a borderline case.
The
first successful use of armed UAVs in operations battle Was the
attacks the carried out by the US against 'terrorist' targets in
Yemen and Afghanistan in 2002 and 2003. These attacks Were the
carried out with Predator (MQ-9) 8 modified to carry
reconnaissance UAVs one or two Hellfire missiles9. The
use of armed UAVs resulted from the failure of the US to 'take
out' terrorists, and specifically Osama bin Laden, with cruise
missiles. While
the cruise missiles Worked more or less as advertised, the time
lag entre Identifying a target mobile Such As bin Laden and the
actual impact of the missiles Was too great.
Ruling
out the use of manned reconnaissance and attack systems, the only
solution to combine Was the detection and monitoring capabilities
of a UAV with a weapon. This
Could Either be done by relaying data to a monitoring platform
carrying weapons or weapons by Adding to the monitoring
system. The
first option HAS-been already used by Israel in action contre
targets in Gaza and Lebanon: Would patrol UAVs and manned
aircraft and targets Identify Would fire stand-off guided
missiles to attack the target. Since
the platform (usually an aircraft) carrying the missile away from
further Top Was the target than the UAV, There still has Remained
gap entre target identification and the missile hitting. It
aussi Meant That Would Have a manned platform to be Within Range
of the missile target.
The
US, HOWEVER, thing to arm the UAV Itself, thereby closing the gap
further Top entre target identification and a missile hitting it,
providing good and the option to do all this from a distance of
up to several hundred kilometers. Adapting
a wide Rather UAV, Such As the Predator, to carry a light
armament About did not Prove difficulties too. The
Predator Was modified, tested and Brought into Action Within
months. It
gave the US new options to Identify and attack time-sensitive
targets without risk to manned aircraft Having over 'enemy'
territory or airspace in politically sensitive. The
armed Predator Proved so successful Was That a new version of
Almost at once ordered. This
much improved version - Predator-B (MQ-9B) - is now being white
Acquired capable of carrying up to 450 kg of bombs or missiles as
well as air-to-air missiles to defend Itself contre
interception. This
new Predator HAS year of endurance Almost two days.
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The
drivers of these "flying bombs" must guide their machines
in all weather, correct their speed, make changes of direction in
case of a threat to enemy territory, to control their height above
terrain etc ...
The
radio remote control requires sophisticated encryption means flight
data, and transmission impossible to be detected (for example, by
spread spectrum technology), so that neither the equipment nor the
pilot are localized by the adversary . Also,
before transmitting their data to the pilot on the ground floor, so
that it can check the path of their UCAV or change, they must
identify themselves automatically in the airspace by coordinating
more means posittionnement.
To
refine the precision air strike, inertial navigation systems must be
combined with speed corrections to reference attitude controls
triangulation to three stars as reference using gyro-astro compasses,
to tracking magnetic north by magnetometers, to positioning followed
by differential GPS (positioning itself relative a stationary point
such as a helicopter) associated with the mapping of the field in
three dimensions, in coordination by ultra clocks precise ... etc.
UCAVs
must be stealth (using special paints), flying at very low altitude
and follow the terrain. They
must be able to suddenly change altitude or direction at very short
radii to avoid enemy fighters that can not turn or change altitude as
quickly, causing accelerations of 10-20 times that of gravity or
more, causing the mechanical parts and electronics to resist
deformation and compression, and the wings to resist breakage.
UCAVs
can be autonomous (flying without the aid of a fallen pilot) and
preprogrammed but unlike ballistic missiles whose trajectory deviates
little these flying bombs continuously deviate from their trajectory
undergoing weathering and must correct it immediately their board
computer manage data from their sensors. This
is called cruise missiles whose design is perfectly sophisticated.
- "Aircraft"
It
is piloted aircraft and helicopters. Aleppo
city in entire neighborhoods were seen recently on TV helicopters of
the Syrian army destroyed by bombing vertically with immobilized
helicopters hovering a few hundred meters. It
includes the control of exports of all helicopters in the decree of
31 July 2014 pursuant to Regulation No 428/2009 as amended, for
reasons of vector control proliferation of weapons of mass
destruction, because the explosive charges can chemical and also be
registered accurately.
However,
except in cases of use of suicide aircraft with a steering assistance
by navigation systems under the regulation of dual-use goods, or
hijacking of agricultural pesticide spraying, the export ban civilian
aircraft by the "catch-all clause" is not justified.
Normal
planes are not designed to drop a load of tens or hundreds of
kilograms dive on a specific target as were the single-engine dive
bombers during the Second World War (Stukas alllemands, American
AT6, Japanese Zeros. ...). These older aircraft bomb
disposal failover systems to avoid it hits the propeller upon its
release and had shields to prevent small arms fire at low altitude.
They
were also very robust to withstand the very high acceleration
weighing on the structure and on the wings going up sharply to
regain altitude, but they are very fast become
obsolete because they were slower and less manoeuvrable hunters that
eliminated them, especially since, at the end of the war,
appeared jet fighters capable of removing any propeller plane.
The
restrictive export measures with respect to WTO rules and WCO
By
their ambivalent nature, dual-use goods firstly fall under commercial
law. Indeed, their initial use is presupposed civil. Therefore
we consider the control of these assets as falling into one of
international trade rules. However, because of security and
strategic risks they represent a departure from these principles is
possible, when it is simply not expected.
- The
World Trade Organization (WTO) is an international
organization of which France is a member since its inception on 1
January 1995, alongside 159 other States. The WTO aims to
govern international trade between countries. Its main purpose
is to encourage open trade by reducing barriers to free trade. The
WTO is part indeed a continuation of the General Agreement was
Tariffs and Trade (GATT), which, in 1948, laid the foundations of
international economic law with the aim to reduce restrictions on
international trade.
- Tthe
World Customs Organization (WCO), which has 179 members,
advocates open markets and facilitating international trade through
international standards and cooperation between customs
administrations. The WCO ensures effect of the technical
realization of the overall objectives of the WTO through a normative
and logistical harmonization work. But it also identifies the
strengthening of the security of international supply chains as a
vehicle for facilitating such exchanges. Or more security
thereof induces increased control and, by extension, restrictions on
certain streams.
And
control and restrictions on the export of dual-use goods seem to fit
in contradiction with the fundamental principles of international
economic law. However, these agreements have provided for
derogations for certain categories of goods.The trade of cultural
goods, weapons or dual-use goods are all categories that are subject
to controls that can represent a barrier to international trade. The
GATT provides this possibility by derogations, in Articles XX and
XXI, for Member States wishing to evade the free trade principles.
However,
these exemptions are subject to conditions. Thus, they should
not be applied "in a manner that constitutes arbitrary
or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international
trade" Furthermore, the scope of these
exceptions is set.: protection of health and life of
humans, animals, export of gold or money (Article XX) or even
security (Article XXI). It is this derogation that founded the
legal principles of international control of dual use goods:
Nothing in this Agreement shall be construed:
b) prevent a Party from taking any actions that it considers
necessary for the protection of the essential interests of its
security:
i) relating to fissionable materials or the materials from
which they are derived;
ii) relating to
the trafficking of arms, munitions and war material and to such
traffic in other goods and materials directly or indirectly for
the purpose of supplying a military establishment;
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So
Article XXI b) ii) establishes the legal basis of dual-use goods
control by allowing all WTO members to exercise control at variance
with fundamental principles of free trade on goods destined directly
but also indirectly for military purposes.So controlling these
exports is not a real departure from free trade principles but a
necessary adjustment to strategic imperatives. While free trade
is one of the central principles of international relations, it does
not constitute the keystone.Security interests, strategic and defense
of states but also of the international community take precedence
over outright free movement of goods. Moreover, as will be seen
later, the strict ban on exports remains the exception in the control
of dual use goods. Thus, these flows are not prohibited but
supervised and controlled, so it's not a total exception to free
trade principles in breach of commercial and industrial issues but a
frame for international security imperative reasons including the UN,
in particular, defined the contours.
The
UN and the general framework of control of dual-use goods
If
commercial legal principles which raises the control of dual-use
items have been addressed, it is now to consider the second dimension
of these goods and the safety aspect of their control. Thus, the
United Nations (UN) wanted to lay the foundations of the security
aspect of this
control. Indeed, the peacekeeping and international security is a
mission of the Security Council, of which France is a member Standing
since its creation in 1945, following the conference in San
Francisco. The decisions taken by the Security Council must be
accepted and applied by the Member States (Article 25 of the UN
Charter), which makes them valuable tools for harmonization with UN
eyes. This is particularly the Chapter VII of the UN Charter and
Resolution 1540 of April 28, 2004, decision by the Security Council,
which agreed to establish a control of dual use goods
globally. However it appears that the general system of control
is not necessarily the most effective framework for action.
Check
for security reasons the export of dual-use goods falls a diplomatic
and political will of States expressed through the Security Council
and the UN. Chapter VII of the UN Charter, entitled
"Action with respect to threats against peace, breaches of peace
and acts of aggression", provides in Article 39 that if
the board finds the " existence of a threat against
peace, breach of peace or act of aggression ", it may decide"
what measures shall be taken in accordance with Articles 41 and 42,
to maintain or restore international peace and security ". Thus,
Article 41 provides for measures not involving the use of force may
be taken by the Security Council. These measures may be to
invite Member States to "complete or
partial interruption of economic relations' with the State
targeted by sanctions, that is to say embargoes. Therefore
States can be brought on the decision of the Security Council, to
monitor banned exports of sensitive goods, such as dual-use goods to
destinations so-called risk.
The
United identify countries deemed at risk and decide to control
exports of sensitive goods to these countries under embargoes. The
example of Security Council resolutions against Iran since 2006
illustrates the use made by the UN Article 41 Chapter VII of the
Charter to control these goods. And resolution 1737 (2006) 9
prohibits the "supply, sale or transfer, directly or
indirectly [...] of all items, materials, equipment, goods and
technology [...] that could contribute to enrichment-related
activities, reprocessing or heavy water or the development of nuclear
weapon delivery systems. " This commitment was later
reaffirmed by resolution 1803 (2008) which complements Resolution
1737 by placing embargo on dual-use goods listed by a circular
(updated in 2010) to which section 13 of resolution 1803 made
reference. The Security Council has considered necessary to
strictly control trade in dual-use goods in the same way as
conventional weapons. Resolution 1929 (2010) has recently come
to expand this arsenal by adding restrictions to dual-use technology
transfers in sensitive sectors, the provision of financial
services, "including insurance and reinsurance," or
transfer "of any financial or other assets or economic
resources [which] could contribute to nuclear activities in
Iran." Moreover, the resolution establishes strict
control of goods listed in resolutions 1737 and 1803 by authorizing,
in Article 16, Member States to seize and carry out neutralization
during inspections, they, under national legislation (Article
14). Lately, this control has been questioned, although
maintained in the negotiations over Iran's nuclear.If France seemed
very reluctant to easing this check, it appeared that these sanctions
were potentially questionable, especially for the United
States. Indeed, the last meeting in March 2015 in Lausanne
foreshadowed a breakthrough on the lifting of sanctions.
Thus,
through these resolutions and the example of the Iranian embargo, it
appears that the international control of dual-use items first notes
of a political and security will and applies primarily to targeted
areas and considered at risk. The establishment of an ad hoc
regulation is necessary here to oversee the transfer of those goods
to Iran and an exhaustive list of goods is set for the application of
these texts. It is therefore not face international regulatory
ordinary dual-use goods but timely and specific embargo measures
through diplomatic negotiations and related geostrategic context.
Resolution
1540, adopted on 28 April 2004 by the UN Security Council, under
Chapter VII, is a legally binding text. It aims, in an
environment post September 11, 2001, to strengthen the fight
against "the proliferation of nuclear, biological,
chemical and their means of delivery, and the risk related to the
acquisition of such weapons by non-state actors". The
resolution 1540 is a response to concerns that come with the fall of
the USSR and in the aftermath of September 11, 2001, to see new
non-State actors pose a threat hitherto poorly considered by the
Treaties "classic" non-proliferation. This resolution
and advocates non-proliferation, multilateralism and cooperation to
fight effectively against new threats identified. This marks, at
the time, a reversal of the US diplomatic policy. In an
efficiency objective, it commits a strengthening of coercive and
repressive measures in addition to mainly preventive actions of
previous treaties on non-proliferation. Thus, the Security
Council "decides" that states are obliged to "take
and enforce effective measures to establish domestic controls to
prevent the proliferation of nuclear, chemical or biological weapons
and their means of delivery, there including by establishing
appropriate controls over related materials ". Use
of the term "related materials", without
reference to an exhaustive list of property or equipment, thus leaves
a wide scope for interpretation and control that allows to include
dual-use goods.
This
text marks a return to a multilateral regime and stringent control of
trade vocation of "sensitive" goods.
However,
whether by resolutions 1737, 1803 or 1929 in the case of Iran, and
Resolution 1540, which establishes a general system of control, the
UN merely laying the foundations of control. This is ultimately
the internal law of States and efficiency depends largely on its
transposition into national law. This is also why resolution
1540 of the 1540 Committee was created within the Security Council to
oversee and assist States in implementing their obligations under the
texte18.
International
texts therefore pose general control frameworks that allow
harmonization of control standards, including using body such as the
1540 Committee, but remain subject to the national law transposing
these standards and the achievement of a control depending
exclusively on states. This is why some states have found it
necessary to agree on more specific common control standards. It
is in this light that were created various multilateral export
control regimes (RMCE), the Wassenaar Arrangement.
The
action of the European Union
The
European Union is a key player in the establishment of this
control. The majority of its members are now parts of the
Wassenaar Arrangement, and were represented in COCOM. Moreover,
many of the major exporting countries are members of the European
Union (France, Germany, Belgium, Austria, Italy ...). It is
quite natural that this issue has finally taken community
dimensions. Indeed, the establishment of international regimes
has particular advantages which appear limited, however. The
adoption of a common base of control and a shared definition of the
control field is necessary for the establishment of an effective
regulatory framework. However, it turns out that this
harmonization may not be sufficient, especially in a customs union
such as the European Union. The free movement of goods enshrined
in Article 28 of the Treaty on the Functioning of the European Union
(TFEU), ex Article 23 TEC requires extensive coordination in
supervision of dual-use goods. Without specific common
standards, the non-participation of a single Member State the
aforementioned control regimes would render useless the efforts of
other member countries. So it is the exclusive competence of the
Commission in customs and commercial matters (Article 3.1 TFEU),
which has made export policies a community issue. However, this
control was not easy to establish. By 1994 and the end of COCOM,
the EU had tried to establish a common system of control. Indeed,
the opening of European borders on 1 January 1993 implied the
adoption of a common and specific diet. But it had initially
failed because of a precarious balance between the objectives of
security and competitiveness.For if the EU is competent in commercial
matters, its prerogatives are safe, they are more uncertain. But
the dual-use goods stood at the intersection of these two
issues. Therefore, the "cross-pillar" dimension of
such control, based on commercial and security foundations, was
deemed contrary to Community law by the ECJ. However, the EU has
set up a monitoring system since the 2000s, by recasting its action
on legal grounds in conformity with Community law, without giving up
the security and political dimension through the framework
established by the Council.
The
control of exports of dual-use goods
The
basis of the European regulatory framework for dual-use goods was
initially uncertain. This is the ambivalent nature of controlled
items and the duality of regulatory motifs that had originally been a
problem to the Court. The EU, let alone the Commission, having
no formal legislative competence in defense and foreign policy, it
remains exclusive to Member States, the control framework has been
revised to stable legal foundations . It is based on the
prerogatives of the Union in commercial matters, in a functionalist
logic, that this has been developed, without abandoning its
diplomatic and security dimension, as will be seen in particular
through the Russian example .
- Exclusive
jurisdiction in exports
The
European Union, before being a political space or common citizen, is
an integrated economic space with the European countries together
around common trade and customs policies. The European Coal and
Steel Community (ECSC) in 1951 and the European Economic Community
(EEC) in 1957 laid the foundations of this common commercial and
customs territory. The removal of customs duties, the
establishment of common customs tariffs with third countries and
almost exclusively in commercial matters of the commission made the
EU a key player in external economic and trade policies. The
Treaty on the Functioning of the European Union (TFEU) 2007 confers
on exclusive jurisdiction in customs matters Union (Article 3.1 a)
and commercial (Article 3.1 e)). Therefore, when interest in the
Community in export regulations, it seems necessary to put the
institutional framework in front. Indeed, the TFEU, with Article
207 paragraph 2 (art.133 former TEC), said that the commission and
the council are competent to adopt measures "defining the
framework in which implementing the common commercial policy" by
regulation. This is the first legal basis for Community
regulations that govern the control of dual use goods. The EU
institutions are competent to legislate and regulate Community trade
policy. And Regulation (EEC) No 2603/69 of 20 December 1969
establishing common rules for exports, sets the framework for this
common trade regime and founded one of the three original pillars of
the current European Union. This is also in line with the text
of Regulation (EC) No 428/2009 of the Council of 5 May 2009 setting
up a Community regime for the control of exports, transfer, brokering
and transit of dual goods use enjoins States to take measures on the
export of dual-use goods (paragraph 5 of the Regulation). It is
the Community rules on commercial matters under the control of dual
use goods. Furthermore, the future Customs Code of the Union,
established by Community Regulation No. 450/2008 of 23 April 2008,
will participate in the establishment of a unified customs territory
in the tradition of the first Community Code of 1992. it applies
uniformly to the entire territory of the EU 30 and intends to unify
customs procedures, including electronic systems with the new
text. This code applies to all goods covered by the Community
Treaties, it aims to regulate and harmonize criminal penalties for
infringements shutter control standards on dual use goods. The
European Commission, notably through the Directorate General Taxation
and Customs Union (TAXUD), is the Community Reference actor
responsible for customs duties. These missions fall under three
main areas: protection of the external borders of the EU, the
development of international cooperation and the fight against
fraud. But the development of rules and safety standards is the
latest major trends at work in the reconfiguration of these
missions31. So on the texts to facilitate trade between the
members of the Union but also with third countries, the regulations
on exports of dual-use goods relies first. But this control is
also based on a more secure part of Community texts.
- A
common security policy
In
Article 21, the Treaty on European Union (1992) lists the EU's
external action objectives. Among them, we find in paragraph 2
c), the preservation of peace, conflict prevention and strengthening
international security. Furthermore, in Article 24, paragraph 1,
it states that "the common foreign and security policy is
subject to specific rules and procedures. It is defined and
implemented by the European Council and the Council. " If
national governments still exercise independent control over the
issues of foreign and defense policy, they are collaborating to
develop a foreign policy and security policy (CFSP) and it is the
Council which is the main part of this governmental
cooperation. Thus, Article 215 TFEU authorizes the Council to
adopt, by qualified majority, trade restrictive measures on the
proposal of High Representative of the Union for Foreign Affairs and
Security Policy and the Commission. The EU is endowed with some
diplomatic actions means.This possibility of sanctions is part of the
will to implement a common diplomatic line. However, it remains
subject to the agreement of the States, through the specific
competence of the Council on this issue. Indeed, unlike the
trade measures, measures falling within the CFSP is not an exclusive
competence of the Commission and remain subject to the vote of the
member states. Therefore, it's in a harmonization of integration
dynamic that is developing the town safe online. As such, the
Commission developed in 2003, the strategy of the European Union
against the proliferation of weapons of mass destruction, called "WMD
strategy." In this document, the EU identifies the
proliferation of weapons of mass destruction and dual-use technology
and knowledge, as a growing threat to peace and security. This
strategy recommends a strengthening of multilateralism based control
of a multilateral regimes such as Wassenaar. It also advocates
using sanctions as part of international law, including Chapter VII
of the UN in cases of serious failure. Finally, in paragraph
30.) 4) of Chapter III, it intends to "strengthen policies and
practices on export control." This strategy lays the
political foundation, more than legal, control of dual-use
goods. Indeed, it is already preceded by several regulations in
this field, including Regulation 1334/2000 but this control as an
anchor of the Union's priorities. This document follows the
Thessaloniki action plan in June 2003 which sought, among others, "to
strengthen the capacity of [the] Union to act as a coherent and
unified power in the international system and respond effectively to
challenges of globalization and interdependence ". This
overall action plan and the specific strategy, reflect the commitment
of the board (intergovernmental body) to include the security aspect
at the heart of EU policies. These texts serve as policy
framework for EU action in security matters. They are also
mentioned as one of its recitals by the Commission when drafting the
regulations governing the control of dual usage36. If the ECJ
had refused in 1997 to consider an export control policy based both
on trade and security powers of the Union, the framework established
by the Council, through these strategies, allows inducing a policy
control the commercial legal bases and at the diplomatic and security
framework. Thus the regulations for control are based on the
European commercial law and are part of an inter-governmental
security policy within the Union. In addition, the common
position allows to compel member states to fulfill their commitments
by exposing them to political and diplomatic sanctions.
- The
Russian embargo
It is
within this political will that Member States, through the Council,
have decided to develop a system of specific and binding sanctions on
EU exports to Russia. Regulation (EU) No 833/2014 of the Council
of 31 July 2014 concerning restrictive measures in view of the
actions of Russia destabilizing the situation in Ukraine, testifies
to the care of these issues at EU level
Thus,
following the events that occurred in Ukraine, the EU has agreed to
establish diplomatic sanctions against Russia. After freezing
the assets of senior Russian officials, the EU adopted a more
restrictive sanctions battery. She desired to affirm the
consistency of his diplomatic vis-à-vis Russia policy. Instead
of taking sanctions through the UN (impossible given the Russian
veto), or unilateral, Member States preferred to adopt a common line
under the EU seal. Regulation No 833/2014 has come punish Russia
by preventing Community exports of war material and dual-use
goods. This embargo was made under Article 215 TFEU and
Regulation 428/2009, it will be presented later. Thus, the EU,
through these trade and security sanctions, affirmed its commitment
to a coherent diplomacy at EU level. Control or even ban the
export of dual-use goods is a tool mobilized by the EU in its trade
and diplomatic policy. It should be noted that the EU had
already adopted legislation to ban the export of dual-use goods to
countries deemed sensitive.
- Other
embargoes
Diplomatic
relations of the member states with countries like Iran and North
Korea, had led to the adoption of common positions determining the
sanctions had resulted in export restrictions regulations. Thus
the Common Position 2007/140 / CFSP of 27 February 2007 concerning
restrictive measures against Iran was followed by Council Regulation
423/2007 of 19 April 2007 prohibiting "sell, supply, transfer or
export, directly or indirectly, goods and technology listed in Annex
I of Regulation 1334/2000. "
Regarding
North Korea, the Regulation No 329/2007 of the Council of 27 March
2007 which came prohibit such exports. The Member States have
therefore prohibited exports based on previous regulations that
define and categorize dual-use goods and control category and export
at Community level. The Council regularly reference base and the
implementation of these sanctions on the standards they set.
-
A
specific regulatory framework
A
common control field through Appendix I The European
Union, in its desire to create a consistent and harmonized customs
area, has implemented several systems of standards and control. The
goal was to successfully implement unified regulatory frameworks
governing all transactions within and outside the EU. To this
end, it developed regulations to generalize a number of practices and
methods of control of dual use goods. The implementation of this
common framework is built step by step in order to arrive at the most
comprehensive regime, the most comprehensive and most efficient
possible. To this end, several regulations came frame the
definition of the concept of dual-use goods and its scope. It is
these rules and the scope of goods and practices they surround that
it is now to study since they are the basis for the previously
mentioned policies. Although more descriptive, that party is
required to better understand the operational reality of this
control.
- The
Regulation 1334/2000 and Joint Action 2000/401 / CFSP
This
regulation was part a result of Regulation (EC) No 3381/94 which
already instituted a dual-use goods control regime. Denounced by
the Court in cases from 1995 for its trans-pillar legal basis and its
excessive complexity, this plan was therefore abandoned and replaced
in 2000 by that regulation. This was intended to harmonize the
different arrangements until then. The ambition was, in fact,
make this control in place at the time of COCOM, homogeneous at EU
level. It reflected the desire on the part of Member States to
comply with their international commitments and to effectively
monitor transactions the European Community and third countries. The
Regulation has sought to give a wider definition of goods falling
within the category of dual-use goods returning member countries in
its Annex I40 which lists all goods subject to such control in a
comprehensive ambition. This note listed the property by
international control regimes (including the Wassenaar Arrangement)
at Community level is the basic list of controlled items, divided
into ten categories. However, the European legislature, in the
interests of efficiency, has also left the freedom to member
countries to control property not included in this list at their
discretion is the "catch all" clause, whose effects will be
detailed posteriorly. The EU is also committed to cover all
export processes by including intangible exports to third
countries. Thus, transactions by e-mail, fax or phone fell under
the control established by that regulation. This target controls
the dual technologies, defined as "specific information
necessary for the development, production or use of a product." This
knowledge does not necessarily exist in physical form, they can be
exported so dematerialized to third countries. The Joint Action
of the Council of 22 June 2000 2000/401 / CFSP concerning the control
of technical assistance related to certain military end-uses has
complemented the Regulation 1334/2000. She submitted "the
technical assistance provided outside the European Community by a
natural or legal person established within the European Community"
to controls when it is intended to contribute to an activity relating
to weapons of mass destruction or some military end-uses. The
drafting of this article has covered the transfer of technology
induced by technical assistance, even if they involve cross-border
movements of personnes45, that did not allow the Regulation
1334/2000.
In
2000, the EU therefore has, through these texts, monitoring
instruments that enable it to control a large number of activities,
goods and transactions in the control of dual use goods.
-
Redesign
- The Regulation 428/2009: transit, brokerage
The
continuous extension of the general control framework The Regulation
428/2009 came repeal Regulation 1334/2000 and resumes its provisions
while adding new ones. The interest of this particular reform
lies in redefining certain types of activities related to trade in
dual-use and updating of the Appendix I, Basic control of the Member
States, to technological innovations in field. The goal was to
maintain effective control by taking account of new goods and
practices beyond the previous regulation, yet extremely sensitive.
This
revision has introduced transits of dual-use goods to controlled
activities. Article 6 therefore states that a Member State may
prohibit the transit of such goods if they are likely to be listed
in Annex I (update) or if part of the measures referred to in
Articles 4 and 8. These goods are controlled because of their
presence on the territory of the European Community, it does not
have to be exported from one member country. It is therefore an
extension of the scope of the Community control and extensive
reading of territoriality of its jurisdiction.
The
regulation extended the control to the provision of services related
to dual-use goods. Article 7 allows control of supply of
services, provided it does not involve cross-border movement of
people. So extensive control to those activities related to the
export of dual-use goods brokerage is more precisely controlled in
the name of Article 5 of the Regulation which defines it as such:
-
The negotiation or transaction management for the purchase, sale or
supply of dual-use items from a third country to another third
country or
-
The sale or purchase of dual-use items that are located in third
countries for their transfer to another third country. That is
to say, an entity or a person established within the EU organizing
a transaction between non-EU States are likely to be subject to
this control. The property was not physically need to transit
through Community territory as long as the control is for the
provision of a service and not the property in question. This
is also a specific brokerage authorization is necessary, not an
export license. This control is made possible by the
territoriality of the service, but if the entity is established in
a third State, the EU has no competence.
Finally,
the regulation came clarify the concept of intangible exports of
dual-use technologies. Indeed, it has been difficult to locate
with certainty the destination of some of these exports, especially
email. This is why the new Regulation 428/2009 clarified the
definition of intangible exports by including in its definition, its
Article 2.2 iii, action to "available in electronic form of
software or technology for natural or legal persons [...] outside
the community. " Therefore all dual technologies made
accessible to non-EU players via internet or intranet server is
reviewable. It is an extremely extended control field.
In
the interests of efficiency and consistency, the EU has committed
several upgrades of control framework, the last being that of 2014.
After the Council of Europe has issued a positive opinion to the
strengthening of export controls November 21, 2014, Regulation No
1382/2014 has modified the regulation 428/2009. In its opinion,
the Council stresses the need to continue the efforts hitherto
provided for controls of intangible exports, particularly on
technologies, and include technologies for monitoring and
information to the inspection system. Thus, the resolution of
22 October 2014 issued a "consolidated and updated version"
of Annex I of Regulation 428/200949. Now, therefore, goods
related to information security are part of Annex I, Category 5,
Part II, and are, as such controlled by Member States and subject to
licensing. This is where the challenge of these various lists
and regulations discussed so far. They are the basis for Member
States to put in place a control system which results, inter alia,
the specific allocation of licenses for transactions related to
goods listed here. Thus, if it is necessary to have an idea of
different goods and activities subject to this control and the
highly evolutionary nature of this base, it is now to focus on the
control procedures that result
-
Both
the EU and harmonization of national procedures vector
The
only harmonization of the classification of dual-use goods does not
constitute a sufficient guarantee and necessary for effective
harmonization of control. It is for this reason that the EU, if
it is based on the Wassenaar Arrangement to determine the list of
goods which it submits to control, heard equip Member States of
common procedures. The aim of European legislation is therefore
"to establish a common control system and harmonized control
policies." To this end, it has established a harmonized
mandatory export authorization procedure.
- Harmonize
authorizations for exports to third countries
A
standardization of the licensing system was needed. Indeed, the
EU must meet its business objectives of facilitating the free
movement of goods and free trade. A national particularism in
the export licensing would create administrative complications
exports, not to mention the security risks already mentioned
above. The establishment of a common system of licenses allowed
more fluid exchanges and to provide guarantees to producers. Also,
a license issued in one Member State will be valid in the rest of the
Union (Article 9.2 Regulation (EC) No 428/2009). This
universality of licenses involves framed attribution rules. The
Regulation provides for specific types of licenses based on practice
and exporters profiles, always with the aim of facilitating trade.
This
is the most classic form of licenses, it represents almost all of
the 4000 annual requests processed by the Dual Use Goods to Service
(SBDU) It allows a specific exporter to carry out the exports linked
to a specific operation (a or more properties to a recipient or end
user in a third country). Under Article 9 of Regulation No
428/2009, this license is granted by the national authorities. It
shall disclose the end user, the country of destination and the end
use. The volume (limited), value (limited) and nature (its
class within the meaning of Annex I) of goods shall also include the
authorization to allow customs controls facilities. Furthermore,
the Member State may require an end-use declaration by the recipient
of a third country, even though its own law does not require
it. This process allows a procedural harmonization, which tends
to exceed the framework of the Union. However, obtaining this
license is administratively cumbersome process (times 60 days in
March 2012, according to figures from Double Use Goods in service,
the Directorate General for Enterprise). In addition, a license
is valid for a specified period, four months in France. Also,
there are other licensing regimes to facilitate exports in terms of
the risks.
As
individual licenses, those licenses are granted to a particular
operator. They are distinguished by their less
binding. However, they are less regularly assigned: forty of
these licenses are awarded annually in France by SBDU. But they
allow regular exporters to overcome recurring administrative
constraints. So this is an authorization granted to one
specific exporter for a type or a specific category of dual-use
goods. The authorization is valid for exports to one or more
users / specific final recipients and considered as non-sensitive,
in one or more specified third countries of destination, a member of
the non-proliferation regimes. Moreover, such a license shall
have a minimum validity of 12 months and can be established without
limit of value and quantity. But the EU has gone further by
setting up wider licenses for exports to the object and specific
destinations.
- Community
general licenses
This
is an export authorization for certain countries of destination
available to all exporters who respect its conditions and
requirements for use as listed in Annexes IIa to IIf Regulation (EC)
428 / 2009 modified. So these are licenses more easily and for
general cases. Instead of individual licenses, these licenses
are part of a pre-established framework. The purpose of these
licenses is to facilitate exports to countries considered safe
destinations and predefined property. They make more flexible
and modular controls by reducing license application
procedures. They also have some diplomatic dimension through
the definition of these secure destinations. In fact, be on the
lists represents a major strategic and economic interest to the EU
partners who see the exchange of sensitive goods and technology
facilities. There are six community and general licenses, and
each sets specific plans. The license covers most goods, almost
all the property referred to in Annex I, thus applies to certain
countries (7) parties to the Wassenaar Arrangement and the EU's
major trading partners (Australia, New Zealand, Canada, Norway,
United States of America, Japan, Liechtenstein). This license,
the Community General Authorisation EU001 (CGEA), refers to Appendix
II of the amended regulation 428/2009 listing the goods concerned
(Annex I is not the most sensitive goods, of Annex IV) . The
most circumscribed licenses in some situations (temporary exports
for exhibitions and fairs, Community General Authorisation EU004) or
categories of goods (Telecommunications, Community General
Authorisation EU005) apply to a larger number of countries, up to 24
(including Russia, India and Ukraine). So it is a custom
control that the EU intends to implement, according to their
commercial and security interests. Thus, the Commission
recently declared to be favorable "to a possible introduction
of new General Export Authorisations of the Union, which can
facilitate low-risk trade in the interest of all European companies
while maintaining the high level of effective controls. " These
licenses are part of a harmonized system of export licensing
procedures for the whole EU area which allows the realization of a
commercial and concerted policy, respecting the economic interests
of Member States. Thus, the seven countries involved in the EU
CGEAs 001 represented, in 1998, during the discussions on the reform
of the Community system, over 70% of exports to third countries of
goods and dual-use technologies alone. In 2012, it is still the
most general license requested by exporters.
- Intra-Community
trade
Although
the majority of dual-use goods is likely to be exported without
control from one Member State to another, the goods listed in Annex
IV require obtaining an export license issued by the authorities
nationales57 . This additional restriction then calls the
completion of the internal market in 1993 had resulted in the removal
of the majority of internal border controls within the EU area. So
this is to remember that if the EU is a customs union, Article 36
TFEU allows the "prohibitions or restrictions on imports,
exports or goods in transit justified on grounds of [...] public
safety" . Thus, Annex IV of Regulation No 428/2009, be
updated by Regulation No. 1382/2014, lists the most sensitive items
in Annex I. That is to say, the goods in stealth technology, the
Community strategic control (explosives boot, encryption) of the MTCR
technology (Missile Technology Control Regime), or the convention on
chemical weapons and technology NSG (Nuclear Suppliers Group ) 58. It
is for the most likely to be diverted for military purposes as goods
exports are subject to licensing. However, unlike exports to
third countries, there are no customs formalities for intra-Community
trade. That is to say the achievement of control customs. It
is therefore a less supervised control regime than that applied to
exports to third countries but which reflects a community will
strictly supervise the exchanges, be they intra-Community. The
inspection system is therefore based on a threefold process of trade
facilitation or increased control, through the three annexes, the
four types of licenses and the three destinations (EU / convergence
zone / the world). The sensitivity of the goods and technology
is determined both by itself, and from the destinations, which gives
four case sensitivity (the lightest to the darkest in the following
table). It is also to re-specify that certain third countries
not concerned by the EU001 CGEA are the subject of some community
general licenses less comprehensive. The Regulation 428/2009 is
organizing a Community regime for dual-use export control based on "a
common control system and harmonized policies for enforcement and
monitoring in all Member States" (Recital No 4 of Regulation 428
/ 2009). But the rules for implementing the controls organized
by these regulations within the discretion of Member countries. The
Community Regulations lay down a harmonized control framework but, in
the absence of a Community administration, the execution of it is the
prerogative of Member States. While the establishment of a
Community policy monitoring and the design of a harmonized framework
intended to avoid the existence of differences among member countries
detrimental within a free trade area, the lack of a supranational
entity of execution may be hidden. In this case those are the
states that are implementers of this policy. As such, they
therefore retain some room for maneuver that is now to evaluate.
The
application of the regulation of dual-use goods
- The
"catch-all clause"
This
rule contained in Article 4 of Regulation No 428/2009 changed the
result behind the transposition into EU law:
Directive
No. 7 of the MTCR :
" The government :
A) ensure that its national export controls require
authorization for the transfer of items not listed in Annex if
the exporter has been informed by the competent authorities of
the Government that these items are intended to be used in whole
or in part in conjunction with systems of mass destruction
weapons launch other than manned aircraft by man;
B) and, if the
exporter is aware that items not listed in Annex are intended to
contribute to these activities all or to the extent consistent
with its national export controls, the exporter informs above
authorities that will determine whether it is appropriate or not
to make the export concerned subject to authorization. "
|
This
directive MTCR, published at the address
http://www.mtcr.info/french/leslignes.html excludes aircraft piloted
by man. This does not apply to all "aircraft" as
defined in Regulation No 428/2009 changed since the civil helicopter
(even mild), capable of depositing loads in one spot, the subject of
a text taken application of Regulation No 428/2009 as amended, which
is the decree of July 31, 2014.
"Members shall ensure that their regulations include the
following requirements:
A) a mandatory authorization for the transfer of items not
controlled by the Australia Group in cases where the exporter is
informed by the competent authorities of the Participating State
that items exported could be used, in whole or in part, to
chemical or biological weapons;
B) if the
exporter is aware that unregulated products are intended for
chemical or biological weapons, he must notify the authorities
mentioned above, which will decide whether it is appropriate or
not to allow export question."
|
- The
press release from the Nuclear Suppliers Group (NSG) issued
at the end of its 14th plenary scéance of 27 and 28 May 2004 to
Götegorg in Sweden by the following statement :
In order to further Top Strengthen the Participating
Governments' national export controls, the Plenary DECIDED to
adopt, inter alia, The Following measures:
- A "catch-all" mechanism in the NSG Guidelines, to
Provide a national legal basis to control the export of nuclear
related items That are not on the control lists, When Such items
are gold May be Intended for use in connection with a nuclear
weapons program.
- ...
|
- Interpretation
of declaration of assets not included on the lists of the Wassenaar
Arrangement published
at the plenary session of 2003 :
"Participating States
Will take Appropriate Measures to Ensure That Their règlements
require permission for the transfer of non-listed dual-use items
to destinations subject to a binding United Nations Security
Council arms embargo, any relevant regional arms embargo Either
binding was Participating State gold to qui a Participating State
HAS Voluntarily consented to adhere, When the autorités of the
Exporting country inform the export que la items in issue are gold
May be Intended, Entirely or in part, for a military end-use. * If
the export is aware That items in issue are Intended, Entirely
gold in part, for a military end-use, * the export must notify the
autorités Referred to Above, qui Will decide whether or not it is
expedient to make the export Concerned subject to permission. For
the purpose of control Such contents, each Participating State
Will determine at domestic level icts own definition of the term
"military end-use". * Participating States are
Encouraged to share information is thesis definitions. Provided
the definition in the footnote Will serve as a
guide. Participating States reserve the right to adopt
national and Implement Measures to restrict exports for --other
Reasons of public policy, Taking into consideration the principles
and objective of the Wassenaar Arrangement. Participating
States May we share information Measures thesis as a regular share
of the General Information Exchange. Participating States
decided to exchange this kind of information is covered Denials
for the Purposes of the Wassenaar Arrangement. "
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This
"catch-all clause" ainsin has been extended to all the
property listed by other existing non proliferation of weapons of
mass destruction and relates only to goods which could misuse their
purely civilian use to design, produce or use weapons of mass
destruction, ie nuclear, chemical or biological weapons and their
means (air or underwater). It does not apply to property
commercially available and usable for terrorist purposes: butane gas,
ammonium nitrate, potassium chlorate ... etc.
Een
European Union, Having recitals Nos 4 and 8 of Regulation No 428/2009
as amended, the "catch all clause only" covers only goods
which could misuse their purely civilian use to design, produce or
use weapons of mass destruction, ie nuclear, chemical or biological
weapons and their means (air or underwater). It does not apply
to goods commercially available and usable for terrorist purposes
such as butane gas, ammonium nitrate, potassium chlorate etc ...
In
France, the texts adopted under Articles 4 and 8 of Regulation No
428/2009 modified only concern civilian helicopters (even mild),
capable of depositing loads in one spot and tear on products and riot
control agents, which in high concentrations are equivalent to real
chemical weapons.
For
the rest, the application of the "catch-all clause" is left
to the discretion of the SBDU engineers who have to deal with
hundreds of "unlicensed files" and that capture the
Interministerial Committee on dual-use goods for fear misuse for
malevolent purposes of certain free goods for export. Many
exporters do indeed want to confirm the SBDU that their merchandise
is free export awaiting loading by plane or by boat, and are in
response, several weeks after the procedure, an export ban without
giving reasons preventing them to honor their contract. Quite
often, the export ban and decided arbitrarily by the SBDU as result
of requests from the Customs controllers that prevent trucks from
passing through fear of strategic materials, while the equipment in
question is free to Export and no justification is provided to the
person concerned.
In
the US, the rule for civilian goods that could use a malicious
hijacking is very explicit and contrary also covers property cicils
likely to undermine the security of the US. The US authorities
have in fact added many articles corresponding to assets not included
in the lists of intergovernmental bodies to fight against the
proliferation of weapons of mass destruction (cited above). The
Commerce Control List (CCL) includes among its items referred Export
Control Classification Number (ECCN), a series called EAR99 goods
placed under control possible for security reasons.
VIEW
ECCN LIST (US)
The
US regulations for the control of dual-use goods, called Export
Administration Regulation (EAR) states indeed that:
"If Your Item is Not on the Commerce Control List -
EAR99
- If your item falls under the jurisdiction of the US
Department of Commerce and is not listed on the CCL, it is
designated as EAR99. The majorité of business and products
are designated EAR99 Generally won't require a license to be
Exported or reexported.
- However,
if you map to export an EAR99 item to an embargoed or sanctioned
country, of concern to a party, or in carrier of a prohibited
end-use, you May be required to obtenir a license. "
|
In
accordance with the principle of catch-all clause, this list is not
exhaustive, but nevertheless provides legal means to US regulators to
prohibit more easily export products or equipment which might be
diverted for terrorist purposes and punish retrospectively.
For
example, ammonium nitrate and ammonium nitrate-based fertilizers
covered by Article ECCN 1C997 No. of American CCL because we know
they can be used to make bombs using explosives Type ANFO (career
explosives) filled in household cooking appliances (pots minute) or
empty gas bottles; as happened in Corsica, Northern Ireland,
Spain, Norway, boston marathon, the Middle East ... etc.
However,
given the risk of similar attacks, and knowing the dangers of
ammonium nitrate for fertilizer and explosives careers (including
tons accidentally exploded at the AZF factory in Toulouse), the
"catch-all clause" do not allow France to prohibit exports
of ammonium nitrate (or fertilizer rich in ammonium nitrate) to
certain destinations without his services were informed of doubt on
this auction to foreign. In addition, this non-explicit
provisions would not give him the legal means to punish
retrospectively, referring to the regulation of dual-use
goods. illicit export of this product that was used to commit an
attack abroad.
We
thus find an equivalent legal vacuum that of the time when French
companies have provided impunity goods used to produce chemical
weapons in the Middle East. France has been hit hard by
terrorism on the evening of 13 November 2015. Since the attacks of
September 11, 2001 in New York, the US is more vigilant than us on
their exports of sensitive products by adding a list of goods "EAR99"
to international lists.
Moreover,
US sanctions apply worldwide for violations of the Export
Administration Regulation (EAR), ie if the Bureau of Industry and
Security (BIS) has knowledge of exports or 'trading procedures
without US license, concerning US-origin goods under control.These
sanctions are very severe if these offenses are committed by
affiliates of US companies outside the US, or if they are the subject
of financial transactions carried out in dollars from US banks. Any
turpitude of this kind, made in the US or elsewhere in the world, is
the subject of registration of the person or the company concerned on
a blacklist preventing it from bidding in tenders and prohibiting to
buy American goods, creating him a bad reputation for its commercial
business. This can also lead to a complaint in US courts
involving financial or criminal sanctions; or a denunciation
through diplomatic channels in the country concerned, with a view to
prosecution by local authorities.
The
correlation of dual-use goods with the customs nomenclature
The
field monitoring carried out by the controllers Customs through their
computer system based on the commodity classification code in the
Community Integrated Tariff eight-digit (TARIC), the last two
complete code of the combined nomenclature of the customs tariff
common. Correlation table between the codes of the Combined
Nomenclature and the items of the list of dual use items was updated
in July 2014 by the European Commission for the integration of TARIC
codes in the BDU. It much more exhaustive than those of 2006 and
2012, the latter no longer has misclassification that led to the
blocking of many European customs free export goods. This system
is however not very reliable in so far as the correlation table BDU
with those codes of the CN, which includes lines 6800 instead of 4200
in 2012, because each of them covers goods which have startégique
any nature, which may further increase the risk of barriers to
esportations
The
customs administration has used this correlation listing of the
European Union to establish an information system with document
codes, specific tariff provisions and additional national codes (CANA
allowing operators indicate in their statements if the material
within and outside of the BDU regulations, or if they are subject to
restrictive export measures. This system theoretically allows customs
authorities to control high technology products may be inspected at
the export.
The
remote procedure DELTA (Online Clearance for Automated Processing)
allows complete customs declaration formalities online. During
the establishment of the export declaration, the operator must
indicate in box 44 the appropriate code:
- X002
(document code) for dual-use items specified in Annex I of the EU
Regulation or under the catch-all clause (Note: since 1 January
2015, this Code replaces the CANA R408);
- Y
901 (special tariff provision) for goods not having the
characteristics of a dual-use item listed in Annex I of the EU
Regulation;
- R
409 (CANA) for civilian helicopters and their essential parts to
countries under sanctions, subject to national control measures;
- R
410 (CANA) for tear gas and riot control agents, subject to national
control measures;
- R
412 (CANA) For the record, this CANA concerned until 31 January 2015
the average mobile telecommunications interception or surveillance
of the Internet. Since then, these goods shall be listed under
code X002.
- R
499 (CANA) if the goods are free from any obligation relating to
regulations for strategic goods that is to say if the material is
not subject to national regulations on dual-use items (see page 7
and CANA listed above), nor that of war materials, or that of
explosives.
In
the event that the goods are subject to national control measures on
dual-use goods, the operator must also indicate in the box 44 export
declaration document code corresponding to the authority used. This
is the 2410 code for all licenses associated with CANA R 409 and R
410.
Thus
hundreds a year of "license-files" of goods having no
strategic nature are treated by the service of dual-use goods, either
because of untimely blockages by customs offices or by fear this
inconvenience on the part of industrial if the tariff heading of a
free well of export CANA referring to a paragraph of the list of BDU
or property subject to restrictive measures.
To
avoid these disadvantages would require the European Commission
created two subdivisions in all subheadings of the Combined
Nomenclature may contain strategic goods: one that integrates the
labels of dual-use or restricted to certain destinations and the
other corresponding to free export goods. It should also
communicate the characteristics of real-controlled goods in the
Explanatory Notes to the Combined Nomenclature (CN).
The
CN subheadings containing the wording of paragraphs of dual-use goods
then have a legal scope under General Note 6 interpretation of the
Combined Nomenclature is reproduced below.
"A.
General rules for the interpretation of the Combined Nomenclature
Classification
of goods in the Combined Nomenclature shall be governed by the
following principles: ....................................................................................................................................................
6.
The classification of goods in the subheadings of a heading
shall be determined according to the terms of those subheadings
and any related subheading notes and mutatis mutandis to the
above rules understanding that can not be compared as the
subheadings of the same level. For the purposes of this
rule the notes to the sections and chapters also apply, unless
otherwise provided. "
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This
integration of strategic goods in the Combined Nomenclature allow
better information for operators on strategic products, particularly
as the indication of SH6 subheadings of the Harmonized System codes
Description and Coding System will become mandatory before the
statements, in ICS and ECS safety messages in 2016, when the
implementation of the EU Code.
The
french organization in control of dual-use goods
Since
the first reform of the former NWMO in 1995 and that of the
transformation of the former NWMO SGDSN dependent on both the Prime
Minister and the President of the republic, and finally the creation
of the Interdepartmental Commission dual-use goods, the
inter-ministerial body has no role of coordination of the ministerial
action in this area.
Following
the engagement letter the Prime Minister of 21 June 2013, a policy
report on the approximation of sensitive civilian and military
technology transfers control devices was made by the Court of
Auditors in January 2014. This share report finding that the French
system is complex and rigid, and proposes the establishment of an
Inter Authority. According to the report, due to the decrease in
the budget devoted to defense, companies turn to advantage the
production of dual-use goods. Therefore, He also considers it
necessary to improve coordination and the overall management of
sensitive transfers control procedures placed interdepartmental
absent today in the control of French exports. According to the
Court of Auditors, the creation of an authority invested with the
Prime Minister, whose resources could be managed by the SGDSN would
appear as an effective alternative to address these problems. "The
authority would ensure the responsibility for the definition,
guidance, and monitoring the applicable policy in this area. It would
be responsible for ongoing evaluation of the control system to
propose regulatory changes or the organization. It would ensure the
piloting of various administrative arrangements involved in these
areas. " She as an umbrella so all existing structures,
without replacing them in the role of examining files and would act
as a direct interface with the government. It would ensure a
better distribution of authorization request files transfers between
all institutions and better cooperation (between SBDU and SGDSN) for
folders within a slightest difficulty. The most sensitive cases
would however refereed by the Authority itself after consulting one
or two inter-ministerial committees. The authority would also
have the power to submit for approval to the Government the cases
that require a political choice. According to the report, "with
this organization, treatment of the simplest cases could be thinned,
so simplified and faster, while calling records arbitrations could be
treated at high level in a more timely."
The
proposals of the Court of Auditors have been the subject of an
objection from the relevant ministries, including from the Ministry
of Foreign Affairs, including the Department Laurent Fabius is an
important political figure certainly does not take this that its
services lose the prerogative of the President of the
Interministerial Commission of dual-use goods, while the problem is
not only a diplomatic nature.
The services
concerned
The
dual-use service (SBDU)
Licensing
initially reported to the Department of Foreign Trade Securities
(SETICE), depending Customs. Since the creation of the
Department of Dual-use goods by an order of March 18, 2010, it is the
Directorate General for Enterprise (former DGCIS since September 16,
2014) who is in charge of this mission. So there has been a
transfer of powers from the Customs to the Directorate General of
Companies. This transfer can be explained by the lack of
engineers in the customs services in order to classify the products
concerned. It therefore allowed the refocusing of customs duties
and relieve small numbers of customs laboratory, the Service Commun
des Laboratoires (SCL). Thus, when interest in the first stage
of monitoring, licensing, it already appears that Customs is in a
process of refocusing its tasks under the control of dual use
goods. Since 2010 is the SBDU which is the first contact for
businesses and the first player control. Its director has 18
agents including 7 engineers (against 3-4 prior to SETICE). This
is nearly half of officers working to control over the entire
territory. The role of SBDU lies in the license application
review. It checks that the goods are indeed dual-use goods, the
final destination country is not affected by restrictions, that the
end user is trusted and that the license in question meets the torque
produced-country- user corresponding thereto. You do not come
back here on the different types of licenses but the SBDU and its
teams of engineers and administrators who are the guarantors of this
work of compliance of companies with EU regulations and measures
adopted at national. The SBDU however supported by the services
of various departments attended the Interministerial Commission on
Property Dual-use. For example, the Directorate General of
Armaments (DGA), which receives requests of export licenses for
conventional weapons, will redirect manufacturers whose goods are
more likely to be dual-use goods.
The
Interministerial Commission of Dual-use goods (CIBDU)
The
CIBDU was established by Decree No. 2010-294 of 18 March 2010
establishing an interdepartmental commission on dual use goods. Under
the decree, his presidency is held by a representative of the
Ministry of Foreign Affairs (Article 4), the deputy director for
strategic affairs. In addition, the agenda is set by the
Department and its meetings are held at the Quai d'Orsay. However,
its secretariat is provided by the SBDU and the commission includes
representatives from many departments and ministries, including
Defense, Customs, the Office of Atomic Energy, foreign trade or
industry. In total, a dozen representatives of different
ministries and departments coming together in this fee. The role
of this committee, which meets monthly, is to study the most
sensitive cases handled by the SBDU (20-25% of cases) or received by
the various ministries. It then gives an opinion on the
submission of an export license through. In addition, it is she
who decides on the entry of goods into the control system through the
"catch-all" clause.Each ministry expressed its position on
the property in question and consensus is sought to stop a national
position on the property concerned. However, the lines defended
by each Ministry are not necessarily convergent, ains the SBDU
primarily represents the interests of industry, while the
representative of the Ministry of Defence is responsible to pay
attention to possible risks of finding material exported from the
France in front of the French troops on land operations and take into
account the commercial requirements of industry. The interest of
this committee lies in this meeting services to sensitivities to
determine the most impartial possible online and consensus is
generally reached easily. Thus, the national body is CIBDU
reference to take a position on the most sensitive issues. It
plays a political role, since it is at its level that are determined
national general licenses or the scope of the clause "catch-all"
which, as we saw in the first part, the agency specifically of
interest nationals. Thus, in case of real lock on a file that is
the political level that contrasts with the intervention of the Prime
Minister. However, the issues involved remain fairly insensitive
to the majority of changes. Indeed, the fight against the
proliferation is an issue-partisan and has the Commission is
therefore quite impervious service to alternations. Furthermore,
the fact that the Foreign Ministry had hoped to chair reflects the
diplomatic role that France intends to play this control. So his
role was relatively central when defining sanctions against Russia
and the Commission has been the most intense and shared discussions
theater than usual. It seems also important to remember that the
minister, Mr Laurent Fabius, has set the economic diplomacy as a
priority of his mandate, evidenced by the addition of International
Development on behalf of the Ministry. Therefore, the export
control is more than ever at the heart of concerns that the Ministry
intends to assume this presidency actively. The composition of
this commission and interests are represented testify doubling the
plural dimension of this control and the necessary cross its
implementation. Thus, Customs, although only responsible for the
effective control of exports, can not only ensure all
requirements. However, its role remains crucial.
Customs
services
There
at the Directorate General of Customs and Indirect Taxes (DGDDI) an
export control dedicated service: the prohibitions in section E2
office of the sub-directorate E International Trade. This
service is responsible for the issuing of export licenses for many
sensitive goods (weapons, explosives etc.), but since 2010 it is no
longer in charge of dual-use goods. Only eleven of its agents is
responsible for the regulatory oversight on the issue. However,
the role of the administration remains important since customs is one
of the privileged interlocutors of the industrial and commercial
sector.
The
primary role of Customs remains control of physical flows of
goods. The first control is the ex-ante control during customs
clearance, it is the most important because the first goal of the
customs is to prevent sensitive goods to leave the country if they do
not comply with regulations.
The
objective of Customs is to focus on goods that do not have a
license. Yet only 1% of goods are subject to a documentary
check, either from a control plan established by senior management or
to the Comptroller of Customs initiative. Specifically, Customs
checks the validity of the licenses, the nature of the goods, the
declared quantity in volume and value. It conducts more control
if the statement is false or if it considers that the goods are
subject to review. The customs office has the authority to ask
the company about the nature of the goods and its final destinationn,
and possibly start a physical control of the goods. If
necessary, he seized the section specialized in dual-use of common
service laboratories (customs and Fraud Control) to whom he
transmitted the invoice, packing list and, in case of physical
control, documentation seized in the one of the crates, and quet
photographs or sample of the merchandise
As
part of a posteriori checks, regional investigative services (SRE)
depending on the regional directorates have the opportunity to make
inquiries on exports with retrospective effect for three years, but
especially the National Directorate of Information and Customs
investigations (DNRED), assisted by the General Directorate for
External Security (DGSE), the General Delegation for Armaments (DGA)
and the dual-use service that realizes the biggest investigations in
relation to double assets use. Judicial Customs (SNDJ) may also
investigate offenses under Article L 706-167 of the Criminal
Procedure Code relating to technological espionage or illicit
transfers as part of the fight against the proliferation of weapons
of destruction mass. When in doubt about a transaction (the
recipient, the couple country-product or the operator itself), the
initiative of the investigation depends on the customs of the
Interministerial Committee or information (DGSE DRM DNRED
etc.). However it is the Customs which is primarily responsible
for these investigations because it has exorbitant prerogatives of
common law stemming from the Customs Code. Section 65 confers a
right of communication and seizure of documents, Article 63b,
visiting business premises and seizure upon the prosecutor's
information, allowing significant flexibility of action. Finally,
Article 64 allows the house search on order of the judge of freedoms.
The
Directorate General of Internal Security (DGSI)
ISB
integrates its mission to fight against weapons of mass destruction
within the framework of the protection of heritage and economic
states in its website:
"Placed at the national priority by government
authorities, the fight against proliferation of weapons of mass
destruction also integrates essentially economic protection. It
aims to prevent and neutralize the activities of proliferators on
the national territory, especially the acquisition of dual-use or
knowledge, know-how or technologies, useful to their WMD program.
This action is based again on an important work of
awareness of industrial and scientific actors french but also has
a repressive aspect. "
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This
view from an intelligence service which officially is only for
the "economic protection" of the country
is quite surprising because the list of dual-use goods consists only
of elements to make nuclear, chemical, biological, and their delivery
systems; and non-essential goods to the French economy
The
General Directorate for External Security (DGSE)
The
DGSE is clearer on the interest of the fight against the
proliferation of weapons of mass destruction as it states in its
website: "The intelligence action occurs throughout the
growth cycle: upstream (anticipation and detection programs by
analyzing various indices), during the crisis and in the period of
post-crisis. In parallel, the DGSE monitors proliferation networks
can be in contact with terrorist movements. The potential combination
between terrorism and WMD represents an immediate threat against the
security of France and its allies. In this case, the collection of
intelligence and action obstruction require a very rapid response
capacity, depending on the level the threat."
The
Treasury Directorate General
France
is one of the Financial Action Task Force (FATF) is an
intergovernmental organization created in 1989 by the ministers of
its member states and whose secretariat is based in Paris. The
FATF's objectives are the development of standards and the promotion
of the effective implementation of legislative, regulatory and
operational measures in the fight against money laundering, terrorist
financing and other threats to the integrity of the system
international finance. The Financial Action Task Force is a
policy development body that works to generate the necessary
political will to carry out the legislative and regulatory reforms in
these areas.
The
FATF has developed a series of recommendations recognized as the
international standard in the fight against money laundering,
terrorist financing and proliferation of weapons of mass
destruction. They are the foundation for a coordinated response
to threats to the integrity of the financial system and contribute to
the harmonization of rules worldwide. Published in 1990, the
FATF Recommendations were revised in 1996, 2001, 2003 and most
recently in 2012 to ensure that they remain current and
relevant. They are intended to be applied by all countries.
Among
the recommendations of the FATF in 2013 in terms of financial
sanctions, that concerning the fight against the proliferation of
weapons of mass destruction in subsection C, paragraph 7 reproduced
below:
7. Targeted
financial sanctions related to proliferation
Countries should implement targeted financial sanctions
pursuant to resolutions of the UN Security Council on the
prevention, repression and interruption of the proliferation of
weapons of mass destruction and its financing. These
resolutions require countries to freeze without delay the funds
and other property and to ensure that no funds or other property
is available, directly or indirectly available to or for the
benefit of any person or entity designated by the or under the
authority of the UN Security Council under Chapter VII of the UN
Charter.
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Pursuant
to this recommendation, the Ministèere Treasury Directorate General
of Economy and Finance is in charge of financial blocking suspicious
regarding esportation exports of dual-use goods. This
administration indicates in its website:
"It is the one who takes the responsibility of exporting
to know the potential use of its property and know the call
....
Taking into account the particular legislation on dual-use
goods
It is always required to respect national legislation on export
of dual use goods, whether or not there is international
sanctions. Some Regulations (EU) may MOREOVER toughen
conditions for exporting dual-use goods. Under these
conditions, we recommend taking knowledge of the legislation on
export of dual use items and check with Directorate
General for Enterprise (DGE,
formerly DGCIS) Ministry of Economy, Industry and Digital Service
of dual-use goods (SDBU). "
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Thus
the role of the General Directorate of the Treasury is the control of
financial flows from third countries for payment of French
exports. DGT is thus competent to perform the freezing of
financial transactions. Under Article L.562-2 of the Monetary
and Financial Code, the Minister responsible for the economy, and by
extension DGT may indeed
"... Decide to freeze
part of the funds, financial instruments and economic resources
[...] belonging to natural or legal persons, entities or bodies
who have committed [...] sanctioned or acts prohibited by [the
adopted resolutions under Chapter VII of the UN Charter or the
acts adopted under Article 15 of the Treaty on European Union] '
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Thus,
beyond the criminal sanctions already mentioned in the first part of
this work, the French authorities can prevent the payment of a
transaction already completed and sanctioned retrospectively. The
Investment Office, the fight against financial crime and punishment
of the DGT is the service responsible for the implementation of these
sanctions. The funds are however not confiscated by the DGT but
simply "stuck". The French operator, or on French
soil, is punished simply unable to access capital paid for the
targeted exports. The economic consequences for a company,
however, are important because of the major cash holes that result.
In
case of doubt, the funds paid in advance or payment are not
confiscated but frozen by banks by order of the General Directorate
of the Treasury, which still presents a great danger for companies
that do not know the rules well who can lose markets by not honoring
their contracts or be in a financial position dificult not being paid
for their sale. The situation is very difficult on the part of
the authorities concerned if companies are struggling to prevent the
departure of a product, material or equipment free export for fear of
passing the material or stategic pending a possible decision applying
catch-all clause that can take several months.
This
is an often overlooked aspect of control of operators which can cause
forgetfulness paperwork and cause excessive gel certain
transactions. Thus, through the action of these four specific
services, it is quite clear that this is a complex administrative
network and composed of many actors who is in charge of the
implementation of this policy. Like any device of this type,
complexity is sometimes blamed for its ineffectiveness and potential
administrative and bureaucratic inconvenience it may cause. It
is this balance that tries to draw the "policy report on the
approximation of sensitive civilian technology transfers control
devices and military" of January 2014 drawn up by the Court of
Auditors, says "report Hespel" the name of the President of
the mission.
The U.S.
Government controls exports of sensitive equipment, software and
technology as a means to promote our national security interests and
foreign policy objectivesMore...
Previous
situation
In
short historical overview of the fight against the proliferation of
weapons of mass destruction, we can say that the awareness of
technological espionage aimed at producing nuclear weapons began in
the 50s when the former USSR conducted test of a nuclear weapon
copied from Nagasaki and of superpower thermonuclear weapons tests
obtained again from illegal transfers of US expertise, yet classified
top secret. To fight against this disastrous technological
looting from this new large nuclear power and given the existence of
the "cold war" began in the first Berlin crisis (June
1948-May 1949), the USA, France , Italy, the United Kingdom, the
Netherlands, Belgium and Luxembourg in 1950 created a committee to
control or prohibit exports to countries under Soviet control, for
civil use goods and technologies that could a militair use; ie
to prevent the "Eastern countries" to gain strategic
superiority against the United States of America and European
countries. Thus these seven countries have established a
Coordinating Committee for Multilateral exchanges (COCOM) which were
quickly joined by Canada, Denmark, Germany, Japan, Australia, Spain,
Greece, Australia, Portugal and Turkey. The work of the former
COCOM, which was an "informal and secret" committee were so
confidential that the embargo against the countries of the former
"Soviet bloc" finally became inoperative. It was only
during the 70s and 80s that Western countries have realized that with
the development of German V2 missile technology of World War II, the
USSR had managed to acquire missiles ballistic long-range and
accurate, and that many other countries had copied them to produce
Scud missiles. Similarly, Western countries were concerned about
the nuclear tests carried out by the so-called at the time "the
third world", and the use of chemical weapons produced by
technology and equipment available for civilian use in international
trade. Industrialized states have pulled together then
reactivating the former COCOM, creating multilateral regimes to
control proliferation of WMD and their delivery systems: (NSG, MTCR
and AG) and an inviting many countries to sign the Non Proliferation
of Nuclear Weapons (NPT). Despite all these precautions, it
appeared at the time of the extraordinary advances in micro-article
arrow and computer, as technological looting were only increase, not
only in favor of the former Soviet Union but also many other
"proliferating states". A short break vigilance in the
fight against the proliferation of weapons of mass destruction came
in the early 90s, after the fall of the Berlin Wall and the demise of
the former Soviet Union, however, the European Union has seizure of
the problem by creating a regulation directly applicable in the
member states, given the legal weaknesses in dual-use goods control
in each of these states, where legal proceedings against traffickers
were widely contested. The dislocation of military assets of the
former USSR (including nuclear), and the attack of September 11, 2001
in New York, followed by wars and actions of terrorism in the Middle
East, led the industrialized states to increase their vigilance in
the years 2000-2010 by the creation of the security initiative
against the proliferation (PSI) and the implementation of embargoes
against several non-democratic countries. They finally
strengthened the legal bases their regulations as a result of
Resolution No. 1750 (2004) of the UN Security Council.
Current
situation and outlook
In
France, the legal means to fight against the dual-use goods
trafficking and the proliferation of weapons of mass destruction seem
full, especially as the European Council Regulation No. 428/2009 as
amended provides for a "catch-all clause" to prohibit the
export of goods not included in the dual-use checklists or restricted
to certain destinations. In fact, this provision consistent with
the little French law (to be written) results in unwanted blockages
from the service of the French dual-use (SBDU) when a company
requests information on a project, or share Customs inspectors who
have difficulty interpreting the lists of the subject property, or
the part of the Directorate General of Treasury Ministry of Economy
and Finance which orders banks to block payments or payments from the
abroad (if in doubt about a transaction) for weeks waiting for the
response of SBDU.
In
addition, the integration of references in the Community Integrated
Tariff (TARIC) codes corresponding to articles and paragraphs lists
of dual-use goods, or goods subject to export restrictions to certain
countries, does not allow controllers Customs to know exactly what is
covered in a subheading of the Combined Nomenclature of the Common
Customs Tariff.
The
customs and criminal penalties are severe post if discovered
misappropriation of sensitive goods and technologies, but it is
difficult in practice to prevent illegal exports before they leave,
or to oppose the clandestine operations brokering and transfers
intangible technologies without effective intelligence means. In
France, the coordination of control of dual-use goods and embargoes
returns to the Ministry of Foreign Affairs as Chair of the
Interministerial Committee on dual-use goods, but the problem is not
just diplomatic. As noted by the Court of Auditors guidance
report of January 2014, the intermistérielle should be coordinated
at the level of the Prime Minister, ie the Secretariat-General for
National Defence and Security (SGDSN), as before the first reform of
the service in 1996 (ex-NWMO) which, after its powers defined by
decree, was at the time responsible for coordinating intelligence.
There
is a growing risk of proliferation of weapons of mass destuction not
only to non-democratic states, but also for the benefit of current
major terrorist organizations that aim to invade Black Africa and the
middle east, and destroy our civilization. The greatest current
threat is building a nuclear weapon several tons with a few tens of
plutonium 239 kilogrammmes recovered after the dismantling of the
Soviet army or diverted by internal complicity in nuclear
plants. This bomb would be embedded in a sea container to
explode at sea and causing a devastating tsunami, or a truck that be
stationed in a city to destroy.
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