International Export Control Law—Mapping the Field

Abstract

Traditionally, the control of the export of arms and other military material is a national concern that flows from the principle of state sovereignty. As international public law developed, national rules and regulations were increasingly affected by a growing body of international law. Together, these rules and laws constitute an emerging subdiscipline of law impacting the international trade in military and dual-use goods, technology, and software and can be referred to as export control law. This chapter explores various well-established disciplines of public international law that form the constituent parts of international export control law.

5.1 Introduction

Throughout history, states and other territorial entities have restricted the export of arms and related military equipment, including maritime supplies and equipment, for reasons of national security. For example, in ancient times the Roman Empire prohibited the delivery of weapons to other nations¹ and during the Dutch Revolt² the Dutch Republic subjected the trade in arms and maritime equipment to a strict licensing system (see Chap. 16).³ Such restrictions in international military trade have been developed in domestic policies and laid down in national rules and regulations. Today, states continue to regulate the export of military equipment. The scope of contemporary legislation, however, has broadened significantly over time and now also encompasses goods, technology, and software (in this chapter together referred to as items) that are civilian by design but may serve a military purpose as well (dual-use). Moreover, security concerns are not the sole basis for these particular trade restrictions anymore, as other considerations, such as foreign policy, human rights, and economy, increasingly influence decision-making. Another striking element of domestic export control legislation is the increasing importance of public international law. All domestic and international laws and regulations as well as policy rules and commitments that are applicable to and regulate the export, re-export, transit, and transfer in any manner of goods, technology, and software can be referred to as export control law. Although a term like this suggests that a new branch of law has emerged, export control law is not an established field of law in its own right. Each state still has the power to enact its own set of domestic laws, regulations, and policy rules, whereas the international component of export control law draws heavily on various subdisciplines of public international law. However, as a consistent and comprehensive set of rules is rapidly developing with a growing impact on international trade, discussion of international export control law as a distinct subdiscipline of law is warranted.

Export control law is a rather broad field of law potentially encompassing a wide array of topics. In this chapter it is narrowly interpreted to include only two core areas of export control, namely the rules with respect to the control of the export of military and dual-use items, and economic sanctions. Consequently, related topics such as bribery of foreign officials, securities law, foreign direct investments, and trust law will not be part of the discussion.

The chapter’s aim is to analyse international export control law by exploring the various areas of international law relevant to export control law. The chapter starts by introducing export control and analysing some key terms before exploring the subdisciplines of international law that are most relevant to export control law in general. These subdisciplines include the laws of armed conflict (also referred to as international humanitarian law), sanctions law as part of international security law, the law of arms control, and human rights law. Finally, this chapter offers a brief synthesis and conclusion. Domestic and regional (i.e., European Union) export control law will not be discussed in detail but may be referred to where appropriate.⁴

As may be apparent from the table of contents of this volume, export control law is inextricably linked to other research and policy areas such as ethics, economics and trade, and politics and international relations, all of which influence the legislator’s choices. Export control laws and regulations are, therefore, the result of trade-offs made in all these interconnected areas. Since the aim of this chapter is limited to mapping the legal terrain, it will not probe the non-legal aspects of export control. The audience should, however, keep in mind the relevance and impact of other research and policy areas.

5.2 Export Control Law in General and Terminology

Under modern public international law, states are prohibited from threatening to or using force against other states. This is a rule of customary law, as well as one of the founding principles of the United Nations (UN) as laid down in Article 2(4) of the UN Charter, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.⁵ The Charter states two exceptions to this rule. First, states are allowed to use force based on their inherent right of individual and collective self-defence against an armed attack (Article 51 of the UN Charter). Second, states can use armed force to maintain or restore international peace and security when mandated by the UN Security Council under Articles 39 and 42 of the UN Charter (peace-enforcement and peace-operations).

The right to resort to armed force in self-defence, implies that States can maintain the means to act on that right. Consequently, absent specific treaty limitation States are entitled to possess arms and other military equipment,⁶ without restrictions on the levels or types of armaments,⁷ and, as a corollary thereof, can produce and trade them unless prohibited under international law. The right to possess arms has been confirmed by the International Court of Justice in its landmark Nicaragua Judgment, “in international law there are no rules other than such rules as may be accepted by the State concerned, by treaty or otherwise whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception”.⁸ The international trade in arms as a legitimate exercise of the right to self-defence is reflected in the Preamble of the Arms Trade Treaty by its reference to a number of international principles, including the right to self-defence as recognized in Article 51 of the UN Charter and “(t)he respect for the legitimate interests of States to acquire conventional arms to exercise their right to self-defence and for peacekeeping operations; and to produce, export, import and transfer conventional arms”.⁹

As states can legitimately trade in arms, it is reasonable to keep checks on these goods and related items leaving the territory destined for another state. The reasons therefor may vary but will include the protection of national security and economic interests. Also, export control can be a key foreign policy tool as well as a State’s contribution to the maintenance of international peace and security. In general, national checks on the export of military and dual-use items will focus on items that can be useful for purposes that are contrary to a State’s interests. Often, these items are included in elaborate lists and subject to a system of prohibitions, exemptions, licenses, or other forms of authorization. Yet, unlisted items can become subject to export control authorization as well through the use of ‘catch-all’ clauses. Clauses of this type provide that the export of unlisted items still require a national authorization when the end-use or the end-user of an item are of concern as specified in that clause; e.g. use related to weapons of mass destruction.¹⁰ Whether or not an authorization for the export of an item is required will, in general, be determined by answering the ‘what’, ‘where’, ‘who’, and ‘how’ questions.¹¹ What are the product specifications of an item and do they correspond with a listed item (classification)? Where is an item heading (destination); is that State subject to a sanctions regime? Who is ultimately the user of the item (end-user)? And finally, how will the item ultimately be used (end-use)?

Today, international commerce is characterized by the economic principle of free trade.¹² Export controls and sanctions do not seem to fit this principle. Nevertheless, they can be justified under international economic law instruments.¹³ Article XXI of the 1994 General Agreement on Tariff and Trade (GATT)¹⁴ contains ‘security exemptions’ allowing States to take “any action it considers necessary for the protection of its essential security interests”. The exception applies, inter alia, with respect to “the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of the supplying a military establishment” (Article XXI(b)(ii)).¹⁵ Article 346(1)(b) of the Treaty on the Functioning of the European Union (TFEU)¹⁶ includes a similar exception authorizing Member States to take “such measures as it considers necessary for the production of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes”.¹⁷

As has been mentioned in the introduction to this chapter, export control law is not a self-contained or specialized¹⁸ legal regime. Consequently, it lacks a single set of legal definitions of key export control terminology. So, the meaning of terms such as ‘export’ and ‘military goods’ may differ, depending on the applicable legal system and even, within that jurisdiction, on the specific statutory basis. For instance, under US law ‘export’ not only refers to the transfer of an item or a defense article out of the US but also to the release or transfer of technology or technical data to a foreign person even when that person is present in the US¹⁹ The latter form of export is referred to as ‘deemed export’ in US export control law, but this expression is not used in EU export control law. Further, in the US legal system the terms ‘item’ and ‘technology’ are typical for the control of dual-use and less-sensitive military items (not including services) pursuant to the Export Control Act of 2018²⁰ and its implementing regulations: the Export Administration Regulations.²¹ These terms are not used, however, in relation to military items which are regulated in the Arms Export Control Act of 1976²² and its implementing regulations: the International Traffic in Arms Regulations.²³ Here, the preferred terms are ‘defense article’ and ‘technical data’. For the purpose of this chapter, I will use goods, services, and technology in a generic way. Where appropriate, I will refer to the terms common to that jurisdiction.

5.3 International Law

As discussed above, the right of states to use force in self-defence and for peace-enforcement and peace-operations entails the right to possess and sell arms or otherwise transfer them abroad. The freedom of states to exercise the latter rights has been considerably limited as public international law developed over the past century. Currently, multiple subdisciplines of public international law increasingly impact the discretion of national legislators to control the export of military and dual-use items. The law of armed conflict prohibits and regulates the use of specific categories of weapons in armed conflict. Further limitations apply in peace-time where the law of arms control sets out rules on the production, testing, stockpiling, transfer, or deployment of certain types of weapons. In addition, sanctions law restricts the export of military and dual-use items to embargoed States and entities. Furthermore, human rights concerns increasingly are to be taken into account on every level of decision-making with respect to export control.

Most of the international rules on export control are laid down in international agreements (treaties) concluded between states or are part of international customary law. Additional non-legal commitments flow from informal arrangements, such as the export control regimes like the Wassenaar Arrangement (see Chap. 3). States are obliged to implement and enforce the rules as provided in the various instruments to which they are a party. Also, when a state does not comply with the provisions in the instruments, it may become subject to international sanctions, and it may cause other states to deny or restrict the transfer of military or dual-use items to the non-compliant state. For instance, the EU requires member states to take a number of criteria into consideration before granting an export license for military items.²⁴ The criteria include compliance with arms embargoes, obligations under non-proliferation treaties, commitments under the export control regimes, and respect for human rights and the law of armed conflict. This section provides an overview of these subdisciplines of public international law.

5.3.1 The Law of Armed Conflict

Perhaps the oldest subdiscipline of public international law relevant to export control is the law of armed conflict (or: international humanitarian law). This field of law is based on the idea that the horrors of armed conflict should be limited as much as is feasible by protecting the victims of armed conflict and restricting the means and methods of warfare. This body of law has expanded in its scope and application since World War II. Consequently, the scope of armed conflict is broad encompassing international armed conflicts between two or more states as well as internal (or: non-international) armed conflicts that take place between a state and organized armed groups or between such groups within its territory.²⁵ Warfighting has been subject to customary rules and religious norms for centuries (e.g., the prohibition of the use of slings and (cross)bows against Christians as stated in Canon 29 of the Second Council of the Lateran in 1139).²⁶ The codification of this field of law started in the second half of the 19th century and continues today. Two topics that are in particular relevant for international military trade are discussed below: neutrality law and weapons law.

5.3.1.1 Neutrality Law

States that do not participate in an international armed conflict are neutral and have the right not to be adversely affected by the hostilities.²⁷ This entails the right to continue international trade and maintain existing commercial relations with the parties to the conflict.²⁸ The principle of non-participation prohibits, however, neutral states to make available war materials to one or more of the parties to the conflict. The issue was addressed in the 1856 Paris Declaration, the very first treaty on the law of armed conflict. The Paris Declaration protects neutral maritime trade by prohibiting parties to a conflict from seizing enemy goods on neutral vessels or neutral goods on enemy vessels except for “contraband of war”.²⁹ The 1906 Hague Convention XIII specifically prohibits neutral States to supply directly or indirectly “war-ships, ammunition, or war material of any kind whatever”.³⁰

Closely related to neutrality law is the law of blockade. This part of the law of armed conflict deals with a method of economic warfare at sea aimed at preventing all vessels from entering or exiting enemy coastal areas or ports.³¹ A historical example is the blockade by the Dutch Republic of Flemish port under the control of the Kingdom of Spain in 1584.³² Initially, the Dutch activities were widely criticized as a violation of neutrality law because of their impact on the trade of neutral States with the Spanish held cities. However, as other naval powers were quick to follow suit the right to declare a blockade developed as a customary rule and was included in the Paris Declaration (point 4) in 1856.³³ Blockades are still relevant today³⁴ and are also mentioned as one of the actions the UN Security Council can take under Article 42 UN Charter to maintain or restore international peace and security (see Sect. 5.3.3).³⁵

5.3.1.2 Weapons Law

Weapons law is the part of the law of armed conflict that essentially prohibits the use of certain weapons in armed conflict and restricts the circumstances in which other weapons may lawfully be used.³⁶ Moreover, States Parties to the Additional Protocol I to the Geneva Conventions³⁷ have to make sure that in the study, development, acquisition, or adoption of a new weapon international law does not prohibit its deployment (Article 36). Consequently, states considering importing new weapons must respect this obligation and incorporate it into their acquisition procedures.

Weapons law is based on the rationale that the means to conduct hostilities in armed conflict find their limits in humanitarian considerations.³⁸ The first international instrument in this field is the 1868 St Petersburg Declaration³⁹ prohibiting the use of certain explosive projectiles. Other instruments soon followed often concentrating on the codification of the customary prohibition of poisoned weapons (e.g., the Declaration concerning Asphyxiating Gases of 29 July 1899 and the Treaty of Versailles of 28 June 1919).⁴⁰ The use of various types of gases in World War I led to the adoption of the Gas Protocol in 1925,⁴¹ prohibiting the use in armed conflict of “asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices” as well “the use of bacteriological methods of warfare”.

Building on this Protocol, that is still in force today, new agreements were concluded over the past few decades. In 1972, the Convention on the Prohibition of Biological Weapons⁴² negotiated by the Conference on Disarmament⁴³ was opened for signature. The agreement prohibits the development, production, stockpiling, and otherwise acquiring or retaining of biological and toxin weapons,⁴⁴ making it the first multilateral treaty banning an entire category of weapons of mass destruction. By no longer focusing on the use of the weapons, an overlap has been created with the law of arms control, which will be further addressed in the next section.

The prohibition of chemical weapons was further developed in the Chemical Weapons Convention of 1993.⁴⁵ The agreement prohibits the development, production, stockpiling, and use of chemical weapons. In addition, States are required to destroy production facilities for chemical weapons as well as the weapons themselves (Article I). The Organization for the Prohibition of Chemical Weapons, established pursuant to Article VII, monitors compliance with the Chemical Weapons Convention.

Whereas the non-proliferation of nuclear weapons has already been addressed in various international instruments, as will be discussed in the next section, the threat or use of these weapons was not prohibited under international law.⁴⁶ This situation has changed with the entry into force of the Nuclear Weapon Ban Treaty on 22 January 2021, which prohibits the threat and use of nuclear weapons as well as other actions. Although none of the States currently in possession of this type of weapons is a party to the treaty, it signifies a further step towards nuclear disarmament.

In 1980, the Certain Conventional Weapons Convention⁴⁷ became the basis for restrictions to the use of certain conventional weapons as set out in protocols to the Convention. These Protocols cover weapons such as mines and booby-traps (Protocol II),⁴⁸ incendiary weapons (Protocol III),⁴⁹ and blinding laser weapons (Protocol IV).⁵⁰ The latter Protocol prohibits the use as well as the transfer of such weapons further strengthening the link between the law of armed conflict and the law of arms control. Outside the framework of the Certain Conventional Weapons Convention, States adopted several other agreements on conventional weapons, such as the Anti-Personnel Mine Ban Convention⁵¹ and the Convention on Cluster Munition.⁵² Parties to these treaties have agreed to neither use these weapons nor “to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly” them. In the future, new and emerging technologies, such as artificial intelligence and nano-technology, or items based thereon⁵³ may become subject of international agreements restricting their further development or use.

5.3.2 The Law of Arms Control

The ultimate goal of arms control is to preserve international peace and security by easing international tensions and reducing the likelihood of large scale armed conflicts. Therefore, the law of arms control not only prohibits the use of certain types of weapons, as the law of conflict does, but also covers the peacetime production, testing, stockpiling, or transfer thereof.⁵⁴ This field of law can be defined as “that part of public international law that deals both with the restraints internationally exercised upon the use of military force (in general) and on the use, transfer and/or the possession of armaments (in particular), including their component parts and related technologies, whether in respect of the level of armaments, their character or deployment and with the applicable supervisory mechanisms”.⁵⁵ The definition casts the net quite wide, encompassing concepts such as disarmament and non-proliferation law.⁵⁶ As it is hard to keep these associated areas separated from one another, they will be discussed together under the umbrella term of arms control.

5.3.2.1 Development

As with export control law, the law of arms control has a long history. One of the early agreements includes the 1890 Brussels Conference Act,⁵⁷ the main purpose of which was to fight the slave trade. Part of the agreed measures was the restriction of the transfer of modern firearms to parts of the African continent. The agreement was not very effective and was supplemented and revised in the aftermath of World War I by the Convention of Saint-Germain-en-Laye.⁵⁸ The purpose of this treaty was to submit all members of the newly established League of Nations to the control of the trade in arms and ammunition pursuant to Article 23(d) of the League of Nations Covenant.⁵⁹ The agreement did not enter into force, however. Efforts to revive the Convention of Saint-Germain-en-Laye at a conference in Genève a couple of years later were unsuccessful.⁶⁰ Nonetheless, the conference was no total failure as it also adopted the Gas Protocol, discussed above.

The development of the law of arms control really took off in the post-World War II period. Key in its development were the rise and further development of nuclear weapons and missile technology.⁶¹ It was, however, not until the end of the Cold War, when international relations became more balanced, that arms control matured and the law of arms control became a separate branch of public international law.⁶² This field of law covers conventional weapons as well as weapons of mass destruction. Examples of treaties dealing with conventional arms and forces are the Treaty on Conventional Armed Forces in Europe⁶³ and the Treaty on Open Skies. Also, at this point, the Arms Trade Treaty may be mentioned which purpose is not to prohibit the international trade in arms, but to regulate the legitimate conventional arms trade.⁶⁴

5.3.2.2 Nuclear Weapons

Today, attention is focused on the weapons of mass destruction. The previous section already discussed biological and chemical weapons. This section further focuses on nuclear weapons. The rules regarding nuclear weapons and technology are laid down in multiple multilateral treaties as well as bilateral treaties between the two leading nuclear powers of the past decades: the US and Russia. The cornerstone of international efforts to control the proliferation of nuclear weapons is the Non-Proliferation Treaty of 1968.⁶⁵ The five states in possession of nuclear weapons at the time of signing of the treaty (the nuclear-weapon states⁶⁶) committed themselves to not transferring nuclear weapons or technology to any other State (Article I). The non-nuclear-weapon states, for their part, agreed not to manufacture or acquire nuclear weapons (Article II) and to accept monitoring of their civil nuclear programs by the International Atomic Energy Agency, IAEA (Article III).

Article VI of the Non-Proliferation Treaty calls upon states to end the nuclear arms race and complete nuclear disarmament. As the nuclear-weapons states failed to make progress on nuclear disarmament, humanitarian initiatives led to the adoption of the Nuclear Weapons Ban Treaty in 2017. This instrument includes a set of prohibitions on participating in any nuclear weapon activities, such as developing, testing, producing, acquiring, possessing, stockpiling, using or threatening to use nuclear weapons (Article 1). Ultimately, it must lead towards their total elimination (Article 4).

Earlier treaties on nuclear non-proliferation, some preceding the Non-Proliferation Treaty, cover areas such as the prohibition of nuclear weapons tests and the establishment of Nuclear-Weapon-Free Zones. The Limited (or: Partial) Test Ban Treaty⁶⁷ restricts the testing of nuclear weapons in the atmosphere, underwater, and in outer space. It does, however, not prohibit nuclear test explosions underground. The latter issue is partly covered by the Threshold Test Ban Treaty between the US and Russia,⁶⁸ which prohibits nuclear tests having a yield exceeding 150 kilotons. Nuclear testing should definitely come to an end with the entry into force of the Comprehensive Test Ban Treaty which is to ban all nuclear tests world-wide.⁶⁹

The prohibition on nuclear testing is also part of regional agreements on Nuclear-Weapon-Free Zones.⁷⁰ Their scope is much broader, though, and generally include bans on the development, manufacturing, control, possession, stationing or transporting of nuclear weapons in a given area. The first of such agreements was the Treaty of Tlatelolco signed by Latin American and the Caribbean States in 1967.⁷¹ Other regional nuclear-weapon-free zones agreements cover areas in the South Pacific,⁷² Southeast Asia,⁷³ Central Asia,⁷⁴ and Africa.⁷⁵ Also, treaties for Antarctica,⁷⁶ Outer Space,⁷⁷ the Seabed,⁷⁸ and the Moon,⁷⁹ include provisions on denuclearization of areas that do not belong to a particular State.

As early as the Cold War era, the two major nuclear powers, the US and Russia (formerly the Soviet Union) entered into a number of agreements significantly reducing the number of nuclear weapons. Under the Intermediate-Range Nuclear Forces (INF) Treaty,⁸⁰ both States agreed to eliminate their intermediate-range and shorter-range ground-launched ballistic and cruise missiles with a range between 500 and 1500 kilometres. The number of strategic nuclear weapons of both States was reduced under the START 1 (1991),⁸¹ the SORT,⁸² and the New START (2010) agreements. In the latter agreement the US and Russia limit the number of nuclear warheads on deployed intercontinental ballistic missiles, submarine-launched ballistic missiles, and heavy bombers to 1,550 shored up by a robust verification mechanism.⁸³

5.3.2.3 Multi-layered System

The law of arms control is conventional in nature. It is based on a series of bilateral and multilateral treaties rather than customary law. It is further strengthened and supplemented by binding decisions of international organizations, in particular UN Security Council Resolution 1540,⁸⁴ and several soft law instruments called the export control regimes (see Chap. 3).⁸⁵ The final layer of the law of arms control can be found in the national legal systems as States are obliged to implement and enforce the internationally agreed rules in their domestic legal system. Of course, states parties to an international agreement are obliged to implement and enforce the agreement in accordance with its terms. Moreover, Resolution 1540 creates a universal obligation for all states 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, including by establishing appropriate controls over related materials”.⁸⁶

Consequently, an expanding multi-layered system of interconnected legal norms has been created covering weapons of mass destruction, as well as conventional weapons and forces that have to be incorporated in domestic export control law. Despite the high level of regulation, the system faces multiple challenges. Some states still have weapons of mass destruction, and some even do not shy away from using them, as, for example, the chemical weapons attacks in Syria show. The US has withdrawn from the INF-treaty and the Treaty on Open Skies.⁸⁷ Other treaties have not entered into force yet, such as the Comprehensive Test Ban Treaty and the Adapted Conventional Armed Forces in Europe Treaty. Furthermore, the question arises whether the existing rules are sufficiently capable of dealing with emerging technologies, such as additive manufacturing, artificial intelligence, big data analytics, bio-technology, and nanotechnology.

5.3.3 Sanctions Law

Throughout history, states have used sanctions as a powerful political tool to exert influence on other states or even to coerce them into changing their behavior.⁸⁸ Typically, sanctions were imposed in the context of armed conflicts or disputes falling short of war.⁸⁹ Building on that practice, sanctions became part of the collective security system of the League of Nations as an alternative to the use of armed force.⁹⁰ One of the fiercest supporters of the sanctions paragraph in the League of Nations Covenant was US President Wilson. Addressing a House of Representative Subcommittee he stated, “Apply this economic, peaceful, silent, deadly remedy and there will be no need for force. It does not cost a life outside the nation boycotted, but it brings a pressure upon the nation which, in my judgment, no modern nation could resist”.⁹¹ The League invoked its authority to impose sanctions on several occasions with varying degrees of success, for example, after Italy had invaded Ethiopia in October 1935.⁹²

5.3.3.1 UN Collective Security

The prohibition on the use of force as mentioned in Sect. 5.2 is the central element of the present system of collective security in which the international community has tasked the UN to maintain international peace and security (Article 1(1) UN Charter). Within the system, the UN Security Council plays a critical role. After determining the existence of a threat to international peace and security (Article 39 of the UN Charter), the Council can take action and even authorize the use of armed force to restore peace and security. The use of force is, however, an ultimum remedium and the Council can refrain from military action and opt for less intrusive measures under Article 41 of the UN Charter, such as sanctions.

Modern sanctions can be described as “non-forcible (i.e., non-military) foreign policy measures adopted by states or international organisations and designed, possibly among other things, to influence other states or non-state entities or individuals to change their behaviour or take a particular course of action”.⁹³ They generally take the form of financial sanctions, such as asset freezes and bans on the provision of financial services; trade and arms embargoes;⁹⁴ and travel bans.⁹⁵

During the Cold War, the UN Security Council only managed to create two sanctions regimes.⁹⁶ The first was established in 1968, targeting Southern Rhodesia,⁹⁷ the second a decade later, targeting South Africa.⁹⁸ Right after the Cold War had come to an end, the Council became increasingly active. In 1990, it hit Iraq with a full trade embargo after the invasion of Kuwait,⁹⁹ followed in 1993 with sanctions on Haiti after the military coup in the country.¹⁰⁰ These comprehensive sanctions imposed by the UN turned out to be a ‘blunt instrument’¹⁰¹ and sometimes, as President Wilson had foreseen, a ‘deadly remedy’. The sanctions had a disproportionate humanitarian impact of the civilian population contributing to increasing rates of infant mortality, disease, and malnutrition.¹⁰² Consequently, the UN turned to more focused sanctions, now referred to as targeted or smart sanctions, aimed at specific groups and entities within the sanctioned State. Also, non-State actors, such as terrorist groups, have become subject to sanction regimes as the sanctions on Al-Qaida show.¹⁰³ Recently, sanctions programs have been established not so much targeting a particular state or actor, but rather a specific economy sector or topic, such as human rights¹⁰⁴ or cyber activities,¹⁰⁵ allowing for the sanctioning of persons and other entities regardless of their relationship with a particular State (horizontal sanctions).¹⁰⁶

From a legal perspective, UN sanctions are a powerful instrument. As many of the sanctions regimes are established under Chapter VII of the UN Charter, the UN Security Council Resolutions imposing the sanctions are binding on all UN member states pursuant to Article 25 of the UN Charter. In addition, Article 48(1) of the UN Charter instructs the member states to take the necessary action to carry out the decisions of the Security Council. Last, but not least, Council decisions take precedence over other obligations of a member state under any international agreement (Article 103 UN Charter). Therefore, states will have to implement and enforce the UN sanctions in accordance with the terms of the relevant Resolutions and regardless of possible other arrangements the States have previously agreed upon.

5.3.3.2 Legality of Autonomous Sanctions

As the definition of sanctions mentioned above makes clear, the UN does not have the exclusive right to impose sanctions. Today, states, as well as international organizations, in particular the EU, have become very active in this field and have imposed sanctions in addition to or even absent a UN sanction as an alternative means of achieving their foreign and security policy goals. This type of sanctions is referred to as autonomous (or sometimes: unilateral) sanctions. Whereas the UN sanctions are part of the global collective security system and consequently firmly based on the provisions of the UN Charter, the legality of autonomous sanctions is less evident.

The starting point is that under international law, a sovereign state is not obliged to maintain economic relations with other states and, therefore, has the legal discretion to choose with which other states it will conduct business.¹⁰⁷ Consequently, it may unilaterally restrict or even terminate its international trade relations in the absence of a treaty commitment limiting that freedom. In international law, such a unilateral action can be qualified as retorsion. A retorsion does not violate any obligation owed to any particular state or the international community as a whole. Although it is often described as an unfriendly act of a state vis-à-vis another state, it is a lawful reaction to an unfriendly or unlawful act by that other state and therefore admissible.

As sanctions are coercive by nature they can be illegitimate on other grounds. Although typically they cannot be classified as use of force,¹⁰⁸ they may breach the principle of non-intervention¹⁰⁹ that denies states the right to intervene in the internal or external affairs of any state.¹¹⁰ Regarding the principle, the UN Declaration on Friendly Relations holds, “No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.”¹¹¹ Whether or not sanctions meet this fairly high threshold has to be decided on a case by case basis. In the Nicaragua-case, for instance, the Court held that it was unable to regard US economic actions with respect to Nicaragua, including a full trade embargo,¹¹² “as a breach of the customary-law principle of non-intervention”.¹¹³

Sanctions may also be unlawful when issued in breach of a treaty obligation. Examples are trade provisions in bilateral ‘treaties of friendship, commerce, and navigation’ and ‘bilateral investment treaties’.¹¹⁴ With respect to the former, the International Court of Justice in the Nicaragua-case found that the US trade embargo of Nicaragua had violated Article XIX of the Treaty of Friendship, Commerce and Navigation between the two States.¹¹⁵ Also, after the US had reimposed its sanctions against Iran following its withdrawal from the Iran Nuclear Deal¹¹⁶ in 2018, Iran instituted proceedings against the US before the International Court of Justice.¹¹⁷ In its application Iran claims that the re-imposition of the sanctions violates the Treaty of Amity, Economic Relations and Consular Rights between both states.¹¹⁸

The most important limitations on a state’s discretion to limit international trade relations can be found in the GATT and the GATS,¹¹⁹ in particular the provisions such as the most-favored nation clause;¹²⁰ tariff concessions;¹²¹ the principle of national treatment;¹²² the prohibition of quantitative restrictions;¹²³ and market access rules.¹²⁴ However, exceptions are allowed under the general exceptions clauses¹²⁵ and the security exceptions clauses (the latter are discussed in Sect. 5.2).

Sanctions that are unlawful in principle can, however, be justified when imposed in response to a previous violation by the targeted state of its international obligations towards the sanctioning state (an internationally wrongful act). Pursuant to the Draft Articles on state responsibility¹²⁶ these countermeasures must be aimed at the target state’s compliance with its international obligations (Article 49(1)) and must be proportionate (Article 51). The other side of the coin is that secondary sanctions (discussed hereinafter) or sanctions legislation promulgated to further other policy goals, cannot be based on the rules of State responsibility.¹²⁷

Finally, one particular type of sanctions, the so-called secondary or extraterritorial sanctions, has raised broad concerns as they can violate international law. Typically, a national sanctions law or regulation targets the sanctioned state and regulates the behavior of the sanctioning state’s nationals, foreign persons present on its territory, and companies incorporated in the state. There is, in other words, a nexus between the regulating state and the person subject to the regulation. Secondary sanctions cast the net much wider and can also subject foreign persons and corporations abroad to the sanction regulations, without any real nexus between the state and these persons. The US in particular has regularly imposed such secondary sanctions¹²⁸ causing fierce critique from their trade partners. Several states and the European Union have enacted legislation to block the effects of these secondary sanctions (see Chap. 11).¹²⁹

5.3.4 Human Rights Law

The final subdiscipline of international law impacting national export control law is human rights law. Human rights refer to the basic rights and freedoms to which all humans are entitled, such as the right to life, freedom of expression, the right to work, and the right to education. Although human rights did not become an international law topic until the second half of the 20th century, the fundamental rights of individuals have been part and parcel of the constitutions of many democracies since the Enlightenment. Historic examples include the US Bill of Rights, passed by the US Congress in 1789 and the French Déclaration des droits de l'homme et du citoyen adopted by the National Constituent Assembly in the same year.

Traditionally, individuals were not a primary concern of public international law. However, some international agreements did attempt to protect the rights of groups of individuals, such as the 1890 Brussels Conference Act pursuing to end slavery. That attitude changed in the wake of World War II, although initially somewhat hesitantly. Article 1(3) of the UN Charter identifies “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of the purposes of the new organization, without defining or clarifying the scope of the concept.¹³⁰ The UN Human Rights Commission took on the task to draft a document delineating the fundamental rights of all people, which the General Assembly adopted in 1948 as the Universal Declaration of Human Rights.¹³¹ The Declaration covers two types of human rights. The first are the civil and political rights requiring the state to refrain from taking specific actions in order to respect the individual rights that include such matters as the right to life, the freedom of religion, the freedom of speech, the right to due process and a fair trial, and the prohibition of torture. The second type of rights are economic, social and cultural rights, which states are strongly encouraged to realize. These rights include the right to work, the right to education, and the right to health.

The Declaration is regarded as the foundation of international human rights law. Yet, as a resolution of the General Assembly, it lacks legal authority and does not create any legally binding obligations for the Member States.¹³² Therefore, the Declaration was supplemented with two universal treaties: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.¹³³ Together, the Universal Declaration of Human Rights and both Covenants are referred to as the International Bill of Human Rights. Soon, additional international agreements followed, establishing a comprehensive network of interlocking human rights instruments. These include treaties covering specific human rights matters¹³⁴ as well as regional treaties.¹³⁵

Human rights law has an increasing impact on export control law. The human rights situation in a state can be a ground to deny or restrict the transfer of specific military or dual-use items to that state. For instance, EU member states are obliged to assess an application for the export of military technology and equipment against several criteria, including the respect for human rights in the country of final destination.¹³⁶ Also, they may prohibit or impose an authorization requirement on the export of a dual-use item not listed in the EU Dual-Use Regulation.¹³⁷

Also, human rights law affects other fields of international law relevant to export control law. In particular sanctions law is increasingly affected by human rights concerns. As mentioned above, human rights considerations caused the shift from comprehensive to targeted sanctions in the early 1990s. In turn, the new sanctions raised questions about the individual rights of the individuals who were designated under the sanctions regulations. Most targeted sanctions include measures such as assets freezes and travel bans which may affect the designated person’s right to property,¹³⁸ right to family life, and the freedom of movement. Also, it is sometimes hard for an individual to legally challenge his designation and listing, which violates his right to effective judicial protection.¹³⁹

Moreover, states and international organizations can issue sanctions in response to human rights violations. In 2012, the US enacted the Magnitsky Act,¹⁴⁰ targeting Russian officials who were held responsible for the death of Sergei Magnitsky, a Russian tax lawyer who was imprisoned while investigating a multimillion fraud involving Russian officials. In prison, he was severely maltreated leading to his death in 2009.¹⁴¹ In 2016 the Global Magnitsky Act¹⁴² was signed into law, allowing the US to target individuals anywhere in the world responsible for committing human rights violations or acts of significant corruption. The EU¹⁴³ and several states followed suit and have similarly enacted ‘Magnitsky laws’.¹⁴⁴

5.4 Synthesis and Conclusion

Export control law can be described as the set of domestic and international laws and regulations as well as policy rules and commitments that are applicable to and regulate the export, re-export, transit, and transfer in any manner of goods, technology, and software. It forms a nascent, still developing field of law consisting of a domestic part, which is the traditional basis of this field of law, as well as an international part. The latter is the focus of this chapter, which explores the various established subdisciplines of public international law contributing to domestic export control law. The relevant international norms and rules are laid down in international agreements (treaties), are part of international customary law, set out in decisions of international governmental organization, and non-legal commitments flowing from the membership of export control regimes.

The various fields of public international law that export control law draws on, together form a set of related rules and norms that complement and reinforce one another. The law of armed conflict protects the victims of armed conflict and restricts the means and methods of warfare. Parts of this field of law relevant for export control law include neutrality law, which protects the rights of neutral states to continue international trade in armed conflict, and weapons law, that set limits to the use of certain weapons. The latter subset of rules is connected with the law of arms control, another subdiscipline of public international law, that covers the deployment of certain types of weapons, as well the production, testing, stockpiling or transfer thereof.

The use of armed force by states, in general, is limited under the system of collective security in which the UN is the leading authority to maintain international peace and security. Upon determination of a threat to the international peace and security, the UN Security Council can decide to take far-reaching measures, including the imposition of arms embargoes or economic sanctions, which States have to implement and enforce when the Council has acted under Chapter VII of the UN Charter. The law of sanctions covers this type of coercive measures, also allowing States and other international organizations to impose sanctions in addition to or even absent an UN-imposed sanction. As international practice is growing steadily, new types of sophisticated sanctions, tailored to specific situations are developed,¹⁴⁵ raising questions about the legality of this practice. Also, sanctions may give rise to various human rights concerns and already have led to changes in the scope and application of sanctions and the development of human rights-focused sanctions.

(Member) States are obliged to incorporate the international rules in their national legal systems and subsequently implement and enforce them in accordance with the relevant terms of the international instruments. Over time, domestic and international export control law has developed into a challenging and dynamic legal discipline. Although it is not an established subdiscipline of law in its own right, it is critical to consider all mutual related parts of export control law together to understand its impact on international military trade.