Abstract
This chapter examines the international legal concept of a sovereign State as it is relevant to export control. This relationship between sovereignty and export control is important to the subsequent case study because the international legal concept of a sovereign State and the rights and obligations associated with sovereignty is the critical international law element upon which both international and domestic Comsat export control regimes are established and from which States exercise the legal right for export control regulatory preferences. The current international legal environment is one in which each sovereign State has a unilateral space technology export control system. States may attempt to coordinate their domestic regulations, but there is no supranational authority to regulate and enforce. Only in unique circumstances does international law impose obligations to control space technology exports. The current paradigm of international law therefore limits the options available to sovereign States. Export controls that transcend the unilateral controls of an individual State must be obtained via voluntary bilateral or multilateral agreements and/or arrangements with other de jure States. There is no recognition of alternative cooperative export control arrangements that could supplement the State as the principal export control legal personality, disconnect the concept of territory from the spatial paradigm of export control, or allow for the control of technologies without the inclusion of the concept of an export.
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Notes
- 1.
Stephen Krasner, Problematic Sovereignty (New York: Colombia University Press, 2006) at 6.
- 2.
See John Agnew, Globalization & Sovereignty (New York: Rowman & Littlefield, 2009) at 9.
- 3.
See Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005) at 13. Aust supports the proposition that States are regarded by most authorities as the only subjects of international law, while natural persons and legal persons are generally Seen as “objects” of international law. But See Rebecca M.M. Wallace, International Law 5th Edition, (London: Sweet & Maxwell, 2005) at 1–2. Wallace proposes States are not the only subjects of international law and other actors may be required to participate. However Wallace subsequently contradicts herself and adopts an alternative position when she states: “However, while States possess full international legal personality as an inherent attribute of their Statehood, all other entities possessing personality do so only to the extent that States allow: that is, their personality is derived via States.” Id. at 63. Compare Teressa Fuentes-Camacho, Ed., The International Dimensions of Cyberspace Law (Paris/Aldershot: UNESCO Publishing/Ashgate, 2000). Consider that in cyberspace traditional forms of jurisdiction are challenged. These emerging areas of human activity do not fit within typical constructs of jurisdiction and export control.
- 4.
After extensive research I was surprised to find that no formal definition of export, as either a verb or noun, exists under international law. The term is used extensively in international agreements and arrangement but is never formally defined. The Wassenaar Arrangement Declaration does not define export. None of the WTO Agreements define export. The legal definition of the “export” remains within the domestic discretion of States. A strong argument exists that the custom of States has established a customary legal understanding of exports (verb and noun). Such a customary international legal definition would most likely parallel the definitions of export as adopted in Black’s Law Dictionary.
- 5.
Black’s Law Dictionary, 8th ed., s.v. “export” (vb).
- 6.
Black’s Law Dictionary, 8th ed., s.v. “export” (noun).
- 7.
Yann Aubin and Arnaud Idiart, Export Control Law and Regulation Handbook (The Netherlands: Kluwer Law International, 2007) at 4.
- 8.
- 9.
See Ersun N. Kurtulus, “Theories of Sovereignty: An Interdisciplinary Approach” 18(4) Global Society (2004) at 361.
- 10.
See Encyclopedia of International Law Vol. IV (Amsterdam: Max Plank Institute of Comparative Law, 1992–2001), Rudolph Bernhardt Ed., “Sovereignty” by Helmut Steinberger at 513. “Whether the status of sovereignty is acquired by a political entity as soon as it qualifies as State in the sense of international law, or whether such status depends in addition, in relation to other States, on its recognition as a State, is still controversial.”
- 11.
See Encyclopedia of International Law Vol. IV (Amsterdam: Max Plank Institute of Comparative Law, 1992–2001), Rudolph Bernhardt Ed., “Subjects of International Law” by Hermann Mosler at 718. “It is generally agreed that newly arisen States are not outside international law… Recognition cannot create an independent entity to which, by a general rule of international law, legal personality is not attached. Recognition is, however, significant in according a new State the possibility of putting its legal capacity into practice through relations with other members of the international community.”
- 12.
See Article 1, Montevideo Convention, 1993, 165 LNTS 19. See also The American Law Institute, Restatement of the Law (3rd): Foreign Relations Law of the United States, Vol.1 §201. See also Encyclopedia of International Law Vol. IV (Amsterdam: Max Plank Institute of Comparative Law, 1992–2001), Rudolph Bernhardt Ed., “State” by Karl Doehring at 601. See also Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005) at 16. See Also See, Rebecca M.M. Wallace and Olga Martin-Ortega, International Law 6th Edition (London: Sweet & Maxwell, 2009) at 64. See Opinion Number 1 of the Arbitration Commission of the European Conference of Yugoslavia, 92 I.L.R., at 162 & 165. Stating that “the State is commonly defined as a community which consists of a territory and a population subject to an organized political authority” and “such a state is characterised by sovereignty.”
- 13.
See Lassa Oppenheim (Ed. Ronald Roxburgh), International Law: A Treatise (Clark, NJ: The Lawbook Exchange, Ltd., 2005) at 135: “International Law does not say that a State is not in existence as long as it is not recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State become an International Person and a subject of International Law.”
- 14.
There are a few special instances of informal bilateral export controls arrangements between State de jure and de facto, in which one or both State has not recognized the other as de jure subject to the Doctrine of Sovereign Equality. See the U.S. – Taiwan export control arrangements.
- 15.
Encyclopedia of International Law Vol. IV (Amsterdam: Max Plank Institute of Comparative Law, 1992–2001), Rudolph Bernhardt Ed., “Sovereignty” by Helmut Steinberger at 513. See (as to the terminology adopted by Steinberger) Reparation for Injuries Suffered in Service of the U.N., advisory opinion, I.C.J. Reports 1949, p. 174.
- 16.
Stephen Krasner, Problematic Sovereignty (New York: Colombia University Press, 2006) at 6.
- 17.
- 18.
John H. Currie, Public International Law, 2nd Edition (Toronto: Irwin Law, 2008) at 334–335.
- 19.
Id.
- 20.
Id.
- 21.
Please note that multinational export control arrangements (such as the Wassenaar Arrangement) may also be included as another legal mechanism closely related in effect to a traditional bilateral strategic trade/safeguard agreement.
- 22.
John Heinz, U.S. Strategic Trade: An Export Control Systems for the 1990s (Oxford: Westword Press, 1991) at 80–82.
- 23.
Id.
- 24.
See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 1 July 1994 (1994 ICJ Rep. 112). See also, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits Judgment of 16 March 2001 (2001 ICJ Rep. 93). See also, Article 2(1) (a) of Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (23 May 1969).
- 25.
Article 102, U.N. Charter.
- 26.
John Heinz, U.S. Strategic Trade: An Export Control Systems for the 1990s (Oxford: Westword Press, 1991) at 80–82.
- 27.
Id.
- 28.
See Eric Chao and Sorin Niculescu, “The Impact of U.S. Export Controls on the Canadian Space Industry” 22(1) Space Policy 29 (2006).
- 29.
- 30.
- 31.
See Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, G.A. Res. 2625 (XXV), 1883rd Plenary Meeting, (24 October 1970).
- 32.
John H. Currie, Public International Law, 2nd Edition (Toronto: Irwin Law, 2008) at 39.
- 33.
U.N. Charter, Article 39.
- 34.
See e.g. Security Council Resolution 1737 (2006) [reaffirmed in Security Council Resolution 1874 (2009)] establishes an arms embargo on North Korea. This embargo requires Member States to prevent the direct or indirect supply of embargoed items, hence requiring export controls with regards to North Korea. The control lists (See Document S/2006/814 and S/2006/815) embargo space vehicles but not space vehicle payloads per se. The concern of the international community (as manifested in these documents) is the space vehicle/ballistic missile technology, not satellite payload technology per se.
- 35.
Given the current status of spacecraft technology and the export control discourse related to spacecraft and satellites, any space based system (e.g. spacecraft) that is in orbit is a satellite and therefore falls within the penumbra of satellite export controls. In other words, for export control purposes satellite and spacecraft are synonymous.
- 36.
Another interesting question is how the deployment of “weaponized” space systems will be received by the international community and controlled under international law. These questions of space system weaponization raise broader questions of human evolution in outer space and our collective human future in outer space.
- 37.
U.N. Security Council Resolution 1540, UN Doc. S/Res/1540 (2004).
- 38.
See U.N. Security Council Resolution 1540, UN Doc. S/Res/1540 (2004); defines “means of delivery” as “missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons that are specially designed for such use.”
- 39.
See U.N. Security Council Resolution 1540, UN Doc. S/Res/1540 (2004); defines “related materials” as “materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.”
- 40.
It is quite possible there are arrangements and possibly even legal agreements of a secretive nature that govern satellite and other space technologies. This author cannot confirm or deny their existence. Consider that in the world of State relations treaties, MOUs and other diplomatic exchanges are sometimes done without public knowledge.
- 41.
See e.g., Treaty on the Non-Proliferation of Nuclear Weapons, 729 U.N.T.S. 161 (entered into force 5 March 1970). See also Treaty Between the United States and the Union of Soviet Republics on the Limitation of Anti-ballistic missile systems (AMB Treaty), (Entered into force October 3, 1972; rescinded by the United States in 2002). The ABM treaty prohibited the development, testing, or deployment of space-based AMB satellite systems, but did not impose any technology export control obligations.
- 42.
See Michael Mineiro, “The United States and the Legality of Outer Space Weaponization: A Proposal for Greater Transparency and a Dispute Resolution Mechanism” 33 Annals of Air & Space Law 441 (2008). See e.g., Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 18.U.S.T. 2410 (entered into force 27 January 1967). See also e.g., Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 1108 U.N.T.S. 151 (18 May 1977). See also e.g. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 480 U.N.T.S. 43 (5 August 1963).
- 43.
See e.g. Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America concerning Defense Trade Cooperation. [Treaty is Not Yet in Force and Remains Subject to Ratification by the U.S. Senate].
- 44.
Canada is granted special license exemptions under U.S. regulations governing the exportation of defence items (ITARs). See, Defence Trade, Lessons to be Learned from the Country Export Exemption, GAO Report to the Subcommittee on Readiness and Management Support, Committee on Armed Services, I.S. Senate, GAO-02-62 (March 2002). See also defense articles and services that are controlled on the U.S. Munitions List (22 C.F.R., secs. 120–130).
- 45.
Yann Aubin and Arnaud Idiart, Export Control Law and Regulation Handbook (Kluwer Law International, 2007) at 52. Consider that a group of Communist States led by Union of Soviet Socialist Republics had a similar Cold-war multilateral technology export control arrangement.
- 46.
Joan Johnson-Freese, “Alice in Licenseland: U.S. Satellite Export Control since 1990” 16 Space Policy 195 (2000) at 198.
- 47.
The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (hereafter referred to as the “Wassenaar Arrangement”), Initial Elements: Statement of Purposes, para.1 adopted by the Plenary of 11–12 July 1996 and as exceptionally amended by the Plenary of 6–7 December 2001. See also Richard Cupitt and Suzette Grillot, “COCOM is Dead, Long Live COCOM: Persistence and Change in Multilateral Security Institutions” 27 British Journal of Political Science 361 at 387 (1997). “Members of the now defunct COCOM structure began evolving their national and multilateral practices towards a system meant to make access to strategic items freer for non-military end-uses. In the post-Cold War world, members of the Wassenaar Arrangement prefer to facilitate access to technology for post-communist states, rather than co-ordinate its denial, in their desire to promote international trade and encourage democracy.”
- 48.
See Richard Cupitt and Suzette Grillot, “COCOM is Dead, Long Live COCOM: Persistence and Change in Multilateral Security Institutions” 27 British Journal of Political Science 361 (1997) at 364. “Decisions on some licences were subject to COCOM review. These licence decisions, and decisions to modify the lists of controlled items or proscribed countries, required unanimous consent. This meant that the country with the most stringent control standards, generally the United States, held a veto over all licences subject to review and over the deletion of items.” See also Jamil Jaffer, “Strengthening the Wassenaar Export Control Regime” 3 Chicago Journal of International Law 519 (2002).
- 49.
Wassenaar Arrangement at Scope, para.3.
- 50.
Id.
- 51.
Wassenaar Arrangement. See also Yann Aubin and Arnaud Idiart, Export Control Law and Regulation Handbook (The Netherlands: Kluwer Law International, 2007) at 53.
- 52.
Id.
- 53.
See Wassenaar Arrangement, List of Dual-Use Goods and Technologies. For example Category 9 “Aerospace and Prolusion,” Category 1 “Advanced Materials,” Category 3 “Electronics,” and Category 7 “Navigation and Avionics.”
- 54.
MTCR Website: <http://www.mtcr.info/english/> (Last accessed on 22 September 2009).
- 55.
Id.
- 56.
See The Hague Code of Conduct Against Ballistic Missile Proliferation (HCOC) U.S. State Department Fact Sheet, <http://www.fas.org/asmp/resources/govern/ICOC-6January2004.html> (Last accessed on 22 September 2009).
- 57.
See HCOC U.S. State Department Fact Sheet, <http://www.fas.org/asmp/resources/govern/ICOC-6January2004.html> (Last accessed on 22 September 2009).
- 58.
Id.
- 59.
The Hague Code of Conduct Against Ballistic Missile Proliferation (HCOC) (formally brought into effect on 25 November 2002).
- 60.
- 61.
Black’s Law Dictionary, 8th ed., s.v. “customary international law.”
- 62.
- 63.
Article 53 of Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (23 May 1969). See also Black’s Law Dictionary, 8th ed., s.v. “Jus Cogens.”
- 64.
- 65.
Consider e.g., satellites may develop the capacity to cause life-alternating modifications to the environment. For a more detailed examination of satellites and the legality of environmental modification, See Michael Mineiro, “The United States and the Legality of Outer Space Weaponization: A Proposal for Greater Transparency and a Dispute Resolution Mechanism” 33 Annals of Air & Space Law 441 (2008) at 458–459. Also consider e.g., satellites may have the ability to deflect near-earth-objects that threaten life on Earth.
- 66.
Such a scenario becomes extremely plausible in the event humanity “discovers” sentient life. For an interesting examination of law and alien life, please See the work of Andrew J. Haley and his theories of metalaw. See Ernst Fasan, Relations with Alien Intelligence; The Scientific Basis of Metalaw (Berlin: Berlin Verlag, 1970).
- 67.
In other words, the international system of States is (1) not necessarily zero-sum [e.g. when one State gains it is offset by an equal loss for other States] and (2) the States create the rules of the games [e.g. the rules of international law are not imposed by an outside authority].
References
Montevideo Convention, 1993, 165 LNTS 19.
Treaty Between the United States and the Union of Soviet Republics on the Limitation of Anti-ballistic missile systems (AMB Treaty), (Entered into force October 3, 1972; rescinded by the United States in 2002).
Treaty on the Non-Proliferation of Nuclear Weapons, 729 U.N.T.S. 161 (entered into force 5 March 1970).
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (23 May 1969).
Defense Production Act, R.S., 1985, c.D-1, Part 3 §44 (2009). [Canada]
Canadian Export Control List §5504 (2009).
Defence Trade, Lessons to be Learned from the Country Export Exemption, GAO Report to the Subcommittee on Readiness and Management Support, Committee on Armed Services, I.S. Senate, GAO-02-62 (March 2002).
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 1 July 1994 (1994 ICJ Rep. 112).
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits Judgment of 16 March 2001 (2001 ICJ Rep. 93).
Reparation for Injuries Suffered in Service of the U.N., advisory opinion, I.C.J. Reports 1949, p. 174.
Stephen Krasner, Problematic Sovereignty (New York: Colombia University Press, 2006).
Lassa Oppenheim (Ed. Ronald Roxburgh), International Law: A Treatise (Clark, NJ: The Lawbook Exchange, Ltd., 2005).
Malcolm N. Shaw, International Law, 5th Edition (Cambridge: Cambridge University Press, 2003).
Rebecca M.M. Wallace, International Law 5th Edition, (London: Sweet & Maxwell, 2005).
Eric Chao and Sorin Niculescu, “The Impact of U.S. Export Controls on the Canadian Space Industry” 22(1) Space Policy 29 (2006).
Richard Cupitt and Suzette Grillot, “COCOM is Dead, Long Live COCOM: Persistence and Change in Multilateral Security Institutions” 27 British Journal of Political Science 361 at 387 (1997).
Jamil Jaffer, “Strengthening the Wassenaar Export Control Regime” 3 Chicago Journal of International Law 519 (2002).
Joan Johnson-Freese, “Alice in Licenseland: U.S. Satellite Export Control Since 1990” 16 Space Policy 195 (2000).
Ersun N. Kurtulus, “Theories of Sovereignty: An Interdisciplinary Approach” 18(4) Global Society 361 (2004).
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Bernhard Oxman, “Jurisdiction of States” in Rudolph Bernhardt, Ed., Encyclopaedia of International Law (Amsterdam: Elsevier, 1997).
Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America concerning Defense Trade Cooperation. (Signed on 21 June 2007) (Pending Ratification)
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, (27 January 1967), 18 U.S.T. 2410, 610 U.N.T.S. 205 [Outer Space Treaty].
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U.N. Security Council Resolution 1540, UN Doc. S/Res/1540 (2004).
U.N. Security Council Resolution S/RES/1737 (2006).
U.N. Security Council Resolution S/RES/1874 (2009).
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 1108 U.N.T.S. 151 (18 May 1977).
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, G.A. Res. 2625 (XXV), 1883rd Plenary Meeting, (24 October 1970).
John Agnew, Globalization & Sovereignty (New York: Rowman & Littlefield, 2009).
Yann Aubin and Arnaud Idiart, Export Control Law and Regulation Handbook (Kluwer Law International, 2007).
Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005)
John H. Currie, Public International Law, 2nd Edition (Toronto: Irwin Law, 2008).
Teressa Fuentes-Camacho, Ed., The International Dimensions of Cyberspace Law, (Paris/Aldershot: UNESCO Publishing/Ashgate, 2000).
Ernst Fasan, Relations with Alien Intelligence; The Scientific Basis of Metalaw (Berlin: Berlin Verlag, 1970).
John Heinz, U.S. Strategic Trade: An Export Control Systems for the 1990s (Oxford: Westword Press, 1991).
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Mineiro, M.C. (2012). Sovereignty as the Legal Basis of Export Controls: International Law and Space Technology Controls. In: Space Technology Export Controls and International Cooperation in Outer Space. Space Regulations Library Series, vol 6. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2567-6_2
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