AG Training Seminar: “Strengthening Border Customs Control on Shipments of Dual-Use Goods & Technologies in the Western Balkans” Sofia, 4– 6 October 2005 National Export Control: A Tool to Enforce Non-Proliferation By Dr. Radoslav Deyanov, Minister-Plenipotentiary, State Expert 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 1
The Role of Border Customs Control for Non-Proliferation? 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 2
Why bother with: • Non-proliferation of WMD? • Restrictions on international trade? • National export control of dual-use items? • Interdiction of shipments on high seas? • Involving customs officers in matters of international & national security? 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 3
Customs Focus: Law Enforcement! • Revenue collection: customs duties • Trade facilitation • Protection of society & security: üe. g. illegitimate transit of goods/ persons • Compliance with international agreements: üe. g. control, monitoring, data collection, etc. ) 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 4
New Dimensions • New threats to security (national & international) • Growing risks of proliferation of WMD • Risks of diversion of sensitive dual-use exports • Risks of terrorist acts using dangerous substances against innocent people 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 5
Proliferation Risks • Growing global concern, • Proliferation of CW/BW possession to additional States: ü for purposes of deterrence or greater political leverage; • Acquisition of CW/toxic chemicals/toxins by non. State groups for terrorist purposes (e. g. by trade or illicit trafficking): ü use against the general public or official institutions, ü spread fear & horror (weapons of “mass panic”) • NP measures: the response to those threats. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 6
After 9/11/2001: “Clear & Present Danger” 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 7
Group-8 Call “We call on all States to establish effective procedures and machinery to control the transfer of materials, technology and expertise which may contribute to the development, production or use of WMD and their means of delivery. ” (Evian Statement of 2 June 2003) 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 8
National Control Systems • Policy of controlling international trade in sensitive items & high technologies, • Accountancy of movements of dual-use materials, technologies, etc. , • Export controls to prevent risky shipments, • Coordination between agencies involved, • Flexible framework facilitating adjustment to changing international requirements. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 9
Your Role is Important! • Enforce national export controls, • Verify compliance with export restrictions, • Prevent unauthorized exports, • Intercept illicit trafficking of prohibited items, • Collect data for international reporting, • Facilitate legitimate international trade. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 10
The Context • Enforcing application of non-proliferation norms, • Helping to police global trade in dual-use items, • Utilizing all tools of national export control for NP, • Cooperating with global export control regimes, • Supporting verification of arms control treaties. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 11
Expanding International Trade 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 12
Toxic Chemicals Transfers: 2003 • Increasing scale of international trade in toxic chemicals in conditions of globalization, • Schedule 1 chemicals: small amounts (kg), • Schedule 2 chemicals: 5, 000 tonnes, • Schedule 3 chemicals: 270, 000 tonnes. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 13
Overview • International mandate to control exports, • State obligations under international law, • Export control principles & architecture, • Structure of a national export control systems • International harmonization/cooperation, • Dynamic nature – adjustment to changing international requirements. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 14
International mandate • International mandate to control exports, • Obligations under “hard” international law, • Political commitments under “soft” international law. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 15
Type of international law? • Hard law – legally binding agreements: ü NPT, CWC, BWC, ENMOD, START, INF, CFE ü UN SC actions under Chapter VII (Charter) – mandatory! ü durable, well defined, easier to verify; • Soft law - politically binding: ü unilateral actions – decrees, national policies, etc. , ü export policy co-ordination - AG, MTCR, NSG, WA, ü political understandings & joint declarations. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 16
CWC: Non-Proliferation Article I (d) : not to assist, encourage or induce, in any way, anyone in any prohibited activity Article VII : • not to permit/prevent any prohibited activity • enact & extend outside penal legislation • adequate national oversight & controls of the flow & use of scheduled chemicals, related equipment and technologies; • confidence in peaceful uses of on-going chemical activities • complement verification under the CW Convention, • strengthen its non-proliferation objectives, • raise extra barriers to non-State terrorist groups, • enhance access to, and facilitate trade in, chemicals, equipment & technologies by those who comply. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 17
UN SC Res. 1540 “The Security Council ”, 3. Decides also 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: 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 18
UN SC Res. 1540 a) Develop and maintain appropriate and effective measures to account for and secure such items in production, use, storage and transport; b) Develop and maintain appropriate and effective physical protection measures; 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 19
UN SC Res. 1540 c) Develop and maintain appropriate and effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law; 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 20
UN SC Res. 1540 d) Establish, develop, review and maintain appropriate and effective national export and trans -shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export …. . , and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations. ” 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 21
Elements of National Export Control Systems (1) • To account for and secure dual-use items in production, use, storage and transport, • • To protect physically dual-use items, • To detect, deter, prevent and combat illicit trafficking and brokering in dual-use items. 10/5/2005 To apply border controls and law enforcement of shipments of dual-use items, "Arms Control & International Security" Department, MFA, Sofia 22
Elements of National Export Control Systems (2) • To establish, develop, review and maintain export and trans-shipment controls, • • To introduce “end-user certificate” controls, To pass laws and regulations on control of export, transit, trans-shipment and re-export, • To enact and enforce criminal & civil penalties for violations of export laws & regulations, • To report to the UNSC Committee + OPCW. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 23
Your Role! • To control borders & enforce export control requirements (legislation & regulations), • To detect and deter export regime violations, • To enforce criminal or civil penalties under the law, • To collect data for declarations and other reports to international organisations (e. g. OPCW, EC, UN) • To cooperate with other export control agencies. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 24
Export Control Regimes • Nuclear Suppliers Group (London Club) – 1977 (several revisions of guidelines for nuclear transfers: full-scope safeguards + IAEA Additional Protocol, 44 participants); • Australia Group – 1984/1985 (39 & EC participants); • Missile Technology Control Regime - 1987 (several revisions of guidelines; 34 participants) • Wassenaar Arrangement (former COCOM expanded & revised) – 1996 (39 participants) • Proliferation Security Initiative – 2003 (60 states support) 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 25
Place of Export Control Regimes in ACD Law 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 26
Nature of Export Control Regimes • Political arrangements based on guidelines, • Introduction of national legislation/mechanisms • Improvement of control efficiency (e. g. penalties) • Updating of lists of controlled items, • Harmonisation of licensing procedures, • Co-ordination of national policies & practices (e. g. exchange of information on denials) 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 27
Non-Proliferation Architecture Treaties Export Control Regimes G-8 Programme 10/5/2005 UNSC process NP EU Strategy "Arms Control & International Security" Department, MFA, Sofia 28
Layers of CW/BW Export Control NPT, CWC, BWC, IAEA safeguards AG, NSG, MTCR, WA, ISP National Export Control Systems 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 29
Export Control Security Benefits? • Raises extra barriers (legal, political, punitive), • Makes proliferation more costly (deterrent!), • Increases the risks of timely detection, • Delays (WMD) acquisition process - “buys time” for more coercive enforcement measures, • Creates political bond amongst participants. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 30
Australia Group (AG) • Export control regime: CW & BW, • Since April 1984: www. australiagroup. net – in response to UN investigation’s findings (Iran-Iraq war), – Iraq has acquired CBW materials from chemical industry, – need to harmonise national export controls (uniformity); • Informal political arrangement: – 39 Participant States + EU = parties to CWC & BWC, – annual meetings: 20 th anniversary, Sydney (April 2005). 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 31
AG: Purpose & Nature • Purpose: to minimise risks of assisting CBW spread, • No legal obligations: political commitments, • Discussions on ways & means to apply effectively national export licensing measures: – reports on national export control practices, – exchange of information (transfers & concerns), – cases of export denials (for particular concerns); • AG’s outreach activity: 60 countries/year. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 32
AG: Control Measures • National export licensing measures: – effective in impeding production of CW and BW, – reasonably easy to implement (practical !), – not to impede normal trade for legitimate purposes; • “Common control list” of items: – chemical weapons precursors, – dual-use chemical production facilities & equipment, – plant pathogens and animal pathogens, – biological agents, – dual-use biological equipment. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 33
AG: Harmonisation Role • Commercial firms/research institutions: – uniform exposure to export control restrictions, – common interest in enjoying equal trade opportunities, – not being associated with CBW proliferation (image!!), – severe political sanctions for violators of restrictions; • “License shopping” => uniformity required, • AG: strongly supports CWC & BWC regimes believes that AG policy is fully consistent with CWC. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 34
AG v/s CWC • Support of free trade: – compatibility of AG with legitimate trade interests, – access of all States Parties to the benefits of “peaceful chemistry”, – only few countries actually affected (1% of all trade); • AG statement (pledge) in 1992: – to review national regulations on trade in chemicals in order to make them fully consistent with all norms of CW Convention. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 35
NEC Building Blocks (1) • Create legal foundations (laws & regulations), • Define policy/policy-making mechanism – establish criteria for assessing exports, • Introduce a licensing system for exports with an executive machinery, • Use (publish!) control lists of dual-use items, • Enact penalties for violators (efficiency!), • Establish a compliance/enforcement mechanism, 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 36
NEC Building Blocks (2) • Provide sufficient resources (human & financial), • Coordinate roles of national agencies, • Harmonise legislation & practices with those of other supplier States (uniformity!), • Use a mechanism of sharing the “best practices” between like-minded States • Cooperate regionally with neighbouring States. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 37
Use of NEC Systems • Control of transfers of dual-use items, • Collection of data for declarations, • Provision of reports to international organisations (e. g. OPCW) • Harmonization of/adjustment to changing international requirements • Customs: enforcement & validation roles. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 38
Two Examples • CW Convention – OPCW verification role; • WCO recommendation on the use of the Harmonized Coding System to facilitate collection/validation of transfer data for international reporting purposes. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 39
The OPCW 40
Export Control for CWC • Implicit CWC requirement but …lack of guidance • Specific obligations vis-à-vis States non-Party: – Transfers restrictions (ban on S 1 & S 2 chemicals) – “Necessary measures” to ensure S 3 use for non-prohibited purposes – End-use certificates (S 3 chemicals; end-use details, recipient States) – Provision of declarations on “aggregate national data” on transfers; • Little guidance”: how to control transfers & how to collect & report data in a harmonised manner. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 41
Discrepancies: 2002 Picture 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 42
Non-Matching Data! 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 43
The Problem’s Roots? • 82 - 83 %: non matching data – Reporting problems: in lack of harmonisation/ common standards to collecting & providing data, – Undeclared transfers: in export control gaps, – Free zones: in export/trade registration control gaps; • Export controls: a “key fix” for OPCW to get meaningful data! 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 44
The Tip of the Iceberg ! • Non-submission of transfer data to OPCW, • Non-matching transfer declaration data, • Lack of responses to OPCW inquiries, • Insufficient interest in CWC & OPCW; • Lack of knowledge of basic principles & elements of national transfer controls; • Customs agencies or ports deficiencies; • Lack of coordination between partners; • Inadequate legislation & law enforcement; • Trade interests breeding confidentiality concerns – inadequate national regulations. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 45
Role of Customs Services are viewed as possible resources for facilitating the verification functions of international organisations 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 46
Harmonised Coding System • Most trading nations require indication of the sort of chemical products involved in export shipments • Products are described with digitised codes from the Harmonised System (HS) of coding based on the International Convention on the Harmonised Commodity Description & Coding System (1988) (frequently reviewed). 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 47
HS Structure • HS clustering of codes 21 sections 96 chapters (2 digits) 1241 headings (four digits) 5018 groups of goods (six digits) Further subdivisions are possible & useful. • Example: Section VI: Products of chemical and related industry, Chapter 29: Organic chemical products, Heading 29. 22: Oxygenated amino compounds, Group 2922. 13: Triethanolamine and its salts. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 48
WCO Recommendation • To use HS coding for families of scheduled chemicals not previously specifically coded, in order to allow Customs Agencies/NAs to “control and monitor international trade in substances controlled under CWC” (1999). • The documentation is available at: http: //www. wcoomd. org/ 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 49
Coding Scheduled Chemicals Examples: s Schedule 1: 2930. 90 sulphur mustards 2931. 00 sarin, soman and related nerve agents 3002. 90 ricin, ; s Schedule 2: 2933. 39 BZ, 2930. 90 thiodiglycol s Schedule 3: 2811. 19 hydrogen cyanide, 2920. 90 alkyl phosphites. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 50
Wider Use Needed! • A good news: HS codes are available for States Parties to CWC to control international shipments of scheduled chemicals; • A bad news: Only few nations (11 in mid-2005) are so far using HS codes recommended by WCO. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 51
Easier Data “Matching”! • A warning: adoption of the HS recommendation alone WILL NOT solve all reporting problems, • It will, however, facilitate the review by NAs of the large volume of customs transfer data, • Further refinement of HS codes beyond the level of the WCO recommendation (>6 figures) might ease the “matching” of declaration data. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 52
Key Role for Customs! • Frequently, Border Customs is the only available resource for compilation of detailed transfer data for declarations to OPCW, • Even if there are other sources of information (e. g. plants), Customs can frequently be used to validate the information from such sources. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 53
Cooperation Required! • Close cooperation between NAs and Customs can help resolve discrepancies in declarations of States Parties that are trading partners (through the global Customs network), • The KEY is close working cooperation between NAs, Customs and Industry 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 54
Lessons Learnt • Encourage use of HS codes for shipments of CWC scheduled chemicals, • Customs Agencies need to receive training from National Authorities on methods of recognising products containing scheduled chemicals, • National Authorities need to keep close contacts with Customs Agencies in order to build mutual co-operation and a knowledge base. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 55
Conclusions • A clear non-proliferation mandate for States, • States are under legal obligations to control exports of dual-use goods and technologies, • Need to establish and maintain national export control systems based on legislation, • Border Customs officers play key roles in enforcement & international verification. 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 56
10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 57
Qs & As Discussion 10/5/2005 "Arms Control & International Security" Department, MFA, Sofia 58
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