Which is more beneficial NSG or MTCR
The new international basis of export control
RIW 1998, 179 (Issue 3)
The legal basis of export control in Germany is formed by the Foreign Trade Act and the Foreign Trade Ordinance based on it with the export list. The multi-purpose goods regulation of the EC (Regulation No. 3381/94) 1ABlEG No. L 367 v. 31. 12. 1994 p. 1 ff. And the common list of multi-purpose goods of the EU2ABlEG No. L 278 v. October 30, 1996, last amended ABlEG No. 178 v. 7. 7. 1997 p. 1 ff., Which is integrated into the German export list. However, export controls are not only subject to national or EC legislation. The states work closely together on export controls. This takes place within the framework of the so-called international export control regime. They are necessary in order to be able to carry out export controls effectively. As long as controls are carried out according to different standards, bypasses occur again and again, in which goods, the export of which is not authorized by one country, can be successfully procured from another. In the international export control regimes, the goods to be controlled are therefore uniformly defined and a certain procedure for the controls is also established. In addition, they form forums for an intensive exchange of opinions and experiences. International meetings are held at least once a year for this purpose. There, the members of the respective export control regimes inform themselves in general about their control policies. In addition, they also inform each other about specific individual cases, mostly by informing each other about rejected export applications. In this way, at the same time, a basis is created to reduce distortions of competition to the detriment of companies, which result from the different handling and design of national export control regulations. The fact that similar goods are shown integrated in the export list makes it easier for companies to apply the export regulations. You no longer have to deal with different lists, as is still the case in Canada today. The US and Australia have already followed the example of the EU Integrated List of Multipurpose Goods. Many Central and Eastern European countries also use the European list. Internationally active companies therefore find control lists in many countries that are essentially the same, so that the administrative effort is significantly reduced by observing different national controls. to take into account the guidelines of the respective export control regime (Art. 8 in conjunction with Annex III of the Council Decision of December 19, 19943ABlEG No. L 367 of December 31, 1994 p. 8, letter a). Since the export control regimes have grown over time and differ in their regulations, this can lead to very different procedures in individual cases when examining export applications. In the German export list, the affiliation of the respective control items to the various international export control regimes is therefore made clear by means of code letters. The following is intended to show the various export control regimes and the export control guidelines agreed in them. The international regimes have grown historically. Even if they all have the common goal of ensuring the general non-proliferation of weapons of mass destruction or the non-proliferation of conventional armaments to states whose policies are a cause for concern, their individual regulations are designed very differently. A greater standardization, which is sometimes desirable, is unfortunately difficult to implement in view of the different participating states and the different practices in decision-making in each case. The former system of the COCOM The most important export control regime in the past was the COCOM (Coordinating Committee for Multilateral Strategic Export Controls). 17 states4 Australia, Belgium, Denmark, Germany, France, Greece, Great Britain, Italy, Japan, Canada, Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey and the USA worked in it. together to restrict the export of weapons and other strategically important goods to the communist states. Elmar Matthias Hucko, Foreign Trade Law - War Weapons Control Law, 6th edition 1997, p. 13 .. With the reforms in Eastern Europe since the end of the 80s, more and more that the existing export controls were no longer up to date. From today's perspective, it is particularly important to work together with the Central and Eastern European countries and to support them in their economic reforms. For this reason, export controls can only be about preventing exports to countries whose policies in the area of weapons of mass destruction or conventional armaments are a cause for concern. A general embargo for high-tech products is no longer in keeping with the times. The states involved in COCOM therefore decided, after lengthy discussions, to dissolve the regime on March 31, 1994. At the same time, however, an important element that ensured a certain degree of uniformity in export controls in the individual countries was omitted. In the area of weapons of mass destruction, international export control regimes had been established before the dissolution of COCOM. Some of these had a larger number of members than the COCOM itself. These regimes include the Nuclear Suppliers Group (NSG), the Australian group, which deals with multi-purpose goods in the field of chemical and biological weapons, and carrier technology -Missile Technology Control Regime (MTCR). They could therefore easily take on the task of standardizing national decisions in the field of export control and international cooperation. In all of these export control regimes, decisions on export applications are made by the member states, unlike in COCOM, on their own responsibility; only the guidelines for these decisions are internationally coordinated. The regimes NSG, Australian Group and MTCR are initially presented below. Today they form the international basis of export control in the area of weapons of mass destruction and related multipurpose goods. Then the Wassenaar Arrangement is presented, which since November 1996 has covered the area of conventional armaments and related multi-purpose goods that was not internationally regulated after the dissolution of the COCOM. In connection with the remarks on the Australian Group, the rules of the Chemical Weapons Convention, which are relevant to export control and which came into effect in April 1997, should also be briefly addressed. II. The Group of Nuclear Suppliers The oldest export control regime currently in force is the Nuclear Suppliers Group (NSG). It deals with the control of goods that may have a use in the nuclear sector. This affects a wide variety of goods, from uranium and nuclear fuel rods to machine tools, the main area of which is in the manufacture of non-nuclear products, but which can also be used for nuclear purposes. With 35 member states, the NSG has the highest number of members of all international export control regimes6 All member states of the EU as well as Argentina, Australia, Brazil, Bulgaria, Canada, Japan, Latvia, New Zealand, Norway, Poland, Romania, Russia, Switzerland, Slovak Republic, South Africa, South Korea, Czech Republic, Ukraine, Hungary and the USA..1. The NSG is ultimately based on the Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty - NVV) from 19687S. Ed., The Extension of the Nuclear Non-Proliferation Treaty, Außenwirtschaftliche Praxis 1995, pp. 284 f .. In the meantime, 186 states have joined the NPT. However, important countries such as India, Pakistan, Israel, but also Brazil, which has been a member of the NSG for some time, are still missing. Article III (2) of the NPT obliges the contracting states to make raw materials and special fissile material or equipment and materials specifically intended or prepared for the processing, use or manufacture of special fissile material available to a non-nuclear weapon state for peaceful purposes only if it is subject to a security agreement between the recipient country and the International Energy Agency (IAEA) 8S. in detail Harald Müller, Export Controls, Program for Promoting Nuclear Non-Proliferation, Princeton, New Jersey, October 1996, PPNN Paper No. CG20 / 9, p. 2 f .. Nuclear weapon states are the USA, Russia, France, Great Britain and China. Within the framework of security agreements between the respective states and the IAEA, depending on the type of the existing agreement, the IAEA controls either only certain plants or the entire nuclear fuel cycle in the respective countries. It thus helps to ensure that no fissile material is diverted for nuclear weapons purposes. If there are no such agreements with the IAEA, the goods in question may not be delivered to non-nuclear weapon states. The NPV does not want to hinder the spread of nuclear technology if it is used for peaceful purposes. Art. IV para. 1 NVV therefore stipulates that the right of all contracting parties to develop the research, production and use of nuclear energy for peaceful purposes is not impaired. Author, The Extension of the Nuclear Non-Proliferation Treaty, Außenwirtschaftliche Praxis 1995 pp. 284-285 .. The nuclear weapon countries have a special status because their nuclear facilities are generally not subject to the control of the IAEA. If there are controls here, they are carried out on a voluntary basis and only for certain systems. In this respect, there are no restrictions on exports to nuclear weapon states due to the NPT. However, the Federal Government has concluded an agreement with China on cooperation in the field of nuclear energy, from which it follows directly that exports from Germany may only be made for the peaceful use of nuclear energy10 3 of the Agreement between the Government of the Federal Republic of Germany and the Government of the People's Republic of China on Cooperation in the Field of the Peaceful Use of Nuclear Energy v. May 9, 1984, Federal Law Gazette II p. 555 ff .. The German-Soviet Treaty on Technical Cooperation in the Peaceful Use of Nuclear Energy, which continues to apply in relation to Russia, stipulates that exports are only used for peaceful purposes11 Art. 5 of the Agreement between the Federal Minister for Research and Technology of the Federal Republic of Germany and the State Committee for the Use of Atomic Energy of the Union of Soviet Socialist Republics on Scientific and Technical Cooperation in the Peaceful Use of Nuclear Energy v. April 22, 1987, Federal Law Gazette II p. 398 ff. This statement can also be found in the complicated set of regulations between the US and Euratom12Z. B. Art. 7 of the US-Euratom Agreement v. November 7, 1995, OJ No. L 120 v. May 20, 1996 p. 1 ff. For the purposes of export control, the NPV only describes in general terms which materials and equipment are to be subject to control. In order to find the necessary detailed definitions, the Zangger Committee, named after its first chairman, came together in 1971. is also responsible for the export control policy towards non-members of the NPT, has essentially the same members as the NSG, with the exception of Brazil, which has not yet joined the NPT, Latvia and New Zealand. The Zangger member China does not yet take part in the NSG. In 1974, he succeeded in two memoranda in defining the goods referred to in Art. III, Paragraph 2 of the NVV. In one memorandum the fissile material is defined, in the other the equipment. The second memorandum is also known as the trigger list because the goods in question may only be delivered to another country if there is a security agreement with the International Energy Agency (IAEA) in Vienna and if it is a non-nuclear weapon state. This restriction applies anyway to fissile material, which is defined in the first memorandum. The Zangger Committee's regulations, however, only apply to deliveries to non-nuclear weapon states that are not members of the NPT. Due to the steadily increasing number of member states of the NPT, the guidelines have become less important. Because important states such as India, Pakistan and Israel have not joined the NPT to this day, the rules of the Zangger Committee are still of some relevance today. China has also been a member of the committee's meetings since October 1997. China has become involved in the Zangger Committee because, according to its guidelines, exports of goods on the trigger list to a non-nuclear weapon state are permitted even if there are security agreements with the IAEA that only allow the monitoring of certain plants but not the entire fuel cycle . This arrangement allows China to maintain its nuclear cooperation with Pakistan, even though Pakistan's complete fuel cycle is not overseen by the IAEA. This participation in the Zangger Committee is the first time that China has participated in the export control regimes. There is therefore hope that in the medium term it will be possible to integrate China into the other international export control regimes. Unlike the NPT, the Zangger Memoranda do not establish any independent contractual obligations under international law. They represent guidelines, which the respective member states have mutually informed that they will comply with in their export controls. The memoranda and their application within the framework of the national export control policy are communicated by the members of the Zangger Committee at the same time to the Secretary General of the IAEA, who publishes them in the IAEA publications. by the IAEA as Information Circular INFCIRC / 209 / Rev. 1 of May 1992, amended by INFCIRC / 209 / Rev. 1 / Mod. 1 Adds. 1, 2 and 3 .. The Zangger Committee does not have an independent secretariat. If there is any work, this will be done by the British Embassy in Vienna in cooperation with the current Austrian chairman of the committee. After the Indian atomic explosion in May 1974, there was a need for even closer cooperation in the area of nuclear export control. At that time, seven states initially merged to form the Nuclear Suppliers Group (NSG) and in January 1976 agreed guidelines for nuclear exports that went further than the Zangger memoranda. They apply not only to exports to non-member states of the NPT, but to all non-nuclear-weapon states and contain rules on further exports that also affect the nuclear-weapon states. Its rules also apply to trade between the member states of NSGs. Like the Zangger Committee, NSGs do not have any mandatory regulations. The members have declared to each other that they observe certain identical guidelines in their export control policy. The guidelines of the NSG and the lists of the goods to be checked are communicated to the IAEA Secretary General and published by him. In accordance with the informal nature of the NSG, there is no independent organization or a secretariat to deal with the ongoing work of the NSG. The tasks arising from the preparation of meetings between the member states and the exchange of documents and documents are carried out by the Japanese embassy in Vienna as the contact point for the NSG. The NSG has two separate sets of rules. The guidelines of NSG Part I came into force in January 197615 The guidelines and the control list of NSG Part I are published. as INFCIRC / 254 / Rev. 3 / Part 1 of September 1997 and translated into German as an appendix to the Swiss amending ordinance v. November 15, 1995 to the Ordinance on Definitions and Licenses in the Field of Atomic Energy (Atomic Energy Ordinance) .. The goods covered by NSG Part I essentially correspond to those of the Zangger memoranda. These are goods that are used exclusively for nuclear purposes. NSG Part I is also multi-purpose goods that can be used both civilly and militarily in the broadest sense. In 1992, the regulations of NSG Part I were supplemented by guidelines that concern goods that are not only used for nuclear purposes , but also in areas outside of nuclear technology. One speaks here of multi-purpose goods in the sense that they can be used both for nuclear purposes and outside of nuclear energy.These goods are also goods that are used for military purposes, but also for civil purposes, i.e. dual-use goods in the broader sense. The control list and the guidelines for these goods are published as NSG Part II16 The guidelines and the control list of NSG Part II are published. as INFCIRC / 254 / Rev. 1 / Part 2 of July 1992, amended by INFCIRC / 254 / Rev. 2 / Part 2 / Mod. 1 of March 1996 .. For example, this list includes spark gaps that are used in kidney stone crushers, for example, or certain machine tools that have a very wide range of applications for the production of a wide variety of commercial goods outside of core technology. These goods are not subject to the prohibition of Article III, Paragraph 2 of the NVV, as they are not specially prepared for use in the fuel cycle. The NSG Part II guidelines are therefore formulated less strictly. A) The NSG Part I guidelines require a very strict and formal approval procedure. Author, Export Control in the Nuclear Sector and the International Export Control Regime, Außenwirtschaftliche Praxis 1995, pp. 248 ff. (249). The most important prerequisite is that the goods do not contribute to a nuclear explosive device (so-called non-proliferation principle). This principle is laid down in section 15 of the guidelines and also states that the criteria named in the guidelines should not be applied schematically. An export license may only be issued if it is guaranteed that the export does not contribute to the spread of nuclear weapons. In addition, compliance with other, more formal criteria is required. First of all, this means that the recipient country must have subjected its entire fuel cycle to the controls of the IAEA in a so-called complete security agreement (Section 4 of the guidelines). This requirement, introduced in 1992, has been in force in Germany since the cabinet decision of August 9, 199018Johannes Preisinger, Germany and nuclear non-proliferation, 1993, pp. 161 f .. Before that, it was sufficient for the relevant nuclear facility to be monitored by the IAEA as part of a security agreement that referred solely to this system (so-called system-specific security agreement). In contrast to the guidelines of NSG Part I, the Zangger Committee still considers system-specific security agreements to be sufficient19 For the discussion of the need for complete security agreements Müller (fn. 8), pp. 3 and 7 f .. Pressure should be exerted with the need for complete security agreements that the non-nuclear weapon states submit their entire fuel cycle to the IAEA controls. For every export to a non-nuclear weapon state, in accordance with Section 1 of the NSG Part I, a non-proliferation-political exchange of diplomatic notes must be carried out. In this, the receiving state expressly assures that the use of the goods does not lead to a nuclear explosive device. The execution of this exchange of notes before an export license is issued often takes a long time, but in the end it can hardly be accelerated because the cooperation of the partner countries is required. Furthermore, in accordance with Section 3 of the guidelines, physical protection of the goods must be guaranteed, because strict international security criteria must be applied, especially for nuclear material. In the case of an export of reprocessing and heavy water systems as well as heavy water and weapons-grade material, i. H. Plutonium and uranium enriched to more than 20%, which can be used in a research reactor, for example, as part of the exchange of notes, the state of the receiving country must also guarantee that if the goods are to be further exported to another country (so-called retransfer), the delivery country will first be required asks for consent (Section 10). The same applies to all goods covered by NSG Part I if a recipient country is not bound by the requirement of a full security agreement for a further export, i.e. in particular for exports to China, which is currently not a member of the NSG. The guidelines of NSG Part I thus go beyond Article III, Paragraph 2 of the NVV, which only provides for a delivery ban in the event that the delivery is to be made to a nuclear facility of a non-nuclear weapons state that is not subject to an IAEA security agreement. The guidelines of NSG Part II are less formal than NSG Part I20 Author (footnote 17), 249 f .. According to No. 2 of the guidelines, the basic principle, an export license should not be issued if the goods are in a non-nuclear weapon state in connection with a nuclear explosive device or a fuel cycle that is not under IAEA control be used. Furthermore, the license should always be refused if there is an unacceptable risk of diversion for such activities or if the export would be contrary to the aim of preventing the proliferation of nuclear weapons. NSG Part II names numerous test questions (Section 4 of the guidelines). The aim is to determine whether the receiving country is a member of an international non-proliferation treaty (meaning the NPT or the regional Tlatelolco treaty on the prohibition of nuclear weapons in Latin America and the Caribbean from 1967). In addition, it must be checked whether the nuclear facilities are under IAEA supervision, i. H. the receiving country must have a complete safeguard agreement with the IAEA. If this is not the case, a so-called facility-specific security agreement must exist with the IAEA, at least for the nuclear facility to which the goods are to be delivered. The guidelines of NSG Part II are content with a minus compared to the NSG Part I guidelines, which apply exclusively to goods that can be used exclusively for nuclear purposes. At the same time, this goes far beyond the NVV, which only applies to specially provided or prepared materials or equipment that are used in the fuel cycle Find. Furthermore, according to the guidelines of NSG Part II, the end use must be plausible. Checking the plausibility of the end use is a matter of course for all export control cases. In addition, it is expressly intended to check whether the recipient was involved in covert or illegal procurement activities. Finally, a declaration from the final recipient about the end use of the goods and the place of end use is required, as well as an assurance that the goods will not lead to a nuclear explosive device and will not be used in a nuclear facility that is not under IAEA control. Instead of such a declaration from the end user, a state declaration of end-use can also be requested. This may be important if you have any doubts about the information provided by the final recipient. III. The Australian Group 1. The basis for export controls in the field of chemical and biotechnical goods can also be found in international contracts. On the initiative of the League of Nations, the Geneva Protocol on the prohibition of the use of asphyxiating poisons or similar gases and bacteriological agents had already been agreed in 1925. It was joined in 1972 by the Convention on the Prohibition of the Development, Production and Storage of Bacteriological (Biological) Weapons and Toxin Weapons and on the Destruction of Such Weapons (BWC). Today the convention has 139 member states. In contrast to the NPT, it does not contain specific rules for export controls21. However, international negotiations have been ongoing for several years to supplement the BWC with verification regulations. See, for example, Oliver Thränert, Problems of non-proliferation using the example of biological weapons, Foreign Policy H. II / 1997 pp. 148-157. In contrast, the 1993 Convention on the Prohibition of Development, Production, Storage and Control also contains detailed provisions on export control the use of chemical weapons and the destruction of such weapons (CWC), which came into force 180 days after the 65th instrument of ratification was deposited on April 29, 1997. More than 100 countries are now members. Following a UN Secretary-General's investigation into the use of chemical weapons in the Iran-Iraq war, a number of states have introduced export control measures on some chemicals that can be used in the manufacture of these weapons. In order to standardize these, the Australian group was founded in 1985. In 1990 goods for the development and production of biological weapons were also included. The number of participating countries has steadily increased from 15 to 30 today22 In addition to the EU countries, these are Argentina, Australia, Canada, Iceland, Japan, New Zealand, Norway, Poland, Romania, Switzerland, the Slovak Republic, South Korea, the Czech Republic and Hungary and USA .. Like the NSG, the Australian Group is not a formal organization under international law. Organizational work is done by the Australian Embassy in Paris as a point of contact. The Australian Group has developed various lists of chemicals, biological agents and toxins, as well as chemical and biotechnical equipment, the exports of which are controlled by all participants23 Bärbel Vogel-Middeldorf, The Australian Group, Foreign Trade Practice 1996 pp. 84 ff. The aim is to ensure that exports do not contribute to the spread of chemical or biological weapons. In addition to a core list for chemical substances that should definitely be checked, there is also a so-called warning list. It includes goods, the export of which is not generally controlled, but for which the member states urge their companies to proceed with particular caution.24 Reproduced in section 6 of the warning notices regarding the unintentional passing on of biological agents, materials, biotechnological systems and plant components or knowledge of the manufacture of biological weapons , Circular Foreign Trade No. 19/94, BAnz No. 179 v. September 21, 1994 .. In Germany, the warning list is particularly important in the context of the prohibition of the War Weapons Control Act (KWKG). According to § 18 KWKG it is inter alia. It is forbidden to develop, manufacture, acquire, import or export biological or chemical weapons or otherwise exercise actual power over them. According to Section 18 (2) of the KWKG, the conscious promotion of these acts is also prohibited. If goods on the warning list are to be exported, the exporter must therefore be particularly careful. In addition, the Australian Group also has further warning notices25 There are two separate warning notices on the one hand for biological agents, materials, biotechnical systems and plant components, Circular Foreign Trade No. 19/94 (Fn. 24), on the other hand for plants and plant components for the manufacture of chemical products, Circular Foreign Trade No. 10/90, Federal Gazette No. 109 v. 16.6. 1990. developed. They are intended to give exporters an indication of the situations in which they should proceed with particular caution. These are questions that are not only important in the export of goods of the Australian Group, but which can also be applied in the other regimes. Examples of suspicious business transactions include inquiries from unknown customers whose identity is not clear, who react evasively to questions about their identity or their relationships, or whose references are not convincing. Reluctance on the part of the customer to answer business or technical questions routinely asked in the course of business negotiations, unusually favorable payment methods, unusual requests for the utmost confidentiality, and improbability of the customer's needs are also suspect. Packaging and handling agreements that do not correspond to the stated purpose are also suspicious patterns of behavior. Formal guidelines for trade with non-members of the Australian Group or its members with one another, which must be observed in the context of approval procedures, are different from those of the NSG Not. Ultimately, however, the lack of such regulations cannot be seen as a serious deficiency, as all member states agree not to promote the development and production of bi and chemical weapons. In the course of the exchange of views carried out in the Australian group, a very clear picture of possible proliferation risks emerges. The entry into force of the Chemical Weapons Convention will by no means render the Australian Group obsolete. It includes not only chemical products, but, as already explained, also equipment goods, the export of which is not controlled under the CWC, and substances that are relevant for the manufacture of biological weapons. In addition, the close exchange of views within the Australian Group between the export control experts of the individual member states ensures effective controls also in the area of chemical substances covered by the CWC. IV. The CWC is an arms control and disarmament treaty. For export controls, however, the CWC is important insofar as it contains regulations for the prohibition of chemical weapons, their destruction and for the inspection of chemical plants, as well as rules for the export of certain chemical substances26S. the description of the individual regulatory areas of the CWÜ by Christoph Bundscherer, arms control measures in the chemical industry, Außenwirtschaftliche Praxis 1996 pp. 7-11 .. In contrast to the NSG and the Australian group, the CWÜ is a formal international law treaty with which an international organization, the OVCW (Organization for the Prohibition of Chemical Weapons) is established. The secretariat in The Hague has several hundred employees. Similar to what is stipulated in the NPT for the nuclear sector, the CWC is not intended to hinder the development of the chemical industry for peaceful purposes. The CWC is carried out in accordance with its Article XI, Paragraph 1 in such a way that an obstacle to the economic development of the Contracting States and to international cooperation in the field of activities in the chemical field for purposes not prohibited under this Convention is avoided. Individual aspects of this principle are formulated in more detail in Art. XI, Paragraph 2 of the CWC. These regulations apply in relation to each other, but no direct rights for companies active in the export business can be derived from Art. XI CWÜ. In particular, this does not result in any obligation to remove existing export controls. The situation is roughly comparable to Art. 4 NVV, according to which the spread of the peaceful use of nuclear energy should not be hindered.1. Appendix 1 of the CWÜ (Appendix on Chemicals) defines three lists of chemicals that are subject to special controls. List 1 of the Chemicals Annex defines eight toxic chemicals and four starting materials. They are chosen so that they are CW-relevant, but have practically no economic significance. List 2 specifies three other toxic chemicals and eleven raw materials. They are not produced on a large scale for purposes not prohibited under the CWC27S. Appendix 1 of the CWÜ, Section A (guidelines for chemicals). and are included in the list because they pose a considerable risk to the aim and purpose of the CWC, as they have a deadly or incapacitating toxicity and other properties that make them suitable for use as chemical weapons in the broader sense of Art. II CWC . List 3 defines four toxic chemicals and thirteen raw materials. In contrast to List 2, they can be produced in large commercial quantities for purposes not prohibited under the CWC28S. Appendix 1 of the CWÜ, Section A (guidelines for chemicals) .. 2. Special export regulations apply to each of the chemical groups mentioned. The strictest regulations apply to List 1 chemicals. According to this, an export is only permitted in contracting states of the CWC. The export must serve research, medical, pharmaceutical or protective purposes. The type and amount of the chemical must be limited to what can be justified for such purposes, and the total amount of chemical available for these purposes must be less than a tonne per year. 2 (so-called verification annex) of the CWC, Part VI, Sections A and B, Numbers 1-6 .. Three years after the Convention came into force, i.e. from April 2000, chemicals on List 2 may only be exported to contracting states . In the transition period, an export to a non-contracting state may include can only be approved if the non-contracting state has previously issued a state certificate on the final use, from which, in addition to the type and quantity of the chemicals, the final use as well as the name and address of the end user, it is clear that they are only for purposes not prohibited under the CWC used and not carried out again. In addition, each contracting state shall take the necessary measures to ensure that the chemicals passed on are only used for purposes that are not prohibited under the CWC30Appendix. 2 of the CWC, Part VII, Section C, Numbers 31-32..For chemicals on List 3, the CWC does not provide for an export ban to non-contracting states. However, here, too, there is a need for a certificate from the receiving state and the responsibility of the exporting country as in List 2 - Chemicals31 Appendix. 2 of the CWÜ, Part VIII, Section C, Clauses 26..3.Within the EU, the view has prevailed that all chemicals on Lists 1-3 of the CWC must be controlled by the joint export list and the EC multi-purpose goods regulation. This also applies to substances that have not yet been covered by the Australian Group. The EU's list of multi-purpose goods has therefore been expanded accordingly31aABlEG No. L 34 v. 4. 2. 1997 p. 1ff .. This regulation has proven to be necessary because not all member states of the EU have provided approval regulations for exports in their national implementation laws for the CWÜ. 199632 Federal Law Gazette. I, p. 1794 ff. In § 2, Paragraph 1, No. 2, it provides for a license requirement for import and transit as well as a license requirement for the export of List 1 chemicals. The export of chemicals on Lists 2 and 3 to a non-contracting state is also subject to approval in accordance with Section 2, Paragraph 1, No. 3. These special licensing requirements come alongside the provisions of the European Ordinance on Multipurpose Goods. According to Section 3 (3) of the CWÜV, an export license may only be issued if an official certificate from the country of destination is presented, which contains information on the intended use, type and quantity of the chemicals, the end recipient and an assurance that they will remain in the country of destination. In addition, special reporting requirements for export are provided in Section 6 of the CWÜV. Unlike in the area of the NSG and the Australian Group, there is no comprehensive ban on the development and production of military launch vehicles. However, such delivery systems can be used to deploy nuclear, chemical or biological weapons of mass destruction. Therefore, in 1987, in addition to the NSG and the Australian Group, some states established the Missile Technology Control Regime (MTCR). The original number of 7 members has been continuously increased to 29 today33 The member states of the EU and Argentina, Australia, Brazil, Iceland, Japan, Canada, New Zealand, Norway, Russia, Switzerland, South Africa, Turkey, Hungary, USA ... Similar to the NSG the participating states have assured each other that they will comply with certain guidelines when checking certain goods. Like the NSG and the Australian Group, the MTCR is not an international organization or treaty under international law. It is just a group of states that pursue a similar export control policy. There is no independent organization here either. Organizational work is done by the French Foreign Ministry in Paris as a contact point. Unlike the Australian Group, however, the MTCR has guidelines that must be observed when deciding on export applications. Even if these guidelines only apply to deliveries to countries outside the MTCR, there is agreement among the members that exports between the partners should also be controlled according to their basic principles34S. Author, Export control in the field of carrier technology, Außenwirtschaftliche Praxis 1996, pp. 382 ff. (385) .. 1. The aim of the MTCR was initially only to prevent the proliferation of launch vehicles for nuclear weapons. That is why the export was controlled by such missile systems that are able to carry a payload of at least 500 kg at least 300 km. Cruise missiles, target and reconnaissance drones are also recorded. Components, materials and production equipment are also checked. In 1992, missiles capable of carrying chemical and biological weapons were also included. Because these weapons are lighter, the scope of the MTCR had to be expanded. Today, carrier systems are also recorded that can fly at least 300 km with a payload of less than 500 kg, their components, corresponding materials and production facilities. The individual goods are defined in a rather complicated and sometimes vague control list. It includes, inter alia. complete rocket systems, propellants and control devices up to graphite, which has a wide commercial application but is also used in rocket nozzles and nose tips of rockets, and finally certain machine tools. At the MTCR, the guidelines that must be complied with when deciding on export applications are often in the form of presumptive rules. The export of category I goods on the MTCR list should be decided with particular caution. These are complete rocket systems and unmanned aerial vehicles that are capable of flying at least 300 km with a payload of at least 500 kg, and specially designed production systems for this, as well as subsystems and specially designed production systems and production equipment. There is a strong presumption of rejection for such exports. Until further notice, the export of production facilities is not to be approved at all. Only in rare cases is the export of category I goods even allowed, provided that certain state guarantees are given by the receiving country. The goods may only be used for the previously declared purpose. This may not be changed, or the goods themselves may be changed or reproduced, unless the delivery country has given prior consent. However, export applications for goods in category I are not of great importance for the practice of export control. In the cases of goods classified in category II, special reluctance to grant permits is provided if the exporting state comes to the result on the basis of all the information that the goods should be used as a carrier for weapons of mass destruction. Then a presumption of rejection is assumed. A number of criteria have been formulated for the evaluation of export applications. I.a. Concerns about the proliferation of weapons of mass destruction should be considered, as well as the capabilities and objectives of the host country's delivery programs and space programs. The importance of exports in terms of the potential development of weapons of mass destruction vehicles is to be recognized. Finally, the stated end use should be checked. Other multilateral agreements must also be taken into account. If there is a risk of end-use as a carrier of weapons of mass destruction, state assurances equivalent to those for the supply of Category I goods may be required. These criteria formulated for the MTCR are similar to the decision parameters mentioned by NSG Part II, which have already been presented above. A highly complex individual assessment is therefore also required from the MTCR. The Wassenaar Arrangement The entire field of multipurpose weapons of mass destruction is covered by the NSG, the Australian Group and the CWC as well as the MTCR. After the dissolution of the COCOM, there was no international set of rules for the control of conventional armaments and corresponding multi-purpose goods. That is why international negotiations began as early as 1994 with the aim of supplementing the export control regime in this area. It was about the establishment of a new forum, as the working title was originally chosen. In December 1995, the then 28 negotiating partners in Wassenaar, a suburb of The Hague, agreed on the main features of a new export control regime, which from now on will be referred to as the Wassenaar Arrangement from where it was founded35S. also author., Außenwirtschaftliche Praxis 1996 pp. 49-51; Sten Lundbo, Nuclear Non-Spreading: Expansion of Export Control Mechanisms, Foreign Policy 1997 H. II pp. 137-147 .. The number of member countries was expanded right at the beginning. 33 countries36The member states of the EU, Argentina, Australia, Bulgaria, Japan, Canada, New Zealand, Norway, Poland, Romania, Russia, Switzerland, Slovak Republic, South Korea, Czech Republic, Turkey, Ukraine, Hungary, USA. attended the founding meeting in April 1996. The full name of the new export control regime is the Wassenaar Arrangement for the Control of Exports of Conventional Armaments, Corresponding Multipurpose Goods and Technologies. Similar to the other export control regimes, the Wassenaar Arrangement does not constitute a formal international agreement. Here, too, the partner states have only agreed informally to control their exports. It is particularly important that not only the former partner countries of COCOM are involved, but that a large number of Central and Eastern Europeans, including Russia, are involved from the outset States cooperate. When the regime's export control lists came into force, the Wassenaar Arrangement came into effect in November 1996. A small secretariat based in Vienna is supposed to take care of the administrative tasks, such as B. the preparation of meetings and the exchange of information between the partners. Even when the list of goods to be checked was being drawn up, there were differences of opinion between the partners. The Wassenaar Arrangement has two checklists: a list of military goods and a list of general-purpose goods that can be used in connection with the development, manufacture and operation of conventional military goods as well as for civilian purposes. Some Member States consider that the list of military items was designed merely to help define the list of general-purpose items. Exports of conventional armaments are a matter of national policy and cannot be regulated internationally. The regime’s aim is to control conventional armaments and related multi-purpose goods. In contrast to weapons of mass destruction and their carriers, there is no general ban on conventional armaments. According to Article 51 of the Charter of the United Nations, every state has the right to self-defense. This is why it is more difficult in the Wassenaar Arrangement than in the other export control regimes to come to a common understanding of the assessment of individual export processes. Only the general direction of the Wassenaar Arrangement was therefore determined. According to this, the regime should complete and strengthen the existing controls on weapons of mass destruction and their delivery systems without duplicating them, as well as other internationally recognized measures intended to promote transparency and greater accountability. The arrangement is intended to focus on the threats to international and regional peace and security that may arise from the transfer of weapons and sensitive multi-purpose goods and technologies where the dangers are assessed as particularly great. There are no special target countries against which the regime is directed; rather, controls are to be carried out on all states.37 However, the US repeatedly mention Iran, Libya, North Korea and Iraq, for which a special UN embargo currently applies. See, for example, Lynn Davis, Wassenaar Accord a "First" in Export Controls, edited. in U.S. Information & Texts, January 25, 1996 pp. 17 ff. (18), and John Holum, Creative aspirations for arms control indispensable, edited. in Amerika Dienst 3/1997 p. 1 ff. (3) .. a) Because of these differing views, only an exchange of information for military goods could be agreed so far, which is limited to what the partners have already reported to the UN Notify weapons register. But especially in the actual military area, intensive cooperation is required in order to counter the dangers of uncontrolled arms exports38 Owen Greene, Launching the Wassenaar Arrangement: Challenges for the new arms export control regime, Ed. Saferworld, London 1996, pp. 5 ff. In this area Making progress is not an easy endeavor and is sure to take a long time. The attempt will not always be crowned with success either. But there is no other way to bring the different national policies in the field of conventional armaments closer together in the long term. B) For the field of multi-purpose goods, on the other hand, the regime already has quite well-formulated regulations. As a list of the goods to be checked, the list of multi-purpose goods is binding for all partners. Similar to the Australian Group, however, there are no further substantive rules on the conditions under which exports can be authorized. For particularly sensitive goods, the partner countries have only generally agreed to proceed with the utmost vigilance when deciding on export applications. However, extensive information exchange is planned. First of all, this contains general information. In the field of multi-purpose goods, information on rejected export applications is also to be exchanged twice a year on an aggregated basis. Individual notifications about rejected export applications have been handled successfully for several years within the framework of NSG Part II, the Australian Group and the MTCR, so that there are no replacements from other partner countries. In the context of the Wassenaar Arrangement, the aggregated notifications first of all serve the purpose of providing better knowledge of the national export control policies; only secondarily is it a matter of preventing detours. The Wassenaar Arrangement only gives individual rejection notifications for certain sensitive and particularly sensitive goods. In order to achieve better adaptation of the national export control policies, information on export licenses issued is to be exchanged twice a year in this area. How things will develop in the future when the Wassenaar Arrangement has overcome its founding phase cannot be predicted today. However, the arrangement will make a decisive contribution to strengthening international cooperation in the field of export control. In export control, the states work closely together internationally in so-called export control regimes in order to better coordinate their control policies and to make detour procurement more difficult. At the same time, the regimes are helping to bring the competitive conditions for the companies concerned closer together: the international export control regimes in the area of non-proliferation of weapons of mass destruction (the NSG for nuclear-relevant multipurpose goods, the Australian group for chemical and biological multipurpose goods, and the MTCR for the field of missile technology ) already have a long history behind them. In doing so, they have developed independently from one another and have drawn up a large number of different guidelines that must be observed when making export decisions. The Chemical Weapons Convention also brings its own innovations to export controls. Despite all the differences, the existence of such control regimes has contributed to a considerable extent to the standardization of export control practice now in all important areas of the export control regime. International export controls are geared towards non-proliferation issues. Exports of weapons and related multi-purpose goods are to be prevented in those states whose policies are seen internationally as a threat to global or regional peace. The previous embargo policy for high technology towards the countries of Central and Eastern Europe was rightly removed with the dissolution of the COCOM in April 1994. Russia, Ukraine, Poland, Hungary, the Czech and Slovak Republics as well as Bulgaria, Romania and Latvia are already involved in international cooperation in export control. This strengthens the cooperative element of export control. At the same time, this is an important step towards the economic integration of these countries. China has also been a member of one of the regimes since October 1997. All export control regimes leave the decision on individual export applications to the respective member states. Similar to Germany, these also apply national criteria in addition to the internationally agreed guidelines. In this respect, the international export control regimes will ultimately fail to fully harmonize export control policies.
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