Export Control Policy Initiatives under the Obama Administration

By Burke, Debra D. | Journal of Legal, Ethical and Regulatory Issues, January 2012 | Go to article overview

Export Control Policy Initiatives under the Obama Administration


Burke, Debra D., Journal of Legal, Ethical and Regulatory Issues


EXPORT CONTROLS GENERALLY

Formal international and domestic export restrictions for both weaponry and technology with the potential for military applications have been in place for decades (Swan, 1993). The United States is a party to several multilateral nonproliferation regimes (Luo, 2007), such as the:

* Nuclear Suppliers Group--39 member states seeking to curb the proliferation of nuclear weapons through the implementation of guidelines to control nuclear and nuclear-related exports,

* Missile Technology Control Regime--34 partners applying a common export policy to a common list of controlled items, including all key equipment and technology needed for missile development, production, and operation, and

* The Australia Group--38 participating countries agreeing though their export policies to thwart the acquisition of chemical and/or biological weapons by certain states and terrorists desiring that capability.

However, the primary international framework for controlling the export of technology with military application is the Wassenaar Arrangement ("WA"). The WA is an association of forty participating states established in 1996 to:

* Contribute to regional and international security and stability,

* Promote transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies,

* Complement and reinforce the existing control regimes for weapons of mass destruction and their delivery systems and

* Use export controls as a means to combat terrorism.

While the decision to transfer or deny transfer of any item is the responsibility of participating states, they agreed to:

* Maintain national export controls on listed items as implemented by national legislation,

* Be guided by agreed upon best practices, guidelines or elements as established by the WA,

* Report on transfers and denials of specified controlled items to destinations outside the WA, and

* Exchange information on sensitive dual-use goods and technologies.

The WA is the successor to the former Coordinating Committee on Export Controls ("CoCom") the export control regime of the Cold War Era which disbanded after the fall of the Soviet Union. In light of new risks to regional and international security and stability, which involved not only conventional weapons but also dual-use technologies, former members of CoCom began exploring the feasibility of establishing a new multilateral arrangement, which eventually culminated in the WA (Dursht, 1997). Unlike CoCom, which required the review and approval of restricted exports, the Wassenaar Arrangement defers such a judgment to the participating states, and arguably is less effective as a result (Badway, 2005; Klaus, 2003). While these international accords collectively strive to impede the availability to rogue states and terrorists of weapons, as well as technology with potential military applications, this goal cannot be accomplished without vigilance being exercised independently by individual nations.

The control of arms sales to foreign parties is an integral part of the ability of the United States and its allies to safeguard national security and further foreign policy objectives (Dhooge, 1999). While the U.S. government historically has treated the enforcement of international trade and security restrictions seriously, the war on terrorism, coupled with the strengthening and commensurate enforcement of corporate ethics and liability laws, are responsible for an increased intensity of monitoring efforts. Federal regulations, which are enforced by federal agencies, specify the covered items and services which must be licensed for export, provide key definitions, such as what constitutes an export, and enumerate what transfers are exempt from licensing requirements (Liebman & Lombardo, 2006; Doornaert, 2005; Meagher, 2002).

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