Tag Archives: Sanctions

Brexit and Strategic Trade Controls: key implications

Quentin Michel and Ian Stewart

On 24/25 April, Quentin Michel from the University of Liege and Ian Stewart from King’s College London convened a small group of government officials, academics, and industry practitioners with the purpose of examining the implications of Brexit on strategic trade controls. The workshop was conducted under Chatham House rules with participation in private capacities. The purpose of this short article is to capture the key impressions and issues identified by the hosts. This document does not reflect the views or comments of any specific participant.

The main finding of the workshop was that the exit of the UK from the European Union strategic trade control system will have an impact that goes far beyond trade control law regulations and procedures. Much attention was given to the implications of the trading arrangement that will replace the UK’s access to the ‘single market’. Concerns abound that board tariffs will be adopted by both the EU and UK. However, while the issue of export controls will likely receive scant public attention, inadequate arrangements could have a negative impact that is even more significant than the effect of tariffs. The EU, and separately the UK, must devise mechanisms to ease transfer and, more specifically, licensing of dualuse goods after Brexit. It is unclear presently whether the EU will have the capacity to take the steps required, while also conducting an unrelated review of its own dual-use items export control Regulation, 428/2009. Considering the usual two years delay necessary to finalise the process to adopt a regulation, it is strongly recommended to integrate already the Brexit into the review process.

During the course of the workshop, numerous specific implications were identified. These can broadly be categorised into five areas:

  • The legal basis and the ‘Norway issue’: Before addressing other issues related to Brexit, an answer is needed on what legal basis the UK will use to implement export controls in the future. One alternative would be that the UK will adopt national legislation (initially through the ‘Great Repeal Act’) implementing the requirements of the international export control regimes directly, rather than drawing on the EU regulation applicable in all EU Member States. If this is the case, UK and EU export controls can thus be expected to diverge over time after Brexit. The alternative would be for the UK to align systematically its national provisions to the EU regulation, perhaps following the path of Norway. However, Norway at present cannot take part in EU working groups on export controls and therefore has not possibilities to defend its views when the regulation is amended or updated. Moreover, Norway is excluded from information sharing arrangements whereas that will change probably soon.
  • Harmonisation of controls and competition: There is a real possibility that EU and UK export controls will diverge post-Brexit and that this could result in unhealthy competition and a ‘race to the bottom’ in terms of controls. This might could result in an increase in undesirable transactions, for example. It could also distort markets, particularly if the EU moves forward with the adoption of an autonomous control list in relation to human security issues, as proposed by the European Commission under the recast review, which the UK did not adopt.
  • Information sharing: trade facilitations between States and effective implementation of export controls is contingent on various types of information being shared. This includes not only information on licence denials, which is necessary to prevent ‘undercutting’ and a race to the bottom, but also more sensitive intelligence or other information related to specific transactions. In many cases such information sharing could take place through other channels. However, there would be specific advantages to a structured exchange of information in relation to denial notifications and the updating of any relevant control lists. Ideally, the UK will continue to have access to the DUeS platform.
  • Licensing conditions: The UK is to leave the single market which will mean that the transfer of all strategic items will require licensing to and from the UK and not only a limited number (e.g. Annex IV of Dual Use Regulation 428/20009). This will affect a substantial range of goods and sectors. A solution will be required to allow such items to be easily transferred while minimising the burden on industry. The easiest option might well be to create ‘general’ or ‘open’ licences. However, this would generally require companies to report transfers to authorities and be subject to audit, which might in itself be a substantial burden for industry and licensing authorities. Alternatives include reliance on individual licences (which could be burdensome for companies and authorities) or the creation of some new mechanism intended to record transfers in a low-burden way.
  • Technical capacity: Presently, it is the UK that drafts the EU control list. The UK also provides vital expertise and advice to EU Member States in assessing technical parameters of certain items. While the UK might still be in a position to provide such support post-Brexit, the EU27 might nonetheless need contingency plans.

An additional key area of consideration relates to sanctions. Presently, the UK is a principle actor in relation to EU sanctions. It is understood that the UK has produced several of the evidentiary packages that have been used in relation to specific sanctions designation listings, for example. As one of the largest global economies (equal in size to the 20 smallest EU States) and as a central player in the global financial system, UK adherence to sanctions has been central to their effectiveness. Any move away from harmonisation of sanctions with the European Union could thus undermine either common foreign policy goals or the effectiveness of sanctions. Moreover, practical questions related to sanctions such as who will maintain evidentiary packages for EU sanctions submitted by the UK before Brexit and who will produce evidentiary packages for EU sanctions in the future, if not the UK, must also be considered.

Two important final questions emerged from the discussions. The first concerns how the EU will devise a response to the issues outlined above. It seems apparent that only a group of officials, such as the Council’s Dual-use Working Party, will have the necessary expertise to examine these issues in depth and devise a policy for future dual-use trade between the EU and UK. The second question, which is related, is whether it is feasible to advance both Brexit and the recast of the EU export control regulation (428/2009) in parallel. Given the sheer volume of the dual-use trade implications of Brexit and the fact that the recast, which has now been underway for more than 4 years is the main way in which the EU could adopt a new or amended general export licence for the UK, it seems at the least that it would be useful to consider Brexit issues as part of the recast

North Korea: 2016 in review and the challenges of 2017

By Ian K. Bolton, Research Associate Interdictions and PSI (ian.bolton@kcl.ac.uk)

2016 was an exceptionally busy year for the world of counter-proliferation (CP); in January, Implementation Day of the Joint Comprehensive Plan of Action with Iran was reached. By November, the United Nations’ First Committee voted to begin negotiations in 2017 on a global legally binding instrument to prohibit nuclear weapons for all countries. However, it was North Korean events which were the most dramatic.

On 6 January 2016, North Korea conducted its fourth nuclear test, with a yield believed to be in the region of 10 kilotons[1]. The nuclear test was widely condemned; notably China seemed to be genuinely angered by the test[2]. Before the world had been able to respond through the United Nations, North Korea escalated matters. On 7 February, North Korea confirmed it had launched a long-range rocket from its Sohae site, claiming the rocket was carrying a satellite for its space program. However under Security Council resolutions, North Korea is prohibited from conducting any such activity which is contributing to their ballistic missile programme.

The International Community delivered its response to the January nuclear test on 2 March, passing a new UN Security Council Resolution – UNSCR 2270. This resolution created one of the most wide‑ranging sanctions regimes against North Korea in the UN’s history. The restrictions adopted under UNSCR 2270 are broad and include entire sectors, such as coal and iron ore. The exception to these restrictions were when they would impact on the livelihoods of North Korean nationals. UNSCR 2270 also introduced an obligation on UN Member States to inspect all cargoes originating in, or destined for, North Korea.

Before the ink of UNSCR 2270 was dry, North Korea was once again challenging the resolve of the International Community. On 15 April, they tested the Musudan Intermediate Range Ballistic Missile. Although the test was seen by the CP community as having failed, this was indicative of things to come. On 23 April, North Korea tested a Submarine Launched Ballistic Missile[3]. By the end of August there been 7 further ballistic missile tests, ranging in their success. One North Korean watcher described this pattern of testing as Mr. Kim having ‘missile lust’, and not giving up on efforts to develop them further[4].

The next significant provocation came on 9 September when the regime conducted their fifth and largest‑to‑date nuclear test[5]. The test sparked international condemnation and heightened tensions across the region, with the US conducting an overflight of South Korea by two US B-1B Strategic Bombers. Once again the International Community looked to take decisive action. On 30 November 2016, the UN Security Council passed a new resolution, UNSCR 2321, which built on UNSCR 2270.

Adopted unanimously by the UN Security Council, resolution UNSCR 2321 tightened even further the sanctions and controls on North Korea[6]. The new resolution looked to address some of the issues which had come to light in the aftermath of UNSCR 2270, such as easy work-arounds on sectoral sanctions. New restrictions were put in place on mineral sectors, including copper, nickel, silver and zinc. The amount of coal North Korea could export was also restricted to defined amounts. It introduced restrictions on North Korean workers based overseas, as well as the provision of statues from North Korea. Additionally the UNSCR raised concerns about the activities of North Korean diplomatic missions and holdings and how these could be misused. All in all UNSCR 2270 and UNSCR 2321 together have created one of the most extensive UN sanctions regimes ever to be passed.

Challenges in 2017

It is clear that international condemnation, pressure and sanctions have not deterred North Korea from carrying out further provocations. Proof of this can be seen in the ballistic missile test that took place yesterday, 12 February 2017. The successful testing of the Pukguksong-2 missile will be an early test of the International Community’s resolve and ability to respond. Indeed satellite imagery and evidence[7] suggests North Korea has restarted its nuclear reactor at Yongbyon, the reactor used to produce plutonium for North Korea’s nuclear weapons programme[8]. This action would seem to indicate North Korea is preparing to conduct further nuclear tests.

The Trump administration has been sabre rattling in the region, both during the recent visit by Defence Secretary Mattis[9], in President Trump’s tweets[10], and during the visit of the Japanese Prime Minister. The critical question is what will the International Community, and the Trump administration, do in response to further provocations? It is hard to see what further scope there is for tightening sanctions on North Korea, and were such tightening to be suggested there would be concern regarding the humanitarian impact, a key concern for many countries, including Russia and China. Trump has already pointed the finger at China for failing to control North Korea[11], but traditionally China has resisted pressure to tighten its sanctions implementation. Given the antagonistic relationship between Trump and China so far, the US may undertake some form of unilateral military action against North Korea, though highly unlikely. Apart from further sanctions and possible military action, the best hope for a change in direction is the potential restarting of 6-party talks; the US administration has said they are willing to talk to North Korea. In practice it is difficult to see what this could accomplish, but the same was said by many before the start of Iran talks.

Another key challenge in 2017 will be the full implementation of both UNSCRs 2270 and 2321. UNSCR 2321 followed so quickly on the heels of UNSCR 2270 that many countries have not yet fully implemented UNSCR 2270, and as such have not submitted implementation reports to the UN as set out in the resolution[12]. Individual national legislation will need to be adopted by many in order to enforce the sanctions. This legislation will need to give countries powers to seize vessels and cargoes as prescribed by the UNSCRs. Countries will need legislation and capacity to allow all cargoes going to, or originating in, North Korea to be inspected. Furthermore, countries will need to ensure they can inspect cargo travelling via land and rail transportation, as well as sea and air, an often overlooked area. For many countries, especially in South East Asia given the high traffic of North Korean activity, there may be a need to dramatically increase customs enforcement capacity. Countries will need to be able to enforce the sectoral controls introduced by the UNSCRs, this will include an ability to analyse and identify what materials/ores they may be dealing with and if they are sanctioned.

Even more complicated will be how restrictions on coal, which essentially provides export limits, will actually be enforced, especially by China, North Korea’s biggest coal customer. North Korea watchers are already pointing out the potential frailties of this[13]. Domestic ship, registries, agents, insurers and companies will need to be looked at to ensure they are not misused by North Koreans. Countries will also need to examine their ship registries to de-list North Korean owned, operated or controlled vessels. Countries will need to take action to prevent public and private financial support to North Korea by persons or entities within their jurisdiction, unless by prior approval of the UN North Korean Sanctions Committee. And all of this is just a snapshot of the many new obligations and capacities countries will have to undertake.

Given this huge implementation challenge, the international community, and in particular countries like the US and UK, along with institutions, such as the European Union and United Nations, must have a focus on providing critical assistance to other countries, especially those with limited enforcement capacity. It is this that really will be the biggest challenge of 2017. Without this, having extensive and wide ranging sanctions on North Korea is worthless.

[1] http://www.bgr.bund.de/DE/Gemeinsames/Oeffentlichkeitsarbeit/Pressemitteilungen/BGR/bgr-160909_nordkorea_BGR_kernwaffentest.html?nn=1542132

[2] http://www.telegraph.co.uk/news/worldnews/asia/northkorea/12084087/North-Korea-hydrogen-bomb-Kim-Jong-un-earthquake-live.html

[3] http://edition.cnn.com/2016/04/23/asia/north-korea-launches-missile-from-submarine/

[4] Thomas Karako, director of the Missile Defense Project at the Center for Strategic and International Studies, told Business Insider: http://uk.businessinsider.com/timeline-of-north-korea-tests-2016-10?r=US&IR=T/#february-7-the-rogue-regime-fires-a-long-range-rocket-2.

[5] https://www.nytimes.com/2016/09/10/world/asia/north-korea-nuclear-weapons-tests.html?_r=0

[6] https://www.un.org/press/en/2016/sc12603.doc.htm

[7] https://www.theguardian.com/world/2017/jan/28/north-korea-has-restarted-reactor-to-make-plutonium-fresh-images-suggest

[8] http://38north.org/2017/01/yongbyon012717/

[9] http://www.bbc.co.uk/news/world-asia-38824008

[10] https://twitter.com/realdonaldtrump/status/816057920223846400?lang=en

[11] https://twitter.com/realDonaldTrump/status/816068355555815424

[12] Currently just over 60 countries have completed implementation reports of UNSCR2270 as evidence on the UN website: https://www.un.org/sc/suborg/en/sanctions/1718/implementation-reports.

[13] http://38north.org/2016/12/aberger121616/

WORKSHOP ON EVIDENTIARY ISSUES IN EU and UK Sanctions Delisting Actions

On 19 January 2017, in partnership with the James Martin Centre for Nonproliferation Studies (CNS), Project Alpha will be hosting a workshop on evidentiary issues in EU and UK sanctions delisting actions. This workshop is part of a broader project that CNS and Project Alpha are doing on open source evidentiary packages to support sanctions listings.

The workshop will be a one day conference which will consider:

  • Current evidentiary issues such as the standards of proof, quality of evidence, burden of persuasion and lessons learned.
  • The Courtroom Experience: How Cases are Handled, Evidence Received, Opinions Delivered
  • Practical Matters: Building cases, presenting evidence, EU members supporting the Council

The concluding session be on open source tools techniques and examples for use in building evidence packages.

The workshop will be attended by Government representatives from the UK, US, France, Germany, the European External Action Service, EU and legal experts.

US Adds Pakistan Entities to the End User List

On 15th December, the US Department of Commerce issued an update to its Entity List, adding seven entities in Pakistan which appear to be linked to Pakistan’s missile programme.

The move by the BIS End User Review Committee follows close scrutiny of Pakistan’s nuclear and missile programmes prompted, in part, by a report published by Project Alpha in November. That report had identified most of the entities that were added to the US list on the 15th December as well as up to a dozen more front companies procuring illicit goods on behalf of Pakistan, including front companies thought to act on behalf of the newly designated entities.

The timing of the move is noteworthy. With little over a month to go until the inauguration of President Trump, it is possible that the Obama administration acted to list these entities foreseeing a window in which the move would not necessarily hamper US diplomatic ties with Pakistan. While there are signs that Pakistan is discontent with the US action, the Pakistani government will wish to start fresh with the Trump administration regardless.

It is also notable that the US appears to have focused these additions around entities involved in Pakistan’s missile programme. Given that Pakistan earlier this year applied to join the Nuclear Suppliers Group, any move by the US to designate entities connected to Pakistan’s nuclear programme would likely be taken as an overtly political act by the outgoing Obama administration.

The entities sanctioned the US are noted below.

  • Ahad International
  • Engineering Solutions Pvt. Ltd.
  • National Engineering and Scientific Commission (NESCOM)
    • Air Weapons Complex (AWC)
    • Maritime Technology Complex (MTC)
    • New Auto Engineering (NAE)
  • Universal Tooling Services

The US announcement can be found here:

https://www.federalregister.gov/documents/2016/12/15/2016-30061/addition-of-certain-persons-to-the-entity-list

The public version of the Alpha in-depth Report on Pakistan’s nuclear and missile programs can be accessed here: http://projectalpha.eu/research-opens-a-window-into-pakistans-nuclear-weapons-programme/

Global trade sanctions and the freight forwarding industry: Implementing compliance good practices in the face of changing requirements

Global sanctions regimes

  • The direction of growth of global commerce is greatly influenced by international sanctions and control regimes. These change constantly in response to geopolitical or other developments.  International agreements for example may include provisions for targeted and phased lifting of sanctions over lengthy periods (this is likely to be the case for any long-term agreement between Iran and the P5+1). To maintain a competitive edge in such an environment, companies in freight forwarding and related industries need a smart and adaptive approach to compliance.

Continue reading Global trade sanctions and the freight forwarding industry: Implementing compliance good practices in the face of changing requirements