Dual-use goods, from the 1950s to the present

The Technidouanes expert, who has been an independent consultant for 12 years, was scientific advisor to the customs administration and project manager at the National Defense Secretariat (SGDSN). Below he discusses the practice of export controls before the French ministerial reform of 2010 that he experienced, and explains the current practice.

The "cold war" between Western countries and communist countries, which began at the end of the war with the problem of the occupation of Germany, was very quickly accentuated by actions of technological espionage on the part of the world. Soviet.

The first observations of illicit transfers of Western technologies took place in 1949 after the development of nuclear weapons in the former Soviet Union. This was entirely copied from the American bomb in Nagasaki by the action of communist spy networks which included the Rosenberg couple, convicted in 1950 then executed in the electric chair in 1953.

During the 1950s, from the first tests of thermonuclear weapons by the USA, the former Soviet Union carried out equivalent tests of super-powerful bombs which, clearly, resulted from illicit transfers of American technologies through networks Russian espionage.

Subsequently, in the 1970s and 1980s, several countries successfully developed nuclear, chemical and biological weapons and their delivery systems by obtaining equipment and technologies for civilian use through international trade.

These events were at the origin of the creation of several international bodies with a view to implementing controls on dual-use goods (civil and military) to combat the proliferation of weapons of mass destruction.

From the start of the "Cold War", the USA initiated bilateral conversations with France, Italy, the United Kingdom, the Netherlands, Belgium and Luxembourg to create an informal consultative group made up of government representatives to to avoid the diversion of strategic materials to Soviet bloc countries. In 1950, by adding a permanent secretariat, this consultative group evolved into the Coordination Committee for the Control of Multilateral Trade (COCOM); which were later joined by Canada, Denmark, Germany, Japan, Australia, Spain, Greece, Australia, Portugal and Turkey.

Four of the six founding countries of COCOM shared key roles, namely: the Italian presidency, British staff, American headquarters (US embassy in Paris), meetings exclusively in France, and English/French bilingualism.

In 1982, following the Farewell affair (see below), the consultative group responsible for the political orientations of COCOM was replaced by a high-level assembly which reactivated this intergovernmental body and organized it into several structures of real efficiency: the executive committee, the regular committee and its various formations, the subcommittees, the working groups and ad-hoc groups. All COCOM decisions followed procedures established by higher structures and were taken unanimously. Numerous high-level meetings took place during the 1980s to increase the fight against technology transfers to Eastern countries, then at the beginning of the 1990s to take into account the rapid evolution of technology and to end this embargo following the fall of the Berlin Wall.

The objective of COCOM was to create three lists of strategic goods (nuclear list, military list and list of dual-use goods) and to refuse or authorize exports to the countries of the "Soviet bloc" and China of these materials and sensitive technologies. These exports were proposed by member states following license requests from their manufacturers, but they were often refused after unfavorable opinions from governments or their intelligence services. The de facto embargo resulting from the action of COCOM allowed democratic states to maintain a military technological advance compared to totalitarian states, but this advance was always overtaken following numerous diversions of final destination.

COCOM was dissolved in 1994 following a final high-level meeting under the Dutch presidency, which, noting the evolution of the international situation and the globalization of technological progress, decided to convert it into a " new forum ", which is which became, two years later, Wassenar's arrangement.

The Wassenaar Arrangement (WA)

The Wassenaar Arrangement (WA), its full name the Wassenaar Arrangement on the control of exports of conventional arms and dual-use goods and technologies, is a multilateral export control regime established by around forty States in order to coordinate their policies on the export of conventional arms and dual-use goods and technologies. It was established on May 12, 1996 in Wassenaar , Netherlands, and is the successor to COCOM. It includes most of the countries of the former Soviet bloc and brings together 42 states.

The main document is an instructional document, the Purposes, Guidelines and Procedures, including the Initial Elements , which describes the purposes, procedures, participations and administrations of this treaty. A secretariat is established in Vienna, where meetings take place, usually once a year in December. Under his regime, the only obligation is to notify arms transfers. The decision to transfer rests solely with the seller.

The Zangger Committee and the Nuclear Suppliers Group (NSG)

Alongside COCOM, other informal groups fighting against illicit transfers of very sensitive equipment were formed to prevent the dissemination of nuclear weapons technology, but they remained independent from COCOM whose sole aim was to maintain qualitative restrictions against the “Soviet bloc” and China.

The Zangger Committee (named after its first president, Swiss Claude Zangger) is a multilateral export control regime which was established in 1971 by states exporting and producing nuclear goods and technologies, following the entry into force of the Nuclear Non-Proliferation Treaty (NPT.

The objective of the Committee, which still exists, is to ensure that nuclear technologies exported to non-nuclear weapon states that have not joined the NPT are not diverted for military purposes. The checklist is limited to a "Trigger list" concerning fissile materials and corresponding production equipment. The Zangger Committee ensures guarantees of civilian use of the products and technologies provided. This is how he authorized the export to India of uranium and conversion and enrichment facilities subject to exclusively civilian use, even though India had not signed the NPT. and carried out a nuclear industry for military purposes using thorium (due to lack of uranium).

It is precisely because the Committee only focused on States which are not parties to the NPT that the States producing and exporting nuclear technologies decided in 1974, following the nuclear test carried out by India, to create the Nuclear Suppliers Group (NSG) in order to harmonize their export policies in this area and prevent nuclear proliferation. Initially, the Nuclear Suppliers Group was called the "London Club" . This was a new multilateral export control regime covering nuclear exports to all states, whether NPT parties or not.

The NSG was created three years after the Zangger Committee in order to complete it and compensate for its shortcomings. Thus, the prerogatives of the NSG are not limited to the provisions of the NPT: the controls put in place by the Group can therefore cover a broader spectrum of goods and technologies and evolve in parallel with technological progress. On the other hand, the controls established by the NSG concern exports to all countries, even those which are not members of the NPT. The NSG publishes two lists:

The NSG experienced a period of relative decline between 1978 and 1990. In 1992, revelations concerning Iraq's nuclear program (which had been developed, among other things, thanks to dual-use goods and technologies previously considered little likely to be diverted for military purposes) were an opportunity to revitalize this multilateral control regime and strengthen its provisions (in particular in order to better control dual-use goods and technologies).

The Missile Technology Control Regime (MTCR)

The Missile Technology Control Regime (MTCR) is a multilateral export control regime aimed at limiting the proliferation of weapons of mass destruction by controlling the transfer of missiles that can serve as vectors for these weapons. The MTCR was established in 1987 by Canada, France, Germany, Italy, Japan, the United Kingdom and the United States. Since that time, the MTCR now includes thirty-four countries, and all have equal rights within the Regime.

The Australia Group (AG)

In 1985, following the observation by the United Nations of the use of chemical weapons by Iraq during its war against Iran and knowing that the construction of Iraqi chemical factories was the result of transfers of free Western materials and technologies on exports, a new international body was created at the initiative of Australia, the Australia Group (English acronym AG), chaired by Australia, meeting only at the Australian embassy in Paris and made up exclusively of Australian staff. The Australia Group has also become interested in biological products and equipment following evidence of biological weapons manufacturing programs in some countries. Its aim is to establish lists of chemical and biological products and equipment to be controlled (and to exchange information with a view to combating the proliferation of chemical and biological weapons).

The Organization for the Prohibition of Chemical Weapons (OPCW).

The Organization for the Prohibition of Chemical Weapons ( OPCW) was created following the Convention on the Prohibition of Chemical Weapons. This official body has its headquarters in The Hague. Its aim is to ensure the destruction of chemical weapons produced in the signatory states of the Convention and to control chemical installations likely to conceal clandestine activities. The list of chemicals subject to control is that which appears in the annex to the convention; it includes the chemical precursors on the Australian Group list and dangerous products susceptible to malicious use.

The effectiveness of COCOM was called into question in the early 1980s following technological plundering for the benefit of the former USSR revealed by a KGB agent, called Colonel Vetrov and known as "Farewell", who sold to French counter-espionage (the former DST) Russian secret documents intended for the “Supreme Soviet” providing the financial results of the thefts of multiple ultra-secret military technologies collected in particular in the USA, Great Britain and France.

This sinister discovery was revealed to American President Reagan by French President Miterrand at the start of his first seven-year term. This Farewell affair was the subject of a diplomatic incident between France and the former USSR following the expulsion in April 1983 of around forty Russian "diplomats" stationed in Paris. Colonel Vetrov was assassinated during a reckless return to Russia.

The 17 COCOM states pulled themselves together by publishing, in 1985, a new list of sensitive goods and technologies and by strengthening their multilateral controls. Therefore, in France, the counter-espionage services (formerly DST) and customs have highlighted and sanctioned illicit transfers of products and technologies for civil and military use, particularly to the former USSR.

At the time of the Farewell affair, regulations regarding "final destination control" existed in France in the form of a notice to importers and exporters published in the Official Journal of the French Republic (JORF) in 1976. This text publishing the list of goods subject to controls established by COCOM was based on a 1944 decree whose aim was to establish protection for foreign trade due to the precarious economic situation at the time of liberation. This decree referred to a 1938 law relating to the organization of the economy in times of war.

Given the tremendous development of IT and military technologies in the early 1980s, the regulations in force had become totally obsolete, poorly understood and forgotten. Furthermore, its legal basis was particularly questionable.

The French authorities pulled themselves together by publishing in the JORF the notice to importers and exporters of December 5, 1985 containing the list of strategic products of around one hundred pages revised that year in COCOM.

In July 1987, a diplomatic incident between the United States and Japan occurred during the export of five-axis machine tools coordinated simultaneously (by means of a Norwegian numerical control), by a Japanese company with a view to the manufacture of silent propellers for Russian submarines, while Japan was a member state of COCOM.

The Japanese authorities immediately rushed to reveal that a large French company had committed an equivalent mistake by exporting large machine tools to the former USSR for the construction of wide-body aircraft. This denunciation similarly resulted in a diplomatic incident between the USA and France, an active and founding member of COCOM. This French affair led the former DST to indict five managers of the company concerned and place them in preventive detention for several months for "intelligence with the enemy".

The United States was concerned about the easy sale of machine tools with five axes coordinated simultaneously, not only for the official reason given, but also because of the risks of exporting the means of machining curved and perfectly precise surfaces to from complex mathematical equations for the production of nuclear weapons casings.

From this scandal and other American diplomatic protests against France's non-compliance with its commitments made to COCOM, several illicit technology transfers were noted by the National Directorate of Customs Intelligence and Investigations (DNRED) and their authors. were the subject of legal proceedings by the customs administration.

COCOM member states were in fact increasingly aware of clandestine transfers of sensitive technologies in all areas, particularly with regard to microelectronics and computing, the military uses of which, at the time, were only progressing.

France noted unlicensed exports of materials and technologies for producing silicon or gallium arsenide integrated circuits organized by a businessman well known to the intelligence services for his trading activities in high-tech products with the countries of the “communist bloc”.

In 1987, French equipment subject to final destination control and exported without a license to the former USSR by this industrialist who had become "enemy No. 1" in Europe was intercepted in transit by Luxembourg customs. The person concerned was the subject of a trial in Luxembourg during which he claimed that an export ban by a member state of the European Community was contrary to European law, as well as the sanctions criminal penalties imposed in this case. The Luxembourg Court of Cassation then referred a preliminary question to the European Court of Justice (ECJ) on this case. European Justice handed down a judgment according to which export policy was within the competence of the European Community, but that exceptionally a member state could prohibit goods in transit for reasons of internal or external security and impose sanctions proportionate to the seriousness of the offense (Cf. judgment C-367/89 of October 4, 1991).

Likewise, from 1984 to 1988, several industrial organic chemistry installations, subject to control in Germany by a text called Aussenwirtschaftsverordnung (AWV) of May 14, 1984 relating to foreign trade, were exported without a license to Iraq and intercepted by the Hamburg customs. The manufacturers concerned contested both the regulations in force and the criminal proceedings brought against them, which led the German courts to submit a preliminary question to the ECJ which ultimately rendered a judgment according to which the export policy was of competence of the European Community but that a Member State could exceptionally prohibit or control certain exports for reasons of internal and external security and impose criminal sanctions proportionate to the seriousness of the offense (Cf. judgment C-83/94 of October 17, 1995).

Following the UN fact-finding mission following the use of chemical weapons during the Iran-Iraq war and given the absence of regulations for the control of chemical and biological products and equipment in many exporting countries , industrialized states, aware of the misuse of their industrial uses of precursors and special equipment for the production of war toxicants, met at the Australian embassy in Paris from 1987 to establish lists of control and form an intergovernmental body which they called the Australia Group.

At the same time and following an appeal to the Council of State from a French company against the regulations in force, the Minister of the Budget (in charge of customs) implicitly attached the notice to the contested importers and exporters. to a decree implementing article 215 of the Customs Code which it published on September 24, 1987. This fragile and provisional legal basis, simply based on the control by customs agents of the detention and transport of prohibited goods in under international commitments, was instituted pending the finalization of a bill, often announced but never presented to the Council of Ministers.

In 1988, many serious cases came to light. That year, Iran imported powders and explosives produced in France; Iraq obtained capacitors and spark gaps from England intended for priming nuclear weapons; Pakistan has been sourcing nuclear weapons production equipment from different Western countries...etc. The press kit from the Ministry of the Economy, Finance and Budget entitled "Customs in 1988 - Activities and results" reported "58 significant findings in terms of control of the final destination relating to transport equipment. a total value of 566 million francs carried out in 1988 (approximately 91 million euros). It was specified : "The majority of the offenses noted (54) consist of false declarations of species on export aimed at evading production of a license or to allow the shipment of material to a destination for which no export authorization can be issued.

The Customs Code indicates that a false declaration of species likely to evade a prohibition measure, that is to say a fraudulent declaration of the nature of the goods, is equivalent to export without declaration (smuggling action).

To avoid these false declarations of species, the general directorate of customs and indirect duties undertook at that time the updating of the nomenclature of products (ex-NDP), whose headings were subdivisions of the tariff and statistical subheadings of the common customs tariff nomenclature allowing the goods subject to final destination control to be cited. This work carried out by customs in collaboration with industry services lasted quite a long time given the large volume of goods to be codified and the difficulty of carrying out a correlation between the customs codes of goods and the codes of goods subject to the final destination control whose logic was different. Following an initiative from France, correlation work between the COCOM list and the subheadings of the harmonized system of coding and designation of goods took place at COCOM between customs officials from member countries of this international body.

The work to integrate the codes of the list of products listed at COCOM in the former NDP finally became obsolete, on the one hand due to the recasting of the list into a "hard core" of 10 new categories (corresponding to the 10 American categories of sensitive goods) and on the other hand due to the merger of the common customs tariff with the European statistical nomenclature (formerly NIMEXE) in application of Council Regulation No. 2658/87 relating to the tariff nomenclature and statistics of the Common Customs Tariff, which entered into force on January 1, 1988. This regulation created an eight-digit combined nomenclature (CN) obtained by subdividing the six-digit subheadings of the harmonized system of coding and description of goods (HS), as well as than a ten-digit Community integrated tariff (TARIC) obtained by subdivision of the eight-digit CN subheadings and planned to take into account specific Community measures.

The customs administration then found itself in the situation where strategic products had lost their specific coding on which customs controllers relied to monitor exports of goods called "strategic goods".

The notice to importers and exporters relating to the control of the final destination of high technology products was the subject of a recast on March 5, 1988 following the revision of the COCOM list of 1987. But illicit exports have continued despite the vigilance of customs officers who were warned of the risks of proliferation of weapons of mass destruction through the diversion of civilian goods for malicious purposes. In particular, the National Directorate of Customs Intelligence and Investigations (DNRED) has been contacted by the DGDDI for numerous investigations following information on the turpitudes of certain French companies. Notably, in February 1989, an ion implanter loaded into a truck and exported without a license to the former USSR, via Italy, was intercepted by customs in Grenoble to prevent it from leaving, and was subject to of a complaint from the DNRED. But this case was the subject of procedural incidents and expert battles over the nature of the goods and ultimately did not result in a judgment in favor of customs.

The customs administration, under the supervision of the budget ministry, lacked the legal means to prevent technological leaks allowing any malicious state to produce “unconventional” weapons. At the time, customs could only initiate proceedings in application of the customs code in the form of an “act initiating tax proceedings” (limited to three years). Furthermore, the ex-DST could initiate proceedings under the penal code (with a ten-year statute of limitations), but the qualification of "intelligence with the enemy" in force at the time was only provided for illicit activities carried out in times of war and not for international trade operations, which also constituted a questionable legal basis.

Despite the great discretion of the French administrations regarding their participation in the work of COCOM and their fight against proliferation, the French turpitudes covered by defense secrecy were denounced and described in detail by a strangely very well-informed American journalist, Kenneth Timmerman, in his book "La Grande Fauche" published by Plon in 1989. This publication shows that the American authorities were aware of the clandestine actions on the part of many French companies, and put pressure on France, a founding member of COCOM, to that it respects its commitments and increases its controls over the strategic products and technologies it had as a major industrial and military power

In France, many cases resulting from offenses relating to "control of the final destination" have ended in court with dismissals which, even now, cannot be revealed. These legal failures on the part of the French administrations resulted from the lightness of this text, the slowness of the procedures and many legal gaps resulting from the non-transposition into French regulations of the agreements concluded in the intergovernmental bodies dealing with the fight against the proliferation of weapons of mass destruction (nuclear, chemical, biological weapons and their vectors). Indeed, the lists of the Australia Group, the Nuclear Suppliers Group and the Missile Technology Control Regime, all created in 1987, were not immediately included in notices to importers and exporters like that of COCOM . This is why, unlike Germany, France was unable to obtain convictions for illicit exports to Libya, Iraq, Pakistan, and others, following the assistance provided clandestinely to the development of nuclear, chemical or ballistic programs of these countries.

Many countries having delayed in publishing regulations regarding the control of the means of production of chemical and biological weapons, despite their participation in the Australia group, control of certain chemical products was established by European Council Regulation No. 428/89 of February 20, 1989 following the international conference on chemical weapons which took place in Paris from January 7 to 11, 1989.

Illicit transfers to the former USSR were so extensive that the embargo against the "communist bloc" had become almost ineffective given the profits to be made by unscrupulous intermediaries, to the point that the president of the ex-USSR, Michaïl Gorbachev is said to have said at the time that "Western businessmen would be able to sell the rope with which they would be hanged."

The fall of the Berlin Wall completely changed the international situation in terms of the fight against proliferation. COCOM reworked the list of targeted products into a “hard core” of 10 categories copied following the American model and representing the majority of sensitive goods and technologies. Then Italy lost the COCOM presidency to the Netherlands. High-level meetings and various committees were no longer held in Paris (as had been the case for forty years). French was abandoned and English became the only working language. Eventually, COCOM was dissolved in 1994 and replaced by an intergovernmental organization with its headquarters in Wassenaar in the Netherlands and its secretariat in Vienna, Austria. The Gulf War and Libyan threats have led modern countries to increase their vigilance over the trade in high-tech products susceptible to malicious use. Especially since the supply networks for nuclear equipment for Pakistan and North Korea, well known but never dismantled, represented a threat to international stability; and that the nuclear and ballistic tests of India, China and Pakistan showed that developing countries managed to obtain all the materials necessary for the development of nuclear weapons despite the existence of controls.

At that time, the fight against the proliferation of weapons of mass destruction was supervised at the interministerial level by the General Secretariat of National Defense (SGDN), now the General Secretariat for Defense and National Security (SGDSN).

The opening of European borders was achieved on January 1, 1993 and the State risked no longer being able to exercise any control over strategic assets. But, thanks to the initiative of the former SGDN which became aware of this serious disadvantage from October 1992, war materials and goods and technologies for both civil and military use continued to be used. subject to export restrictions in application of international agreements (informal but real) to "fight against the proliferation of weapons of mass destruction" by the presentation of an amendment by the Government before the vote and promulgation of the Law of December 31 2012 relating to various administrative and tax provisions. This law, which was a "catch-all" of various texts on multiple different subjects, voted and promulgated urgently on the eve of the liberation of trade between European states, therefore made it possible, in extremis, to maintain control over the strategic products.

Finally, the European Union took charge of the fight against the proliferation of weapons of mass destruction by publishing Council Regulation (EC) No. 3381/94 of December 19, 1994, based on Article 113 of the European Treaty (policy common commercial trade) "establishing a Community regime for controlling exports of dual-use goods" supplemented by Decision No. 94/942/CFSP of December 19, 1994 within the framework of the common foreign and security policy bringing together the lists of all international control bodies into a single list of dual-use items (BDU).

This “trans-pillar system” , judged from its adoption to be transitional, was invalidated by two judgments of the Court of Justice of the European Communities in 1995, following an appeal by a German company, ruling that control should be under exclusively of the common commercial policy.

The French texts adopted in application of European regulations were as follows:

But, in 1995, upon the election of Jacques Chirac as President of the Republic and the appointment of Alain Juppé as Head of Government, this service of the Prime Minister underwent a profound reform which reduced its workforce by two thirds. From then on, each ministry had become autonomous in managing the fight against the proliferation of weapons of mass destruction and the action was in fact led by the ministry responsible for industry, which had only three engineers to study license applications and participate. at international expert meetings.

France's lack of interest in COCOM following the collapse of the Soviet Union after the fall of the Berlin Wall led to a loss of vigilance regarding illicit trafficking of civilian goods capable of another use. , terrorist or military.

It was then that the European Union became aware of the need for joint action in matters of security and the list of dual-use goods was updated by European Council Decision 1999/193/CFSP of March 9, 1999.

This system was valid for honest companies correctly declaring their goods in their export licenses, but it remained a "Maginot line" not preventing the illicit supply of components of weapons of mass destruction by false declaration of species, due to the absence of a codification of strategic products necessary for the surveillance work of customs controllers.

A new control system based exclusively on the "first pillar" of the European Union was adopted by the publication of Regulation No. 1334/2000 of June 22, 2000 pursuant to Article 115 of the Treaty. The list of dual-use goods (including software and technology) was then published in Annex 1 to this regulation, instead of being the subject, as before, of a separate decision within the framework of foreign policy and Common Security (CFSP).

The French text taken in application of this European regulation was the order of the Minister of the Economy and Finance of December 13, 2001, signed by the Director General of Customs and Indirect Duties who was responsible for the execution of the new provisions in BDU material.

Following the attacks of September 11, 2001 in New York and the terrorist threats following the events in Iraq and Afghanistan, the European Union expressed concern about the risks of mass destruction on the part of terrorist organizations during two meetings of the European Council in July and December 2003 and the United Nations Security Council recommended strengthening controls on dual-use goods through resolution No. 1540/2004 of April 28, 2004. This resolution led the European Union to publish regulations establishing restrictive measures against Iran (423/2007) and North Korea (1110/2008) in application of the common foreign and security policy. The Security Council was obliged to renew this resolution in 2008 because the 2004 resolution remained unanswered regarding dual-use goods. This United Nations action ultimately resulted, at European level, in an overhaul of the basic regulation on dual-use goods by means of Regulation No. 428/2009 which entered into force on August 27, 2009.

For the effective application of these regulations by European customs administrations, the European Commission has integrated into the Community Integrated Tariff (TARIC) database the articles and paragraphs of goods subject to lists of restrictive measures under the fight against proliferation. In 2006, it published a correlation list between the 10-digit TARIC subheadings and the articles and paragraphs of the list of dual-use goods, which was included in the customs declaration computer systems operational in the countries. European (DELTA in France)

In fact, this was a correlation between the 8-digit combined nomenclature and the dual-use list since the last two digits were 00. This list, which was loosely updated in July 2012, did not include not on all subheadings of the Combined Nomenclature containing sensitive goods. Conversely, it targeted specific goods framed in subheadings relating to a multitude of goods of no strategic nature. Furthermore, this correlation list contained countless classification errors. All this led to numerous customs blockages of goods free for export and constituted, in practice, an obstacle to European exports and an encouragement to clandestine transfers of dual-use goods.

For sixty years, the control of the final destination and subsequently that of dual-use goods (BDU) were managed by the customs administration. License requests were sent to the financial and commercial authorizations department (formerly SAFICO), then called the foreign trade securities department (formerly SETICE) which depended on the interregional customs directorate of Ile de France. These licenses were issued after consulting the ministry responsible for industry which consulted, where appropriate, the ministries concerned (interior, defense, foreign affairs, etc.). Differences of views between ministerial departments were arbitrated at the level of the Prime Minister's Office.

Decree No. 37 of January 17, 2009, in its initial version, put an end to the essential role of customs by creating a dual-use goods control mission placed under the authority of a chief arms engineer. . This mission was made up of SETICE customs staff and several engineers recruited by the former General Directorate of Competitiveness, Industry and Services (formerly DGCIS) of the Ministry responsible for industry, which has now become the General Directorate of Companies (DGE), for the examination of license applications and participation in interministerial and international meetings. This was a provisional step in the 2010 reform.

The provisions for combating the proliferation of weapons of mass destruction have been completely overhauled by the publication of Council Regulation No. 428/2009 of May 5, 2009 "establishing a Community regime for the control of exports, transfers , brokerage and transit of dual-use goods. This text, in force throughout the European Union, is introduced by two important recitals indicating its legal basis (recitals nos. 14 and 15):

Introductory recital No. 14

It refers to the "Thesaloniki action plan" adopted at the European Council of June 2003, supplemented by the "WMD strategy of the European Union" subsequently adopted at a new European Council of December 2003.

Introductory recital No. 15

He recalls that the United Nations Security Council, by its resolution No. 1540 (2004) of April 28, 2004, invited states to put in place internal control systems intended to prevent the proliferation of nuclear, chemical or biological weapons. or their vectors.

The Proliferation Security Initiative

At the beginning of the 2000s, fearing an attack even more deadly than that of September 11, 2001 in New York by terrorist organizations and knowing the real risks of proliferation of weapons of mass destruction (nuclear, chemical, biological and ballistic), the USA announced in May 2003 the creation of a security initiative against proliferation (English acronym PSI) whose 11 founding states were Germany, Australia, Spain, the United States, France, Italy, Japan, the Netherlands, Poland, Portugal and the United Kingdom.

The PSI would have been created during a check for non-compliance with the rules of maritime law, by the Spanish navy on December 10, 2002, of a North Korean ship en route to Yemen, which was hiding under false cargo 15 complete SCUD missiles, 15 “conventional” explosive warheads and an oxidizer for these missiles.

During their first plenary meeting held in Paris on September 3 and 4, 2003, the 11 founding states of the PSI published a "Declaration of Prohibition Principles" containing concrete objectives for controlling air, maritime and terrestrial high-tech products through cooperation of means and the implementation of coercive means. Subsequently, many other states joined this initiative and 21 of them formed an operational group of experts (English acronym OEG) constituting the coordination body of the PSI and meeting each year to define objectives following the “Paris Principles” based on the information and means that each participant could provide. Currently, around a hundred countries have joined the PSI and may be called upon to cooperate to prevent clandestine trafficking of goods appearing mainly on the lists of inter-governmental anti-proliferation bodies.

The Ministry of Foreign Affairs officially announced the existence of this international cooperation in the following manner on its website http://www.diplomatie.gouv.fr:

From an operational point of view, the PSI enabled participants to carry out numerous operations which proved conclusive, that is to say which concretely interrupted trafficking in proliferating and illicit materials, goods or equipment.

Strengthening controls from 2010

France has strengthened its legal system by publishing in the JORF of March 20, 2010 a series of decrees and orders modifying the organization of controls (last modification: April 1, 2010). The main text is Decree No. 2010-292 of March 18, 2010 relating to the procedures for authorization of export, transfer, brokerage, and transit of dual-use goods and transferring powers of the General Directorate of Customs to the Directorate General for Competitiveness, Industry and Services (DGCIS), now known as the Directorate General for Enterprises (DGE). The decree of December 13, 2001 relating to the management of dual-use goods was modified by the decree of March 18, 2010.

Furthermore, an interministerial commission for dual-use goods (CIBDU) was created under the Minister of Foreign and European Affairs by decree 2010-294 of March 18, 2010. This commission formulates opinions on any question relating to export, the transfer, transit and brokering of dual-use goods and technologies, particularly in terms of classification and regulation; it decides on the application of article 4 of regulation no. 428/2009 allowing goods not included on the control lists to be prohibited or subject to licensing, etc.

Finally, French legislation in criminal matters has been clarified. Article 706-167 of the code of criminal procedure, created by law no. 2011-266 of March 14, 2011, has, in fact, listed the offenses punishable by the defense code, the customs code and the penal code in matter of proliferation of weapons of mass destruction, namely:

The lists of goods subject to export restriction measures to certain countries (Iran, North Korea, etc.) have been constantly updated since 2010 depending on the international situation and resolutions of United Nations. As for Annex I to Regulation No. 428/2009 concerning the list of dual-use goods, it was revised by Regulation No. 388/2012 of April 19, 2012. It is still being revised following the updates. update of the lists of international bodies produced since 2012; the new list of BDUs is now slow to be published.

The threat of dictatorships and terrorist organizations

The risks of proliferation of weapons of mass destruction are only growing. A threat of destruction by fire has been clearly expressed by the President of the Democratic People's Republic of Korea (North Korea). This state has succeeded, for a long time, in clandestinely obtaining equipment and technologies for producing nuclear weapons and ballistic devices by purchasing dual-use goods in Western countries. This country benefited from the existence of networks organized by a Pakistani scientific expert well known in the past to all intelligence services and the specialized press. These were never dismantled. Any other totalitarian state could thus threaten us with mass destruction.

The Americans may have been wrong to go to war against Iraq to eliminate Saddam Hussein's regime, and France may have made a mistake to attack Libya to neutralize that of Mohammar Gaddafi, but these two dictators had the real desire to equip themselves with “unconventional” weapons. The Rabta factory in Libya and that of Fallujah in Iraq (dismantled under the control of the United Nations after the Second Gulf War) were indeed chemical weapons manufacturing units built by means of engineering and European equipment. The presence of weapons of mass destruction in Iraq (nuclear and biological) was certainly a pretext on the part of the Americans to go to war a second time against Iraq, but we must remember that before invading Kuwait , Saddam Hussein boasted, to journalists around the world, of having succeeded in obtaining the spark gaps necessary for the manufacture of detonators for nuclear weapons. He did not hesitate to be filmed showing a kryton, purchased in England, which he was holding in his hand.

The murder of Houssama bin Laden, considered to be the instigator of the suicide attack of September 11, 2001 against the World Trade center in New York, has not eliminated the problem of terrorism in the world. Terrorist actions have only increased during the first two decades of the 21st century. Either by Kalashnikof shootings, or by car bomb attacks, or by suicide attacks with explosive belts...etc. Almost every week, we hear on the radio or television that an explosion somewhere has caused dozens, even hundreds of deaths and injuries. Moreover, the use of homemade bombs has unfortunately become common. Simply make a mixture of combustible and oxidising products and fill it in an empty gas bottle or a household pressure cooker (casserole bomb). This happens not only in the Middle East where this type of attack is frequent, but also in England, Spain, and the United States (at the Boston marathon). Particularly deadly attacks were committed using a mixture of ammonium nitrate and fuel oil (ANFO) in Northern Ireland. More recently, in Oslo in 2011, a far-right Norwegian individual committed a massacre in Oslo by blowing up a van loaded with ANFO obtained from several bags of agricultural fertilizer causing the death of at least 10 people, before killing around fifty teenagers gathered on a small neighboring island in an endless shootout.

The risk of explosive attacks is only increasing because recipes for homemade bombs and detonation systems are communicated on the internet by terrorist movements; they are often encrypted and retransmitted using social networks.

For several years, threats from terrorist organizations have developed following the dismantling of the Libyan, Iraqi and Afghan states, and the civil war in Syria which has continued to escalate. The invasions of Islamist movements in Black Africa required French land and air interventions. The territorial advance of the Islamic State in the Middle East (now called DAESH) required airstrikes in Iraq and Syria by major powers. France wanted to limit itself to bombings in Iraq, but it was ultimately forced to neutralize radical Islamic training camps for reasons of "self-defense". The crimes against humanity committed by this large-scale terrorist movement constituted a pretext for military intervention on the part of Russia to support the Syrian political regime in power. We must therefore fear that this escalation of violence will lead to a large-scale attack in the United States, Europe, North Africa, the Middle East, or elsewhere, by “unconventional” means of mass destruction.

To prevent all these risks, Law No. 2015-912 of July 24, 2015 relating to intelligence authorized the various French specialized services to use surveillance techniques by adding an eighth book to the internal security code, title V of which indicates the means and article L 811-3 the objectives to be pursued:

Weapons of mass destruction

The notion of mass destruction in the regulation of dual-use goods

Having regard to resolution 1740 (2004) of the United Nations Security Council, and having regard also to the introductory recitals of the amended European Council Regulation No. 428/2009 cited above, as well as its articles and its annex I, the weapons of mass destruction are exclusively nuclear, chemical, biological weapons, and their vectors.

Unlike American regulations which add goods usable for malicious purposes to the lists established by intergovernmental bodies, European regulations do not target goods for civilian use likely to be diverted for terrorist purposes. The attacks of recent decades mentioned above have certainly produced very significant human damage, but the number of victims has remained limited to a few hundred dead and injured.

By massive destruction, we mean destruction equivalent to that of the First World War resulting from continuous firing of conventional and chemical shells sent by artillery batteries; or the devastation caused during the Second World War when entire cities were destroyed and tens of thousands of residents were killed by German bomber raids in France, England, Poland, Russia and elsewhere; as well as by raids by Japanese and American bombers in the Far East, and by American and English bombers in France and Germany.

Real massive destruction took place towards the end of the war when the Germans sent thousands of unmanned bombers (V1), which were the first cruise missiles, to England; then thousands of rockets guided by inertial means (V2). These bombings caused massive damage to English cities. The worst happened in 1945 with the dropping of nuclear bombs on Hiroshima and Nagasaki which immediately caused tens of thousands of deaths from the fireball, gamma radiation, shock wave and blast effect; and probably hundreds of thousands in the long term from burns and diseases produced by radioactivity.

The annihilation of populations continued during multiple local conflicts: in Vietnam where the American air force dropped thousands of tons of conventional, incendiary and defoliant bombs; on the Iran-Iraq front these two belligerents used as much mustard gas as those of the First World War; in Iraqi Kurdistan where the inhabitants of an entire valley were eliminated by combat gas; in Afghanistan; in Syria...etc.

Annex I listing dual-use goods was amended a second time by Commission Delegated Regulation (EU) No. 1382/2014 of October 22, 2014, with effect from December 31, 2014. This list corresponds to “ related elements” to these weapons of mass destruction cited in introductory recital No. 15 of amended Regulation No. 428/2009.

Nuclear weapons

The Hiroshima bomb was dropped by a four-engine B29 bomber flying at very high altitude and produced an explosion with a power of around 20 kilotons of trinitotoluene (TNT), i.e. a power equivalent to that of the explosion of 700 mega-trucks each loaded with 30 tons of TNT.

That of Nagasaki, of equivalent power, but of different design and still very heavy, was also dropped at very high altitude so that the plane could quickly move away from the scene of the explosion.

Current bombs are thermonuclear weapons that are even more powerful but whose size and weight can be equivalent to that of a shell.

However, having never carried out nuclear tests, "proliferating states" or large terrorist organizations cannot under any circumstances have nuclear weapons thus miniaturized capable of being carried by a civilian aircraft whose speed, altitude and payload are limited, or even by a SCUD missile. On the other hand, we can always fear the transport by maritime container or truck of a nuclear device of 10 to 30 tonnes which would park near a large city before exploding

To do this, the state or terrorist organization would need to be able to obtain a few kilograms of plutonium 239 (metallic and very pure), steel with very high mechanical resistance, special machine tools, priming explosives, tungsten carbide, beryllium, a neutron source, electronic synchronized ignition devices, electric spark gaps...etc. This seems unthinkable, but there is perhaps a real malicious desire to obtain all these constituents clandestinely in our European countries in order to carry out a nuclear attack.

Chemical weapons

Chemical weapons are terrifying but they are much less effective than nuclear weapons because they require thousands of bombs or shells to be sent to an urban area to achieve massive destruction equivalent to that of a nuclear weapon.

Mustard gas was used extensively during the First World War and the Iran/Iraq conflict. This war toxicant is quite easy to manufacture by a state with equipment resistant to the corrosion of hydrogen chloride (HCl). Used in the liquid state but very volatile, it can be taken by plane capable of carrying hundreds of liters, and be dumped in the manner of spreading agricultural pesticides, if the pilot has the possibility to protect himself against the toxicity of this “combat gas”.

Neurotoxic products, such as sarin, soman, which require smaller quantities to carry, are much more deadly, but they would present an even greater danger to the pilot if released by plane. In addition, they are very difficult to manufacture due to their instability over time. United Nations (UNSCOM) inspections carried out during the 1990s showed that Iraq had implemented German-made processes dating from the 1940s and that the sarin contained in stockpiles of shells dating back a few years had completely decomposed. This risk may be improbable, but it is not zero.

Paragraph 9A350 of the list of dual-use goods thus targets spraying or nebulization systems, specially designed or modified to equip aircraft, lighter-than-air vehicles or unmanned aerial vehicles, as well as their specially designed components. designed; namely aerosol generation units capable of dispersing very fine droplets at high flow rates from liquid products.

In other words, spray booms fixed under helicopters or agricultural spreading planes such as Piper PA-25, and equipped with a dozen Micronair AU5000 and AU7000 atomizers are likely to be prohibited or subject to authorization at the 'export.

Biological weapons

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) or Toxin Weapons, signed by the United Nations on April 10, 1972, entered into force in 1975. It currently has 163 States Parties. This convention prohibits the development, manufacture, storage and transmission of biological weapons, and requires its members to destroy any stockpiles or use them peacefully. It does not directly prohibit the use of “biological weapons”, but refers to the Geneva Protocol of 1925 which makes this prohibition binding under public international law.

Certain countries not signatories to this convention have sought (or are still seeking) to create this type of weapon by trying to massively produce pathogenic microorganisms to extract the corresponding toxins. Toxins are the non-living, ultra-toxic products secreted by these pathogenic germs; These chemical products of biological origin do not have the disadvantage of reproducing, multiplying and thus causing uncontrollable pandemics, as their pathogenic producing germs could be.

The manufacturing technologies are the same as those for manufacturing vaccines which require the handling of pathogenic germs under diving suits in very high protection P4 laboratories, equipped with specially adapted equipment, which is also subject to control as dual-use goods.

Weapons of mass destruction vectors

As for the Scud A ballistic rockets, derived from the German V2, and produced in the 1950s by the former USSR under the name SS-1b, their payload was a few hundred kilograms with a range of 130 km.

The Scud B (SS-1c), with a payload of 1000 kg, a range of 300 km and an accuracy of 900 m, was then produced in the former USSR in thousands of copies, then it was been copied under different names by many countries and massively used by the two belligerents during the Iran/Iraq war, notably carrying mustard gas or sarin.

Later versions of this ballistic missile were improved. Indeed, the Scud C and D, which have been the subject of widespread proliferation, now have payloads of more than a ton, a range of several hundred kilometers with respective accuracies of 900 m and 50 mr.

As for the more recent missiles produced by the major nuclear powers, they have long had an intercontinental range and can deliver multiple charges with precisions of the order of a meter.

Information on missile guidance was provided in the most recent version of the Militarily Technology Critical List (MCTL) published in 1998 by the US Department of Defense. For example, regarding inertial navigation systems, American military authorities explain this:

An inertial navigation system (INS) is a self-contained, covered navigation system that provides continuous estimates of some or all components of a vehicle state, such as position, velocity, acceleration, attitude, angular rate, and often guidance or steering inputs.

The INS is made from a navigation computer and a set of gyroscopes and accelerometers, generally called inertial sensors that measure in Newton's inertial axes. Gyroscopes measure rotation or angular rate, and accelerometers measure acceleration. Integrating the output from an accelerometer gives speed, and integrating speed gives distance traveled. The gyroscopes provide information on where the accelerations are directed, and therefore heading and distance, the essential ingredients for dead reckoning, are known.

The inertial sensors might be mounted in a set of gimbals so that they (1) stay level in a fixed direction no matter how the vehicle moves, ie, space stable INS; or (2) remains parallel to the reference ellipsoid, ie, a local level INS. Both of these are called a gimbaled system. As an alternative, the inertial sensors might be attached to the vehicle, in which case they measure its motion components in the vehicle axes by transforming the measurements from the vehicle axes to the reference axes. This is called a strapdown system.

Inertial measurement equipment includes the inertial navigation unit, inertial measurement unit, inertial reference unit, inertial sensor assembly, or inertial sensor unit are subassemblies of an inertial navigation system; a self-contained, covered system that provides continuous estimates of some or all components of a vehicle state, such as position, velocity, acceleration, attitude, angular rate, and often guidance or steering inputs. It also includes an Attitude Heading Reference System (AHRS) or Gyrocompass that provides attitude and magnetic heading, but does not provide a complete navigation solution. An AHRS or Gyrocompass may provide velocity, angular rate, and acceleration data in addition to attitude and heading. This system may be combined into hybrid systems to complete the navigation function.

This is why missile components, accessories and guidance systems fall under the dual-use goods regulations. These appear in the annex attached to this report reproducing the relevant paragraphs of chapters 7 and 9 of the list of dual-use items.

The same guidance technologies can be used for “drones”. Indeed, the general definition of “missile” given by the Wassenaar arrangement and included in the list of dual-use goods, includes “unmanned aerial vehicle systems, whose range is at least equal to 300 km and capable to carry a payload of 500 kg". Paragraph 9A110 resulting from the transposition of the MTCR definition indicates the same minimum range of 300 km, but does not specify a payload threshold.

A European Parliament document dating from 2007 entitled “UAVs and UCAVs: Developments in the European Union”, an extract of which is reproduced below, takes stock of these devices and distinguishes between UCAVs carrying a bomb and UAVs serving primarily upon observation:

2.3 UCAV

A UCAV is a sub-category of UAVs. It is basically nothing more than an armed UAV. The border between UAV and UCAV is a thin and gray one. Generally, all UAVs have an inherent combat capability – one just has to replace a non-deadly payload with a deadly one. The US Predator was modified from a reconnaissance UAV to a UCAV by simply adding Hellfire missiles.

UCAVs have evolved, experimentally, when normal aircraft have been modified to operate without a pilot. Iraq is reported to have modified L-29 trainer aircraft into remote-controlled chemical weapon sprayers.

The term UCAV, however, is generally used for a high-performance vehicle, capable of high speed, long range and heavy weapon load – more or less the equivalent of a manned ground-attack or bomber aircraft. The armed Predator, therefore, would not really count as a UCAV, while the Iraqi L-29 modification would be a borderline case.

The first successful use of armed UAVs in combat operations was the attacks carried out by the US against ‘terrorist' targets in Yemen and Afghanistan in 2002 and 2003. These attacks were carried out with Predator (MQ-9)8 reconnaissance UAVs modified to carry one or two Hellfire missiles9. The use of armed UAVs resulted from the failure of the US to ‘take out' terrorists, and specifically Osama bin Laden, with cruise missiles. While the cruise missiles worked more or less as advertised, the time lag between identifying a mobile target such as Bin Laden and the actual impact of the missiles was too great.

Ruling out the use of manned reconnaissance and attack systems, the only solution was to combine the detection and surveillance capabilities of a UAV with a weapon. This could either be done by relaying surveillance data to a platform carrying weapons or by adding weapons to the surveillance system. The first option has already been used by Israel in actions against targets in Gaza and Lebanon: UAVs would patrol and identify targets and manned aircraft would fire stand-off guided missiles to attack the target. Since the platform (usually an aircraft) carrying the missile was further away from the target than the UAV, there still remained a gap between target identification and the missile hitting. It also meant that a manned platform would have to be within missile range of the target.

The US, however, chose to arm the UAV itself, thereby further closing the gap between target identification and a missile hitting it, and providing the option to do all this from a distance of up to several hundred kilometers. Adapting a rather large UAV, such as the Predator, to carry a light armament did not prove too difficult. The Predator was modified, tested and brought into action within months. It gave the US new options to identify and attack time-sensitive targets without having to risk manned aircraft over ‘enemy' territory or in politically sensitive airspace. The armed Predator proved so successful that a new version was ordered almost at once. This much improved version - Predator-B (MQ-9B) - is now being acquired, capable of carrying up to 450 kg of missiles or bombs as well as air-to-air missiles to defend itself against interception. This new Predator has an endurance of almost two days.

The pilots of these “flying bombs” must guide their machines in all weather, correct their speed, make changes of direction in the event of a threat to enemy territory, control their altitude above the terrain... etc.

Radio remote control requires sophisticated means of encryption of flight data, and transmission impossible to detect (for example by spread spectrum technologies), so that neither the machine nor the pilot are located by the adversary. . Also, before transmitting their data to the pilot on the ground, so that they can check the trajectory of their UCAVs or change it, they must automatically locate themselves in the airspace by coordinating several means of positioning.

To refine the precision of the air strike, inertial navigation systems must be combined with speed corrections, reference attitude controls by triangulation by aiming at three stars serving as a reference by means of gyro-astro-compass, identification of magnetic north by magnetometers, positioning monitoring by differential GPS (by positioning oneself in relation to a stationary point such as a helicopter), associated with mapping of the terrain in three dimensions, and coordination by ultra-high clocks precise … etc.

UCAVs must be stealthy (using special paints), fly at very low altitude and follow the terrain. They must be able to suddenly change altitude or direction following very short radii of curvature to avoid opposing fighter planes which cannot turn or change altitude as quickly, which causes accelerations of 10 to 20 times that of gravity, or even more, forcing the mechanical organs and electronics to resist deformation and crushing, and the wings to resist breaking.

UCAVs can be autonomous (flying without the help of a pilot on the ground) and pre-programmed but, unlike ballistic missiles whose trajectory deviates little, these flying bombs continually deviate from their trajectory when exposed to bad weather and must correct it immediately by their on-board computer managing the data from their sensors. These are cruise missiles whose design is perfectly sophisticated.

These are manned planes and helicopters. We recently saw on television helicopters of the regular Syrian army destroying entire neighborhoods of the city of Aleppo by bombarding it vertically with helicopters hovering a few hundred meters above sea level. We understand the control of exports of all helicopters by the order of July 31, 2014 in application of Regulation No. 428/2009 amended, for reasons of controlling the proliferation of vectors of weapons of mass destruction, because explosive charges can also be chemical and deposited with precision.

On the other hand, except in the case of the use of suicide aircraft equipped with pilot assistance by navigation systems falling under the regulation of dual-use goods, or of the diversion of aircraft for spreading agricultural pesticides, the banning the export of civil aircraft by the “catch-all clause” is not justified.

Normal aircraft are not designed to drop a load of tens or hundreds of kilograms in a dive on a precise target as were the single-engine dive bombers during the Second World War (German Stukas, American AT6, Japanese Zeros. ...). These old planes had systems for tilting the bomb to prevent it from hitting the propeller when it was released and had armor to avoid small arms fire at low altitude.

They were also very robust to be able to withstand the very strong acceleration weighing on the structure and on the wings when rising suddenly to regain altitude, but they very quickly became obsolete because they were slower and less maneuverable than the fighters which eliminated them, especially since, at the end of the war, jet fighters appeared capable of eliminating any propeller-driven aircraft.

Restrictive export measures vis-à-vis WTO and WCO rules

Compatibility with international law

Due to their ambivalent nature, dual-use goods fall first and foremost under commercial law. Indeed, their initial use is presupposedly civil. From then on, we consider the control of these goods to fall partly under the rules of international trade. However, due to the security and strategic risks they represent, a departure from these principles remains possible, when it is not simply planned.

Thus, the control and restrictions on the export of dual-use goods seem to contradict the fundamental principles of international economic law. However, these agreements provided for exceptional measures for certain categories of goods. Trade in cultural goods, weapons or dual-use goods are all categories that are subject to controls that can represent a barrier to international trade. The GATT provides for this eventuality through derogatory provisions, in its Articles XX and XXI, for Member States wishing to escape the principles of free trade.

However, these exemptions are subject to conditions. Thus, they must not be applied “in such a way as to constitute either a means of arbitrary or unjustifiable discrimination between countries where the same conditions exist, or a disguised restriction on international trade”. Furthermore, the scope of these exceptions is defined: protection of the health and life of people and animals, export of gold or silver (article XX) or even in matters of security (article XXI). It is this exemption which establishes the legal principles of international control of dual-use goods:

It is therefore Article XXI b) ii) which establishes the legal basis for the control of dual-use goods by authorizing any WTO member country to exercise control deviating from the fundamental principles of free trade on goods intended directly but also indirectly for military purposes. The control of these exports therefore does not consist of a real violation of the principles of free trade but of a necessary adaptation to strategic imperatives. Indeed, if free trade is one of the central principles of international relations, it does not constitute its keystone. The security, strategic and defense interests of States, but also of the international community, take precedence over the pure and simple free movement of goods. Furthermore, as we will see later, the strict ban on exports remains the exception in the control of dual-use goods. Thus, these flows are not prohibited but regulated and controlled, it is therefore not a total derogation from the principles of free trade in disregard of commercial and industrial issues but a framing for compelling reasons of international security of which the UN, in particular, defined the contours.

The UN and the general framework for the control of dual-use goods

If the commercial legal principles governing the control of dual-use goods have been discussed, it is now a matter of looking at the secondary dimension of these goods and the security aspect of their control. Thus, the United Nations (UN) wanted to lay the foundations for the security aspect of this control. Indeed, maintaining peace and international security is a mission of the Security Council, of which France has been a permanent member since its creation in 1945, following the San Francisco conference. The decisions taken by the Security Council must be accepted and applied by the member states (article 25 of the UN Charter), which makes them valuable harmonization tools in the eyes of the UN. It is more particularly Chapter VII of the Charter of the United Nations and resolution 1540 of April 28, 2004, taken by the Security Council, which intend to establish control of dual-use goods at the global level. However, it appears that this general control regime is not necessarily the most effective framework for action.

The control for security reasons of exports of dual-use goods is a matter of diplomatic and political will of States expressed through the Security Council and the UN. Chapter VII of the United Nations Charter, entitled "Action in Cases of Threat to the Peace, Breach of the Peace and Acts of Aggression", provides, in Article 39, that if the council finds "the existence of a threat to the peace, a breach of the peace or an act of aggression", it may decide "what measures will be taken in accordance with articles 41 and 42 to maintain or restore international peace and security ". Thus, article 41 provides that measures not involving the use of force may be taken by the Security Council. These measures may constitute inviting Member States to “complete or partial interruption of economic relations” with the State targeted by these sanctions, that is to say embargoes. States may therefore be required, by decision of the Security Council, to control or even prohibit exports of sensitive goods, such as dual-use goods, to so-called high-risk destinations.

States identify countries deemed to be at risk and decide to control exports of sensitive goods to these countries within the framework of embargoes. The example of Security Council resolutions targeting Iran since 2006 illustrates the use made by the UN of article 41 chapter VII of the charter to control these assets. Thus resolution 1737 (2006)9 prohibits “the supply, sale or transfer, direct or indirect […] of all articles, materials, equipment, goods and technologies […] likely to contribute to activities linked to enrichment, reprocessing or heavy water, or the development of nuclear weapons delivery systems. This desire is subsequently reaffirmed by resolution 1803 (2008) which supplements resolution 1737 by placing under embargo the dual-use goods listed in a circular (updated in 2010) to which article 13 of resolution 1803 refers. reference. The Security Council therefore deemed it necessary to strictly regulate the trade in dual-use goods in the same way as that of conventional weapons. Resolution 1929 (2010) recently expanded this arsenal of restrictions by adding to dual-use goods transfers of technology in sensitive sectors, the provision of financial services, "in particular insurance and reinsurance services", or the transfer "of any funds, other assets or economic resources [that] could contribute to Iran's nuclear activities". In addition, the resolution establishes strict control of the assets listed by resolutions 1737 and 1803, by authorizing, in article 16, member states to seize them and proceed to their neutralization during inspections carried out, they, under national legislation (article 14). Recently, this control has been called into question, although maintained, in the context of the Iranian nuclear negotiations. Although France seemed very reluctant to relax this control, it appeared that these sanctions were potentially questionable, particularly for the United States. Indeed, the last meeting in March 2015 in Lausanne foreshadowed progress on the lifting of sanctions.

Thus, through these resolutions and the example of the Iranian embargo, it appears that the international control of dual-use goods is first of all a matter of political and security will and applies primarily to targeted areas and deemed to be at risk. The establishment of ad hoc regulations is necessary here to govern the transfers of these goods to Iran and an exhaustive list of goods is drawn up for the application of these texts. We are therefore not faced with international regulation under common law of dual-use goods but with one-off and specific embargo measures within the framework of diplomatic negotiations and linked to the geostrategic context.

Resolution 1540, adopted on April 28, 2004 by the UN Security Council, under Chapter VII, is a legally binding text. It aims, in a post-September 11, 2001 context, to strengthen the fight against “the proliferation of nuclear, biological, chemical weapons and their vectors, and the risk linked to the acquisition of these weapons by non-state actors”. Resolution 1540 is a response to concerns, which arose with the fall of the USSR and following September 11, 2001, to see new non-state actors constituting a threat hitherto poorly taken into account by "classic" treaties. » of non-proliferation. This resolution therefore advocates non-proliferation, multilateralism and cooperation to effectively combat new identified threats. This marked, at the time, a turnaround in American diplomatic policy. With the aim of efficiency, it involves strengthening the coercive and repressive aspect in addition to the mainly preventive actions of previous non-proliferation treaties. Thus, the Security Council “decides” that States have an obligation to “take and apply effective measures in order to put in place internal control systems intended to prevent the proliferation of nuclear, chemical or biological weapons and their vectors, including including by putting in place appropriate control systems for related matters. The use of the term “related materials”, without reference to an exhaustive list of goods or materials, therefore leaves a wide field of interpretation and control which allows dual-use goods to be included.

This text marks a return to a multilateral and binding regime for controlling trade in “sensitive” goods.

However, whether through resolutions 1737, 1803 or 1929 in the Iranian case, or resolution 1540 which establishes a general control regime, the UN is only laying the foundations for control. This ultimately falls under the domestic law of States and its efficiency depends largely on its transposition into domestic law. It is for this reason that Resolution 1540 created the 1540 Committee, within the Security Council, responsible for monitoring and assisting States in implementing the obligations arising from the text18.

International texts therefore establish general control frameworks which allow harmonization of control standards, in particular with the help of bodies such as the 1540 Committee, but remain subordinate to the transposition into domestic law of these standards and the achievement of 'a control depending exclusively on the States. This is why certain States have deemed it necessary to agree on more precise common control standards. It is with this in mind that the various multilateral export control regimes (MRCE) were created, including the Wassenaar Arrangement.

European Union action on BDU

The European Union is a central actor in the implementation of this control. The majority of its members are, today, part of the Wassenaar arrangement and were represented at COCOM. Furthermore, a large part of the main exporting countries are members of the European Union (France, Germany, Belgium, Austria, Italy...). It is therefore quite naturally that this issue has finally taken on community dimensions. Indeed, the establishment of international regimes presents particular advantages which, however, prove to be limited. The adoption of a common basis of control and a shared definition of the field of control is necessary for the establishment of an effective regulatory framework. However, it turns out that this harmonization may prove insufficient, particularly within a Customs Union such as the European Union. The free movement of goods, enshrined in Article 28 of the Treaty on the Functioning of the European Union (TFEU), formerly Article 23 TEC, requires extensive coordination in terms of regulating dual-use goods. Without specific common standards, the non-participation of a single Member State in the aforementioned control regimes would render the efforts of other Member States useless. It is therefore the exclusive competence of the Commission in customs and commercial matters (article 3.1 TFEU), which has made export policies a community issue. However, this control was not easy to establish. Since 1994 and the end of COCOM, the EU has attempted to establish a common control regime. Indeed, the opening of European borders on January 1, 1993 presupposed the adoption of a common and specific regime. But this initially failed due to a precarious balance between the objectives of security and competitiveness. Because if the EU is competent in commercial matters, its security prerogatives are more uncertain. However, dual-use goods are at the crossroads of these two issues. As a result, the “trans-pillar” dimension of such control, based on commercial and security foundations, had been deemed contrary to Community law by the ECJ. However, the EU set up a control system in the 2000s, rebasing its action on legal bases consistent with community case law,

Control of exports of dual-use goods in the European Union

The basis of the European control framework for dual-use goods was initially uncertain. It was the ambivalent nature of the goods controlled and the duality of the reasons for regulation that initially posed a problem for the Court. The EU, and a fortiori the Commission, having no formal normative competence in matters of defense and foreign policy, this remaining the exclusivity of the Member States, the control framework had to be recast on stable legal bases. . It is therefore based on the prerogatives of the Union in commercial matters, in a functionalist logic, that this control was developed, without however abandoning its diplomatic and security dimension, as we will see in particular through the Russian example. .

The European Union, before being a common political or citizen space, is an integrated economic space having brought together European countries around common trade and customs policies. The European Coal and Steel Community (ECSC), in 1951, and the European Economic Community (EEC), in 1957, laid the foundations of this common commercial and customs territory. The removal of customs duties, the establishment of common customs tariffs with third countries and the commission's virtual exclusivity in commercial matters have made the EU a key player in external economic and commercial policies. The 2007 Treaty on the Functioning of the European Union (TFEU) confers exclusive competence on the Union in customs (article 3.1 a) and commercial matters (article 3.1 e)). This is why, when looking at Community regulations on exports, it seems necessary to establish the institutional framework which precedes it. Indeed, the TFEU, in its article 207 paragraph 2 (ex-art.133 TEC), recalls that the commission and the council are competent to adopt measures “defining the framework within which the common commercial policy is implemented” by way of settlement. This article is the first legal basis for community regulations governing the control of dual-use goods. The institutions of the Union are therefore competent to legislate and regulate Community commercial policy. Thus Council Regulation (EEC) No. 2603/69 of December 20, 1969, establishing a common regime applicable to exports, sets the framework for this common commercial regime and establishes one of the three original pillars of the current European Union. It is also in compliance with this text that Council Regulation (EC) No. 428/2009 of May 5, 2009 establishing a Community regime for the control of exports, transfers, brokerage and transit of dual-purpose goods usage requires States to take measures on exports of dual-use goods (recital 5 of the regulation). It is indeed Community regulations on commercial matters which govern the control of dual-use goods. Furthermore, the future union customs code, established by Community Regulation No. 450/2008 of April 23, 2008, will contribute to the establishment of a unified customs territory in line with the first community code of 1992. This applies uniformly to the entire territory of the Union 30 and intends to unify customs procedures, in particular electronic systems, with the new text. This code applies to all goods covered by community treaties, and therefore aims to regulate and harmonize the criminal aspect penalizing breaches of the standards for controlling dual-use goods. The European Commission, in particular through the Directorate-General for Taxation and Customs Union (TAXUD), is therefore the reference community actor responsible for customs missions. These missions fall under three main axes: the protection of the Union's external borders, the development of international cooperation and the fight against fraud. However, the development of security rules and standards is the most recent of the major trends at work in the reconfiguration of these missions31. It is therefore on texts intended to facilitate trade between members of the Union, but also with third countries, that the regulations on exports of dual-use goods are firstly based. But this control is also based on a more secure aspect of community texts.

In its article 21, the Treaty on European Union (1992) lists the objectives of the EU's external action. Among these, we find in paragraph 2 (c), the preservation of peace, the prevention of conflicts and the strengthening of international security. Furthermore, in Article 24 paragraph 1, it states that “the common foreign and security policy is subject to specific rules and procedures. It is defined and implemented by the European Council and the Council. While national governments still exercise independent control over foreign and defense policy issues, they work together to develop a common foreign and security policy (CFSP) and it is the Council which is the main framework for this governmental cooperation. Thus, Article 215 TFEU authorizes the Council to adopt, by qualified majority, trade restriction measures on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, and from the Commission. The EU has therefore equipped itself with some means of diplomatic action. This possibility of sanctions is part of the desire to establish a common diplomatic line. However, it remains subject to the agreement of the States, through the specific competence of the Council on this question. Indeed, unlike trade measures, measures falling under the CFSP are not an exclusive competence of the Commission and remain subject to the vote of the Member States. As a result, it is more in a dynamic of harmonization than of integration that the common security line is being developed. As such, in 2003 the Council developed the European Union strategy against the proliferation of weapons of mass destruction, known as the “WMD strategy”. In this document, the EU identifies the proliferation of weapons of mass destruction, and dual-use technologies and knowledge, as a growing threat to peace and security. This strategy therefore recommends a strengthening of multilateralism and control based on multilateral regimes, such as Wassenaar. It also recommends recourse to sanctions within the framework of international law, in particular Chapter VII of the UN, in the event of serious breaches. Finally, in point 30. A) 4) of Chapter III, it intends to “strengthen export control policies and practices”. This strategy lays the political, more than legal, foundations control of dual-use goods. Indeed, it is already preceded by several regulations in this area, notably Regulation 1334/2000, but it anchors this control as one of the Union's priorities. This document follows the Thessaloniki action plan of June 2003 which intended, among other things, to “strengthen the capacity of [the] Union to act as a coherent and unified force within the framework of the international system and respond effectively to challenges posed by globalization and interdependence. This general action plan, then this specific strategy, demonstrates the desire of the council (intergovernmental body) to place the security aspect at the heart of community policies. These two texts serve as a political framework for the Union's action in security matters. They are also mentioned among its recitals by the Commission when drafting the regulations governing the control of dual-use goods36. If the ECJ had refused, in 1997, to consider an export regulation policy based on both the commercial and security skills of the Union, the framework set by the Council, through these strategies, makes it possible to induce a policy of control to the legal commercial bases and to the more diplomatic and security framework. Thus the control regulations are based on European commercial law and are part of an inter-governmental security policy within the Union. Furthermore, this common position makes it possible to force member states to respect their commitments by exposing them to political and diplomatic sanctions. They are also mentioned among its recitals by the Commission when drafting the regulations governing the control of dual-use goods36. If the ECJ had refused, in 1997, to consider an export regulation policy based on both the commercial and security skills of the Union, the framework set by the Council, through these strategies, makes it possible to induce a policy of control to the legal commercial bases and to the more diplomatic and security framework. Thus the control regulations are based on European commercial law and are part of an inter-governmental security policy within the Union. Furthermore, this common position makes it possible to force member states to respect their commitments by exposing them to political and diplomatic sanctions. They are also mentioned among its recitals by the Commission when drafting the regulations governing the control of dual-use goods36. If the ECJ had refused, in 1997, to consider an export regulation policy based on both the commercial and security skills of the Union, the framework set by the Council, through these strategies, makes it possible to induce a policy of control to the legal commercial bases and to the more diplomatic and security framework. Thus the control regulations are based on European commercial law and are part of an inter-governmental security policy within the Union. Furthermore, this common position makes it possible to force member states to respect their commitments by exposing them to political and diplomatic sanctions.

It is within the framework of this political will that the Member States, through the Council, have decided to develop a specific and binding sanctions regime relating to Community exports to Russia. Council Regulation (EU) No. 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilizing the situation in Ukraine demonstrates the management of these issues at Union level

Thus, following the events that occurred in Ukraine, the EU intended to put in place diplomatic sanctions against Russia. After freezing assets of senior Russian dignitaries, the EU adopted a much more restrictive set of sanctions. She wanted to assert the uniformity of her diplomatic policy towards Russia. Rather than taking sanctions within the framework of the UN (impossible given the Russian veto), or unilaterally, the member states preferred to adopt a common line under the seal of the EU. Regulation No. 833/2014 therefore punished Russia by banning community exports of war materials and dual-use goods. This embargo was taken under Article 215 TFEU and Regulation 428/2009, which will be presented subsequently. Thus, the EU, through these trade and security sanctions, has affirmed its desire to establish coherent diplomacy at the community level. Controlling, or even banning, the export of dual-use goods is therefore a tool used by the EU in its commercial and diplomatic policy. It should be noted that the EU had already adopted provisions aimed at prohibiting exports of dual-use goods to countries deemed sensitive.

The diplomatic relations of Member States with certain countries, such as Iran or North Korea, had led to the adoption of common positions determining sanctions which resulted in regulations restricting exports. Thus, Common Position 2007/140/CFSP of the Council of February 27, 2007 concerning the adoption of restrictive measures against Iran was followed by Council Regulation 423/2007 of April 19, 2007 prohibiting "the sale, supply, transfer or export, directly or indirectly, the goods and technologies listed in Annex I of Regulation 1334/2000.

Concerning North Korea, it was Council Regulation No. 329/2007 of March 27, 2007 which banned these exports. Member States have therefore banned these exports based on previous regulations which define and categorize dual-use goods and their method of control and export at community level. The Council regularly refers to it and bases the implementation of these sanctions on the standards they establish.

The regulatory framework specific to the European Union

A common field of control through Annex I The European Union, in its desire to constitute a homogeneous and harmonized customs area, has put in place several systems of standards and control. The objective was to successfully implement unified normative frameworks governing all intra- and extra-community transactions. With this in mind, it has developed regulations aimed at generalizing a certain number of practices and methods of controlling dual-use goods. The implementation of this common framework was built step by step in order to achieve the most comprehensive, comprehensive and efficient regime possible. To this end, several regulations have come to govern the definition of the concept of dual-use goods and its scope of application. It is these regulations and the field of goods and practices that they govern that must now be studied since they serve as the basis for the policies previously mentioned. Although more descriptive, this part is necessary to better understand the operational reality of this control.

This regulation followed Regulation (EC) No. 3381/94 which already established a regime for the control of dual-use goods. Denounced by the Court in judgments of 1995 for its cross-pillar legal basis and its excessive complexity, this regime was therefore abandoned to be replaced in 2000 by this regulation. This aimed to harmonize the various arrangements taken until then. The stated ambition was, in fact, to make this control, already in place at the time of COCOM, homogeneous at the community level. It reflected the desire on the part of Member States to comply with their international commitments and to effectively control transactions between the European community and third countries. The regulation therefore endeavored to give an expanded definition of goods falling into the category of dual-use goods, referring member countries to its Annex I40 which lists all the goods subject to this control in an exhaustive manner. This annex lists the goods listed by international control regimes (notably the Wassenaar arrangement) at community level; it is the basic list of goods subject to control, divided into ten categories. However, the European legislator, for the sake of efficiency, has also left the freedom to member countries to control goods not appearing in this list at their discretion, this is the “catch all” clause, the effects of which will be detailed subsequently. The EU has also endeavored to cover all export processes, including intangible exports to third countries. Thus, transactions carried out by email, fax or telephone fell under the control established by this regulation. This control targets dual technologies, defined as “specific knowledge required for the development, production or use of a product”. This knowledge does not necessarily exist in material form, it can be exported in a dematerialized manner to third countries. The Council's joint action of June 22, 2000, 2000/401/CFSP relating to the control of technical assistance linked to certain military final destinations supplemented Regulation 1334/2000. It has made "technical assistance provided outside the European Community by a natural or legal person established in the European Community" subject to controls when it is intended to contribute to an activity relating to weapons of mass destruction or certain final military destinations. The drafting of this article made it possible to cover technology transfers induced by technical assistance, even if they involve cross-border movements of people, which Regulation 1334/2000 did not allow.

In 2000, the EU therefore equipped itself, through these texts, with control instruments which allow it to control a large number of activities, goods and transactions within the framework of the control of dual-use goods.

The continued extension of the general control framework Regulation 428/2009 repealed Regulation 1334/2000 and repeats its provisions while adding new ones. The interest of this overhaul lies in particular in the redefinition of certain types of activities linked to trade in dual-use goods and the updating of Annex I, the basis of control by Member States, in the face of technological innovations in the domain. The aim was to maintain effective control by taking into account new goods and practices escaping the previous regulation, and yet extremely sensitive.

The EU as a vector for harmonization of national procedures

Mere harmonization of the nomenclature of dual-use goods does not constitute a sufficient and necessary guarantee for effective harmonization of control. It is for this reason that the EU, if it bases itself on the Wassenaar arrangement to draw up the list of goods which it subjects to control, intends to provide the Member States with common procedures. The objective of European regulations is therefore “to establish a common control system and harmonized control policies”. To this end, it has implemented a mandatory and harmonized export authorization process.

Standardization of the licensing system was necessary. Indeed, the EU must comply with its commercial objectives of facilitating the free movement of goods and free trade. National particularism in the allocation of export licenses would have created administrative complications for exports, without mentioning the security risks already mentioned previously. The establishment of a common licensing system has made it possible to streamline trade and provide guarantees to producers. Also, a license granted in a Member State will be valid in the rest of the Union (article 9.2 regulation (EC) n°428/2009). This universality of licenses implies structured allocation rules. The regulation therefore provides for specific types of licenses depending on the practices and profiles of exporters, always with the aim of facilitating trade.

Although the majority of dual-use goods are likely to be exported without control from one Member State to another, the goods listed in Annex IV require obtaining an export license issued by the national authorities. . This additional restriction is a challenge given that the creation of the internal market in 1993 led to the removal of the majority of internal border controls within the EU zone. It is therefore a question of recalling that if the EU is a customs union, Article 36 TFEU allows “prohibitions or restrictions on import, export or transit, justified by reasons […] of public security ". Thus, Annex IV of Regulation No. 428/2009, updated by Regulation No. 1382/2014, lists the most sensitive goods in Annex I. That is to say the products covered by the stealth technology, community strategic control (explosives priming, cryptology) MTCR technology (missile technology control regime), or the NSG (Nuclear Suppliers Group) Chemical Weapons and Technology Convention ) 58. It is therefore for goods most likely to be diverted for military purposes that these exports are subject to licensing. However, unlike exports to third countries, there are no customs clearance formalities for intra-community trade. That is to say, carrying out customs controls. It is therefore a less regulated control regime than that applied to exports to third countries but which demonstrates a community desire to strictly regulate these exchanges, even intra-community ones. The control regime is thus based on a triple process of trade facilitation or increased control, through the three annexes, the four types of licenses and the three destinations (EU/convergence zone/the rest of the world). The sensitivity of goods and technologies is determined both in itself and from the destinations, which gives four cases of sensitivity (from the lightest to the darkest in the following table). It should also be noted that certain third countries not affected by AGCE EU001 are subject to some less comprehensive general community licenses. Regulation 428/2009 organizes a Community regime for controlling exports of dual-use goods based on “a common control system and harmonized enforcement and control policies in all Member States” (Recital No. 4 of Regulation 428 /2009). But the terms of application of the controls organized by this regulation are up to the discretion of the member countries. Community regulations establish a harmonized control framework but, in the absence of a community administration, its execution falls under the prerogatives of the Member States. Indeed, if the establishment of a community control policy and the design of a harmonized framework aim to avoid the existence of harmful differences between member countries within a free trade area, the absence of 'a supra-state executing entity cannot be hidden. In this case it is indeed the States which are the implementers of this policy. As such, they therefore retain a certain margin of maneuver which must now be evaluated.

Application of dual-use goods regulations

The “catch all clause”

This rule appearing in Article 4 of amended Regulation No. 428/2009 originally results from the transposition into European law of international agreements on non-proliferation, namely:

This MTCR directive, published at http://www.mtcr.info/french/leslignes.html, excludes aircraft piloted by humans. This does not concern all "aircraft" defined in amended Regulation No. 428/2009, since civil helicopters (even light ones), capable of depositing large loads at a specific point, are the subject of a text taken into account. application of amended Regulation No. 428/2009, which is the decree of July 31, 2014.

- general provisions 1a and 1b applicable to participants of the Australia Group (AG)

published at the end of its 14th plenary session on May 27 and 28, 2004 in Gothenburg, Sweden with the following declaration:

- the declaration of interpretation of the goods not appearing on the lists of the Wassenaar arrangement published during the plenary session of the year 2003

This "catch-all clause" has thus been extended to all goods listed by other regimes for the non-proliferation of weapons of mass destruction and only concerns goods likely to be diverted from their purely civilian uses to design, produce or use weapons of mass destruction, namely nuclear, chemical or biological weapons and their delivery systems (aerial or underwater). It does not apply to goods available commercially and usable for terrorist purposes: butane gas, ammonium nitrate, potassium chlorate, etc.

In the European Union, given recitals No. 4 and 8 of amended Regulation No. 428/2009, this "catch-all clause" only concerns goods likely to be diverted from their purely civilian uses to design, produce or use weapons of mass destruction, namely nuclear, chemical or biological weapons and their delivery systems (aerial or submarine). It does not apply to goods available commercially and usable for terrorist purposes such as: butane gas, ammonium nitrate, potassium chlorate, etc.

In France, the texts taken pursuant to articles 4 and 8 of amended Regulation No. 428/2009 only concern civil helicopters (even light ones), capable of depositing large loads at a specific point, as well as tear gas products. and anti-riot agents which, in high concentrations, are equivalent to real chemical weapons.

For the rest, the application of the "catch-all clause" is left to the free discretion of the SBDU engineers who have to deal with hundreds of "non-licensed files" and who refer the matter to the interministerial commission for dual-use goods out of fear. of a diversion for malicious purposes of certain goods free for export. Many exporters want to have confirmation from the SBDU that their goods are indeed free for export while awaiting loading by plane or boat, and find in response, several weeks after their approach, a ban on exporting. without any motivation preventing them from honoring their contract. Quite often, export bans thus arbitrarily decided by the SBDU also result from requests from customs inspectors who prevent trucks from leaving for fear of letting strategic equipment pass through, even though the material in question is free to transport. export and no justification is communicated to the interested party.

In the USA, the rule concerning goods for civilian use likely to be misused for malicious use is on the contrary very explicit and also targets civil goods likely to harm the security of the USA. The American authorities have in fact added numerous articles corresponding to goods not included in the lists of the intergovernmental bodies combating the proliferation of weapons of mass destruction (cited above). The Commerce Control List (CCL) includes, among its items called Export Control Classification Number (ECCN), a series of goods called EAR99 placed under possible control for security reasons.

The American regulations governing the control of dual-use goods, called the Export Administration Regulation (EAR), specify this:

In accordance with the principle of the catch-all clause, this list is not exhaustive, but nevertheless gives legal means to American control bodies to more easily prohibit exports of products or equipment likely to be diverted for terrorist purposes. and sanction them a posteriori.

For example, ammonium nitrate and ammonium nitrate fertilizers fall under ECCN Article No. 1C997 of the American CDC because they are known to be usable to make homemade bombs using explosives of ANFO type (quarry explosives) filled in household cooking appliances (pressure cookers) or in empty gas cylinders; as happened in Corsica, Northern Ireland, Spain, Norway, the Boston Marathon, the Middle East... etc.

On the other hand, given the risks of similar attacks, and knowing the dangers of ammonium nitrate for fertilizer and quarry explosives (tons of which accidentally exploded in the AZF factory in Toulouse), the “catch-all clause” would not allow France to prohibit exports of ammonium nitrate (or fertilizer rich in ammonium nitrate) to certain destinations without its services having been informed of a doubt about this sale to stranger. Furthermore, this non-explicit provision would not give it the legal means to sanction a posteriori, with reference to the regulation of dual-use goods. an illicit export of this product which would have been used to commit an attack abroad.

We thus find a legal vacuum equivalent to that of the time when French companies supplied with impunity goods used to manufacture chemical weapons in the Middle East. France was hit hard by terrorism on the evening of November 13, 2015. Since the attacks of September 11, 2001 in New York, the USA has been more vigilant than us about its exports of sensitive products by adding a list of "EAR99" goods to international lists.

Moreover, American sanctions apply worldwide in the event of violation of the Export Administration Regulation (EAR), that is to say if the Bureau of Industry and Security (BIS) becomes aware of exports or acts of trading without a US license, concerning goods of American origin subject to control. These sanctions are very severe if these offenses are committed by subsidiaries of American groups outside the USA, or if they are the subject of financial transactions in dollars carried out from American banks. Any turpitude of this kind, committed in the USA or elsewhere in the world, is subject to the registration of the person or company concerned on a blacklist preventing them from bidding for calls for tenders and prohibiting them to buy American goods, which creates a bad reputation for its business affairs. This may also result in a complaint before the American courts leading to financial or criminal sanctions; or to denunciation through diplomatic channels in the country concerned, with a view to legal action by local authorities in application of national regulations in force concerning dual-use or embargoed goods.

The correlation of dual-use goods with customs nomenclature

The field control carried out by customs controllers using their computer system is based on the classification code of the goods in the eight-digit Community Integrated Tariff (TARIC), the last two of which complete the code of the combined customs tariff nomenclature common. The correlation table between the codes of the Combined Nomenclature and the articles of the list of dual-use goods was updated in 2017 by the European Commission for the integration of BDU codes into TARIC. Much more comprehensive than those of 2006, 2012 and 2014, this one no longer contains the classification errors which led to the blocking by European customs of many goods free for export. This system is, however, not very reliable insofar as the correlation table of BDU codes with those of the combined nomenclature, which has 6800 lines instead of 4200 in 2012, because each of them covers goods which do not present of any strategic nature, which risks further increasing the risks of obstacles to esports

The customs administration used this European Union correlation list to establish an information system using document codes, special tariff provisions and additional national codes (CANA allowing operators to indicate in their declarations whether the materials whether or not they fall under BDU regulations, or whether they are subject to restrictive export measures. This system theoretically allows customs services to control high-tech products likely to be subject to export controls. export.

The DELTA tele-procedure (Online Customs Clearance by Automated Processing) allows you to complete customs declaration formalities online. When drawing up the export declaration, the operator must indicate the appropriate code in box 44:

In the event that the goods are subject to a national control measure for dual-use goods, the operator must also indicate in the export declaration in box 44 the document code corresponding to the authorization used. This is code 2410 for all licenses associated with CANA R 409 and R 410.

This is how hundreds per year of "non-licensed files" of goods having no strategic nature are processed by the dual-use goods department, either as a result of untimely blockages by customs offices, or for fear of this inconvenience on the part of manufacturers if the tariff position of a good which is free for export presents a CANA referring to a paragraph of the list of BDUs or goods subject to restrictive measures.

To avoid these disadvantages, the European Commission should create two subdivisions in all the subheadings of the combined nomenclature likely to contain strategic goods: one which integrates the wording of goods with dual use or subject to restrictions to certain destinations , and the other which corresponds to goods free for export. It should also communicate the characteristics of the goods actually subject to control in the explanatory notes to the combined nomenclature (CN).

The NC subheadings containing the wording of the paragraphs of dual-use goods would then have legal scope in application of general note no. 6 of interpretation of the combined nomenclature reproduced below.

This integration of strategic products into the combined nomenclature would allow better information for operators on strategic products, especially since the indication of the HS6 subheading codes of the Harmonized Commodity Description and Coding System will become mandatory, before declarations, in ICS and ECS security messages, in 2016, upon implementation of the Union Code.

The organization of the State in terms of control of dual-use goods

Since the first reform of the former SGDN in 1995, then the transformation of the former SGDN into SGDSN dependent on both the Prime Minister and the President of the Republic, and finally the creation of the Interministerial Commission dual-use goods, this interministerial body no longer has any role in coordinating ministerial action in this area.

Following the mission letter from the Prime Minister of June 21, 2013, an orientation report on the rapprochement of systems for controlling transfers of sensitive civil and military technologies was issued by the Court of Auditors in January 2014. This report is based on observation that the French system is complex and rigid, and proposes the institution of an interministerial Authority. According to the report, as defense budgets shrink, companies are turning more to the production of dual-use goods. Therefore, he considers that it is also necessary to improve the coordination and general management of procedures for controlling sensitive transfers placed at the interministerial level, which is currently absent in French export control. According to the Court of Auditors, the creation of an Authority placed under the Prime Minister, whose resources could be managed by the SGDSN, would appear to be an effective alternative to respond to these problems. "The authority would be responsible for the definition, orientation, and monitoring of the applicable policy in this area. It would be responsible for the permanent evaluation of the control system to propose changes to the regulatory framework or the organization. It would ensure the management of the various administrative mechanisms involved in these areas. It would therefore oversee all current structures, without replacing them in the role of examining files and would play the role of a direct interface with the government. It would ensure better distribution of transfer authorization request files between all institutions as well as better cooperation (between the SBDU and the SGDSN) for files involving less difficulty. The most sensitive cases would, however, be arbitrated by the Authority itself after consultation with one or two interministerial commissions. The authority would also have the power to submit to the government for authorization cases that require a political choice. According to the report, "with this organization, the processing of the simplest files could be streamlined, therefore simplified and faster, while files calling for arbitration could be processed at a high level more quickly."

The proposals of the Court of Auditors were the subject of opposition from the ministries concerned, in particular from the Ministry of Foreign Affairs, whose minister Laurent Fabius is an important political figure who certainly does not want this that its services lose the prerogative of the presidency of the Interministerial Commission on dual-use goods, while the problem is not only of a diplomatic nature.

The services concerned

The issuance of licenses was initially the responsibility of the Foreign Trade Title Service (SETICE), dependent on customs. Since the creation of the Dual-Use Goods Service by a decree of March 18, 2010, it is the General Directorate of Enterprises (formerly DGCIS since September 16, 2014) which is responsible for this mission. We have therefore witnessed a transfer of skills from Customs to the General Directorate of Enterprises. This transfer is explained by the lack of engineers within the customs services to classify the products concerned. It therefore allowed a refocusing of customs missions and relieved the reduced staffing of the customs laboratory, the Common Laboratory Service (SCL). Thus, when focusing on the first stage of control, the allocation of licenses, it already appears that Customs is in the process of refocusing its missions within the framework of the control of dual-use goods. Since 2010, the SBDU has been the primary contact for companies and the main control actor. Its director has 18 agents including 7 engineers (compared to 3 to 4 previously at SETICE). This is almost half of the agents working on this control throughout the country. The role of the SBDU lies in the examination of license applications. It verifies that the goods concerned are indeed dual-use goods, that the country of final destination is not affected by restrictions, that the end user is trusted and that the license concerned meets the product-country-couple. user that corresponds to it. We will not return here to the different types of licenses but it is the SBDU and its teams of engineers and administrators who are the guarantors of this work of bringing companies into compliance with community regulations and the measures adopted at the level national. The SBDU is, however, supported by the services of the various ministries present at the Interministerial Commission on Dual-Use Goods. For example, the Directorate General of Armaments (DGA), which receives requests for export authorizations for conventional weapons, will redirect manufacturers whose goods are more likely to be dual-use goods.

The CIBDU was created by Decree No. 2010-294 of March 18, 2010 creating an interministerial commission for dual-use goods. Under this decree, its presidency is ensured by a representative of the Ministry of Foreign Affairs (article 4), the deputy director of strategic affairs. In addition, its agenda is defined by the Ministry and its meetings take place at the Quai d'Orsay. However, its secretariat is provided by the SBDU and the commission brings together representatives of numerous services and ministries, including Defense, Customs, the Atomic Energy Commission, foreign trade and industry. In total, there are a dozen representatives from different ministries and services who come together in this commission. The role of this commission, which meets monthly, is to study the most sensitive files handled by the SBDU (20 to 25% of files) or received by the various ministries. It then issues an opinion on the submission of a good for export authorization. In addition, it is she who decides on the entry of a property into the control regime through the “catch-all” clause. Each ministry expresses its position on the property in question and a consensus is sought to establish a national position on the property concerned. However, the lines defended by each Ministry are not necessarily convergent, so the SBDU primarily defends the interests of industrialists, while the representative of the Ministry of Defense is responsible for looking into the possible risks of finding material exported from the France facing French troops on fields of operations and taking into account the commercial imperatives of industrialists. The interest of this commission lies in this meeting of services with their own sensitivities in order to determine the most impartial line possible and consensus is generally easily reached. Thus, the CIBDU is the national body of reference for establishing a position on the most sensitive issues. It plays a political role, since it is at its level that the national general licenses or the scope of the “catch-all” clause are determined which are, as we saw in the first part, at the service of specifically specific interests. national. Thus, in the event of a real blockage on a file, it is the political level which decides with an intervention by the Prime Minister. The issues concerned, however, remain fairly insensitive to changes in majority. Indeed, the fight against proliferation is an a-partisan issue and the Commission is therefore a service that is fairly impervious to alternation. Furthermore, the fact that the Ministry of Foreign Affairs at the time wanted to chair it testifies to the diplomatic role that France intends to play in this control. Thus, its role was relatively central when defining sanctions against Russia and the Commission was the scene of more intense and shared discussions than usual. It also seems important to remember that the minister in office at the time, Mr. Laurent Fabius, made economic diplomacy a priority in his mandate, as evidenced by the addition of International Development to the name of the Ministry. Therefore, export control is more than ever at the heart of the concerns of the Ministry which intends to assume this presidency in an active manner. The composition of this commission and the interests represented there bear witness to the plural dimension of this control and the necessary transversality of its implementation. Thus, Customs, although the only one responsible for effective control of exports, cannot ensure all the requirements alone. However, its role remains crucial. The composition of this commission and the interests represented there bear witness to the plural dimension of this control and the necessary transversality of its implementation. Thus, Customs, although the only one responsible for effective control of exports, cannot ensure all the requirements alone. However, its role remains crucial. The composition of this commission and the interests represented there bear witness to the plural dimension of this control and the necessary transversality of its implementation. Thus, Customs, although the only one responsible for effective control of exports, cannot ensure all the requirements alone. However, its role remains crucial.

The DGSI integrates its mission of combating weapons of mass destruction within the framework of the protection of economic heritage and declares on its website:

This point of view from an intelligence service which, officially, acts only for the "economic protection" of the country, is quite surprising because the list of dual-use goods only consists of elements for manufacturing nuclear, chemical, biological weapons and their vectors; and not goods essential to French economic activity

The DGSE is clearer on the interest of the fight against the proliferation of weapons of mass destruction because it indicates on its website: "Intelligence action intervenes throughout the proliferation cycle: upstream (anticipation and detection programs through the analysis of various indices), during the crisis and in the post-crisis period. At the same time, the DGSE monitors proliferation networks that may be in contact with terrorist movements. The potential conjunction between terrorism and weapons of mass destruction represent an immediate threat against the security of France and its allies. In this specific case, the collection of intelligence and the obstruction action require a very rapid reaction capacity, depending on the level of the threat."

France is part of the Financial Action Task Force (FATF) which is an intergovernmental body created in 1989 by the Ministers of its member states and whose secretariat is established in Paris. The objectives of the FATF are the development of standards and the promotion of the effective application of legislative, regulatory and operational measures in the fight against money laundering, terrorist financing and other related threats to the integrity of the system. international financier. The Financial Action Task Force is therefore a policy-making body that strives to generate the political will necessary to effect legislative and regulatory reforms in these areas.

The FATF has developed a series of Recommendations recognized as the international standard in the fight against money laundering, the financing of terrorism and the proliferation of weapons of mass destruction. They constitute the basis for a coordinated response to these threats to the integrity of the financial system and contribute to the harmonization of rules at the global level. Published in 1990, the FATF Recommendations were revised in 1996, 2001, 2003 and most recently in 2012 to ensure that they remain current and relevant. They are intended to be applied by all countries in the world.

Among the 2013 FATF recommendations on financial sanctions, the one concerning the fight against the proliferation of weapons of mass destruction appears in paragraph C, paragraph 7 reproduced below:

In application of this recommendation, the General Directorate of the Treasury of the Ministry of Economy and Finance is responsible for the financial blocking of suspicious exports in terms of the exportation of dual-use goods. This administration indicates, on its website:

Thus the role of the General Directorate of the Treasury lies in the control of financial flows from third countries to pay for French exports. The DGT is therefore competent to freeze financial transactions. Under article L.562-2 of the monetary and financial code, the minister responsible for the economy, and by extension the DGT, can in fact

Thus, beyond the criminal sanctions already mentioned in the first part of this work, the French public authorities can prevent the payment of a transaction already carried out and sanctioned a posteriori. The DGT's Office of Investments, Combating Financial Crime and Sanctions is the department responsible for implementing these sanctions. However, the funds are not confiscated by the DGT but simply “blocked”. The French operator, or located on French soil, sanctioned is therefore simply unable to access the capital paid in return for the targeted exports. The economic consequences for a company are, however, significant due to the major cash flow gaps that result.

In case of doubt, the funds paid as a deposit or payment are not confiscated but blocked by the banks by order of the General Directorate of the Treasury, which still presents a great danger for companies which are not familiar with the regulations and who can thus lose markets by not honoring their contracts or find themselves in a difficult financial situation by not being paid for their sales. The situation is very difficult for companies if the administrations concerned strive to prevent the departure of a product, material or equipment free for export for fear of letting strategic or other material pass through. waiting for a possible decision to apply a catch-all clause which could take several months.

This is an aspect of control often forgotten by operators which can lead to administrative formalities being overlooked and cause certain transactions to be excessively frozen. Thus, through the action of these four specific services, it appears quite clearly that it is a complex administrative network made up of numerous actors which is in charge of implementing this policy. As in any system of this type, complexity is sometimes singled out for its potential inefficiency and the bureaucratic and administrative inconveniences that it can cause. This is the assessment that the January 2014 “orientation report on the rapprochement of systems for controlling transfers of sensitive civil and military technologies” established by the Court of Auditors, known as the “Hespel report” named after the president, attempts to draw up. of the mission.

The U.S. government controls exports of sensitive goods, technology, and software, both to enhance its national security interests and for foreign policy objectives.

Summary of the past and prospects

Previous situation

In summary of the historical overview of the fight against the proliferation of weapons of mass destruction, we can say that awareness of technological espionage aimed at producing nuclear weapons began in the 1950s when the ex- USSR carried out tests of a nuclear weapon copied from that of Nagasaki, then tests of super-powerful thermonuclear weapons obtained again from clandestine transfers of American know-how, although classified as top secret. To fight against this disastrous technological plunder on the part of this new great nuclear power and taking into account the existence of the "cold war" which began with the first Berlin crisis (from June 1948 to May 1949), the USA, France , Italy, the United Kingdom, the Netherlands, Belgium and Luxembourg created a committee in 1950 responsible for controlling or prohibiting exports to countries under Soviet control of goods and technologies for civilian use likely to 'military use; that is to say to prevent the “eastern countries” from acquiring strategic superiority against the United States of America and European countries. This is how these seven countries founded a Coordination Committee for Multilateral Trade (COCOM) which was quickly joined by Canada, Denmark, Germany, Japan, Australia, Spain, Greece, Australia, Portugal and Turkey. The work of the former COCOM, which was an “informal and secret” committee, was so confidential that this embargo against the countries of the former “Soviet bloc” ultimately became ineffective. It was only during the 1970s and 1980s that Western countries realized that with the improvement of German V2 missile technology from World War II, the former USSR had succeeded in acquiring missiles long-range and precise ballistic missiles, and that many other countries had copied them to produce SCUD missiles. Likewise, Western countries were concerned about the nuclear tests carried out by what were called at the time "third world countries", and the use of chemical weapons produced using technologies and equipment civil use available in international trade. The industrialized states then pulled themselves together by reactivating the former COCOM, by creating multilateral regimes to control the proliferation of weapons of mass destruction and their vectors: (NSG, MTCR and AG) and inviting many countries to sign the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Despite all these precautions, it appeared, at the time of extraordinary progress in micro-electronics and computing, that technological plundering was only increasing, not only for the benefit of the former USSR but also many other "proliferating states". A short pause in vigilance in the fight against the proliferation of weapons of mass destruction came in the early 1990s, after the fall of the Berlin Wall and the disappearance of the former USSR. However, the European Union seized the problem by creating regulations directly applicable in its member states, taking into account the legal weaknesses in terms of control of dual-use goods in each of these states, where legal proceedings against traffickers were widely contested. The dislocation of the military resources of the former USSR (including nuclear) and the attack of September 11, 2001 in New York, followed by wars and acts of terrorism in the Middle East, have led industrialized states to increase their vigilance during the years 2000-2010 through the creation of the Proliferation Security Initiative (PSI) and the implementation of embargoes against several non-democratic countries. They finally strengthened the legal bases of their regulations following Resolution No. 1750 (2004) of the United Nations Security Council. given the legal weaknesses in the control of dual-use goods in each of these states, where legal proceedings against traffickers were widely contested. The dislocation of the military resources of the former USSR (including nuclear) and the attack of September 11, 2001 in New York, followed by wars and acts of terrorism in the Middle East, have led industrialized states to increase their vigilance during the years 2000-2010 through the creation of the Proliferation Security Initiative (PSI) and the implementation of embargoes against several non-democratic countries. They finally strengthened the legal bases of their regulations following Resolution No. 1750 (2004) of the United Nations Security Council. given the legal weaknesses in the control of dual-use goods in each of these states, where legal proceedings against traffickers were widely contested. The dislocation of the military resources of the former USSR (including nuclear) and the attack of September 11, 2001 in New York, followed by wars and acts of terrorism in the Middle East, have led industrialized states to increase their vigilance during the years 2000-2010 through the creation of the Proliferation Security Initiative (PSI) and the implementation of embargoes against several non-democratic countries. They finally strengthened the legal bases of their regulations following Resolution No. 1750 (2004) of the United Nations Security Council.

Current situation and outlook

In France, the legal means to combat trafficking in dual-use goods and the proliferation of weapons of mass destruction appear complete, especially since European Council Regulation No. 428/2009 as amended provides for a "catch-all clause" to prohibit the export of goods not included in the dual-use or restricted goods control lists to certain destinations. In fact, this provision does not comply with French law (which must be written) leads to untimely blockages on the part of the French dual-use goods service (SBDU) when a company requests information on a project, or on the part of customs controllers who have difficulty interpreting the lists of targeted goods, or even from the general directorate of the treasury of the Ministry of Economy and Finance which orders banks to block deposits or payments coming from the abroad (in case of doubt about an operation) during weeks of waiting for the response from the SBDU.

Furthermore, the integration of references in the Community Integrated Tariff (TARIC) of the codes corresponding to the articles and paragraphs of the lists of dual-use goods, or of goods subject to restrictions on export to certain countries, does not allow controllers customs authorities to know exactly what is referred to in a subheading of the Combined Nomenclature of the Common Customs Tariff.

Customs and criminal sanctions are severe a posteriori in the event of discovery of misappropriation of sensitive products and technologies, but it is difficult in practice to prevent illicit exports before their departure, or to oppose clandestine brokerage and transfer operations. intangible technologies without effective means of intelligence. In France, coordination of the control of dual-use goods and embargoes falls to the Ministry of Foreign Affairs which chairs the interministerial commission on dual-use goods, but the problem is not only diplomatic. As highlighted in the orientation report of the Court of Auditors of January 2014, interministerial coordination should be ensured at the level of the Prime Minister's services, that is to say by the general secretariat of defense and national security (SGDSN), as before the first reform of this service in 1996 (formerly SGDN) which, according to its responsibilities defined by decree, was at the time responsible for coordinating intelligence.

There is an increasing risk of proliferation of weapons of mass destruction, not only towards non-democratic states, but also for the benefit of today's large terrorist organizations whose objective is to invade Black Africa and the Middle East, and destroy our civilizations. The greatest current threat is the construction of a nuclear weapon weighing several tons using a few dozen kilograms of plutonium 239 recovered after the dismantling of the Soviet army or diverted by internal complicity in nuclear factories. This bomb would be loaded into a shipping container to explode at sea and cause a devastating tsunami, or into a truck parked in a major city to destroy it.

Export control

The Wassenaar Arrangement (WA)

The Zangger Committee and the Nuclear Suppliers Group (NSG)

The Missile Technology Control Regime (MTCR)

The Australia Group (AG)

The Organization for the Prohibition of Chemical Weapons (OPCW).