STC Implementation in ASEAN Dr. Anupam Srivastava
[email protected] Presentation at CSCAP Meeting Bangkok, August 8-‐9, 2016
Functions & Utility of STC • Serve as a deterrent to WMD acquisition efforts • Delay efforts of proliferators in acquiring WMD items or technologies • Help interdict illegal transfers of controlled goods, materials & technologies • Serve as a source of information on possible WMD activities • Buy time for diplomatic efforts to prevent a WMD program • STCs facilitate high-‐technology trade by creating legal-‐ procedural infrastructure – across FTAs and beyond 2
UNSCR 1540: Main Provisions § Para 1: general commitment to not support non-‐state actors re WMDs § Para 2: criminalize all activities of non-‐state actors (unauthorized entities) with regard to WMD-‐relevant items § Para 3a: appropriate effective measures for nuclear materials control and accounting § Para 3b: appropriate and effective measures for nuclear material protection (physical security) § Para 3c: effective border controls § Para 3d: comprehensive national export controls § Para 6: appropriate control lists § Para 8b: international obligations incorporated into domestic laws/regulations § Para 8d: develop appropriate ways to work with industry and public § Para 9: engage in dialogue and cooperation on nonproliferation § Para 10: take cooperative action to prevent illicit trafficking in WMD items
Translating 1540 requirements into STC System
Legal Basis for STC
Interagency Licensing Process
Government Outreach to Industry
STC Enforcement
Legal Basis for STC One or more laws, passed by the national legislature, which authorizes the government to regulate, monitor and enforce rules and regulations regarding dual-‐use/strategic trade. v The law(s) establish the national reasons for regulating this trade: § Hi-‐tech trade facilitation § National security § International nonproliferation obligations v The law(s) establish § the scope of control (which technologies, transactions will be controlled) § the jurisdiction (to whom does it apply) § the responsibilities of the govt agencies § the responsibilities of the industry and academia § Penalties for violation
STC Licensing Official authorization by the government for the transfer of controlled goods or technologies v Licensing system should be supported by laws/legislation that provide authority to designated officials/agencies to license all activities and items related to trade & transfers of sensitive dual-‐ use goods AND military items v This includes § § §
Identifying/listing items and defining transactions that are subject to licensing process Identifying who reviews and/or issues export licenses Identifying where end-‐user/end-‐use-‐based controls might apply
6
Government-‐Industry Outreach in STC What happens if the industry violates STC regulations out of ignorance or confusion? Govt needs to assist the industry understand and comply with STCs v Outreach requires laws & regulations that designate one or more govt agencies with the responsibility to educate industry v This includes: § Choosing more than one method to communicate with the industry § Assistance in establishing compliance programs § Incorporating feedback on efficiency/suitability of STC process and procedures
7
STC Enforcement What happens if exporters do not comply with licensing requirements? Enforcement becomes critical v Requires laws & regulations that designate one or more govt agencies with enforcement authority (both dual-‐use & munitions) v This includes: § Authority to search, detain, seize, investigate shipments § Understand which items/transactions/destinations might require the exporter to submit a license § Capacity and resources (training, procedures & tools) to identify shipments and shippers of concern § Authority & protocol to get inter-‐agency inputs § Impose penalties for violations
8
Update as of August 2016 1) CITS has converted CSCAP Memo #14 into a Matrix and completed it based on open source info available in English 2) MS-‐CSCAP can now use their internal resources to help CITS update the Matrix for their own country 3) Alternately, they can submit (to Pacific Forum CSIS) a copy of documents that provide info corresponding to specific elements in the Matrix. CITS can analyze and help complete the Matrix
Legislation covering trade in dual-‐use (strategic) goods
©CITS2016 Not for distribution or use without permission
Control List(s)
©CITS2016 Not for distribution or use without permission
Empowered/Authorized Agency identified for each function
Empowered/Authorized Agency identified for each function
©CITS2016 Not for distribution or use without permission
Electronic Tools
©CITS2016 Not for distribution or use without permission
Initial Assessment v Singapore & Malaysia à have all the STC elements (as identified in CSCAP Memo#14) v Philippines àhas established a comprehensive law that covers all the recommended elements (of STC legal basis) identified in UNSCR 1540. Now embarked upon writing Implementing Rules & Regulations for each function v Cambodia àlaw covers non-‐devt & non-‐export of N, B, C weapons. Needs to regulate transit, t ’shipment & brokering, and expand scope to delivery systems. A National Cmte is working to pilot IRRs & engage enforcement agencies. v Vietnam à regulates nuclear and radiological materials export & re-‐export. Requires a law and IRRs to expand scope to C, B and delivery systems v Thailand à DoFT working on STC law; adopted EU control list of 2009 v Other ASEAN countries have limited or no clear focus on CBRN items v Other than SG & MY, others might need electronic tools for licensing, outreach and enforcement activities ©CITS2016 Not for distribution or use without permission
Action Items v CITS to send Matrix plus individual country data-‐sheets to Pacific Forum CSIS to forward to MS-‐CSCAP Secretariat [to get additional data and documents] v CITS to revise Matrix and draft Report (with inputs from CSCAP colleagues) v Report can include sections on § Benefits (& challenges) of establishing common guidelines, lists of DU items & entities of concern; regd/approved brokers; freight forwarders § Additional steps to fully implement & enforce UNSCR 1540
v Once CSCAP MS approve the Report, it can be finalized § Can serve as a guide to further develop national STC systems; should improve regional coordination, including ASEAN Single Window § Copy can be submitted to ARF; it can use in its dialog with 1540 Cmte