What Export Control is

A few words about Export Control

Export Control 1

The export of dual use items is regulated at a global level by a variety of rules, criteria and application procedures that meet national and international security needs.

In addition to the Dual Use Control regulations we have also, as already seen, all the provisions relating to commercial restriction issued by international organizations (UN and EU firstly) and by each national state, in which the main role is played by the sanctioning regimes, an instrument of foreign policy that is part of the broader logic of the "economic statecraft", i.e. the art of governing and making policies using measures of an economic nature.

In particular, as regards EU the Council Regulation (EC) No 428/2009, subsequently amended by the Commission Delegated Regulation (EU) 2017/2268, sets up a Community regime for the control of exports, transfer, brokering and transit of dual-use products and technologies listed in Annex I, which represents in fact the sum of the choices made by the following international control regimes:

Wassenaar Arrangement (conventional weapons and dual-use goods and technologies)
MTCR - Missile Technology Control Regime Group (missile related sector)
NSG - Nuclear Suppliers' Group (nuclear sector)
the Australia Group (biological and chemical sector).

Export Control 2

This framework, already sufficiently complex in itself, is even more complicated due to the existence of a very particular kind of sanctions, the so-called "secondary sanctions": it is the case of the United States that, in addition to asserting its jurisdiction also on products of US origin, or which include a certain amount of US-controlled content or are based on certain US technologies (in this case we are still in the perimeter of "primary sanctions"), through the Office of Foreign Assets Control ("OFAC") of the Treasury Department may sanction non-US organizations and individuals that are engaged in "significant" transactions with countries and entities on which they have imposed specific trade restrictions (primarily Iran, Russia and North Korea).

These secondary sanctions have in fact an extra-territorial value, although they allow only an indirect action, against assets located in the US territory or activities and services based in that country: for example, they can deny targeted subjects access to the US market, at least for a certain period, or the possibility of opening or maintaining bank accounts in local currency (i.e. in US dollars).