Modelling Dual-Use Trade Control Systems

by Odette Jankowitsch-Prevor (Author) Quentin Michel (Author) Sylvain Paile (Author)
©2014 Edited Collection 262 Pages


The Chaudfontaine Group was established in 2010 as an annual two-day gathering of young Europeans with diverse academic backgrounds, including lawyers, economists and political scientists, from relevant national authorities, European institutions, scientific centres and industry. Its members are invited to discuss their respective viewpoints on the European trade of sensitive goods, focusing on the strategic issues confronting this sector in a rapidly evolving international context.
In December 2013, at its fourth conference, the Group met with African experts to debate the question of how African countries control the trade of dual-use items and the challenges they face in their search for effective regulations. The objective was to study whether international norms and experiences, pertaining both to states and to organisations, could be used as standardised models for African countries affected by unique security concerns.
This volume analyses and discusses those trade control systems which could be described as «models» and might therefore serve as a standard to be exported to the African countries in question. The debate is multi-levelled and studies the possibility of setting universal, regional or even-sub-regional norms.
The contributors to this book, who display a wide variety of expertise, call for the adoption of norms which they argue have the potential to reconcile freedom of trade with international security, without presuming that these norms should be universal.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • Disclaimer
  • Acknowledgement
  • This eBook can be cited
  • Contents
  • Introduction. Regional, Sub-Regional and National Trade Control Regimes Models: Choices for “Africa”?
  • Part I. A Search for Harmonising Trade Controls…
  • Export Controls: Is a New Approach Needed? (Wolfgang Lehofer)
  • “Joined up Thinking”. The Pressing Need for Partnership in Compliance (Martin Palmer)
  • Transnational Consortia For Dual-Use Goods and National Export Control Regimes. Facing Diversity (Harald Hohmann)
  • Dual-Use Trade Control. National and Sub-Regional Model for Africa (Yacine Amara)
  • Export Controls of Dual-Use Goods and Technologies in the Democratic Republic of Congo? (John Kabange Mukubu)
  • The Control of Export of Dual-Use Material from Kenya (Hamadi Iddi Boga)
  • Controlling Export of Nuclear Material and of Dual-Use Goods in Niger (Abdoul Rahimoune Massaoudou)
  • Implementation of the United Nations Security Council Resolution 1540 in Nigeria (Shamsideen B. Elegba)
  • United Nations Security Council Resolution 1540. A Universal Model? (Dr. Andrea Viski)
  • Arms Export Controls. Setting Common International Standards (Rosa Rosanelli)
  • Lessons Learnt from Strategic Trade Control Enforcement Capacity-Building in Western Africa (Renaud Chatelus)
  • Part II. … Without Standardising
  • From Global Straggler to Regional Exemplar. Japan’s Export Control System 1990-present (Crystal D. Pryor)
  • Russian Dual-Use Trade Control. An Example to Follow? (Ekaterina Chirkova)
  • EU as a Model, “Yes But”… (Ivana Micic)
  • The EU Regulation. Regime, Framework or Guidelines for Sub-Regional and/or National Regimes? (Dr. Laszlo Stefan)
  • Bridging the Gap. The Role of Regional Organisations in Developing Universal Export Controls (Sara Depauw)
  • The EU Export Control Regime. Standards for the Walloon Region? (Anne-Valentine Rensonnet)
  • Export Control Systems: a Bulgarian Perspective (Velislava Zhivkova)
  • EU Regulation + French Regulations = An Exportable Control Model? (Sylvain Paile-Calvo)
  • The EU Dual-Use Trade Control System for Greece (Christos Charatsis)
  • From Models to a Model? (Lia Caponetti)
  • A Portuguese Point of View (Miguel Sousa Ferro)
  • Conclusion (Quentin Michel)
  • About the Authors
  • Series Index

Regional, Sub-Regional and National Trade Control Regimes Models: Choices for “Africa”?


Nuclear Lawyer – Consultant


The growing importance attached to the “trade dimension”2 of economic development and related industrial strategies in Africa may call for new approaches to national and possibly regional requirements for trade control regimes. This industrial evolution is essentially carried by trans- or multi-national corporations and characterised by international intra-industry transactions. Such developments are extremely relevant to States, though the individual State may not be the determinant actor in this worldwide development. Integration into the global market rather than within a regional market raises very different questions and concerns all actors: the individual State exporting industrial manufactured goods in addition to raw materials, the regional economic communities, and Africa as a whole. In the context of export control regimes this fast trend, if continued, might constitute a challenge for the individual State as well as for Africa’s sub-regional economic communities of neighbouring or likeminded States.

← 15 | 16 →At the same time, the individual State is called upon to adhere to increasingly specific, strict and binding international regimes directed at preventing all forms of proliferation of nuclear chemical or biological weapons,3 sensitive trade and notably dual-use items; these amount to legal obligations that require the State to establish and implement inter alia “effective border controls, national export and trans-shipment controls and end-user controls”.4

The question arises whether this is a fundamental, unsolvable dilemma or whether States will be able to find satisfactory solutions individually, within their regional economic communities and with the support by the African Union?

Intergovernmental organisations and trade control

Any attempt to analyse Africa in terms of its trade should first look at existing sub-regional economic communities, their composition, purpose, policies and activities, in order to discern their possible roles in assisting their respective Member States regarding implementation of trade control of dual-use and sensitive items.5 This question requires some clarifications: what are the main concerns of these regional economic communities? How far are they comparable to the EU or to earlier cooperation and integration organisation in Europe, such as the European Free Trade Area? However, the contributions6 to this volume covering individual African States clearly demonstrate the need to keep in focus the specific geographical, economic and political realities of each individual State.

Africa is a continent as is Latin America. It was and sometimes continues to be divided in terms of geographical rather than economic and policy denominated domains. This continues to apply e.g. to the regional approach to trade analysis of the UNECA, the Economic Commission for Africa,7 considering the regions of North, East, West-Africa; Sub-Saharan Africa, the Sahel Zone. Another categorisation separates States ← 16 | 17 →according to (European) language groups which per se is not irrelevant as this reflects not only aspects of colonial history but what is more relevant today, common legal systems, national and societal rather than ethnic links and some durable trade patterns.

In the present context, attention is primarily on implementation of non-proliferation obligations – with reference to the NPT and more specifically to UNSC Resolution 1540 (2004) in the framework of the trade policies of States members of regional economic communities, as well as of the communities as a whole. Are States still acting mainly alone, or is there an existing or potential capacity of the Communities to establish elements of a common regulation and control of trade for their respective members? Is a regional trade – or sub-regional – control model possible, or is the more realistic policy of harmonising step-by-step national regulations preferable?

Considering the wider picture, there are domains where intergovernmental organisations cannot replace the obligations of the State: for example, legally binding obligations set forth by international treaties and conventions8 rest exclusively upon the sovereign State. Such obligations seen in the present context require the State to enact national laws and appropriate regulations which apply to ensure strict border control of (sensitive or dual-use) exported goods as well as of those imported. Examples are demonstrated by the case studies on the export control regimes of selected African States contained in this volume. The basic question is how similar are national export control regimes at present to allow – without establishing a comprehensive “model” – for harmonisation of “basic provisions” to which States could conform within the scope of respective sub-regional economic communities.

At the continental level there are two well established intergovernmental organisations open to all sovereign States of the continent: the African Union (AU) with 53 States,9 and the United Nations Economic Commission for Africa UNECA10 54 States. These 54 States constitute the Africa Regional Group in the UN General Assembly.

The African Union (AU) functions since its inception with a highly complex structure is somewhat similar to that of the UN, with an Assembly, ← 17 | 18 →a Parliament, an Executive Council, technical committees and commissions as well as a separate Economic and Social Council. It covers a huge diversity of political, economic, and legal subjects and acts through specific subordinate organs as well as through the Assembly of all its Member States.

Of particular interest in the present context is a new, different type of Treaty based continental organisation, the African Commission on Nuclear Energy (AFCONE),11 a mechanism for Treaty compliance provided for by the Treaty of Pelindaba establishing the African Nuclear Weapon Free Zone. The Entry into force of the Treaty, 2009, and more recently the start of the work of its Commission (AFCONE), comes at a time when control of CBNR weapons by States is a permanent topical issue on the agenda of the UN, the IAEA and the EU. In light of its broad mandate this new institution might become relevant beyond its statutory mandate of nuclear non-proliferation12 as a model for the implementation by States of other legal obligations notably those set forth by UNSC Resolution 1540 (2004) and thereby corroborating the basic concerns and to a large extent, the raison d’être of the Resolution.13 Endowed with the necessary instrumentality for non-proliferation control, its powers as to verification of “peaceful uses”14 (though of nuclear material only) may carry with it a parallel concern for the prohibition and control of biological and chemical weapons and acquire institutional knowledge as to the export /import control of dual-use items.

Treaties and conventions

As regards relevant international treaties and conventions on security and anti-terrorism, most African States have signed them (facilitated by the fact that these treaties were opened for signature at the UN or ← 18 | 19 →IAEA Headquarters or other IGO). However, the process of ratification and entry into force has taken a very long time and in many cases is still outstanding.15 This needs not be considered as absence of political will by governments but can be well explained by the complex often technical nature of some conventions and the lack of their immediate relevance for the States e.g. the Convention on the Physical Protection of Nuclear Material (CPPNM) applies to the protection of “nuclear material in transport” which, except for uranium transported from a landlocked State16 to the sea, is not commonly shipped from a State of origin to a State of destination within the African continent.17 Moreover, the CPPNM and all UN “anti-terrorism instruments” adopted since 9/11 set forth detailed provisions defining criminal offenses, criminal procedure, international cooperation on criminal matters as e.g. extradition, which in any administration needs to be cleared or approved by several competent ministries and usually requires amendment of national laws and codes that are often difficult to transpose into national law due to different legal systems and concepts.

Moreover, after ratification of the instrument in accordance with the State’s constitutional provisions, and transposition of its binding provisions into domestic law, a major obstacle to its implementation is often the weakness of the competent governmental authorities: any State control requires institutions equipped to supervise the implementation of the provisions of the law. Weakness of government bodies is a common problem not limited to African States, often due to lack of adequate funding and staffing or to overburdened staff facing a diversity of tasks and competences. In many smaller African States weak governmental institutions may constitute the single major difficulty in fulfilling trade control functions.

This is more relevant as the competence of the institutions at the national level is the first prerequisite for any form of coordination of import controls at a higher regional level: control of trade – notably exports and imports of sensitive items or dual-use goods – must take place at the country level before being coordinated at a supranational level. As well demonstrated in all of the five African case studies18 the common comparable national competent authority is the national customs ← 19 | 20 →authority: this applies in terms of both its legal powers and its capacity for effective physical material border control. In this context the authors express general doubts as to the usefulness of defining a single model of an export control system that would be applicable to the hugely diverse economies and legal systems of the continent. Clear preference seems to be given to the elaboration of key common elements to be included in national trade control regimes as well as to national control practices.

Regional economic communities (REC)

The African Union recognises a number of intergovernmental “regional economic communities”, some newly established, others succeeding earlier regional groups. Again there is great diversity in the purpose and activities of the REC. Some were established as monetary and administrative rather than as free trade zones, in particular those dating back to colonial administrations e.g. the AOF19 and AEF and the East African Community. Today’s broad based “new” economic communities appear to have more in common aiming e.g. accelerating integration of the respective economies and improving intra-African trade. The REC are however still facing major challenges – including inadequate financial and manpower resources to support their integration activities: In addition to a lack of compatibility of national economic policies,20 one of the major problems seen by many as a real obstacle to “integration” is the overlapping membership in the different REC.

Overview of the regional economic communities21

A brief overview of the main AU recognised REC intends only to map out the complex structure of sub-regional integration of the continent and both the diversity and the common ground of these communities of States. Six recognised regional communities are considered here:22 the main purpose common to all is to promote economic cooperation among ← 20 | 21 →them, to aim at establishing a common trade area, a customs union or beyond, to create an economic union. This applies notably to the Southern African Development Community (SADC).

Some conclusions

Trade control notably of sensitive or dual-use items remains predominantly a separate matter from trade studies and strictly within national competence: major comprehensive studies on African integration and trade do not include references to trade control, sensitive items or dual-use goods, to CBRN, to security-related treaties and relevant UN obligations regarding the control of potential WMD or weapons material. Issues of trade, of individual States or of regional communities of States are usually analysed exclusively in economic and developmental terms. Security, and non-proliferation, export of dual-use items belongs apparently to another book!

Questions of “importing” or copying a trade control model do not appear to be anywhere on the agenda.23 A more detailed inside knowledge and, if published, case studies or other material issued by the regional economic communities as e.g. SADC may demonstrate how control regulations enacted in one or several of REC Member States could be harmonised with others to meet a common objective.

← 21 | 22 →As defined above, obligations ensuing from international instruments on non-proliferation and related dual-use and sensitive trade control rest entirely with the individual State. However, the prime competence of the State in matters of trade control need not prevent States Members of a same sub-regional community, to mutually adjust and coordinate their trade control systems.

Another relevant issue is whether – with certain exceptions – the present composition of goods and the volume of exports of the majority of African States require an advanced, sophisticated export control regime. Without studying detailed economic reports and statistical data (as published by the ECA) nor, on the other hand, oversimplifying the reality of trade flows, it is a fact that outward trade consists predominantly of minerals, other raw materials i.e. metals such as copper and gold, oil and gas, tropical wood and of some crops, e.g. cocoa and coffee beans – at more or less processed levels – fruit and vegetables grown in export-oriented agriculture and… Flowers.

In fact, trade of industrial manufactured products out of Africa (south-south) or intra Africa is still an exception. There are indeed very few cases: South Africa24 and increasingly, the sub-regional community which South Africa leads: (SADC); Nigeria and Algeria. It is worth mentioning that many African States need to export a very specific category of sensitive goods i.e. potentially dual-use or material for dirty bombs, that is the re-export of – imported and spent – radioactive sources25 which are commonly used in mining, geology, medical facilities and in industry.26

Trade – both export and import appears to remain essentially carried out independently by individual States under agreements with a foreign importer. As noted above most exported items are not listed in any “sensitive trade list”. As regards the issue of security, a regional overview of the “Sub Saharan Africa 1540 Reporting” notes that “[T]he major regional and sub-regional organisations on the continent “play almost no role in promoting Resolution 1540”.27

← 22 | 23 →None of the regional economic communities covers issues of trade control: as stressed by the African authors in this volume, it is difficult to conceive a trade control “model” that in view of the political and economic diversity of States would correspond to the needs – i.e. the economies and exports of the regional economic communities.← 23 | 24 →


1Main sources consulted in addition to the chapters contributed to this publication by Algeria, the Democratic Republic of the Congo, Kenya Niger and Nigeria. Additional sources: seminar “Assessing Regional Integration in Africa V Towards an African Continental Free Trade Area” ECA; AU; African Development Bank, UNCA, Addis Ababa (Ethiopia), 2012. NTI, “Sub-Saharan Africa 1540 Reporting” 9 January 2014, CNS James Martin Centre for Non-proliferation Studies at the Monterey Institute of International Studies.

2Seminar: “Building Trade Capacities for Africa’s Transformation – A critical review of Aid for Trade”. UN ECA, AU, ADB, Addis Ababa (Ethiopia), 2012.


ISBN (Softcover)
Publication date
2014 (October)
sensitive goods norms international security
Bruxelles, Bern, Berlin, Frankfurt am Main, New York, Oxford, Wien, 2014. 262 pp., 6 tables, 3 graphs

Biographical notes

Odette Jankowitsch-Prevor (Author) Quentin Michel (Author) Sylvain Paile (Author)

Odette Jankowitsch-Prevor is a consultant working for the International Atomic Energy Agency and a distinguished expert and lecturer in general nuclear law Quentin Michel is director of the European Studies Unit in the Department of Political Science at the University of Liège (Belgium). Sylvain Paile-Calvo is a senior researcher in the European Studies Unit in the Department of Political Science at the University of Liège (Belgium).


Title: Modelling Dual-Use Trade Control Systems
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