Legal understanding of “dual-use” goods
In this article, and to launch the Richelieu Committee’s first defence newsletter, Maître Jean-Paul Le Moigne examines the legal and philosophical definitions of goods said to be “dual-use”. This analysis will continue over the next two newsletters dedicated to defence which will appear in 2017. Duality is an important area for the Richelieu Committee, which, in 2016, organised numerous meetings on the theme of “business duality”, inviting both large groups and SMEs to exchange opinions.
Besides goods and technologies for exclusive military or similar use, stakeholders must also consider, and take all necessary precautions regarding, those categories of goods and technologies referred to as “dual-use”, as regulations applicable to such items place the liability and risk onto the company in general and on the industry in particular.
Regulations pertaining to dual-use goods and technologies stem from the establishment, in 1949, by the members of the North Atlantic Treaty Organisation, of COCOM (Coordinating Committee for Multilateral Strategic Export Control), the purpose being to prevent the transfer of strategic products and technologies to Warsaw Pact countries.
COCOM was dissolved at the end of the Cold War and was succeeded by the Wassenaar Arrangement in 1995. There are currently several international legal organisations controlling exports of sensitive goods, including, notably: the NSG (Nuclear Suppliers Group) and the Zangger Committee, the MTCR (Missile Technology Control Regime), the Chemical Weapons Convention (CWC), and the aforementioned Wassenaar Arrangement.
Given the strict obligations that apply to these strategic goods, it is necessary, first and foremost, to consider the nature of duality.
Duality does not correspond to the concept of a weapon “by definition”
A weapon is defined in paragraph 1, Article 132-75 of the French Criminal Code: a weapon is any object intended to kill or injure.
The concept of a weapon is also defined in Article R. 311-1 of the French Internal Security Code, according to which a weapon (by definition) is any object or device designed or intended by its very nature to kill, injure, hit, neutralise or incapacitate. Notwithstanding the fact that in terms of the rather unfortunate wording of this definition by the regulatory authorities, a golf club becomes, administratively, by definition a weapon as it is designed and intended to “hit”, dual-use goods do not fall under this definition. They are not weapons and they are not governed by the regulations applying to the latter.
”Duality” does not mean “misuse”
The confusion is easy to make. On the contrary, a product should be considered as dual-use not because it can be misused in relation to its intrinsic function (for which it was initially designed and manufactured), but because it may have both a military and civil use. Misusing an object is using it in a radically different way to its intended use.
For example, a civil aircraft used to ram a very high building does not become military, nor dual-use, because it was used for a reason other than that for which it was built (to transport passengers). It may, however, be classified as a criminal weapon by destination (Article 132-75, paragraphs 2, 3 and 4 of the Criminal Code) as, misused in terms of its sole use to transport passengers or freight, it has been used to destroy, terrorise, kill and injure.
Duality is an intrinsic characteristic of objects
Dual-use goods are a category of sensitive goods which in most cases are intended for civil use, but which could be used to construct applications for military use or which could significantly enhance the military capabilities of the countries that acquire them. It is their specific structural characteristics that enable them to be used for both civil and military purposes.
Dual-use goods are in the lists, but not exclusively
These goods and technologies are subject to international, foreign (American in particular) European and French regulations. They are also subject to customs regulations.
The “root” regulation is represented by EU Council Regulation no. 428/2009 of 5 May 2009, as amended, which establishes community-wide control of exports, transfers, brokering and transit of dual-use goods, as well as a common list of such goods.
Finding out if a good falls under the regulations would be straightforward were it simply a case of checking it came under one of the categories on the list. A good may, however, be subject to export restrictions on dual-use products even though it is not on the ad hoc list, under what is commonly referred to as the “catch all” clause.
This system, created in the USA and adopted with a few alterations by the European Union, is a response to the shortcomings of the list-based system (fast pace of technology, overly precise definitions of listed goods, update delays, etc.). It enables the national authorities to place goods that are not in the lists back under the export control system and shift responsibility back to the company.
This provision has potentially damaging consequences for stakeholders. The greatest care should be taken if there are any doubts as to the technical characteristics of the good concerned, and an off-licence inspection or technical assessment should be sought.
In all cases, however, the risk is borne by the exporters, as it is they that must determine the “dual” nature of their products and technologies.
Maître Jean Paul Le Moigne is a lawyer at the Paris Bar. He specialises in goods and technology subject to specific regulations, including weaponry and dual-use goods. He holds a doctorate in law and wrote a thesis on regulations relating to weaponry.
He is a member of the working group working closely with the Commission for Reform of Weaponry and Military Equipment Regulations.
He is an auditor at the IHEDN (Institute of Advanced Studies in National Defence) in Paris.