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Notice to exporters 2021/14: changes to export control licensing, military end-use controls, & China-specific changes

Notice

NTE 2021/14: updates to the export control regime

Published 8 December 2021

On 8 December 2021 the Secretary of State for International Trade informed Parliament in a written statement about a package of measures to update the export control regime.

In summary these comprise the following measures.

Revised UK Strategic Export Licensing Criteria

A revised version of the licensing criteria for strategic export controls, to be known as the Strategic Export Licensing Criteria have been laid before Parliament.

View the new Strategic Export Licensing Criteria.

These Criteria will be applied with immediate effect to all licence decisions (including decisions on appeals) on goods, software and technology subject to control for strategic reasons (collectively ‘items’) for:

  • export
  • transfer
  • trade (brokering)
  • transit / transhipment

The Criteria will also be applied to the provision of technical assistance or other services related to those items, to the extent that these activities are subject to control.

Revised military end-use control

The definition of military end-use will be enhanced to improve its effectiveness. The change will permit the control, on a case-by-case basis, of non-listed items intended for use by the military, paramilitary, security forces or police forces of a destination subject to an arms embargo.

The control will only be imposed when government informs the exporter that a proposed export is intended for a military end use.

There will be exceptions for:

  • medical supplies and equipment intended for hospitals, or other public health institutions providing medical services
  • food, clothing and or other consumer goods generally available to the public and sold from stock at retail selling points, without restriction

This change will be delivered through a legislative amendment to the Export Control Order 2008, which we intend to lay in Spring 2022.

China

China will be added to the list of destinations subject to military end-use controls. This will rectify an anomaly that derives from the way the EU arms embargo was imposed in 1989 and the drafting of the current legal text.

As with the revised military end-use control, this requires a change to the 2008 Order and will be implemented at the same time. This is planned to come into force in Spring 2022.

This will not change the extent of the partial arms embargo on China.

Contact Export Control Joint Unit (ECJU)

Helpline

Export Control Joint Unit
Department for International Trade 
Old Admiralty Building 
Admiralty Place
London
SW1A 2DY

Email exportcontrol.help@trade.gov.uk

Telephone 020 7215 4594

Contact for general queries about strategic export licensing.

And this is the Secretary of State for International Trade’s statement to Parliament:

Trade Policy Update

Statement made on 8 December 2021

Statement UIN HCWS449

Statement made by

Anne-Marie TrevelyanSecretary of State for International TradeConservativeBerwick-upon-Tweed Commons

Statement

HM Government is committed to a robust and transparent export control regime for military, dual-use and other sensitive goods and technologies. The purpose of these controls is to promote global security and facilitate responsible exports. They help ensure that goods exported from the United Kingdom do not contribute to the proliferation of weapons of mass destruction (WMD) or a destabilising accumulation of conventional weapons. They protect the United Kingdom’s security and our expertise by restricting who has access to sensitive technologies and capabilities. Export controls also help ensure that controlled items are not used for internal repression or in the commission of serious violations of international humanitarian law. They are one of the means by which we implement a range of international legal commitments including the Arms Trade Treaty.

The controls also support the UK’s defence and security industry. The legitimate international trade in military equipment and technology, as well as in dual-use items, enables governments to protect ordinary citizens, to preserve law and order against terrorists and criminals, and to defend against external threats. The Government therefore remains committed to supporting the UK’s defence and security industry and to promoting the legitimate trade in items controlled for strategic reasons.

We keep our controls under regular review to ensure that they continue to properly address the threats we face, keep pace with new technologies, and adapt to changing circumstances such as our exit from the EU, while providing an efficient service which does not impose an unworkable administrative burden on the defence and security industry.

That is why today I am announcing a package of measures to update the export control regime.

First, I am laying before Parliament a revised version of the licensing criteria for strategic export controls, to be known as the Strategic Export Licensing Criteria, as set out at the end of this statement.

These Criteria will be applied with immediate effect to all licence decisions (including decisions on appeals) for export, transfer, trade (brokering) and transit/transhipment of goods, software and technology subject to control for strategic reasons (referred to collectively as “items”); and to the extent that the following activities are subject to control, the provision of technical assistance or other services related to those items. Certain of the Criteria may also be applied to MOD Form 680 applications alongside other considerations and assessment of proposals to gift controlled equipment to other nations’ governments.

As before, they will not be applied mechanistically but on a case-by-case basis taking into account all relevant information available at the time the licence application is assessed. While the Government recognises that there are situations where transfers must not take place, as set out in the following Criteria, we will not refuse a licence on the grounds of a purely theoretical risk of a breach of one or more of those Criteria. In making licensing decisions I will continue to take into account advice received from FCDO, MOD, and other government departments and agencies as appropriate.

The application of these Criteria will be without prejudice to the application to specific cases of specific measures as may be announced to Parliament from time to time. This statement does not impact upon existing specific measures which remain extant until revoked.

Second, the Government will be taking steps to enhance the Military End-Use Control. Currently, the control can only be applied to the export of otherwise non-controlled items which are intended for use as components in, or production equipment for, military equipment in an embargoed destination. This does not allow us to fully address threats to national security, international peace and security, and human rights arising from the use of non-listed items by the military, police or security forces, or entities acting on their behalf, in an embargoed destination.

We will therefore be amending the definition of “military end-use” to remove this limitation. The control would only be applied where the Government informs the exporter that the proposed export is or may be intended for a military end-use in an embargoed destination. To minimise the impact on legitimate trade, there will be exemptions for medical supplies and equipment, food, clothing and other consumer goods.

The review also concluded that there were anomalies and inconsistencies within the UK’s export control regime. As a result of this review, China will be added to the list of those destinations subject to military end-use controls.

Taken together, these changes will also strengthen our ability to prevent exports that might be used directly or indirectly to facilitate human rights violations in all destinations subject to military end-use controls. It also completes the export control review announced to Parliament on 12 January 2021 by the then Foreign Secretary.

Both of these changes concerning military end-use controls require amendments to the Export Control Order 2008. We intend to lay the secondary legislation to implement these changes in the Spring of 2022.

The Strategic Export Licensing Criteria 

This statement of the Criteria is guidance given under section 9 of the Export Control Act 2002. It replaces the Consolidated EU and National Arms Export Licensing Criteria announced to Parliament on 25 March 2014.

CRITERION ONE

Respect for the UK’s international obligations and relevant commitments, in particular sanctions adopted by the UN Security Council, agreements on non-proliferation and other subjects, as well as other international obligations.

The Government will not grant a licence if to do so would be inconsistent with, inter alia:

a) the UK’s obligations and its commitments to enforce United Nations and Organisation for Security and Co-operation in Europe (OSCE) sanctions, as well as national sanctions observed by the UK and other relevant commitments regarding the application of strategic export controls;

b) the UK’s obligations under the United Nations Arms Trade Treaty;

c) the UK’s obligations under the Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention;

d) the UK’s obligations under the United Nations Convention on Certain Conventional Weapons, the Convention on Cluster Munitions (the Oslo convention), the Cluster Munitions (Prohibitions) Act 2010, and the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (the Ottawa convention) and the Land Mines Act 1998;

e) the UK’s commitments in the framework of the Australia Group, the Missile Technology Control Regime, the Zangger Committee, the Nuclear Suppliers Group, and the Wassenaar Arrangement;

f) the OSCE principles governing conventional arms transfers.

CRITERION TWO 

Respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law.

Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, the Government will:

a) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate internal repression;

Internal repression includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment; summary or arbitrary executions; disappearances; arbitrary detentions; and other serious violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.

For these purposes items which might be used for internal repression will include, inter alia, items where there is evidence of the use of these or similar items for internal repression by the proposed end-user, or where there is reason to believe that the items will be diverted from their stated end-use or end-user and used for internal repression. The nature of the items to be transferred will be considered carefully, particularly if they are intended for internal security purposes.

b) Exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN or the Council of Europe;

Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, the Government will:

c) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law.

In considering the risk that items might be used to commit or facilitate internal repression, or to commit or facilitate a serious violation of international humanitarian law, the Government will also take account of the risk that the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children.

CRITERION THREE 

Preservation of internal peace and security

The Government will not grant a licence if, having assessed the potential that the items would either contribute to or undermine internal peace and security, it determines there is a clear risk that the items would, overall, undermine internal peace and security.

When assessing the potential that the items would contribute to or undermine internal peace and security, the Government will take into account, inter alia and where relevant:

a) Whether the grant of the licence would provoke or prolong armed conflicts;

b) Whether the items are likely to be used other than for the legitimate national security or defence of the recipient;

c) Whether the items would be likely to cause, avert, increase or decrease conflict or instability in the country of final destination, taking into account (inter alia):

(i) the balance of forces between states or actors concerned;

(ii) the potential for the equipment to have a significant impact on the effectiveness of existing capabilities or force projection;

(iii) humanitarian purposes or impacts;

(iv) the nature of the conflict, including the conduct of all states or actors involved, and any involvement by the UK and allied states;

(v) border stability and legitimate national security interests of the recipient.

d) Whether the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children.

CRITERION FOUR

Preservation of peace and security

The Government will not grant a licence if, having assessed the potential that the items would either contribute to or undermine peace and security, it determines there is a clear risk that the items would, overall, undermine peace and security.

When assessing the potential that the items would contribute to or undermine peace and security, the Government will take into account, inter alia and where relevant:

a) The existence or likelihood of armed conflict in which the recipient would take part;

b) Whether the recipient has in the past tried or threatened to pursue, by means of force, a claim against the territory of another country;

c) The likelihood that the items would be used in the territory of another country other than for legitimate purposes including national or collective self defence;

d) Whether the items would be likely to cause, avert, increase or decrease conflict or instability in the region, taking into account (inter alia):

(i) the balance of forces between the states or actors in the region concerned;

(ii) their approach to expenditure on defence;

(iii) the potential for the equipment to have a significant impact on the effectiveness of existing capabilities or force projection;

(iv) humanitarian purposes or impacts;

(v) the nature of the conflict, including the conduct of all states or actors involved, and any involvement by the UK and allied states;

(vi) border stability and legitimate national security interests of the recipient.

e) Whether the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children.

CRITERION FIVE

The national security of the UK and territories whose external relations are the UK’s responsibility, as well as that of friendly and allied countries.

The Government will take into account:

a) the risk of the items undermining or damaging the UK’s national security or those of other territories and countries as described above;

b) the risk of the items being used against UK forces or against those of other territories and countries as described above;

c) the need to protect classified information and capabilities.

CRITERION SIX

The behaviour of the buyer country with regard to the international community, as regards in particular its attitude to terrorism and transnational organised crime, the nature of its alliances and respect for international law.

a) Having assessed the potential that the items could be used to commit or facilitate an act constituting an offence under international conventions or protocols to which the UK is a Party relating to terrorism or transnational organised crime, the Government will not grant a licence if it determines there is a clear risk that the items could be used to commit or facilitate such an act.

In making this assessment, the Government will also take account of the risk that the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children.

b) The Government will also take into account, inter alia, the record of the buyer country with regard to:

(i) its compliance with relevant international obligations, in particular on the non-use of force, including under international humanitarian law applicable to international and non-international conflicts;

(ii) its commitment to non-proliferation and other areas of arms control and disarmament, in particular the signature, ratification and implementation of relevant arms control and disarmament instruments referred to in Criterion One.

CRITERION SEVEN

The existence of a risk that the items will be diverted to an undesirable end-user or for an undesirable end-use

In assessing the risk that the items might be diverted to an undesirable end-user or for an undesirable end-use, the Government will take into account:

a) the legitimate defence and domestic security interests of the recipient country, including any involvement in United Nations or other humanitarian or peace-keeping activity;

b) the technical capability of the recipient country to use the items;

c) the capability of the recipient country to exert effective export controls;

d) the risk of re-export to undesirable destinations;

e) the risk of diversion to terrorist organisations, individual terrorists or to transnational organised crime;

f) the risk of reverse engineering or unintended technology transfer;

g) the risk of an undesirable end-use either by the stated end-user or another party.

CRITERION EIGHT

The compatibility of the transfer with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources.

The Government will take into account, in the light of information from relevant sources such as United Nations Development Programme, World Bank, IMF and Organisation for Economic Cooperation and Development reports, whether the proposed transfer would seriously undermine the economy or seriously hamper the sustainable development of the recipient country.

The Government will consider in this context, amongst other factors, the recipient country’s relative levels of military and social expenditure, taking into account also any bilateral or multilateral aid, and its public finances, balance of payments, external debt, economic and social development and any IMF or World Bank-sponsored economic reform programme.

OTHER FACTORS

In exceptional circumstances the government may decide not to grant a licence for reasons other than those set out in Criteria 1 to 8 where the items may have a significant negative impact on the UK’s international relations.

The above statement has the same URL as the Licensing Criteria link in the Notice to exporters, so don’t waste your time clicking on it – Mr. Watchlist has already done it for you!

Links:

Notice to exporters 2021/14

Secretary of State for International Trade statement

Categories: End-use Controls Export Control Export Control Joint Unit Military Goods Notice to Exporters

eric9to5

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