Obligations Related to Transfers of CBRN Weapons and Dual-Use Items

The purpose of this Chapter is to review the international legal framework on CBRN non-proliferation by focusing on export controls. Export controls are preventive measures used by governments to limit international trade in a number of controlled goods, the most important of which are CBRN weapons and dual-use items (ie goods, materials and technology that may be used for both civilian and military purposes). For the most part, export controls are deployed to protect international and national security, but they can also be used for purely economic strategic goals. The description of the variety of forms that export controls can take (ie export bans, taxes, quotas, licensing requirements) will not be the object of this research. Nor is this chapter going to analyse and compare national legislation regulating the export of CBRN items. Instead, we will describe the complex network of treaty-law and soft-law instruments that govern this field. Indeed, lists and guidelines adopted by the so-called ‘informal export control regimes’ play a very important role. With this definition we describe the fora (the Zangger Committee, Nuclear Suppliers Group and Australia Group ) in which groups of industrialised countries convene to coordinate their trade controls over the export of CBRN materials, items and technology (with the transfer of CBRN weapons being per se strictly prohibited). Notably, these regimes are not treaty-based, they do not have international legal personality, their deliberations are not legally-binding and they do not establish any formal verification mechanism. Informal regimes have often been established to ‘complement’ a treaty regime. However, the relationship of the informal export control regimes with multilateral non-proliferation treaties raises many problematic issues. Can their acts be considered supplementary – and therefore useful – means of treaty interpretation? Or are they facilitating the adoption of overly restrictive export control measures which are at odds with treaty provisions like the ones that encourage international cooperation for peaceful purposes?