A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office Legal and Regulatory Bases for Export Control – a view from Austria Wassenaar Arrangement Practical Workshop 27/28 June 2016

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office  Austrian law distinguishes “war material” (War Material Act) and “defence and dual use goods” (Foreign Trade Act)  The War Material Act applies to international transfers of all weapons form semi-automatic guns upwards, e.g. tanks, rocket launchers, grenades etc. Covers: export, import, transit, transhipment.  The Foreign Trade Act applies to international transfers of small and light weapons, some military vehicles as well as to dual use goods. Covers export, transit, transhipment to non EU/EAA countries. 2 The bases for transfer control in Austrian law

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office War Material Act: Competent authorities  Lead Agency: Ministry of the Interior  Consent for positive licences required by Ministry of Europe, Integration and Foreign Affairs  Also heard: Ministry of Defence 3

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office Foreign Trade Act: Competent authorities  Lead Agency: Ministry of Economy, Research and Science  Ministry of Europe. Integration and Foreign Affairs gives a non-binding opinion on foreign policy criteria  Also heard: Ministry of Defence 4

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office The criteria in the Foreign Trade Act  Austria’s obligations under international law;  Austria’s obligations under international regimes of export control;  Human rights and humanitarian law aspects;  The internal situation in the country in question;  maintenance of peace, international security and regional stability;  consequences for the security interests and international relations of Austria and the security interests of other EU member states;  implications in view of terrorist activities and international organised crime;  risk of diversion to undesired use;  sustainable development. 5

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office The criteria in the War Material Act  the import, export or transit of the material in question must not contradict Austria’s obligations under international law or foreign policy interests of Austria;  the final destination of the export or transit must not be an area where there is armed conflict, the threat of armed conflict or otherwise dangerous tensions;  the final destination of the export or transit must not be a country where there is a substantial risk that due to serious and repeated human rights violations in the past the war material may be used for human rights abuses;  Embargos issued by the UN Security Council must be taken into account 6

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office Challenges in the licensing process  Principle of free trade. Exceptions have to be well founded. Export control regimes such as Wassenaar (military goods and related items). EU military list based on Wassenaar, some additional items on Austria’s national list.  Information: Embassy reports, reports of IOs, NGOs, media. Austria uses only open sources.  Evaluation: War Material Act and Foreign Trade Act allow for assessment by administration. National practice, court decisions, EU user’s guide.  Review: judicial review, companies, Parliament, NGOs. 7

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office EU Common Position 2008/944 CSFP EU user‘s guide  Export control continues to be exclusive national competence. No harmonisation, but convergence..  The User’s guide provides best practices for all criteria and makes useful reading.  Criterion 2: Human Rights and International Humanitarian Law  Key concepts and questions: Recipient (countries) attitude towards international HR/IHL instruments, design and intended use of the goods for internal security, record of the recipient.  Internal repression: Torture/other forms of inhuman treatment, executions without due process, letting people disappear, unlawful arrests.  Clear risk vs. overriding risk.  Gender based violence  Criterion 3 + 4: Internal situation/regional stability: Austria looks on facts on the ground, background Austrian neutrality.  Criterion 7: risk of diversion: 8

A project implemented by BAFA This project is funded by the EU This project is funded by the German Federal Foreign Office The Arms Trade Treaty (ATT)  First legally binding instrument to regulate international transfers of conventional weapons  Entered into force 24 December 2014  Currently 83 States Parties, 130 Signatories,  Important provisions:  Control system and control list  Art. 6: prohibitions  Art. 7: Assessment criteria  Art. 11: Diversion  Art. 13: Reporting  Art. 16. International Assistance 9