Export Controls and Economic Sanctions: Counterterrorism, Nonproliferation, National Security, and the Foreign Policy of the United States

National Security Law Casebook
June 2015

In this book chapter, Larry Christensen and Abigail Cotterill address the regulation of defense articles and services by the International Traffic in Arms Regulations (ITAR) and explain the dual-use regulations of the United States, particularly with respect to the Export Administration Regulations (EAR) of the Department of Commerce and its Bureau of Industry and Security. "The export control and economic sanctions practitioner will find the U.S. Government regulations relevant to virtually every export control question and the statutory authority relevant to a tiny number of export control questions," the authors said. Thus, the chapter discusses the statutory authority for export controls in brief and concentrates on the structure of ITAR and EAR.

The authors address the regulatory programs implemented by the Department of Treasury's Office of Foreign Assets Control (OFAC) and outline the programs' division into categories, which include List-Based Programs, Limited Program and Comprehensive Programs. Christensen and Cotterill also consider how re-export controls on the transfer of goods, services and technology from one non-U.S. country to another are at the core of export controls and economic sanctions in the United States. The chapter concludes with a discussion of the limits on the extraterritorial reach of export controls and economic sanctions. "Practitioners and regulators spend the vast majority of their time and effort focusing on the prescriptive rules and statutes. That is as it should be," they said. "However, a full understanding of the U.S. export controls and economic sanctions system requires practitioners, prosecutors, regulators, and courts alike to appreciate the various means of jurisdictional reach, the extension of that reach by prosecutorial strategies, and the potential limits that may be imposed by the courts under the Restatement (Third), the void for vagueness doctrine, and the right to allow a jury to decide a mixed question of law and fact."

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