A Prescription for Curing U.S. Export Controls
83 Pages Posted: 4 Mar 2013 Last revised: 29 Aug 2014
Date Written: March 3, 2013
Unlike inbound trade regulation, which is characterized by deep multilateralism, the regulation of export trade is characterized by significant unilateralism. Nowhere is this more apparent than with the United States’ export control laws. Since at least 1982, the United States has claimed the power to regulate the use and reexport of U.S. origin goods, software, and technologies located abroad, based primarily on the fact that these items are of U.S. origin (or are foreign-origin items with some U.S. content). These “item origin-based” jurisdictional claims, which in 1982 arose from a trade dispute with European countries over a proposed natural gas pipeline from the Soviet Union, resulted in a flurry of academic commentary in the 1980s, with most commentators condemning this U.S. assertion of extraterritorial jurisdiction. Attention to the issue has waned since then, but the United States’ problematic assertion of item origin-based export control jurisdiction remains in place.
This Article asserts that the United States’ longstanding claim of extraterritorial export control jurisdiction is an under-appreciated but vitally important issue in need of resolution. Exponential growth in international trade means that the United States’ asserted jurisdictional reach is vastly broader today. This Article explains the nature and mechanics of the United States’ jurisdictional claim, provides a summary of the 1982 Soviet gas pipeline trade dispute, reconsiders the justifiability of the United States’ jurisdictional claim under prescriptive jurisdictional principles of international law, and finds the current approach legally awkward and strategically insufficient. It then considers the issue through the lens of more recent scholarship on transnational networks, mutual recognition arrangements, and unilateral trade actions, and concludes by recommending a multilateral approach that offers greater promise of both policy effectiveness and legality under international law.
Keywords: exports, export controls, outbound, jurisdiction, extraterritorial, extraterritoriality, sanctions, embargoes, WTO, world trade organization, networks, wassenaar
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