One of the basic rules in trade law is the freedom of trade. However, such rule encounters some limitations when the object of trade is constituted by strategic items, such as dual-use items, which may have peaceful (civilian/commercial) or non peaceful/military applications. Trade of these categories of goods needs to be controlled, as they can provoke security concerns. Such control is pursued through control lists, licenses, authorizations to stakeholders of the supply chain, information- sharing and cooperation mechanisms, reports, records, declarations, screenings and sanctions as well. The paper aims at focusing on the issue of sanctions, in particular the ones established at the international level: these measures are provided for the violation of trade rules in reference to dual-use items, and/or sanctions have as an object this type of goods. The legal provisions established by the World Trade Organization (WTO) and at the United Nations level are analysed thereafter. Brief observations are offered as regards the EU framework of restrictive measures too. ; Peer reviewed
One of the basic rules in trade law is the freedom of trade. However, such rule encounters some limitations, derogations and exceptions when the object of trade is constituted by strategic and sensitive items. The concept of "strategic trade" is one of the most ambiguous ones, and there is not a common definition of it. Even if the General Agreements on Tariffs and Trade (GATT) does not offer such an explanation, its Article XXI can be construed as referring to strategic trade, as much as it states that the provisions of GATT (grounded on free trade) need not apply in cases where "essential security interests" are involved. The concept of "essential security interests" is also vague, as it is left upon the individual parties to the GATT to decide what it means. Despite such 'slippery slope' in the definition of terms, it results, however, that strategic trade is linked to norms and measures that aim at controlling trade, in order to ensure the protection of non economic needs, such as national security, public morals, public order, etc. This area finds at the intersection of commercial and foreign policy. For ensuring the protection of non economic interests, it is necessary to introduce measures that provide for controls on all activities conducted by individuals, organizations, and groups regarding goods, equipment, materials, services related to strategic items: these activities shall cover the whole supply chain, including design, development, production, possession, delivery, transport, transit, trans-shipment, financing, brokering, exports, re-exports, transfers and imports. The actors intervening in the draft of rules and controls are mainly the States, and the international and regional organiza- tions; then, important subjects are national licencing authorities and enforcement agencies such as customs, border security, police and armed forces, if needed. The targets of such measures of control could be the States, if the rules at the international or regional level are addressing them, and/or the operators involved in strategic trade. Considering the ways in which States organize such controls, the reality shows that they have introduced control lists, licences and authorisations granted on the basis of conditions and criteria, information-sharing and cooperation between authorities and operators, duties of transparency through reports, records, dec- larations and screenings. Moreover, measures exist that consist of restrictions, bans and penalties providing that consequences in case of violation of strategic trade rules. Therefore, the issue of sanctions is a relevant part of the strategic trade law, and it inserts within that context. The purpose of this contribution is to define what sanctions in strategic trade mean and to systematize them accordingly. In particular, the sanctions are categorized into three groups: A. "supranational sanctions"; B. "implementing sanctions"; C. tertium genus: "unilateral sanctions" and "countermeasures". ; Peer reviewed
One of the basic rules in trade law is the freedom of trade. However, such rule encounters some limits when the object of trade is constituted by strategic and sensitive items, among which there are the so-called 'dual-use' goods and technologies. Despite the difficulty to define them, there is a common understanding that they are materials and items normally used for civilian/peaceful purposes but which may also have military application. Because of their 'sensitiveness' and their risk to affect security, health, the environment etc., their trade needs to be controlled. One form of controlling their trade is represented by the imposition of sanctions to be adopted in case of violation of trade rules. In our understanding, there are three categories of sanctions: (a) 'supranational' ones, enacted at the international and European Union (EU) level, which are addressing the whole States ('comprehensive' sanctions, such as embargoes, boycotts and financial measures), or specific individuals or groups involved in legal activities ('targeted' or 'smart' sanctions, such as asset freezes and travel bans); (b) 'implementing' ones, which are enacted at national level. They consist of administrative, civil or criminal rules implementing legally binding/'hard law' supranational rules (i.e., national sanctions for violation of international or regional embargoes or other trade sanctions), and those implementing politically binding or 'soft law' rules (i.e., national sanctions for the violation of export control regimes, which are the guidelines for dual-use trade, provided by international forum of countries within the Zangger Committee, the Nuclear Suppliers Group, Australia Group, the Wassenaar Arragement and the Missile Technology Control Regime, and at the EU level through the Regulation 428/2009); and (c) 'unilateral sanctions' and 'countermeasures', which are National autonomous measures against another State or the single citizens of that State. In this paper, the focus is posed on the first category only. It aims to ...
Trade sanctions consist of export restrictions and embargoes, or import or customs restrictions, and boycotts. Such measures, which can be adopted at the international, regional or national level, are economic tools for achieving foreign policy objectives. The effects that they produce are several, and they cover the political, economic and social spheres. This article analyzes the possible consequences of trade sanctions, in particular embargoes addressing targeted states, in order to evaluate their effectiveness. Two case studies of sanctions, the Iranian and the Russian case, are presented. ; Peer reviewed
Law is changing. Although both specialists and society as a whole often act as if it is an un-changing monolith, any rational commentator must note that it has evolved over time. Changes do occur, in doctrine, in procedure, in jurisprudential understanding, and in legal education. The factors which drive innovation in law include social transformation, cultural change, and, importantly, the technological possibilities of the times for creating, storing and applying legal information. New technologies can also require new doctrinal developments. Such changes often do not come easily for the legal system. The myth of stability is maintained in part because the acceptance by the public rests on this assumption. It remains a myth, nonetheless. The impact of innovation on law is clearly two-fold: on the one side, innovation invests the way law is created, managed, and applied. On the other side, the emersion of new technologies calls for a reshaping of existing legal norms in specific fields. The book is divided into two parts. The first one offers a general overview on the systemic technologically-driven change law is going to face in the next few years. In the second part, issues like robotics, genetics, ICTs, Internet, protection of intellectual property rights, synthetic biology are presented as a laboratory bench of scientific and technological innovation which calls for legal innovation. This book, together with the course Innovating Legal Studies and Practice, established at the University of Pavia, is one of the principal outcomes of a two-year project funded by Cariplo Foundation (Fondazione Cariplo, Milan). ; Peer reviewed
The main rule in trade law is the freedom of trade. However, some limitations should be introduced for protecting non-economic interests, such as security. One of the ways for ensuring these interests is represented by national strategic trade control systems. In case of violation of these rules, sanctions should be provided. The contribution aims at analysing the existing sanctions in trade law area, distinguishing between "internal penalties", meant as the violation of export control regimes, and "external sanctions", referred to the violation of embargoes. The analysis is a comparative one, and focuses particularly on the EU level. ; Peer reviewed
Nuclear proliferation poses a severe threat to the international community, and the role of the law in this area is crucial. The notion of 'nuclear non-proliferation' is twofold: (a)disarm or vertical non-proliferation: measures for reduction of the number of existing arsenals; (b)horizontal non-proliferation: containment of the number of States and no State entities that do not have but are acquiring nuclear weapons, or developing the capability and materials for producing them. Different sources of the law exist at the international and regional level for addressing the issue. For the implementation of the principles and obligations embedded in the agreements, it is essential to set up a verification and safeguards system. Safeguards provisions are established at the international and regional level. Thus, the aim of this study to analyse, critically and comparatively, the different safeguards systems that have been legally adopted at the international and regional level so far.
In the area of nuclear non proliferation, the illicit trade of goods that could be used to create nuclear weapons cannot be neglected. Indeed, many States and non-States actors seeking nuclear weapons or wanting to maintain existing nuclear weapons arsenals or capabilities look for obtaining, acquiring and transporting in their own States or locations dual-use technologies, items and materials. This entails a chain of "actors": (a) the suppliers of goods, (b) a procurement organization, (c) a trade company for the procurement of goods, (d) intermediaries in transport, and (e) banks which could finance the operations. Therefore, a set of measures for preventing the illicit trade, and for sanctioning the occurred one, need to be defined. The paper aims at focusing on the "sanctioning" phase for illicit trade of dual-use nuclear items. It analyses the set of sanctions established at the international and European Union level, precisely the economic sanctions (e.g.: embargos), the financial one (i.e., freezing of assets), the visa and travel bans, and the limitations on transport of goods (i.e., export/import restrictions), by considering the legal texts adopted in the international and European Union framework, according to a comparative analysis.
The speech aims at delineating a proper ethical and legal response to the 'dual-use dilemma' of nuclear science and technologies. After assessing the different models of governance proposed so far in nuclear field for addressing the 'dual-use' feature of nuclear technologies, and based on precautionary, proactionary or cost/benefit approaches, it suggests the adoption of a framework based on the notion of 'responsible stewardship'. This model entails: (a) a constant analysis of nuclear technology, both on the side of risks and of benefits, through the involvement and cooperation of all the stakeholders in the field (the involvement of both 'top down' and 'bottom up' actors, i.e. governments and scientific community); (b) the adoption of policies through 'hard law' and 'soft law' sources, which should be periodically revised, and based on the proportionality principle and the reasonableness one (with a balance among rights and freedom, from a constitutional viewpoint); (c) an ongoing communication, dialogue and interaction between actors in the nuclear area. A specific attention is devoted to the balance between the freedom to research and the security needs. Then, the concrete ways for applying such model are explained, in particular with regards to the issue of control of materials, education of people, and control of information. Finally, the historical steps in the governance of nuclear technologies and the positions of different religions addressing the issue have been explored, in order to provide some examples of the suggested approach.
Synthetic biology, which is a new emerging technology aiming at re-writing existing biological systems and designing completely new parts and devices, brings several potential benefits, but at the same time it constitutes a new threat to biosecurity: for such "double Janus face", it can be considered as a "dual use research". Indeed, the risk that its theoretical discoveries and applications are handled by bioterrorists and used for malevolent purposes is not a mere hypothesis. Therefore, it is necessary to look for possible solutions for the governance of this type of risk. In order to try to achieve such purpose, the analysis focuses, first of all, on the overview of the existing regulations against bioterrorism. Then, these regulations are evaluated in the light of the constitutional frame of fundamental rights at stake (in the belief that any policy/regulation should take into account and be based on the respect of fundamental rights). Thirdly, the applicability of the existing regulatory framework to synthetic biology is checked. Fourthly, the different positions that have been proposed so far for addressing biosecurity risks in the area of synthetic biology are shown and put into comparison. Finally, the proposal of a model of governance, called of "prudent vigilance", is described. ; Peer reviewed
Science and technology require an intervention by the law, and law is called upon to intervene in front of their evolution, and to look for proper solutions of governance and rational responses to their risks. One of the main issues to be investigated from the legal viewpoint is represented by the 'dual-use dilemma' that arises both in 'traditional' and new areas of techno-sciences. Indeed, any kind of research has the potential to be used both for bad as well as for good purposes. Therefore, it is important to reflect upon the ways to control possibly dangerous research without preventing the progress from going further. Such 'dual-use dilemma', then, entails the study of one of the fundamental freedoms in the biolaw area: the freedom of scientific research, its limits, and relationship with other rights/needs/freedoms (such the need of security). This work focuses on two areas of the techno-scientific world. One is more 'traditional', i.e. nuclear science, in whose context the reflections on 'dual-use' were born and developed, and the other one is a new emerging technology, which is synthetic biology. The aim is to understand how the freedom of scientific research could be shaped in relationship with other rights/needs/interests for dealing with 'dual-use' issues in the aforementioned areas of science and technology. ; Peer reviewed
The Doctoral thesis is about the relationship between synthetic biology and the law. It aims at elaborating a model of governance and regulation against the risks of synthetic biology, using the "prudent vigilance" approach and the human rights frame. Synthetic biology occupies a relevant position among the new emerging technologies. The potential applications of this field of research, characterized by the adoption of an engineering approach to life, together with a trend to converge between different technologies, span several fields. However, it could also generate numerous risks. This thesis aims at individuating a regulatory framework and a model of governance for addressing the risks and concerns arising within synthetic biology area. This is to ensure that the progress is not hindered but, at the same time, the problematic issues are not neglected or under evaluated. The suggested model is named " prudent vigilance" (inspired by the report about synthetic biology, drafted by the U.S. Presidential Commission on Bioethics, 2010), and it entails an ongoing and periodically revised process of assessment and management of all the risks and concerns, taking into account the interests of all the stakeholders in a dynamic, cooperative, democratic, open and transparent manner. Furthermore, it suggests the adoption of policies that are based on the principle of proportionality (among benefits and risks) and on a reasonable balancing between different interests and rights at stake. These policies should be taken through "hard law" and "soft law" sources, thus involving "actors" at all levels (governments, institutions, the scientific community and general public), and the enforcement and control of those policies should be exercised by judges coupled with independent professional bodies, where all the stakeholders are represented. The policies should also be oriented by a constitutional frame, that is represented by the protection of fundamental human rights emerging in the field of synthetic biology (right to life, right to health, dignity, freedom of scientific research, right to environment). After the theoretical explanation of the chosen model, the operability of it is " checked" , by considering, as a case study, its application with reference to a specific risk brought up by synthetic biology - biosecurity risk, i.e. the risk of bioterrorism.
The role of the law in front of nuclear technologies and nuclear weapons is a meaningful one. The law is aimed to regulate the existing nuclear activities, or – at a preliminary stage – to (try to) prevent and govern the risks arising from the misuse of nuclear technologies, or to tackle the problem of nuclear proliferation. However, on many occasions, it appears that the law is inefficient to deal with these issues. Thus, the paper proposes some "best practice" legal ways to be followed, in order to build a cooperative nuclear compliance at a global level. The analysis starts from the focus on the Treaty of Non-Proliferation (NPT), highlighting the content of Article VI as judicially interpreted by the International Court of Justice, and examining the gaps and limits that the NPT still owns. After defining the notions of "verification, compliance and enforcement", the paper concentrates on some methods and mechanisms that have been established at the international law level in general, with the purpose to obtain the respect of international rules. In the belief that the comparison could be useful as a "source of inspiration" for the nuclear non-proliferation, the chosen ways of verification and compliance pertain to the area of environmental law and trade law. On the basis of such comparison, a set of guidelines for enhancing cooperative compliance in the nuclear field is concretely offered. In particular, it is stressed to (a) collect and monitor the data; (b) reinforce the structure and action of the International Atomic Energy Agency (IAEA); (c) involve other UN bodies, of States and civil society; and (d) follow the principles of (i) the rule of law, (ii) impartiality and non-discrimination, (iii) transparency, and (iv) responsibility. ; Peer reviewed
