EXPORT CONTROL OF DUAL-USE ITEMS: A COMPARATIVE STUDY OF THAI AND FOREIGN LAWS

Abstract

The terrorists attack on 9 September 2001 in the United States the World Trade Center and the Pentagon by the hijacked airplanes caused a great number of casualties. As a result, terrorism has affected and become a new important problem in global community.

Terrorists have developed complex processes to procure materials and equipment for producing or obtaining WMD. Therefore, to prevent WMD proliferation and terrorism, many developed states are trying to encourage other states to develop their own effective export control measures for any material or technology that can be used to develop WMD in order to prevent harm that may be caused to peace and security of global community. Thus, “Dual-Use Items (DUI)” which are referred to goods, software and technology that can be used for both civilian and military applications and/or can contribute to the proliferation of WMD, are subject to control under domestic export laws of each state. Thus, the United Nations Security Council (UNSC) adopted the Resolution 1540 in 2004 requires all member states to adopt domestic laws to prevent the proliferation of WMD by controlling concerned activities namely export, re-export, transit, transshipment, brokerage, provision of fund and service related to WMD or related materials which could be used for the design, development, production or use of nuclear, chemical and biological weapons specified by relevant multilateral treaties. Many states in Asia, as members of the United Nations, have developed domestic laws focused on export control measures of DUI such as Japan, Singapore and Malaysia etc. to fulfil its obligations under such Resolution.

As for Thailand, the Cabinet endorsed UNSCR 1540 since 10 August 2004 and the Thai government considered formulating national export control law following the adoption of such Resolution. The export control law of DUI was prescribed by the Ministry of the Commerce under the title of “The Ministerial Notification Specifies Dual-Use Items as Goods Requiring Permission and Complying the Export Measures B.E.2558 (2015),” on 16 October 2015, ten years after the endorsement of Resolution 1540. This Ministerial Notification will take effect on 1 January 2018. However, this Law has no provision regarding export permission measures of DUI. Thus, this may cause unclear practices in operation of the exporters. Moreover, this Ministerial Notification does not cover brokerage and intangible technology transfer.  Likewise, this Law is issued under “Export and Import of Goods Act B.E.2522 (1979)” under which penalty is not specified on the basis of intention and knowledge of violator.

This thesis mainly focuses on the enforcement of the Ministerial Notification Specifies Dual-Use Items as Goods Requiring Permission and Complying the Export Measures B.E.2558 (2015) and the draft Trade Control on Weapons of Mass Destruction Related Items approved by the Cabinet in comparison with export control laws of DUI of Japan, Singapore and Malaysia in order to increase the effectiveness of export control system to prevent the proliferation of WMD together with to facilitate the permission process of controlled activities and to reduce difficulties caused to the operations of the entrepreneurs.