On February 2, 2018, the State Department’s Directorate of Defense Trade Controls (“DDTC”) announced via web notice a significant change in its export policy vis-à-vis South Sudan. Per Section 38(a) of the Arms Export Control Act (“AECA”) (22 U.S.C. 2778), the DDTC has added South Sudan to its list of proscribed countries in Section 126.1 of the International Traffic in Arms Regulations (“ITAR”) (22 CFR Parts 120 – 130). Accordingly, the DDTC will begin denying, with limited exceptions, licenses or other approvals for the export of defense articles and services controlled under the International Traffic in Arms Regulations (“ITAR”) to South Sudan. The new policy took immediate effect on February 2ndSee https://www.pmddtc.state.gov/index.html. 

By way of background, the ITAR and the AECA control trade in defense articles and services. A defense article is any hardware (i.e., finished items, systems, equipment, parts, components, accessories, attachments and in certain cases tooling, production and testing equipment) and technical data (which includes software) that is designated on the U.S. Munitions List in Section 121.1 of the ITAR. The provision of services related to a defense article, such as providing training or technical assistance, is also controlled under the ITAR.

All of the so-called “proscribed countries” are identified in Section 126.1 of the ITAR and are sanctioned as a result of U.S. or United Nations arms embargoes. Other ITAR proscribed countries currently include Afghanistan, Belarus, Burma (Myanmar), Central African Republic, China, Cuba, Cyprus, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Lebanon, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Zimbabwe.

Because South Sudan is now an ITAR proscribed country, U.S. persons are, without DDTC authorization, prohibited from–

  • Selling, exporting, transferring, reexporting or retransferring defense articles (directly or indirectly) to South Sudan;
  • Providing defense services to or for the benefit of South Sudan;
  • Submitting proposals or giving presentations for prospective transfers or sales of defense articles (or for the provision of defense services) involving South Sudan.

These prohibitions also apply where an embassy or consulate of South Sudan, wherever located, is involved. As noted above, it is now the DDTC’s formal policy to deny applications for authorizations to trade in defense articles or provide defense services to South Sudan.

There is also an affirmative requirement for U.S. persons to submit voluntary disclosures to the DDTC where they have actual knowledge or reason to know of a proposal, sale, export, reexport or transfer of defense articles or services involving South Sudan in violation of the ITAR. This is the only instance in the ITAR where the filing of a voluntary disclosure is mandatory.

The DDTC’s shift in export policy was in response to the worsening humanitarian crisis and increased violence in South Sudan. The State Department has determined that the government and armed opposition in South Sudan, despite signing the Agreement on the Cessation of Hostilities and ongoing efforts by the Intergovernmental Authority on Development (“IGAD”) to advance peace in December 2017, have continued the use of military force to seek political advantage. As a result of the ongoing conflict, the State Department reports that approximately 1.5 million people are on the brink of famine, 2.4 million people have fled to neighboring countries, and 1.9 million people are now internally displaced. There have also been many reports that the government of South Sudan is obstructing the UN peacekeeping efforts, and that foreign aid workers continue to be killed trying to help victims in the region. The State Department also reports that the United States is seeking support for a UN Security Council Resolution implementing a formal arms embargo on South Sudan. See https://www.state.gov/r/pa/prs/ps/2018/02/277849.htm. 

If you have any questions relating proscribed countries, the ITAR, U.S. embargoes and economic sanctions programs generally, or other international trade issues, please contact Melissa Proctor at Miller Proctor Law PLLC (melissa@millerproctorlaw.com).