1 SC Res. 418, adopted Nov. 4, 1977, 32 UN SCOR (2046th mtg.), UN Doc. S/P.V. 2046 (1977); 72 AJIL 408-09 (1978).

2 See 43 Fed. Reg. 7,311 (1978). A further publication of the Commerce Department in September 1978 sought to clarify the meaning of the terms “military” and “police.” See 43 Fed. Reg. 43,449 (1978).

3 See text at notes 58-74 infra. Unless otherwise indicated, all references to South Africa apply to Namibia as well.

4 For various presentations of this line of argument, see testimony of various corporate officials in South Africa: Hearings Before the Subcomm. on African Affairs of the Senate Comm. on Foreign Relations, 94th Cong., 2d Sess. 36, 436, 445 (1976) [hereinafter cited as 1976 Hearings].

5 This article does not cover the export of U.S. nuclear equipment and technology to South Africa.

6 U.S. Mission to the United Nations: Press Release No. 4233, August 2, 1963; reprinted in Implementation of the U.S. Arms Embargo: Hearings Before the Subcomm. on Africa of the House Comm. on Foreign Affairs, 93d Cong., 1st Sess. 278 (1973) [hereinafter cited as 1973 Hearings].

7 18 UN SCOR (5386th mtg.), UN Doc. S/P.V. 5386 (1963).

8 18 UN SCOR (5471st mtg.), UN Doc. S/P.V. 5471 (1963).

9 U.S. Mission to the United Nations: Press Release No. 4328, December 4, 1963; reprinted in 1973 Hearings, supra note 6, at 281.

10 Although these guidelines have never been officially made public, the authors have obtained a copy. They are generally described in United States-South Africa Relations: Arms Embargo Implementation: Hearings Before the Subcomm. on Africa of the House Comm. on International Relations, 95th Cong., 1st Sess. 51 (1977) (statement of William H. Lewis, Director, Office of Inter-African Affairs, Department of State) [hereinafter cited as 1977 Hearings].

11 These sales appear to have consisted primarily of Mark 44 torpedoes sold to the South African Navy and spare parts and maintenance items for 7 C-130 transport aircraft sold to the South African Air Force. See 1973 Hearings, supra note 6, at 96, 131-32, and 144.

12 For a description of these items, see 1977 Hearings, supra note 10, at 56.

13 Id. at 51.

14 See, e.g., United States-South African Relations: Hearings Before the Subcomm. On Africa of the House Comm. on Foreign Affairs, 89th Cong., 2d Sess. 53 (1966) (statement of Alexander Trowbridge, Assistant Secretary of Commerce for Domestic and International Business).

15 Ibid.

16 See N.Y. Times, Oct. 13, 1974, §1, at 12, col. 1.

17 For a more detailed discussion and analysis of the origins of this policy, see 1976 Hearings, supra note 4, at 181-95, 231–5.

18 Excerpts from both the National Security Council study and the resulting Decision Memorandum were “leaked” in 1974 and were published in Szulc, Why Are We in Johannesburg?, 82 Esquire 48 (No. 4, October 1974).

19 Id. at 60.

20 See 1973 Hearings, supra note 6, at 147. During the period the Nixon guidelines were in effect, the United States approved the sale of 6 Lockheed L-100’s, the “civilian” version of the C-130 military transport (N.Y. Times, Feb. 11, 1976, at 75, col. 1); 7 “executive jet” aircraft which could be adapted for reconnaissance and military transport use (see Klare, & Prokosch, , Getting Arms to South Africa , The Nation 50 (July 8-15, 1978)Google Scholar); computers for military materials inventory (see 1977 Hearings, supra note 10, at 45-46); the NATO coding system for military supplies and spare parts (see Minty, , Implementing the Arms Embargo Against South Africa , 9 Objective: Justice 23 (Winter 1977/78)Google Scholar); and 25 Augusta-Bell 205A Iroquois helicopters, the “civilian” version of the Huey Iroquois used in Vietnam (1977 Hearings, at 13, 17). Indeed, while U.S. aircraft sales to South Africa averaged $30 million a year from 1965 to 1970, they jumped to an average of $60 million for the years 1971-1973 and to an average of over $170 million for the years 1974-1976. See 1973 Hearings, supra note 6, at 58 and 1977 Hearings at 56.

21 See, e.g., 1973 Hearings, supra note 6, at 27, 55, 56, 86, and 148.

22 See id. at 53.

23 See 1977 Hearings, supra note 10, at 51.

24 Id. at 52. One indication of this stricter enforcement is that aircraft sales for the first 6 months of 1977 dropped precipitously from the $60-170 million annual levels discussed above, supra note 20, to only $13 million. Id. at 56. The new Carter administration policy also resulted in U.S. support for UN Security Council Resolution 418, adopted on November 4, 1977 (supra note 1), which made the previously voluntary ban on the export of arms mandatory.

25 22 U.S.C. §§2751-94 (1976).

26 In addition to the AECA, which governs arms sales, the Foreign Assistance Act of 1961, as amended (FAA), governs nonsale transfers of arms by the U.S. Government under its military assistance programs. 22 U.S.C. §52151-2443 (1976). The FAA authorizes the President to furnish military assistance which he finds “will strengthen the security of the United States and promote world peace.” 22 U.S.C. §2311(a) (1976). No such finding is in effect for South Africa at this time. See 22 U.S.C.A. §2312(a)(l) (Supp. 1978).

27 22 U.S.C. §2753(a)(l) (1976).

28 22 U.S.C. §2778(a)(l) (1976). The State and Defense Departments must concur in placing an item on the Munitions List. See Executive Order No. 11,958, 3 C.F.R. 79 (1977 Comp.).

29 “Reexporting” is the process of exporting an item to a third country from a second country to which it previously was exported. See 22 C.F.R. §123.10 (1978).

30 22 U.S.C. §2778(b)(2) (1976); 22 C.F.R. §123.01 et seq. (1978). Department of State regulations also require approval of licensing and technical agreements involving the manufacture abroad of any items on the U.S. Munitions List, and approval for the export of classified and unclassified technical data relating to such items. See 22 C.F.R. §§124.01, 125 (1978).

31 22 C.F.R. §121.01 (1978).

32 See text at note 27 supra.

33 No presidential determination is required for commercial sales because section 3 by its terms only applies to sales by the Government. See 22 U.S.C. §2753(a) (1976).

34 See Foreign Affairs and National Defense Division, Congressional Research Service, Library of Congress, 95th Cong., 2d Sess., United States Arms Transfer and Security Assistance Programs 149-50 (Comm. Print 1978) (prepared for the Subcomm. on Europe and the Middle East of the House Comm. on International Relations). The continued sales of spare parts and maintenance for South Africa’s C-130 transports under preexisting contracts are included in these figures.

35 Id. See also 1977 Hearings, supra note 10, at 51.

36 22 U.S.C.A. §2778(b)(3) (Supp. 1978). As discussed earlier, sale by the Government to foreign military services of such equipment is similarly prohibited since the President has not made a section 3 determination. See text at note 27 supra.

37 See 22 U.S.C. §2776(a)(4) (1976). It is these disclosures that show that the State Department has approved licenses for the export to South Africa of some items on the Munitions List. See text at notes 34-35 supra.

38 See 22 U.S.C. §2304(a) (1976). The AECA specifically requires the Secretary of State to submit to Congress a complete report, as part of his annual security assistance proposal, on the observance (or lack of it) of human rights in each country proposed as a recipient of security assistance. See 22 U.S.C. §2304(b) (1976).

39 Certain special commodities are regulated by other U.S. Government agencies, e.g., gold and one-cent coins are controlled by the Treasury Department, and tobacco seeds and plants are controlled by the Department of Agriculture. See 15 C.F.R. §370.10 (1978) for a complete list of these special commodities.

40 These last items—which are not on the Munitions List—are specified in a supplement to Commerce regulations, Supplement No. 2, discussed more fully in note 53 infra. These items are regulated by the Department of Defense as “defense articles” if they are part of a governmental sale to a foreign military, but are regulated by the Department of Commerce if they are part of a private, commercial sale to either a government or civilians. This split authority stems from section 215(7) of the AECA, which limits the definition of “defense articles” contained in section 215(3) of the act to items on the Munitions List for purposes of commercial exports. See 22 U.S.C. §2794(3) and (7) (1976).

41 See 50 U.S.C. App. §2402(2) (1976).

42 See Exec. Order No. 12,002, 3 C.F.R. 133 (1977 Comp.); 50 U.S.C.A. App. §2403(b)(l) (Supp. 1978). The executive order reserves the President’s power to issue regulations and to communicate specific directives to the Secretary of Commerce.

43 See 1977 Hearings, supra note 10, at 45.

44 See 15 C.F.R. §399.1(a) (1978). The list omits technical data, which are regulated by the Commerce Department under separate regulatory provisions, 15 C.F.R. §379 (1978), and also excludes items subject to the export control of other U.S. agencies, such as items on the U.S. Munitions List. See 15 C.F.R. §370.10 (1978).

45 15 C.F.R. §370.3(a) (1978). All parts, components, materials, or other commodities exported from the United States and used in the manufacture of a foreign end product are also subject to the export control laws of the United States and may not be used for a purpose “detrimental to the national security or foreign policy of the United States.” 15 C.F.R. §376.12 (1978).

46 Various general licenses have been developed for specific items, such as technical data (General Licenses GTDA and GTDR) and gifts (General License GIFT). However, the primary general license is G-DEST, which authorizes the export of all items on the Commodity Control List to a destination for which a validated license is not required. The types of general licenses are described in part 371 of the regulations. See 15 C.F.R. §§371.1-371.22 (1978).

47 See 15 C.F.R. §§372.1-372.13 (1978).

48 See, e.g., the current regulations prohibiting sales of all items to the South African military or police, 43 Fed. Reg. 7,311 (1978), discussed infra in text at notes 51-57. These regulations require a validated license for these exports and at the same time preclude the issuance of a validated license for them.

There are two types of validated licenses, “individual” and “special.” Individual validated licenses are used to authorize a specific export to a specific consignee at a specific time. Special licenses are designed to avoid the need for multiple licenses for a number of related transactions. Accordingly, special licenses are issued in cases of repeated shipments, such as shipments that are part of an ongoing project, or shipments for further distribution. See 15 C.F.R. §§372.1–373.8 (1978).

49 See 15 C.F.R. §385.4(a) (1978), amended by 43 Fed. Reg. 7,311 (1978).

50 See text at notes 16-22 supra.

51 4 3 Fed. Reg. 7,311 (1978) (preamble).

52 §385.4 Country Group V.

(a) Republic of South Africa and Namibia. In conformity with the U.N. Security Council Resolutions of 1963 and 1977, relating to exports of arms and munitions to the Republic of South Africa, and consistent with U.S. foreign policy towards the Republic of South Africa and Namibia, the Department of Commerce has established the following special policies for commodities and technical data under its licensing jurisdiction.

(1) An embargo is in effect on the export or reexport to the Republic of South Africa and Namibia of arms, munitions, military equipment and materials, and materials and machinery for use in the manufacture and maintenance of such equipment. Commodities to which this embargo applies are listed in Supplement No. 2 to Part 379.

43 Fed. Reg. 7,311 (1978). Country Group V covers all countries, including South Africa, except Communist countries, all of the Western Hemisphere, Southeast Asia, and those under other specific country groups. See Supplement No. 1 of 15 C.F.R. §370 (1978).

53 This list comprises Supplement No. 2, set forth at 43 Fed. Reg. 7,313-14 (1978). These items include spindle assemblies, equipment for the production of military explosives, specialized components, construction equipment built to military specifications, military-type vehicles, pressure refuelers, specifically designed components and parts for ammunition, and nonmilitary shotguns, shotgun parts, and shells. These items are primarily machine equipment not on the U.S. Munitions Lists that are used for military purposes.

54 (2) An embargo is in effect on the export or reexport to the Republic of South Africa or Namibia of any commodity, including commodities that may be exported to any destination in Country Group V under a general license, where the exporter or reexporter knows or has reason to know that die commodity will be sold to or used by or for military or police entities in these destinations or used to service equipment owned, controlled or used by or for such military or police entities.

1. (3)

   (3) An embargo is in effect on the export or reexport to the Republic of South Africa or Namibia of technical data, except technical data generally available to the public that meets the conditions of General License GTDA, where (a) the technical data relate to the commodities listed in Supplement No. 2 to Part 379, or (b) the exporter or reexporter knows or has reason to know that the technical data or any product of the data as defined in 379.4(e) are for delivery to or use by or for the military or police entities of these destinations or for use in servicing equipment owned, controlled or used by or for these entities. In addition, users in the Republic of South Africa or Namibia of technical data that do qualify for export or reexport under the provisions of General License GTDR must be informed in writing at the time of the export or reexport of the data that the direct product of that data may not be sold or otherwise made available, directly or indirectly, to the military or police entities in these destinations. The term “direct product” is defined in footnotes in Section 379.4(e).

2. (4)

   (4) Parts, components, materials and other commodities exported from the United States under either a general or validated export license may not be used abroad to manufacture or produce foreign-made end products where it is known or there is a reason to know the end products will be sold to or used by or for military or police entities in the Republic of South Africa or Namibia.

3. (5)

   (5) A validated export license is required for the export to the Republic of South Africa and Namibia of any instrument and equipment particularly useful in crime control and detection, as defined in §376.14.

General License GIT may not be used for any commodity destined for the Republic of South Africa or Namibia. (See §371.4(b).)

15 C.F.R. §385.4(a)(2)-(5). General License GTDA, referred to in subparagraph (3), is described at 15 C.F.R. §379.3 (1978). General License GTDR, also referred to in subparagraph (3), is described at 15 C.F.R. §379.4 (1978).

“Crime control and detection commodities,” referred to in subparagraph (5), are defined at 15 C.F.R. §376.14(a) (1978). General License GIT, referred to in subparagraph (5), is described at 15 C.F.R. §371.4(a)(l) (1978).

The Commerce Department subsequently published an interpretation clarifying its understanding of which South African agencies constitute military or police entities. This interpretation includes among such entities the Department of Prisons, the internal security arm (the Bureau of State Security), and highway patrolmen. It excludes the National Institute of Defence Research, except where the exporter knows or has reason to know that the exported commodity will be used for military or police-related research. See 43 Fed. Reg. 43,449 (1978).

55 See 15 C.F.R. §385.4(a)(2)-(3), published at 43 Fed. Reg. 7,314.

56 15 C.F.R. §386.6(a)(2); 43 Fed. Reg. 7,314 (1978).

57 See 15 C.F.R. §373.1(a)(2)(i) (1978); 43 Fed. Reg. 7,312 (1978).

58 This stands in sharp contrast to the record of other Western arms-producing nations, particularly France, Great Britain, and Italy. See Institute for Strategic Studies (London), The Military Balance 1972-73, at 80 (1973).

59 In violation of State Department restrictions, Colt Industries and the Winchester Group of Olin Corporation manufactured and shipped quantities of small arms and ammunition to South Africa via third countries from 1971 to 1975. The U.S. Government successfully prosecuted both companies. See Wall Street Journal, Oct. 21, 1976, at 17, col. 1. See also note 68 infra.

60 See text at notes 34-35 supra.

61 See 1977 Hearings, supra note 10, at 52. There was indeed a decrease in the level of sales of civilian aircraft in the first 6 months of 1977. See note 24 supra.

62 See discussion of the 1970 guidelines, supra, text at notes 16-22.

63 The Commerce Department may be able to penalize the South African purchaser by prohibiting further exports to him, and, where applicable, by denying the purchaser any future licenses to import goods from the United States. However, it does not appear that this penalty has been applied on any regular basis—if at all— by the Department.

64 The South African National Supplies Procurement Act, No. 89 of 1970, authorizes the seizure of any goods or services deemed necessary or expedient for the security of the Republic. Moreover, section 100 of the Defence Act, No. 44 of 1957, permits the commandeering of any articles necessary for the mobilization or maintenance of the South African Defence Force in defense of the Republic, for the prevention or suppression of terrorism, or for the prevention or suppression of internal disorder. For the expansive definition of “terrorism” under South African law, see section 2 of the Terrorism Act, No. 83 of 1967.

65 Conversation with Rauer, H. Meyer, Acting Deputy Assistant Secretary of Commerce for Trade Regulation, February 1, 1979 Google Scholar. As an example of special commodity provisions that allow for inspections of use after purchase, Meyer cited 15 C.F.R. §376.10- (a)(3) (1978), which sets forth visitation requirements as to computers.

66 Conversation with Rauer H. Meyer, supra note 65.

67 The information that has been made public is chiefly the product of congressional investigations. See, e.g., 1977 Hearings, supra note 10.

68 See N.Y. Times, March 15, 1978, at D.1, col. 4, and D.5, col. 1; id., Dec. 31, 1976, at A.4, col. 2; The Wall Street Journal, Oct. 21, 1976, at 17, col. 1. See also N.Y. Times, March 22, 1978, at D.1, col. 6; id., March 26, 1978, at E.2, col. 3; id., March 31, 1978, at D.1, col. 1.

69 This is illustrated by the international oil companies’ involvement in trading with Rhodesia. See Bingham, T. H. & Gray, S. M., Report on the Supply of Petroleum and Petroleum Products to Rhodesia (London: Foreign and Commonwealth Office, 1978)Google Scholar; Luxembourg, , American Oilgate , New Republic, February 3, 1979, at 17 Google Scholar.

70 In particular, it has been reported that West Germany has sold F-104G fighters, and that the Italian firm of Oto Melara has shipped armored personnel carriers and self-propelled guns of U.S. design to the South Africans. See 1977 Hearings, supra note 10, at 17.

71 Id. at 58-59 (testimony of Stanley J. Marcuss, Deputy Assistant Secretary of Commerce for Domestic Commerce).

72 Id. at 62 (emphasis supplied).

73 See recent newspaper reports that Control Data Corp., a U.S. computer manufacturer, has exported computer equipment for the use of the South African police in violation of the Commerce Department regulations. The Washington Post, March 18, 1979. It is believed that the equipment was sold to a British firm, which installed it in units that were then reexported to South Africa. It is unclear what, if any, action the Commerce Department has taken on these reports.

74 See 1977 Hearings, supra note 10, at 7-17.

75 See 15 C.F.R. §372.3 (1978).

76 Indeed, even the utility of the notice is questionable since under South African law it might be illegal in some circumstances to attempt to apply U.S. end-use restrictions. See 1976 Hearings, supra note 4, at 376-77, 395-96.

77 See 1977 Hearings, supra note 10, at 58-59. There is very little information publicly available in the United States about the activities of these subsidiaries. However, there have been reports that U.S. subsidiaries in South Africa are actually coordinating their plant security measures with South African security forces in cases of civil unrest. See, e.g., General Motors Memorandum from W. C. Mott, Managing Director of GM South Africa, to D. Martin, Regional Director for Africa, G.M.C. (U.S.A.), May 6, 1977 (in the possession of the authors).

The lack of information with respect to entities located in South Africa is compounded by the South African Official Secrets Act (No. 16 of 1956, §§2, 3), which prohibits the communication of any information relating to security matters for any purpose deemed prejudicial to the safety or interests of the Republic.

78 See 15 C.F.R. §370.2 (1978) (definitions of “U.S. exporter” and “United States”).

79 See War or National Emergency-Presidential Powers, Pub. L. No. 95-223, title I, 91 Stat. 1625 (1977). The legislative history of these amendments reveals that, in using the phrase “subject to the jurisdiction of the United States,” Congress intended that the act reach foreign subsidiaries. See H.R. Rep. No. 459, 95th Cong., 1st Sess. 17 (1977).

80 See 22 U.S.C.A. §287c-(a) (Supp. 1978).

81 See 92 Stat. 1051, 1053, 124 Cong. Rec. 512030 (1978).

82 Telephone conversation with Jean Nelson, Chief, Special Areas, Program Branch of Policy Planning, Office of Export Administration, Department of Commerce, November 28, 1978.

83 Department of Commerce regulations limit disclosure of all export information to a general description of the commodity or technical data licensed for export, the total value of the licensed commodity, and the country of destination of the export. See 15 C.F.R. §390.4 (1978). The Commerce Department’s policy of secrecy was invoked in response to a Freedom of Information Act (FOIA) request filed in 1978 by the Washington Lawyers Committee on South Africa, which was seeking documents relating to the Commerce Department’s approval of the sale of Cessna aircraft to South African entities. The Commerce Department’s restrictive policy on FOIA requests was struck down in American Jewish Congress v. Kreps (574 F.2d 624, 630- 31 (D.C. Cir. 1978)). The holding in that case arguably requires the agency to disclose significant amounts of information contained in export applications in response to FOIA requests.

84 One problem that Congress might face in obtaining information about South African subsidiaries is that these subsidiaries and their parent corporations may claim that such information is barred from release—to the American parent corporation as well as to the U.S. Government—by the South African Official Secrets Act. Such a claim has been raised in the past in connection with congressional hearings into alleged violations of the Rhodesian oil sanctions. See 1976 Hearings, supra note 4, at 376, 381, 399, 412. While this specific issue has never been addressed in a judicial decision or a legislative proceeding, there is considerable support in the realm of civil discovery proceedings for the view that foreign laws such as the South African Official Secrets Act do not override the obligation of a party to produce information that is required pursuant to local law. See, e.g., Arthur Anderson & Co. v. Finesilver, 546 F.2d 338, 342 (10th Cir. 1976), cert, denied, 97 S. Ct. 1113 (1977).

85 This action would be fully authorized by the 1979 amendments to the Export Administration Act. See note 94 infra.

86 See, e.g., Fontaine v. SEC, 259 F. Supp. 880 (D.P.R. 1966).

87 U.S. exporters could be required by Congress to publish an annual certified report detailing their efforts, including (1) the activities of their foreign subsidiaries; (2) the methods employed to determine if any such violations have taken place; (3) whether any alleged violations have been brought to the attention of the company during the past year; and (4) if so, what steps, if any, the company has taken to uphold the embargo restrictions. This report could also state whether or not the company has any reason to know that any violations have occurred—including violations caused by foreign subsidiaries—during the year in question. To ascertain the validity of these reported violations, the report would be certified by the corporation, submitted to the Government, and made available to the public.

88 A similar set of reporting requirements has been imposed on U.S. corporations under title II of the Foreign Corrupt Practices Act, otherwise known as the Domestic and Foreign Investment Improved Disclosure Act of 1977 (amending section 13 of the 1934 act). See 15 U.S.C.A. App. §78m (1978).

89 See 50 U.S.C.A. §2405(c) (Supp. 1978).

90 50 U.S.C. §2405(a) (1976).

91 22 U.S.C.A. §2778(c) (Supp. 1978).

92 See text at notes 87-88 supra.

93 See text at notes 88-89 supra.

94 As of this writing, amendments to the Export Administration Act are pending in Congress. See S. 737, 96th Cong., 1st Sess. (1979); H.R. 4034, 96th Cong., 1st Sess. (1979). These amendments, which are vigorously supported by the U.S. export community, would make it much more difficult for the President to continue the South African export restrictions. First, they would require that all such restrictions either would expire automatically each year and have to be reinstituted by the President (see S. 737, §4(a)(2)(C)), or would be subject to a congressional veto (see H.R. 4034, §6( e ) ) . Second, before instituting or reinstituting an export restriction for foreign policy purposes, the President would be required to consider, and in the case of the Senate version to report to Congress on, the effects of the export restriction on a number of factors clearly weighted against human rights concerns. See S. 737, §4(a)’(2HC); H.R. 4034, §6(b). Third, the amendments would create a new type of license, the “qualified general license,” which would replace the validated license to implement export restraints. See S. 737, $4(c)(2); H.R. 4034, §5(e)(2). It is unclear whether this new type of license would permit effective export controls. Finally, the amendments would reaffirm the confidentiality of Commerce Department license information. See S. 737, §4(b)(2); H.R. 4034, §6(c).

In two respects, the amendments would incorporate suggestions made in this article for strengthening export restrictions. Penalties for violating restrictions would be increased, and the President would be required to attempt to enlist the cooperation of appropriate foreign governments in implementing U.S. export restrictions. See S. 737, §59, 4(a)(2)(E); H.R. 4034, §§11(B), 6(h).