Following the use of a Novichok nerve agent on Sergei and Yulia Skripal, the US has determined under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 that “the Russian government has used chemical or biological weapons in violation of international law or has used lethal chemical or biological weapons against its own nationals” – see Department of State press release. Consequently, after a 15-day Congressional notification period, mandatory sanctions under the Act will come into effect upon publication of a notice in the US Federal Register (expected on or around 22 August 2018).
The sanctions will impose (inter alia) a presumption of denial for all national security sensitive goods or technologies that are controlled by the US Commerce Department pursuant to the Export Administration Regulations. Those goods are currently subject to a licence (case-by-case licence determination), but all such licence applications will be presumptively denied once the sanctions come into effect.
The US will be making a number of carve-outs to the Act’s mandatory sanctions, including:
- A waiver for the provision of foreign assistance to Russia and the Russian people;
- A waiver of sanctions with respect to space flight activities (NB: the US is currently engaged with Russia in a number of space flight actions); and
- A licence being available for national security sensitive goods or technologies used for the safety of commercial passenger aviation.
If the Russian government fails to meet a set of criteria within 90 days, then the US will have to consider whether a second round of sanctions should be imposed. The criteria: (i) that Russia is no longer using chemical or biological weapons in violation of international law or against its own nationals; (ii) that Russia has provided reliable assurances that it will not in the future engage in any such activities; and (iii) that Russia is willing to allow on-site inspections by UN observers or other similar internationally recognised bodies.