미국의 테러지원국 제재법 이시우 2004/11/24 173

미국의 테러지원국 제재법

(Arms Export Control Act 중 테러지원국에 대한 무기수출금지 규정)

§ 2780. Transactions with countries supporting acts of international terrorism
· (a) Prohibited transactions by United States Government
The following transactions by the United States Government are prohibited:
o (1) Exporting or otherwise providing (by sale, lease or loan, grant, or other means), directly or indirectly, any munitions item to a country described in subsection (d) of this section under the authority of this chapter, the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), or any other law (except as provided in subsection (h) of this section). In implementing this paragraph, the United States Government –
§ (A) shall suspend delivery to such country of any such item pursuant to any such transaction which has not been completed at the time the Secretary of State makes the determination described in subsection (d) of this section, and
§ (B) shall terminate any lease or loan to such country of any such item which is in effect at the time the Secretary of State makes that determination.
o (2) Providing credits, guarantees, or other financial assistance under the authority of this chapter, the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), or any other law (except as provided in subsection (h) of this section), with respect to the acquisition of any munitions item by a country described in subsection (d) of this section. In implementing this paragraph, the United States Government shall suspend expenditures pursuant to any such assistance obligated before the Secretary of State makes the determination described in subsection (d) of this section. The President may authorize expenditures otherwise required to be suspended pursuant to the preceding sentence if the President has determined, and reported to the Congress, that suspension of those expenditures causes undue financial hardship to a supplier, shipper, or similar person and allowing the expenditure will not result in any munitions item being made available for use by such country.
o (3) Consenting under section 2753(a) of this title, under section 505(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2314(a)), under the regulations issued to carry out section 2778 of this title, or under any other law (except as provided in subsection (h) of this section), to any transfer of any munitions item to a country described in subsection (d) of this section. In implementing this paragraph, the United States Government shall withdraw any such consent which is in effect at the time the Secretary of State makes the determination described in subsection (d) of this section, except that this sentence does not apply with respect to any item that has already been transferred to such country.
o (4) Providing any license or other approval under section 2778 of this title for any export or other transfer (including by means of a technical assistance agreement, manufacturing licensing agreement, or coproduction agreement) of any munitions item to a country described in subsection (d) of this section. In implementing this paragraph, the United States Government shall suspend any such license or other approval which is in effect at the time the Secretary of State makes the determination described in subsection (d) of this section, except that this sentence does not apply with respect to any item that has already been exported or otherwise transferred to such country.
o (5) Otherwise facilitating the acquisition of any munitions item by a country described in subsection (d) of this section. This paragraph applies with respect to activities undertaken –
§ (A) by any department, agency, or other instrumentality of the Government,
§ (B) by any officer or employee of the Government (including members of the United States Armed Forces), or
§ (C) by any other person at the request or on behalf of the Government. The Secretary of State may waive the requireme

nts of the second sentence of paragraph (1), the second sentence of paragraph (3), and the second sentence of paragraph (4) to the extent that the Secretary determines, after consultation with the Congress, that unusual and compelling circumstances require that the United States Government not take the actions specified in that sentence.

· (b) Prohibited transactions by United States persons
o (1) In general

A United States person may not take any of the following actions:
§ (A) Exporting any munitions item to any country described in subsection (d) of this section.
§ (B) Selling, leasing, loaning, granting, or otherwise providing any munitions item to any country described in subsection (d) of this section.
§ (C) Selling, leasing, loaning, granting, or otherwise providing any munitions item to any recipient which is not the government of or a person in a country described in subsection (d) of this section if the United States person has reason to know that the munitions item will be made available to any country described in subsection (d) of this section.
§ (D) Taking any other action which would facilitate the acquisition, directly or indirectly, of any munitions item by the government of any country described in subsection (d) of this section, or any person acting on behalf of that government, if the United States person has reason to know that that action will facilitate the acquisition of that item by such a government or person.
o (2) Liability for actions of foreign subsidiaries, etc.
A United States person violates this subsection if a corporation or other person that is controlled in fact by that United States person (as determined under regulations, which the President shall issue) takes an action described in paragraph (1) outside the United States.
o (3) Applicability to actions outside the United States
o Paragraph (1) applies with respect to actions described in that paragraph which are taken either within or outside the United States by a United States person described in subsection (l)(3)(A) or (B) of this section. To the extent provided in regulations issued under subsection (l)(3)(D) of this section, paragraph (1) applies with respect to actions described in that paragraph which are taken outside the United States by a person designated as a United States person in those regulations.
· (c) Transfers to governments and persons covered
This section applies with respect to –
o (1) the acquisition of munitions items by the government of a country described in subsection (d) of this section; and
o (2) the acquisition of munitions items by any individual, group, or other person within a country described in subsection (d) of this section, except to the extent that subparagraph (D) of subsection (b)(1) of this section provides otherwise.

· (d) Countries covered by prohibition
The prohibitions contained in this section apply with respect to a country if the Secretary of State determines that the government of that country has repeatedly provided support for acts of international terrorism. For purposes of this subsection, such acts shall include all activities that the Secretary determines willfully aid or abet the international proliferation of nuclear explosive devices to individuals or groups or willfully aid or abet an individual or groups in acquiring unsafeguarded special nuclear material.

· (e) Publication of determinations
Each determination of the Secretary of State under subsection (d) of this section shall be published in the Federal Register.

· (f) Rescission
o (1) A determination made by the Secretary of State under subsection (d) of this section may not be rescinded unless the President submits to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate –
§ (A) before the proposed rescission would take effect, a report certifying that –
§ (i) there has been a fundamental change in the leadership and policies of the government of the country concerned;
§ (ii) that government is not supporting acts of international terrorism; and
§ (iii) that government has provided assurances that it will not support acts of international terrorism in the future; or
§ (B) at least 45 days before the proposed rescission would take effect, a report justifying the rescission and certifying that –
§ (i) the government concerned has not provided any support for international terrorism during the preceding 6-month period; and
§ (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.
o (2)(A) No rescission under paragraph (1)(B) of a determination under subsection (d) of this section may be made if the Congress, within 45 days after receipt of a report under paragraph (1)(B), enacts a joint resolution the matter after the resolving clause of which is as follows: “That the proposed rescission of the determination under section 40(d) of the Arms Export Control Act pursuant to the report submitted to the Congress on _ _ _ _ _ _ _ _ _ is hereby prohibited.”, the blank to be completed with the appropriate date.
§ (B) A joint resolution described in subparagraph (A) and introduced within the appropriate 45-day period shall be considered in the Senate and the House of Representatives in accordance with paragraphs (3) through (7) of section 8066(c) of the Department of Defense Appropriations Act (as contained in Public Law 98-473), except that references in such paragraphs to the Committees on Appropriations of the House of Representatives and the Senate shall be deemed to be references to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate, respectively.

· (g) Waiver

The President may waive the prohibitions contained in this section with respect to a specific transaction if –
o (1) the President determines that the transaction is essential to the national security interests of the United States; and
o (2) not less than 15 days prior to the proposed transaction, the President –
§ (A) consults with the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate; and
§ (B) submits to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a report containing –
§ (i) the name of any country involved in the proposed transaction, the identity of any recipient of the items to be provided pursuant to the proposed transaction, and the anticipated use of those items;
§ (ii) a description of the munitions items involved in the proposed transaction (including their market value) and the actual sale price at each step in the transaction (or if the items are transferred by other than sale, the manner in which they will be provided);
§ (iii) the reasons why the proposed transaction is essential to the national security interests of the United States and the justification for such proposed transaction;
§ (iv) the date on which the proposed transaction is expected to occur; and
§ (v) the name of every United States Government department, agency, or other entity involved in the proposed transaction, every foreign government involved in the proposed transaction, and every private party with significant participation in the proposed transaction. To the extent possible, the information specified in subparagraph (B) of paragraph (2) shall be provided in unclassified form, with any classified information provided in an addendum to the report.
· (h) Exemption for transactions subject to National Security Act reporting requirements
The prohibitions contained in this section do not apply with respect to any transaction subject to reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.; relating to congressional oversight of intelligence activities).
· (i) Relation to other laws
o (1) In general
With regard to munitions items controlled pursuant to this chapter, the provisions of this section shall apply notwithstanding any other provision of law, other than section 614(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2364(a)).
o (2) Section 614(a) waiver authority
If the authority of section 614(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2364(a)) is used to permit a transaction under that Act (22 U.S.C. 2151 et seq.) or this chapter which is otherwise prohibited by this section, the written policy justification required by that section shall include the information specified in subsection (g)(2)(B) of this section.
· (j) Criminal penalty
Any person who willfully violates this section shall be fined for each violation not more than $1,000,000, imprisoned not more than 10 years, or both.
· (k) Civil penalties; enforcement
In the enforcement of this section, the President is authorized to exercise the same powers concerning violations and enforcement which are conferred upon departments, agencies, and officials by sections 11(c), 11(e), 11(e), 11(g), and 12(a) of the Export Administration Act of 1979 (50 App. U.S.C. 2410(c), (e), (g), 2411(a)) (subject to the same terms and conditions as are applicable to such powers under that Act (50 App. U.S.C. 2401 et seq.)), except that, notwithstanding section 11(c) of that Act, the civil penalty for each violation of this section may not exceed $500,000.
· (l) Definitions
As used in this section –
o (1) the term “munitions item” means any item enumerated on the United States Munitions list (FOOTNOTE 1) (without regard to whether the item is imported into or exported from the United States);
o (FOOTNOTE 1) So in original. Probably should be capitalized.
o (2) the term “United States”, when used geographically, means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and any territory or possession of the United States;
o (3) the term “United States person” means –
§ (A) any citizen or permanent resident alien of the United States;
§ (B) any sole proprietorship, partnership, company, association, or corporation having its principal place of business within the United States or organized under the laws of the United States, any State, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, or any territory or possession of the United States;
§ (C) any other person with respect to that person’s actions while in the United States; and
§ (D) to the extent provided in regulations issued by the Secretary of State, any person that is not described in subparagraph (A), (B), or (C) but –
§ (i) is a foreign subsidiary or affiliate of a United States person described in subparagraph (B) and is controlled in fact by that United States person (as determined in accordance with those regulations), or
§ (ii) is otherwise subject to the jurisdiction of the United States, with respect to that person’s actions while outside the United States;
o (4) the term “nuclear explosive device” has the meaning given that term in section 830(4) of the Nuclear Proliferation Prevention Act of 1994; and
o (5) the term “unsafeguarded special nuclear material” has the meaning given that term in section 830(8) of the Nuclear Proliferation Prevention Act of 1994.

(Foreign Assistance Act of 1961 중 테러지원국에 대한 원조금지 규정)
· (a) Prohibition
The United States shall not provide any assistance under this chapter, the Agricultural Trade Development and Assistance Act of 1954 (7 U.S.C. 1691 et seq.), the Peace Corps Act (22 U.S.C. 2501 et seq.), or the Export-Import Bank Act of 1945 (12 U.S.C. 635 et seq.) to any country if the Secretary of State determines that the government of that country has repeatedly provided support for acts of international terrorism.
· (b) Publication of determinations
Each determination of the Secretary of State under subsection (a) of this section, including each determination in effect on December 12, 1989, shall be published in the Federal Register.
· (c) Rescission
A determination made by the Secretary of State under subsection (a) of this section may not be rescinded unless the President submits to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate –
o (1) before the proposed rescission would take effect, a report certifying that –
§ (A) there has been a fundamental change in the leadership and policies of the government of the country concerned;
§ (B) that government is not supporting acts of international terrorism; and
§ (C) that government has provided assurances that it will not support acts of international terrorism in the future; or
o (2) at least 45 days before the proposed rescission would take effect, a report justifying the rescission and certifying that –
§ (A) the government concerned has not provided any support for international terrorism during the preceding 6-month period; and
§ (B) the government concerned has provided assurances that it will not support acts of international terrorism in the future.
· (d) Waiver
Assistance prohibited by subsection (a) of this section may be provided to a country described in that subsection if –
o (1) the President determines that national security interests or humanitarian reasons justify a waiver of subsection (a) of this section, except that humanitarian reasons may not be used to justify assistance under subchapter II of this chapter (including part IV, part VI, and part VIII), or the Export-Import Bank Act of 1945 (12 U.S.C. 635 et seq.); and
o (2) at least 15 days before the waiver takes effect, the President consults with the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate regarding the proposed waiver and submits a report to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate containing –
§ (A) the name of the recipient country;
§ (B) a description of the national security interests or humanitarian reasons which require the waiver;
§ (C) the type and amount of and the justification for the assistance to be provided pursuant to the waiver; and
§ (D) the period of time during which such waiver will be effective. The waiver authority granted in this subsection may not be used to provide any assistance under this chapter which is also prohibited by section 2780 of this title.

(International Financial Institutions Act중 인권침해국/테러지원국에 대한 국제금융지원 금지 규정)
· (a) Policy goals
The United States Government, in connection with its voice and vote in the International Bank for Reconstruction and Development, the International Development Association, the International Finance Corporation, the Inter-American Development Bank, the African Development Fund, the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development, and the International Monetary Fund, shall advance the cause of human rights, including by seeking to channel assistance toward countries other than those whose governments engage in –
o (1) a pattern of gross violations of inte

1. 테러지원국가 지정 및 해제기준

가. 테러지원국 지정
ㅇ 국무부가 판단하여 지정하나, 구체적 지정기준은 법률에 명기되지 않음.

ㅇ 다만, 미 의회는 “1989년 반테러 및 무기수출 개정안” 비준시 아래의 테러국가 지정기준을 제시하였으며, 국무부는 대체로 동 기준에 따라 테러국 지정

- 테러행위자나 단체에게 자국영토를 피신처로 사용하도록 허가하는 국가

- 테러행위에 사용될지도 모른다는 의심을 가지고도 개인, 조직, 단체에게 무기, 폭발물, 치명적 물질을 제공하는 국가

- 테러행위에 관련된 개인, 조직, 단체에게 운반 등의 협조를 제공한 국가

- 테러행위와 관련된 개인, 조직, 단체에게 은신처를 제공하는 국가

- 테러행위의 계획, 지시, 훈련 및 테러행위를 지원한 국가

- 테러행위에 직 간접적으로 재정적 지원을 제공한 국가

- 테러행위를 교사하고자 하는 목적으로 직 간접적으로 외교적 편의를 제공한 국가

나. 테러지원국 지정 해제
ㅇ 테러지원국가 지정 해제는 행정부 재량사항이나, 해제발표 30일전 대통령이 의회에 하기사항을 보증하는 해제이유 보고서 제출 의무
- 해당국가가 더 이상 국제테러에 대한 지원을 제공치 않고, 또한 해제 직전 6개월간 주요 테러리스트 또는 그룹을 지원하거나 피신처를 제공치 않았다는 사실

- 향후 국제테러 행위를 지원치 않겠다는 해당국가의 서약

2. 테러지원국에 대한 제재조치

가. 무기수출 금지

<무기수출통제법(Arms Export Control Act)>
ㅇ 미국산 군수품을 테러지원국에게 직 간접적인 방법으로 수출, 재수출, 인가, 여타 방법으로 제공(판매, 임차, 증여등)하거나 미군수품의 이전을 용이하게 하는 행위 금지

ㅇ 테러지원국의 미군수품 획득 관련 신용거래, 지급보증, 여타 재정지원 제공 행위 금지

ㅇ 상기 금지 규정은 미국 및 테러지원국의 모든 정부기관, 기업, 개인에게 적용
나. 이중용도 품목 수출통제

<수출관리법(Export Administration Act of 1979)>
ㅇ 테러지원국에 이중용도 제품 및 기술 수출시 허가가 필요하며, 수출 30일이전 품목 및 수출이유에 관한 상세사항을 의회에 통보 의무
- 미사일 관련 제품 및 기술 수출은 전면 금지

다. 대외원조 금지
<대외원조법(Foreign Assistance Act of 1961)>

ㅇ 테러지원국에 대한 원조 금지

<국제금융기관법(Int'l Financial Institutions Act)>
ㅇ 여러 국제금융기관(IBRD, IDA, IMF, EBRD)들이 테러지원국에 대해 차관을 제공하거나 여타 지원을 위해 동 기관의 자금을 사용코자 할 때 미측 집행이사가 이에 반대하도록 의무화

※ 국제금융기관들의 표결 방식에 비추어 볼 때, 미국이 반대하는 사안의 통과는 사실상 불가능

ㅇ “① 국제테러를 행한 개인이나 단체에게 기소되지 않도록 피신처를 제공하거나, ② 여타 방법으로 국제테러를 지원한다”고 대통령이 결정한 국가에 대한 상호원조기금 사용 금지

라. 기타 무역 관련 제재
<국제안보 및 개발협력법(Int'l Security and Development Cooperation Act of 1985)>
ㅇ 대통령에게 “테러행위 및 테러조직을 지원하거나 보호하는 국가”로부터의 상품이나 용역 수입금지 권한 부여

ㅇ 공적 지위에서 행해진 테러로 인한 신체상해 및 살인에 대한 테러행위자의 책임을 규정
<외국 주권면제법(Foreign Sovereign Immunities Act of 1976)>

ㅇ 테러지원국은 아래와 같은 경우 관할권 면제에서 제외

- 공적지위에서 행해진 테러로 인한 신체상해 및 살인에 대해 테러행위자의 국가를 상대로 금전적 보상을 요구 하는 경우

- 상기 언급된 테러사건의 민사 판결을 이행하기 위한 테러지원국 재산의 압류와 관련된 경우

ㅇ 전리품(전쟁법에 의해 합법적으로 획득된 적산)의 테러 지원국 이전 금지
<무역법(Trade Act of 1974)>
ㅇ 대통령이 국제테러 행위 교사 국가를 면세 혜택을 누리는 “수혜개도국”으로 지정하는 것을 금지

마. 테러국가와 교역하는 개인 또는 국가에 관한 제재
<대외원조법(Foreign Assistance Act of 1961)>
ㅇ 테러지원국에 원조를 제공하는 국가에 대한 원조금지

- 다른 나라보다 유리한 조건으로 제공되는 증여, 이권판매와 대여, 채무 변제, 특정국에 대한 수출보조금 지급등 금지

- 재해구조와 관련된 원조는 금지 대상에서 제외

ㅇ 테러국가에 살상용 군장비를 제공하는 국가에 대한 원조 금지
<반테러법(Antiterrorism and Effective Death Penalty Act of 1996)>
ㅇ 미국민이 고의로 테러국가와 재정적 거래를 하는 것을 금지하도록 형법 개정(재무부의 허가가 있는 경우는 예외)

ㅇ 국방부가 테러국이 소유하거나 중대한 이해관계가 있는 기업과 100,000불을 초과하는 계약을 체결하는 것을 금지
<국무부 기본권한법(State Department Basic Authorities Act)>
ㅇ 국무부가 테러지원국에 대해 동 국가의 안보능력과 관계된 훈련을 실시 하거나 기술적인 지원을 제공하는 것, 안보능력 강화에 직접적으로 지원하는 것을 금지