international import certificate (CII)164 signed by the competent authority of the country of destination. The government’s stated purpose for the creation of the new regulation was to ‘modernise and streamline’165 the export process. With this in mind, the policy introduces a strict 15-day deadline for the Foreign Ministry to respond to and resolve preliminary negotiation requests which are extendable for an equal period only once. of chemical irritant, instruments of restraint, striking weapons or kinetic impact ammunition, or stun grenades. Furthermore, despite Brazil’s membership of the Alliance for Torture Free Trade and its recent support for the UNGA resolution, neither the Liprode nor the policy itself prohibits or even mentions the transfer of inherently abusive equipment, such as thumb cuffs and body-worn electric shock weapons. Furthermore, to minimise bureaucracy, the policy introduces a distinction between ‘Class II’ products which Of the types of equipment omitted from the LiProde, chemical irritants, stun grenades and kinetic impact require manufacturers to follow the preliminary procedures described above and ‘Class I’ products which only projectiles are regulated separately by Decree 10.030/2019 as ‘controlled products’170. This designation means require exporters to apply for an export license166. According to the policy, the level of export control associated that their import and export requires pre-authorisation by the Army rather than the Foreign Ministry and Ministry with specific categories of products is defined by the Ministry of Defence in consultation with the Foreign of Defence171. In order to be approved, exporters of these products are required to submit international import Ministry, and ‘considering the technical characteristics of the product or the type of export operation’167. Finally, certificates signed and stamped by the government of the importing country as well as end user certificates with a view to ‘speeding up the export process’, the Ministry of Defence is also authorised to delegate its when requested172. However, these transactions are not scrutinised to the same degree as the defence products competences to grant export licenses to another designated authority168. which fall under the PNEIPRODE. For example, although the export of controlled products to countries under In addition to regulating the export of defence products, the PNEIPRODE also establishes rules and procedures to control the import of products listed on the LiProde. According to the regulation, organisations wishing to import products listed on the LiProde must register their request accompanied by a detailed description of the product to be imported and a justification for the import via the Integrated Foreign Trade System (Siscomex). The Ministry of Defence will then have a period of fifteen days, extendable for an equal period once, to provide embargoes or other sanctions will not be authorized173, there is no explicit requirement to consider the possibility that exported equipment could be used to commit human rights or international humanitarian law violations. Furthermore, instruments of restraint and striking weapons are not designated as ‘controlled products’ under by Decree 10.030/2019. To the best of Omega’s knowledge, therefore, the import and export of restraints and handheld kinetic impact weapons are currently not controlled174. its decision. In cases where a signed CUF or CII is required by the exporting country, the Ministry of Defence In addition to its limited scope, the policy also fails to account for the broad range of activities that constitute will act as the competent body. The regulation maintains previous restrictions on the import of arms and the trade. Specifically, while the policy establishes rules regarding the import and export of law enforcement ammunition that are manufactured in Brazil by companies accredited as EEDs, however, it is also stated that and security equipment, it establishes no restrictions on promotional activities. In the EU, restrictions on these in special circumstance the Ministry of Defence is may grant authorization for the import of these products types of activities have recently been introduced through amendments to the EU’s ‘Anti-Torture Regulation and according to ‘judgement of its convenience’. have already been used to successfully prevent the promotion of inherently abusive equipment at arms fairs The introduction of PNEIPRODE by the Brazilian government represents a welcome albeit long-overdue hosted in EU member states175. step towards reform, which should help to provide much greater clarity and transparency regarding Brazil’s Thirdly, although the decree outlines the criteria that the Foreign Ministry and Ministry of Defence should export regime. The policy specifies in detail the competences and responsibilities of relevant authorities and consider when approving export requests, the regulation provides no guidance as to how these criteria should clearly outlines the process of decision-making. Furthermore, unlike its predecessor – PNENEM - the policy be assessed or what sources of information should be reviewed prior to a decision being made. also establishes a clear and detailed list of criteria which should inform decision-making in relation to export operations, which in future can be used to hold decision-makers accountable. Article 14 of the policy, which includes a clause intended to prevent the re-export of controlled goods to third countries without the prior authorisation of the Ministry of Defence, is a particularly important addition, potentially preventing the re-export of equipment to countries with poor human rights records. Despite these positives, however, there nevertheless remain several aspects of the current policy which are concerning and which require immediate attention. Next, while a desire to modernise the export process for defence equipment was an important factor behind the creation of PNEIPRODE, attempts to streamline the process including through the imposition of strict deadlines for the submission of responses and the creation of a multi-tier classification system for products, increase the risk of poor or inconsistent decision-making and act to undermine the oversight that the export process is intended to provide. The fast-tracking of requests to export products designated as ‘Class I’ is particularly concerning, since this category currently includes a large number of product types that, in the view of Omega, Firstly, although the first published version of the LiProde – the list of goods controlled under the new regulation require strict control, including pistols, shotguns and electric shock weapons. The text of the decree explains – contains certain types of law enforcement equipment, including electric shock weapons and firearms169, the list that products are classified as ‘Class I’ by the Ministry of Defence in consultation with the Foreign Ministry on is far from comprehensive and includes several significant omissions which will severely limit its effectiveness in the basis of their ‘technical characteristics’, however, to the best of Omega’s knowledge, no clear guidance has regulating the trade of law enforcement equipment. Specifically, the list includes no reference at all to any form yet been published describing the criteria used to classify these products or which ‘technical characteristics’ are 58  59