For a Balanced Reform of the EU Regulation on Dual-Use Export Controls

© Fotolia/M. Johannsen

© Fotolia/M. Johannsen

For some years now, the European Union (EU) has been working on reforming its dual-use regulation. The aim is for export controls to contribute more to the protection of human rights. While there is widespread agreement on that goal, opinions on how best to achieve it continue to diverge.

Effective export controls require global cooperation. The international regime for non-proliferation can only work effectively when the participating states jointly enforce a common set of export restrictions. As it is, dual-use items repeatedly pose challenges for the current 42 member states of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.

For a good to be listed as part of the Wassenaar Arrangement, the procedure is as follows: Information on goods is compiled, threat scenarios are evaluated, and in the end member states agree to changes to the joint control lists. These changes are then included in Annex I of the EU dual-use regulation. Based on this document, EU companies are able to obtain a clear picture, more or less, about which of their products require an export authorization and which exports have no chance of being issued such an authorization.

Adapting Export Controls to the Security Environment

Through reforming its dual-use regulation, the European Commission intends to adapt export controls to an altered technological and security environment and strengthen its value-based trade policy. Against the background of the Arab Spring in December 2010, the EU wants, first and foremost, to impose stricter controls on surveillance technologies that have the potential to identify political opponents and, thereby, restrict fundamental human rights such as freedom of speech or freedom of assembly, or even to conduct targeted neutralizations of such opposition forces.

There is agreement about the larger goal of this reform: that is, the protection of human rights. This is also a key objective for German industry. How to reach this goal, however, has been subject to intense debate. The European Commission and the European Parliament have proposed not to use control lists. Rather, a so-called catch-all clause would apply imposing control over certain goods that could have a negative impact on the right to privacy and freedom of expression, as well as freedom of assembly and association. This way, serious violations of international humanitarian law are to be prevented. The idea is to filter out anything that cannot be prevented from export through existing control lists. However, this is not how the catch-all works.

Catch-All Regulation not the Right Way

The concept of catch-all controls originated in Germany and, in fact, denotes use-related export controls. Essentially, the concept employs the technical expertise of companies through a system of self-controls. The manufacture of nuclear, biological, and chemical weapons, as well as related aerial vehicle technology, requires a high level of technical expertise and is manifestly dependent on complex interconnected processes of production; thus, even if only the smallest components are not available, the entire production process can come to a halt. Suppliers of machines, electrotechnology and/or chemical products can draw conclusions from the order’s technical parameters about the intended use. Contrary to what might be understood by the term “catch-all”, use-related export controls aim at throwing a spanner into the works.

In many areas, catch-all clauses work well. It is relatively easy for export control officers, for example, to determine whether a product can be used to enrich uranium. However, in the area of human rights protection, a catch-all regulation would overburden companies. To actively protect freedom of expression and assembly in other countries, companies would not only have to possess legally robust specialist knowledge about human rights standards; they would also need to compare that knowledge with intelligence information from the corresponding regions around the world, which would effectively privatize an important sovereign function. This form of export controls runs the risk of undermining the legitimacy of export controls based on the catch-all principle. Moreover, the protection of human rights would not be served in this way. Therefore, German industry is in favour of the Europe-wide listing of soft- and hardware and a stronger political engagement for international controls within the Wassenaar Arrangement. This would ensure the necessary legal predictability for companies while at the same time, strengthening the protection of human rights.