By Matt Milton
On November 9, the European Parliament announced an updated set of dual-use licensing regulations for technologies that may be used to violate human rights. This announcement was a culmination of years of work on the part of EU negotiators to increase the importance of human rights when considering whether to grant or deny a license for export. The rules specifically address technologies such as facial recognition and surveillance tools, which may be used by oppressive regimes to keep tabs on activists and silence dissent. Bernd Lange, the German head of the negotiating team, noted that “respect for human rights will become an export standard” after the enactment of these rules, calling it “an EU milestone and declaring that “Economic interests must not take precedence over human rights.”
Human rights issues are typically not the first consideration when policymakers and practitioners discuss export controls. Indeed, conversations about export controls are more often centered around “strategic trade controls” (recently rebranded as “strategic trade management”), defined as the range of policies pursued and actions taken to deny nefarious actors’ access to conventional weapons, weapons of mass destruction, and the goods and services necessary to produce those weapons. Enacted either unilaterally or multilaterally (e.g., as part of United Nations sanctions), the impetus behind these controls is based more in a government’s self-interest than in its altruism. Even actions that seem to come from a place of compassion, such as the U.S.’ recent sanctioning of two Russian companies accused of using North Korean forced labor, have more to do with denying Kim Jong Un a source of income for his WMD programs than protecting the human rights of the workers themselves. While there is nothing wrong with accomplishing both goals at once, it is important to acknowledge the driving forces behind states’ behavior, if only to identify their priorities and appropriately target outreach.
Human rights-based export controls are not an entirely novel concept. In the United States, the 112th Congress passed the Iran Threat Reduction and Syria Human Rights Act of 2012 , which expanded the Iran and Libya Sanctions Act of 1996 to add human rights violations as a basis for sanctioning entities, including those entities that facilitate the transfer of “surveillance technology, or technology to restrict free speech or the flow of information” to the Syrian regime. Still, the majority of provisions in those laws deal with WMD programs, as human rights considerations took a back seat to international security.
The new EU rules are part of a larger trend of spotlighting human rights in the realm of export controls. In 2018, Canada’s Standing Senate Committee on Human Rights produced a report entitled “Promoting Human Rights: Canada’s Approach to its Export Sector.” The report noted that “…even though the Government of Canada advocates for the protection of human security abroad, it too often appears willing to compromise its values in order to advance economic and other foreign policy interests.” To address this shortcoming, the Committee recommended that Canada’s Export and Import Permits Act (EIPA) “should be amended to require consideration of internationally recognized human rights and international humanitarian law in the export permit process.” Less than a year later, the EIPA and its regulations were amended with “new legal obligations for the Minister of Foreign Affairs to consider certain assessment criteria before granting either export or brokering permits” – including violations of international humanitarian or human rights law.
For its part, the United States issued guidance meant to sharpen its export control policy in the context of human rights. On October 6, 2020, the Department of Commerce’s Bureau of Industry and Security (BIS) issued a final rule revising its license review procedures with a specific focus on telecommunications and surveillance equipment. The accompanying guidance states that “As revised, this licensing policy will enable BIS and other reviewing agencies to consider (1) violations or abuses of human rights by individuals or entities other than the government of the importing country and (2) abuses of human rights by the government in addition to violations of internationally recognized human rights.” While this falls short of a legal/regulatory mandate to consider human rights in a given transaction, it does at least provide officials with the tools to do so.
Following those actions, the new EU rules represent a significant step forward in human rights-based export controls, going beyond the measures taken by other governments. As mentioned in this excellent summary , for covered technologies, the new rules:
- require companies to get a government license to sell technology with military applications;
- calls for more due diligence on such sales to assess the possible human rights risks; and
- requires governments to publicly share details of the licenses they grant.
As the author of that summary highlights, this final point is particularly noteworthy. The new transparency measures impose significant reporting requirements on exporting governments, making it easier to “publicly shame governments that sell surveillance tools to dictatorships.”
The actual impact of these new rules remains to be seen. Observers may find themselves sifting through data on exports to some of the world’s worst human rights offenders, gathering ammunition for broad naming-and-shaming campaigns. Or – in an outcome at least as satisfactory – the world could witness a sharp decrease in the trade in surveillance technology and other tools of repression. This latter result, of course, may only come to fruition if other suppliers (such as the United States) follow the EU’s lead on considering human rights in the context of export controls.