Dual-use items, which include goods, software, and technology applicable for both civilian and military purposes, present a complex challenge in today's volatile global landscape, requiring careful regulation and control. The content elaborates on the international efforts, particularly the Wassenaar Arrangement and national practices, to manage these risks, while also discussing the specific stance and legal framework of Turkey in combating the unintended consequences of such dual-use items..
Dual-use items, as simply put by the European Commission, are
goods, software and technology that can be used for both civilian
and military purposes. While this definition seems self-explanatory
at first sight, it is not easy to conceive how the microwave
technology in our kitchens that we utilize to heat our mid-night
snacks can also be used to create high-powered microwave weapons
that are capable of invisible strikes and of fighting combat
drones.
Considering today's tense political climate and the recent
international conflicts we have witnessed; it is evident that we
cannot afford to leave dual-use goods or technology unregulated and
without control. Therefore, in addition to state monitoring on
developing technologies, export control over these items is
crucial.
International Policies and Practices
The technological developments in the last decade are
fast-forward and require even closer monitoring. However, the
initiatives to regulate the use and the transfer of weapons and
dual-use items date way back. Namely, the 1925 Geneva Protocol
prohibiting the use of chemical and biological weapons in war, the
Australia Group whose foundations were laid in 1985 and is an
initiative bringing various countries together to explore how the
export of chemical weapons could be controlled, and last but not
least, the 1996 Wassenaar Arrangement that seeks to promote
transparent and responsible circulation of weapons as well as
dual-use items and technologies around the world.
The Wassenaar Arrangement sets out a multilateral export control
regime and it currently consists of 42 participating states,
including Turkey which was among the founding members. Under this
arrangement, the participating states jointly agree on which
weapons, technologies or goods are to be included in the Wassenaar
Arrangement's lists of munitions and dual-use goods and
technologies and then, impose export controls over such items at
the national level.
A well-established export licensing system is crucial to ensure the
international harmonization of the export controls over these
items. The Wassenaar Arrangement guidelines suggest participating
countries to take into consideration while granting export
licences, "the policies of destination country, the security
situation in region, the credentials of the end users as well as
the specified end-use". However, the monitoring of the
dual-use items and technologies must start at an earlier stage, and
this could only be achieved if emerging technologies are closely
watched.
Therefore, Nation States must also cooperate among themselves, stay
ahead of scientific and academic developments, and leverage the
expertise of specialists to educate the public authorities as well
as the private sector entities. As such, even if it is not possible
to completely eradicate the misuse of technology; the industry, the
governments and the civil society at large would be informed that
they must be proactive in mitigating the risks of unintended
consequences, such as dual-use goods and technologies falling into
wrong hands. For instance, when the Russian weapons and military
ammunitions collected from the battlefields in Ukraine were
examined, it was discovered that various items of Western
technology, such as semiconductor technologies that we can find
even in our mobile phones and everyday home appliances or
microchips used in radios, were repurposed to be used as weapons,
missiles, or other sophisticated armoury technologies. This is
concerning because it occurs despite the strict European Union (EU)
and the Office of Foreign Assets Control (OFAC) sanctions, and
stems from the transfer of goods that seem innocent at first sight
but pose a latent threat when in wrong hands. Considering the
dual-use potential of these goods and technologies, implementing a
catch-all policy or control mechanism is neither realistic nor
feasible. However, as we suggested earlier, if Nation States become
more vigilant even before these goods reach the export stage, and
if they are able to ask the right questions when granting export
licenses as to the production, origin, destination and intended and
potential use of these products and technologies, they can prevent
the transfer of these items via convoluted trade routes.
Turkey's Stance on Dual-Use Items: Policies and Perspectives
As one of the founding members of the Wassenaar Arrangement,
Turkey participates in all export control regimes regulating the
transfer of conventional weapons and dual-use items and
technologies as well as actively incorporating the export control
lists into its domestic law, as updated time to time. While the
control over the export of weapons is exercised by the Ministry of
Foreign Affairs and the Ministry of National Defence; the dual-use
items and technologies are closely monitored by the Ministry of
Trade and the Ministry of Agriculture and Forestry.
In the USA, the EU, and other major developed economies, public
institutions, private sector players and exporters demonstrate a
significant level of awareness regarding export controls. Our goal,
as legal practitioners, is to similarly bolster this awareness
within Turkey and educate the public at large about the grave risks
associated with these items ending up in the wrong hands.
There are numerous penalty mechanisms in place under the specific
regulations stipulated by Turkish law for exporting products
without adhering to the regulations. For instance, in addition to
the administrative fines outlined in Article 235 of the Customs Law
, violating Law No. 5201 could lead to a prison sentence ranging
from 1 to 5 years . Furthermore, as per the Article 174 of the
Turkish Penal Code, exporting dangerous substances without
obtaining permission from the relevant authority may result in a
prison term ranging from 4 to 8 years .
Moreover, when engaging in export activities, it is crucial to
comply with international sanctions laws that apply depending on
various factors including the destination country, the nature of
the goods and the currency involved. For instance, if the OFAC
issues an adverse determination, additional sanctions may be
enforced under US laws. It is equally important to comply with the
sanction laws of the EU, UK, and other pertinent governments.
Violation of these sanctions would tarnish both the country's
credibility and trustworthiness, as well as the commercial
reputation of private sector players. Thus, companies based in
Turkey must exercise caution to ensure compliance with both local
and international laws and regulations.
Final Remarks
Overall, there is a fine line between the sharing of innovation,
technology, and scientific advancements, and unleashing an
uncontrollable proliferation of sensitive knowledge into the wrong
hands. The only way to achieve a satisfactory outcome in terms of
promoting transparent and responsible transfer of these goods and
technologies is through introducing effective control and early
monitoring mechanisms as well as international cooperation that
must be consolidated by a meticulous process management and more
importantly, by the implementation of sanctions and legal
requirements that will have objective deterrent effects.
Finally, with regards to Turkey, while there exists an established
legal framework and deterrent punitive mechanisms, achieving
complete adherence to international laws and regulations remains an
ongoing process. Merely enacting laws is not sufficient, and it
must be consolidated by policymaking, administrative oversight, and
notably, effective and transparent communication with both the
public and the businesses regarding the content of the pertinent
legislation in Turkey and abroad. A comprehensive understanding of
companies of these legal regulations and their implications, will
enhance compliance efforts in Turkey as well.
Originally published 26 March 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.