On March 30, the US Department of Commerce's Bureau of Industry and Security ("BIS") and the US Department of State announced the publication of a Code of Conduct for the Export Controls and Human Rights Initiative ("the Initiative"), with which all Initiative participants are expected to comply. The publication of the Code of Conduct was among the stated goals from the launch of the Initiative in 2021.
Background on the Initiative
On December 10, 2021, the US, Australia, Denmark, and Norway announced the formation of the Export Controls and Human Rights Initiative at the Summit for Democracy.1 The Initiative received support for Canada, France, the Netherlands, and the United Kingdom.2 The Initiative is designed to "help stem the tide of authoritarian government misuse of technology and promote a positive vision for technologies anchored by democratic values."3
The Initiative had four major goals, the first of which was to "develop a voluntary written code of conduct intended to guide the application of human rights criteria to export licensing policy and practice."4 The other goals included alignment with like-minded countries interested in preventing the misuse of dual-use technology, convening experts on the intersection of export controls and human rights, and launching a "Year of Action" designed to implement the Initiative.5
The Code of Conduct
The Code of Conduct which emerged from the Year of Action directs all Initiative participants to:
- "Take human rights into account when reviewing potential exports of dual-use goods, software, or technologies that could be misused for the purposes of serious violations or abuses of human rights.
- Consult with the private sector, academia, and civil society representatives on human rights concerns and effective implementation of export control measures.
- Share information with each other on emerging threats and risks associated with the trade of goods, software, and technologies that pose human rights concerns.
- Share best practices in developing and implementing export controls of dual-use goods and technologies that could be misused, reexported, or transferred in a manner that could result in serious violations or abuses of human rights.
- Encourage their respective private sectors to conduct due diligence in line with national law and the UN Guiding Principles on Business and Human Rights or other complementing international instruments, while enabling non-subscribing states to do the same."6
The Code of Conduct also directs endorsing countries to hold ongoing meetings related to the Code, develop systems to administer the Code (such as information sharing best practices and designation of a single point of contact), and to identify collaboration opportunities where appropriate.7
The following countries have endorsed the Code of Conduct: Albania, Australia, Bulgaria, Canada, Croatia, Czechia, Denmark, Ecuador, Estonia, Finland, France, Germany, Japan, Kosovo, Latvia, The Netherlands, New Zealand, North Macedonia, Norway, Republic of Korea, Slovakia, Spain, and the United Kingdom.8 The US is seeking more endorsements of the Code.9 Membership is open to all Summit of Democracy participants;10 it is not restricted to participants in multilateral export control regimes such as the Wassenaar Arrangement.11
Follow-up Activity
On the same day as it released the Code, BIS announced that it had added eleven entities to its Entity List for supporting human rights abuses, seemingly to underscore the importance of human rights in US export control law.12 According to the official announcement, designated entities include two Russian entities and three Burmese entities, designated for their support of the Burmese military, which has allegedly attacked civilians; the Nicaraguan police for allegedly engaging in "serious human rights abuses"; and five Chinese entities for allegedly "being implicated in human rights violations and abuses in the implementation of China's campaign of repression, mass arbitrary detention, and high-technology surveillance against the Uyghur people and members of other Muslim minority groups in the Xinjiang Uyghur Autonomous Region (XUAR)."13
Given the timing of these designations and its leadership in drafting the Code, the US appears to be taking its guidance under the Code seriously.
Footnotes
2. Id.
3. Id.
4. Id.
5. Id.
7. https://www.state.gov/wp-content/uploads/2023/03/230303-Updated-ECHRI-Code-of-Conduct-FINAL.pdf.
8. https://www.state.gov/export-controls-and-human-rights-initiative-code-of-conduct-released-at-the-summit-for-democracy/#:~:text=The Export Controls and Human,technology that violate human rights; https://www.bis.doc.gov/index.php/documents/about-bis/newsroom/press-releases/3257-2023-03-30-bis-press-release-echri-code-of-conduct/file.
9. Id.
10. The invited participants from the 2021 Summit for Democracy is available here: https://www.state.gov/participant-list-the-summit-for-democracy/.
11. https://www.state.gov/wp-content/uploads/2023/03/230303-Updated-ECHRI-Code-of-Conduct-FINAL.pdf.
13. Id.
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