Credit: Original article can be found here
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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