Background

Dual-use goods are items that can be used for either civil or military purposes. The European Union (EU) regulates their export on the basis of decisions made by the member states of the Wassenaar Agreement on the control of conventional weapons and dual-use goods. In the EU, the legally relevant regulation is Council Regulation (EC) 428/2009 (Dual-Use Regulation). In September 2016, the European Commission (COM) initiated the reform process of this regulation, which could not be completed thus far due to wide discrepancies between the proposals of the COM, the demands of the European Parliament (EP), and the views of the Member States in the European Council. Due to their competencies in national security issues, the Member States are additionally entrusted with the implementation of export controls. It thus does not come as a surprise that they played a critical role in the reform process.

The reform efforts were initiated because of the massive human rights violations that occurred during the Arab Spring. Regime critics and protesters were systematically suppressed, identified, and prosecuted by the respective state authorities through information and communications technology (ICT). As a political reaction to this, the negotiations on the dual-use reform therefore focused on the desire of the COM and EP to adapt European export controls to these events with a paradigm shift. For example, end-use-related export controls – so-called catch-all rules – were to rule out human rights abuses through ICT.

Catch-All-Rules do not Serve Human Security

Up until now, end-use-related export controls have been committed to the non-proliferation of weapons of mass destruction (WMD) and thus serve the objectives of national security. Catch-all rules to protect against the illegitimate use of ICT would push this system towards a so-called human security approach. In contrast to the national security approach, this method formulates an expanded security concept based on individual rights (e.g. freedoms of speech and assembly). German industry does not question the human security approach; industry in fact supported both the changes in the anti-torture ordinance and the new listings in the international export control regimes and the EU embargoes, in which goods were listed for internal repression. The BDI expressly supports stronger protection of human rights. However, catch-all rules are, from an industry perspective, not a suitable means. At no point during the reform efforts has it been possible to specifically identify critical cases and tailor controls to protect against internal repression in third countries. A human security catch-all would thus expose companies to enormous legal uncertainties without providing effective protection of human rights.

Catch-All Rules and Their Functionality

In contrast to list-based controls, where controlled goods are identifiable by their technical description, catch all controls rely on non-specific standard rules depending on economic operators’ obligation to self-control. The effectiveness of such controls relies on a one-stop mechanism that synchronizes the production of an item and its technological risk assessment. In concrete terms, this means that even if goods are not listed, they may still require a license if those responsible for exports know or have a well-founded suspicion that an ordered item could be WMD-relevant or used militarily in an embargoed country. End-use-related export controls are designed to leverage the engineering knowledge of economic operators to throw sand into the complex gears of WMD-production. The technical specifications of an order placed provide economic operators with the information on the technical potential for use in the construction of facilities for the production of nuclear, chemical or even biological warfare agents as well as unmanned systems capable of delivering WMD warheads – i.e. an end-use relevant to control. The lack of a few components can already prevent such a production process.

The effectiveness of catch-all controls relies on a one-stop mechanism that synchronizes the production of an item and its technological risk assessment. Engineers can clearly identify the risk an order poses for WMD-