On December 10, 2021, at the Summit for Democracy, the U.S., Australia, Denmark, and Norway, released a Joint Statement announcing an Export Controls and Human Rights Initiative (“the Initiative”) to curb the misuse of technologies by certain governments. The Initiative aims to combat digital authoritarianism in countries where software and advanced surveillance technologies have been used to hack the communications of political opponents and journalists, shape public opinion, and censor information the government deems threatening.
In the Joint Statement, the countries committed to aligning their policies on exports of certain dual-use technologies and developing a voluntary written code of conduct to apply human rights criteria to export licenses “to prevent the proliferation of software and other technologies used to enable serious human rights abuses.”
According to a White House Statement, in response to the Initiative, the U.S. will:
- Work to develop a voluntary written code of conduct to guide the application of human rights criteria to export licensing policy and practice;
- Build policy alignment with its partners that leads to common action;
- Bring together policy makers, technical experts, and export control and human rights practitioners to ensure that emerging technologies do not work against democracy; and
- Explore how best to strengthen domestic legal frameworks, share information on threats with its partners, develop and implement best practices, and help improve others’ capacity to do so.
Though the Initiative does not have an immediate impact on current US export controls, it implies that there will be collaboration on ensuring that export controls consider human rights implications, specifically those impacting technologies used to suppress democracy.
The Commerce Department has been regularly designating parties to the Entity List over concerns about such parties’ involvement in human rights abuses. See, e.g., our blog post BIS Adds Eleven Chinese Entities Implicated in Human Rights Abuses in Xinjiang to the Entity List. We would expect human rights concerns will also be addressed in the context of increasing the scope of controls on emerging technologies, many of which could potentially be misused by repressive governments to engage in human rights abuses (see our previous blog post on the Commerce Department’s Advance Notice of Proposed Rulemaking on emerging technologies here), and in the denial of export licenses when a potential human rights abuse concerns are identified.
The creation of a voluntary written code of conduct intended to guide the application of human rights criteria to export licensing will create a space for express consideration of human rights and ESG issues in export licensing, emphasizing the need for holistic compliance policies and procedures which consider such matters in export transactions. Parties engaged in exports, reexports, and transfers of items subject to the Export Administration Regulations should consider getting ahead of the curve by considering how to enhance their existing policies and procedures to proactively address these issues.
Relevantly, Australia also recently passed Magnitsky-style sanctions laws which commenced in December 2021. The new laws create a framework for 4 new thematic sanctions regimes for declaring a designated person or entity, including if it is determined that the person or entity caused, assisted with or were complicit in significant cyber activity.