US Issues New Export Control Code of Conduct, Export Guidance

The U.S. and more than 20 of its allies this week released an export controls code of conduct, establishing a new forum for “subscribing states” to share information and stop technologies from being used for human rights violations. The Bureau of Industry and Security also issued new guidance describing how it factors human rights issues into its export application decisions and outlining the due diligence responsibilities of exporters.

The code of conduct, previewed earlier this week as part of the Biden administration’s second annual Summit for Democracy (see 2303290034), said subscribing countries must take human rights issues into account when reviewing dual-use export applications, “consult” with industry and academia on “effective implementation of export control measures,” share information on “emerging threats and risks associated” with exports, encourage their private sectors to “conduct due diligence” on their sales and more.

It also said countries must “make efforts” to ensure their export control regulatory, legal and enforcement tools are “appropriate and updated” to control dual-use exports to end-users that “could misuse them for the purposes of serious violations or abuses of human rights.” The code is open to all countries “regardless of whether or not they are a participating state” in a multilateral export control regime, including the Wassenaar Arrangement.

The U.S. also offered specific guidance to exporters of goods subject to its own regulations. In a new set of frequently asked questions, BIS said exporters “are expected to exercise due diligence with regard to identifying human rights concerns,” including before they submit a license application. Applications should “include all facts and circumstances relevant to human rights concerns,” BIS said, adding that exporters are “responsible for knowing” their customers and any other party to their transactions.

Exporters “may not ‘self-blind’ by ignoring information that comes to you or your business in the normal course of business,” BIS said.

The agency specifically mentioned China, saying there are “numerous Chinese governmental and commercial entities” on the Entity List because of their links to human rights violations in Xinjiang. BIS added that it monitors a range of exports for human rights concerns, including weapons, restraints, fingerprint analyzers, disguised microphones and mobile communications intercept devices. “BIS continually reviews whether circumstances and technological changes warrant the addition of more items to be” subject to export controls.

New controls may be discussed among countries subscribed to the new code of conduct. The U.S. said the group will hold “ongoing meetings” to create formal procedures to exchange export control information, address policy questions “without prejudice to relevant export control-related frameworks," discuss human rights concerns relating to export license applications and “share information/views on relevant technologies for this initiative.” The code of conduct also said the countries commit to identify “collaboration opportunities” with multilateral export control regimes.

The more than 20 countries subscribed to the code expressed “concern” that some nations “are increasingly misusing surveillance tools and other technologies in ways that can lead to serious violations or abuses of human rights.” They said “such misuse is contrary to our shared values.”

Homeland Security Secretary Alejandro Mayorkas said the U.S. is “delighted” that U.S. partners helped develop the code of conduct, saying they are “committing to integrating human rights into” export control policies. “We know we are strongest when we stand together,” he said during the democracy summit March 30, “and meeting this challenge requires more collaboration than ever before.”

The initial group of code of conduct states, along with the U.S., includes: Albania, Australia, Bulgaria, Canada, Costa Rica, Croatia, Czechia, Denmark, Ecuador, Estonia, Finland, France, Germany, Japan, Kosovo, Latvia, the Netherlands, New Zealand, North Macedonia, Norway, South Korea, Slovakia, Spain and the U.K.