The United States took two significant actions last week to cement its stance that protecting human rights around the globe is a central U.S. national security and foreign policy interest in export control policy and implementation.
On March 30, 2023, the Department of Commerce Bureau of Industry and Security (BIS) published a final rule amending the Export Administration Regulations (EAR) that explicitly confirmed that human rights violations worldwide can be the sole basis of adding parties to the Entity List. With these stated grounds, BIS added 11 entities from Burma, China, Nicaragua, and Russia to the Entity List. Exports of any item subject to the EAR to these entities must be licensed, and BIS will evaluate license applications with the presumption that they will be rejected. In addition, the rule amended the EAR to add the protection of human rights as a basis for BIS's authority to inform persons—individually or by addition to the Entity List—that their export of specific items requires a license. Relatedly, BIS just issued Human Rights Frequently Asked Questions that explicitly confirms its practice of considering human rights when evaluating export license applications for items on the Commerce Control List.
The Department of State and BIS also unveiled a voluntary Code of Conduct agreement amongst some 24 subscribing states under the auspices of the Export Controls and Human Rights Initiative, a multilateral endeavor to prevent state and non-state actors from misusing products and technologies to violate human rights that was a product of the 2021 Summit for Democracy. The Code of Conduct outlines political commitments by the subscribing states to apply export control tools to prevent the proliferation of goods, software, and technologies that enable serious human rights abuses.
This new rule and the Code of Conduct portends continued focus on and likely more BIS actions framed as addressing and mitigating human rights abuses, which could manifest in further changes to the EAR or enforcement actions. The Code of Conduct, while nonbinding, also reflects the Biden administration's efforts at multilateral coordination and cooperation on export controls outside the established, more bureaucratic venues such as the Wassenaar Arrangement.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Morrison & Foerster LLP. All rights reserved
