August 13, 2020

Export Controls Will Become More Effective When They Include Plurilateral Controls

By Kevin Wolf

Export controls are the rules governing (1) the export, re-export, and transfer of (2) dual-use, commercial, military, and proliferation-related (3) commodities, technology, software, and services (4) by U.S. and foreign persons (5) to specific destinations, end uses, and end users (6) to accomplish national security or foreign policy—including human rights—objectives.

To know whether a control is effective, a government must first define what its national security and foreign policy objectives are. Whatever the definition, national security-based controls are effective under the following conditions. First, they must be focused on weapons and other items that provide an adversary with a military or intelligence advantage or are necessary for the development, production, or use of weapons, particularly WMDs. Second, they must be agreed to and implemented by allied countries transparently and with common policy objectives. Finally, they must be clearly and predictably enforced, administered, and updated by all such countries.

To know whether a control is effective, a government must first define what its national security and foreign policy objectives are.

Difficulties in getting quick or robust multilateral agreements do not mean that unilateral controls should be adopted instead, but rather that the government either must provide more resources to the process or add plurilateral efforts involving the countries with indigenous capabilities in the items at issue.

The same is generally true for foreign policy-based controls. However, with some foreign policy controls, the objective is to project U.S. values or signal opposition to a policy, which can be done unilaterally. For example, restricting the sale of crime-fighting equipment to a repressive government may not prevent it from obtaining equipment elsewhere, but nonetheless signals U.S. condemnation of repression. End user- and end use-based controls can be effective at implementing such controls if the underlying items are widely available.

Unilateral national security-based controls are effective if the controlled item provides an inherent or not widely available military or intelligence advantage. Unilateral controls in all other cases are not effective because they create incentives to invest in the development and production of the items in other countries and, thus, do not restrict their ultimate transfer to countries of concern—while harming the industrial base of the country imposing the control.

Use of export controls to accomplish purely economic or trade policy objectives compromises the effectiveness of both the export control and the international trade systems. It also encourages other governments to cloak protectionist trade policies in “national security” mantles. Because China’s industrial policies are designed to also modernize its military, export controls nonetheless can and should be an effective response to a broader-than-traditional definition of “national security”—even without the need to connect them to specific military items. But again, only so long as the controls are multilateral or implemented through newly created plurilateral agreements.

Use of export controls to accomplish purely economic or trade policy objectives compromises the effectiveness of both the export control and the international trade systems.

Unlike sanctions and investment controls, the jurisdiction of export controls attaches to the items involved and generally not to a person’s activities. If a policy problem pertains to investments, transactions, or other activities, then one must look to other areas of law, such as sanctions, visa policies, trade remedies, investment controls, or counterespionage laws, to solve it.

About the Author

Kevin Wolf is a Partner at Akin Gump Strauss Hauer & Feld LLP.

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CNAS has asked a group of experts and policymakers to offer their perspectives on the policy goals that U.S. export controls should serve, and how and under what circumstances U.S. export controls can effectively achieve those policy goals.

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