At a meeting in Berlin today I was privy to an update, from someone who really knows this stuff, on the European Union’s efforts to amend its dual-use export control regime. The key document is called Regulation 428/2009 and the review of it, which is mandated by its Article 25, turns out to be a very complex matter indeed.
Not only have the technologies requiring export controls evolved since the regulation was enacted eight years ago, but other issues have emerged for EU member states to worry about: How to deal with new challenging technologies, 3D printing and cloud computing, for example. What to do about transboundary movements of intangible goods? Gaps in the separation between nuclear, biological, and chemical regimes? Transactions involving brokers, banks, and other third parties? And then there’s the impact of the Arab Spring and its aftermath; increasingly since, export controllers are pondering what official documents call “the use of sensitive technologies in violation of human rights.” At issue here are chemicals that can be made into noxious gases, and exceptionally intrusive information and communications technologies, that can be applied by strongmen to oppress their populations, through activities that may defy a binary characterization as either military or civilian.
When the EU in the early 2010s prepared to undertake its review of 428/2009, there were a number of scenarios describing what the consequences might be. These ranged from business as usual all the way up to a dramatic rethinking of Europe’s entire export control regime. Neither extreme is likely, but at the political level of the EU’s 28 member countries, it would appear that the review is now just getting up to speed, following from a 2011 Green Paper issued by the European Commission that has served as a bone of contention for lots of intervenors since. (I participated in one 2012 EU expert gathering where stakeholders debated this text by cutting it as fine as possible). The current conundrum over the link between export controls and human rights, we learned today, might even lead to efforts to redefine what is a dual-use commodity under European law. In a nutshell, the review might take awhile before all these issues are laid to rest.
The Withering of the German Lists
So it wasn’t a surprise to hear participants during our discussion today refer to views expressed by frustrated customs officials who, if they had it their way, would sooner chuck the whole finely-diced trade control regime of commodity control lists and end-user certificates and the rest, and instead embargo members of a rogues’ gallery. “Why not just limit trade controls to the ten or so countries that we know are the offenders?”
It doesn’t work that way in practice. But during the formative years of WMD export controls, a number of countries included elements of a blanket country-specific approach in their export control toolbox.
Germany for instance. During the 1980s and into the 1990s German export controllers were preoccupied with an instrument called the H-List, or in German the Laenderliste-H. This was a fairly succinct list of countries where any prospective export of a sensitive good, for example an item controlled for WMD proliferation, must trigger extreme scrutiny. In practice, administering the H-list could be frought with risks and political pressure. Lobbyists for industry and foreign governments could be counted on to line up to get exceptions made (and for German trading partners that had so-called “parallel” nuclear programs outside of IAEA safeguards, a certain amount of diplomatic elbow grease might be applied to try to make sure that they wouldn’t find themselves on the list). This was a clumsy and messy way of trying to keep track of trade. And it didn’t appeal to a certain German deep-seated preference for procedures that are applied with consistency. Controlling trade the H-List way, I heard a friend say today, “hat keinen ordnungspolitischen Sinn.” There you have it. An American export controller would say instead: “Hey, where are the criteria for doing this?”
The H-List is no longer with us. It was scuttled in 1995 when Germany’s Foreign Trade Act was harmonized with EU export control regulations. Some people at the time weren’t completely happy with getting rid of the H-List. German Social Democrats objected that dropping the H-List might mean lifting controls for exports to Algeria, China, and India, destinations that in their view then were “not unprobablematic.”
So the H-List in 1995 became the K-List. It stayed on the books until 2013.
During its 18-year term, however, the K-List shrank and shrank. It’s life expectancy may have been shortened when speechwriter David Frum suggested to U.S. President George W. Bush that he include in his 2002 State of the Union address the assertion that Iran, Iraq, and North Korea were linked in an “axis of evil.” In any case during the 2000s, the Laenderliste-K slowly evaporated: In 2006, North Korea and Lebanon were taken off the list, followed one year later by the removal of Mozambique and Iran. Syria, the second-to-last country on the K-List, was removed in 2011. When it was ditched for good in 2013, the only country left on the list was Cuba.
What replaced the K-List in 2013? That’s right: the EU export control regime, led off by Regulation 428/2009.