On March 30, 2023, the White House and the US Department of Commerce’s Bureau of Industry and Security (BIS) jointly announced a set of human rights and export control measures that underscore the US Government’s commitment to addressing human rights as a central aspect of its foreign policy. This announcement reflects the US administration’s determination to tackle serious human rights abuses by controlling the export of goods, software, and technology. In this blog post, we provide an overview of these significant developments.
Export Controls and Human Rights Initiative Code of Conduct:
The Biden Administration, in collaboration with international partners, introduced the Export Controls and Human Rights Initiative Code of Conduct (Code of Conduct) on March 30, 2023. This initiative is designed to counter the misuse of dual-use goods, software, and technology that can facilitate severe human rights violations. It emanates from the Export Controls and Human Rights Initiative (the Initiative), a multilateral effort initiated by Australia, Denmark, Norway, and the United States, as jointly announced on December 21, 2021. The voluntary and nonbinding Code of Conduct has gained endorsement from multiple nations, including Albania, Australia, Bulgaria, Canada, Croatia, Czechia, Denmark, Ecuador, Estonia, Finland, France, Germany, Japan, Kosovo, Latvia, The Netherlands, New Zealand, North Macedonia, Norway, Republic of Korea, Slovakia, Spain, the United Kingdom, and the United States (the Subscribing States).
Key Provisions of the Code of Conduct:
- Consideration of Human Rights: Subscribing States are urged to take human rights into account when reviewing potential exports of dual-use goods, software, or technologies that could potentially be employed for severe human rights violations.
- Stakeholder Consultation: Subscribing States are encouraged to engage with various stakeholders, including the private sector, academia, and civil society, to address human rights concerns and ensure effective implementation of export controls.
- Information Exchange: Subscribing States should share information regarding emerging threats and risks associated with exports of goods, software, and technologies that raise human rights concerns.
- Best Practices: Communication of best practices in the development and execution of export controls is emphasized.
- Private Sector Due Diligence: The Code of Conduct encourages private sector due diligence efforts that align with national law, the UN Guiding Principle on Business and Human Rights, and other relevant international instruments.
- Global Engagement: Subscribing States are encouraged to promote the Code of Conduct and encourage other nations to subscribe to it, fostering similar national programs and procedures.
BIS: Additions to the Entity List and Amended Licensing Requirements:
On the same day, March 30, 2023, BIS issued a new rule that adds eleven entities from Burma, the People’s Republic of China, Nicaragua, and Russia to the Entity List. These entities have been identified for their involvement in or facilitation of human rights abuses. The rule also amended Section 744.11 of the Export Administration Regulations, formally affirming that safeguarding human rights aligns with US foreign policy interests and may influence decisions to add parties to the Entity List.
This development reinforces BIS’ commitment to human rights, codifying its existing practice of considering human rights concerns in most license applications related to items on the Commerce Control List.
The US Government’s announcement of human rights and export control measures underscores its dedication to addressing and preventing severe human rights abuses through responsible export controls and international collaboration. These initiatives represent significant steps towards ensuring that US exports do not contribute to human rights violations. Companies engaged in international trade should stay informed and adapt their compliance programs accordingly to align with these developments.
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