The Open Technology Institute is currently engaged in a joint project on export controls with Privacy International and Digitale Gesellschaft. The blog post below was published in response to the recent changes announced to the Wassenaar Arrangement. The original blog post is available here.
What is the Wassenaar Arrangement?
The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (the "Wassenaar Arrangement") is a multilateral export control regime in which 41 states participate.
The Wassenaar Arrangement was established on 12 July 1996 in Wassenaar, the Netherlands by 33 founding members to contribute to regional and international security and stability. It is the successor to COCOM, a NATO based group that discussed arms exports to non-NATO states, though the membership today is a lot more broad.
The Wassenaar Arrangement promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, complements and reinforces the existing control regimes for weapons of mass destruction and their delivery systems, and uses export controls as a means to combat terrorism. It is not directed against any state or group of states in particular; it aims at harmonising the export regimes of all participating states.
What does it do?
The Wassenaar Arrangement works with two different control lists: the List of Dual Use Goods and Technologies and the Munitions List. The Munitions List contains items designed for military use, including but not limited to items such as tanks and other military armed vehicles, combat vessels and aircraft. The List of Dual-Use Goods and Technologies contains several categories of goods that can both have a military and a civilian use, including electronics, computers, and telecommunications and information security equipment. In addition to the control lists, states also agree on best practices on certain topics as a way in which to harmonise procedures.
Each year both control lists are updated when representatives of the participating states meet at the plenary meeting, which usually happens in December, though technical and policy-related matters are thrashed out in working groups prior to then. Afterwards, a new version of the lists is published on the website of the Wassenaar Arrangement, which is followed by implementation of the new controls at the national level.
Participating states have agreed to maintain national export controls on listed items, so the implementation and interpretation by each state in their national laws is crucial. The decision to allow for or deny the export of any item is the sole responsibility of each participating state. Such a decision will be made in accordance with national legislation and policies, on the basis of national discretion.
What is the reach of the Wassenaar Arrangement?
Since its establishment in 1996, the Wassenaar Arrangement has grown to include 41 Participating States: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and United States.
As these participating states have agreed to maintain national export controls on listed items, their export regime will reflect the Wassenaar control lists, although the way in which these are implemented at the national level differs per country.
However, the reach of the Wassenaar Arrangement is not limited to the participating states. The Wassenaar Arrangement undertakes significant efforts to encourage voluntary adherence to its standards by other states as well. China’s transfer controls regarding small arms and light weapons for example are broadly in line with those laid down in the Wassenaar Arrangement.
Countries such as Israel have gone further and have chosen to align their export regime with the Wassenaar Arrangement, although they are not formally a participating state. By referring to the two control lists of the Wassenaar Arrangement in the Israeli Defense Export Control Law, Israel de facto has the same status as signatory countries.
Are new items on the Control Lists automatically controlled in the participating states?
The Wassenaar control lists do not have binding legal force throughout the participating states. Controls have to be implemented in national laws to have effect. It is up to the participating states to decide how they will do this. Depending on the implementation mechanism in the relevant state, it may take a while before new additions to the control lists enter into force as export controls at the national level.
The participating EU member state will, for example, refer to Council Regulation (EC) No 428/2009 of 5 May 2009 (the “Dual-Use Regulation”) in their national laws, which has direct binding legal force throughout the EU member states and does not have to be implemented in national law. The Dual-Use Regulation pulls in dual-use items that are agreed and included within the control lists of the Wassenaar Arrangement, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers’ Group (NSG), the Australia Group and the Chemical Weapons Convention (CWC). The EU has not kept up with the rate at which items contained within the multilateral export control regimes have been updated; a Council Regulation amending the EU dual-use list to reflect changes made to the multilateral control lists throughout 2010, for example, was only enacted across the EU in April 2012. It is unclear when the most recent version of the Wassenaar Dual-Use List will be implemented in the Dual-Use Regulation and thus when effective controls for new additions to the Wassenaar control list will be functional in the EU.
Other countries may refer to a certain version of the Wassenaar control list, such as South Africa, which has included a reference to the 2010 Wassenaar Control Lists in its national export control regime. Until the relevant schedule to the law is changed to refer to the most recent version of the control lists, additions to the lists will not be controlled.
There are however countries where the national export control regime refers directly to the most recent version of the Wassenaar control lists. New items on the control lists will immediately be controlled in these countries. Israel’s export control law for example refers to the relevant Wassenaar control list ‘as periodically updated’.
What are the recent developments?
The Wassenaar control lists have been updated after the plenary meeting in early December 2013 to include surveillance and law enforcement/intelligence gathering tools and Internet Protocol (IP) network surveillance systems or equipment.
This shows the consensus among the participating states that these tools and systems may under certain conditions be detrimental to international and regional security and stability.
It is also the go-ahead for the participating states and countries to interpret and implement the new controls to create what we hope will become an effective mechanism to control the trade, which will ensure that human rights concerns are given sufficient weighting in the license-granting process.
In addition to the links below, further recommended reading includes the Privacy International Surveillance Industry Index and Against Hypocrisy: Updating Export Controls for the Digital Age by OTI's Danielle Kehl and Tim Maurer.