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US Government Announces Human Rights and Export Control Measures

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On March 30, 2023, the White House and US Department of Commerce’s Bureau of Industry and Security (“BIS”) announced human rights and export control measures that underscore the US Government’s focus on human rights as a matter of foreign policy.  The White House announcement is available here.  The BIS announcement is available here.  The White also issued a Fact Sheet that includes these announcements and other sanctions and export control provisions.

White House: Export Controls and Human Rights Initiative Code of Conduct

In collaboration with various international partners the Biden Administration released the Export Controls and Human Rights Initiative Code of Conduct (“Code of Conduct”) on March 30, 2023, which aims to counter the misuse of goods, software, and technology that enable serious human rights abuses.  This effort stems from the Export Controls and Human Rights Initiative (the “Initiative”), a multilateral effort launched by Australia, Denmark, Norway, and the United States in a joint statement on December 21, 2021.  Our previous blog post on the Initiative can be found here.  The Code of Conduct is voluntary, nonbinding, and currently endorsed by 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”). 

The Code of Conduct asks Subscribing States to:

  • Consider human rights when reviewing potential exports of dual-use goods, software, or technologies that could be used for serious violations or abuses of human rights.
  • Consult with stakeholders (e.g., private sector, academia, and civil society) regarding human rights concerns and effective implementation of export controls.
  • Exchange information on emerging threats and risks associated with exports of goods, software, and technologies that pose human rights concerns.
  • Communicate best practices in developing and implementing export controls.
  • Urge private sector due diligence efforts that align with national law, the UN Guiding Principle on Business and Human Rights, and other complementing international instruments.
  • Encourage other States to subscribe to the Code of Conduct and implement similar national programs and procedures.

BIS: Additions to the Entity List and Amended Licensing Requirement

Also on March 30, 2023, BIS published a new rule that adds eleven entities based in Burma, the People’s Republic of China, Nicaragua, and Russia to the Entity List for enabling or engaging in human rights abuses.  The rule also amended Section 744.11 of the Export Administration Regulations to confirm that the protection of human rights is a US foreign policy interest and may be a factor in assessing whether to add a party to the Entity List.  As noted in BIS’ Human Rights Frequently Asked Questions, the rule reaffirms the protection of human rights and formalizes BIS’ existing practice of considering human rights in almost all license applications for items on the Commerce Control List, other than items controlled only for short supply reasons.  

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Author

Bart McMillan leads the Chicago Office’s International Trade Compliance Subpractice within the North American International Commercial Practice. He advises US and non-US companies on international trade compliance matters arising under US export controls, trade sanctions, and antiboycott rules, as well as under US customs laws with respect to classification, valuation, country of origin, free trade agreements, and the protection of intellectual property at the US border. His practice also covers anti-bribery and specialized commercial compliance issues in sales and sales promotion under the US Foreign Corrupt Practices Act (FCPA), non-US anti-bribery law, and non-US commercial laws. Mr. McMillan has been practicing with Baker McKenzie for the entirety of his legal career, and during 2004 he was located in the Washington, DC office. He is a frequent speaker on international trade compliance matters at seminars, conferences, and company training events. While pursuing his J.D. at NYU School of Law, Mr. McMillan was Staff Editor (1997-98) and Associate Editor (1998-99), New York University Law Review; and he participated in a semester exchange to the Central European University (Budapest) (Legal Studies Dep’t).

Author

Lise Test is an of counsel in the Firm’s International Trade Group in Washington, DC and practices in the area of international trade regulation and compliance — with emphasis on US export control laws (Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR)), trade sanctions, and anti-boycott laws. Ms. Test advises clients on issues relating to product classifications, licensing, regulatory interpretations, risk assessments, enforcement actions, internal investigations and compliance audits, as well as the design, implementation, and administration of compliance programs. Ms. Test works regularly with companies across a wide range of industries, including the pharmaceutical/medical device, telecommunications, manufacturing, and technology sectors. She joined the Firm as a summer associate in 2007 and became a full-time associate in 2008. Prior to joining Baker McKenzie, Ms. Test served as a lawyer at the Danish Ministry of Defence.

Author

Alexandra Kumar is an Associate in Baker McKenzie, Washington, DC office.

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