Dynamics of Normative Change for International Nuclear Export Controls

Like other normative systems, the international nuclear export control norms are incomplete and at times contradictory. Thus, contestations to the international nuclear export control norms inevitably emerge, as they did in the wake of the 1974 Indian nuclear test and the 1991 discovery of Iraq’s nuclear weapons program. These two nuclear crises prompted intense debates regarding the adequacy of the existing norms. The outcome of the debates generated overwhelming agreement and action among nuclear suppliers that they required strengthening. Drawing on Wayne Sandholtz’s theory of normative change, which argues that events trigger disputes whose outcomes modify norms, this article illustrates how the nuclear export control norms have evolved in a cyclical fashion. The article aims to contribute to the constructivist literature on normative change and discusses policy implications.

Washington will rethink its foreign chip strategy

Significance Follow-on action from Washington and responses from foreign actors will shape the US government’s adversarial policy towards China in semiconductors and other strategic technologies. Impacts The Biden administration will likely conclude that broad-based diversion of the semiconductor supply chain away from China is not feasible. The United States will rely on export controls and political pressure to prevent diffusion to China of cutting-edge chip technologies. The United States will focus on persuading foreign semiconductor leaders to help develop US capabilities, thereby staying ahead of China. Washington will focus on less direct approaches to strategic technology competition with China, notably technical standards-setting. Industry leaders in the semiconductor supply chain worldwide will continue expanding business in China in less politically sensitive areas.

Cybersecurity, Multilateral Export Control, and Standard Setting Arrangements

This chapter focuses on two trade mechanisms and their role in pursuing the policy imperatives of promoting international trade in information and communication technologies (ICTs) while seeking to mitigate cybersecurity risks. The first mechanism, international standard setting and certification efforts, aims to facilitate international trade by providing benchmarks and assurances for security features. In contrast, the second mechanism, international export controls, explicitly seeks to restrict the trade in certain ICT goods for national and international security purposes. The chapter begins by introducing the concepts of standards and certification, and surveying the landscape of cybersecurity standard setting before providing a discussion of the major intergovernmental certification scheme, the Common Criteria Recognition Arrangement. It then looks at the Wassenaar Arrangement and examines its recent experience in bringing two types of technologies, intellectual property (IP) surveillance systems and intrusion software, under the purview of export controls.

U.S. Export Controls and Economic Sanctions

U.S. Export Controls and Economic Sanctions is a must for those who deal with U.S. government export control and economic sanctions regulations. Written as a user’s manual rather than an academic or historical treatise, it covers in considerable detail—but in language that is intelligible to non-lawyers as well as lawyers—the Commerce Department’s controls on exports of commercial, “dual-use” (having both commercial and military utility), and low-level military items, the State Department’s controls on higher-level military items, the Treasury Department’s approximately thirty different economic sanctions programs, the Nuclear Regulatory Commission’s controls on nuclear-related commodities, and the Energy Department’s restrictions on assistance to foreign nuclear programs. Given the authors’ decades of experience with these regulations, the book not only explains the legal rules but also offers tips—not necessarily reflected in the regulations themselves—about how to interpret the regulations and deal with the regulators.

Case: Sharing Parts and Services Among NATO Members

NATO’s goals require close cooperation of Member States on operational readiness, interoperability of their systems, material supplies, transfer of technology and joint R&D projects. A common approach on the application and implementation of arms export controls, however, is largely lacking. This chapter questions the absence of application and implementation of arms export controls in the context of the material logistical support and services provided by the NATO Support and Procurement Agency (NSPA). Three root causes of deviant behaviour of the Member States with the arms export controls are identified and analysed: (1) fragmentation of the arms export control laws and regulations; (2) a lack of leadership commitment and organisational culture of compliance; and (3) a combination of external and internal pressures leads to a forced prioritization of operational readiness above compliance. Next, a response is formulated to effectively counter deviant behaviour such as non-compliance with arms export controls by implementing a mixture of soft and hard controls. We advise the NSPA to create a culture of compliance within the NATO Partnership Program’s community based on ethical values and virtues. This requires social consensus, leadership commitment and a common agreement on and formalization of the basic rules of export control.

Contract-Boundary-Spanning Governance Initiatives in the International Defense Supply Chain of the F-35 Program

International cooperation in the American-led F-35 program inherently triggers national security concerns. Consequently, the multiple exports in the supply chain are subject to intricate licensing and export controls. Drawing on insights from governance and contract theory we introduce a theoretical lens that highlights some important trade compliance challenges in supply chain networks. In this chapter, contract-boundary-spanning governance mechanisms are defined as increasingly sophisticated hard or soft governance mechanisms in the private law sphere that can be deployed by any public or private stakeholder to govern international supply chains. We find contract-boundary-spanning governance initiatives by state and private stakeholders in the defense supply chain of the F-35 program. At the same time, we argue that while serious efforts have been made by various state actors and legislators to reduce the burden in trade compliance requirements in the F-35 program, the industry is still facing a considerable number of compliance challenges. We argue that more contract-boundary-spanning initiatives by the private parties in defense supply chain network are needed if these challenges are to be successfully overcome.

Limits on the Extraterritoriality of United States Export Control and Sanctions Legislation

The sovereignty of states is reflected in the notion of jurisdiction, empowering them to enact and enforce laws and regulations, and to adjudicate disputes in court. The jurisdiction of states and the exercise thereof is primarily territorial, limiting the exercise of state authority to their respective national territories except in specific situations. However, in an increasingly globalized and interconnected world, it would be hard to maintain that a state should be denied the right to exercise its sovereign powers beyond national borders when there are reasonable grounds for doing so. Consequently, the exercise of extraterritorial legislative jurisdiction has become more accepted, although it is limited to particular situations and circumstances. These have to do with the exercise of jurisdiction over nationals, vessels and aircraft registered in or pertaining to the legislating state, as well as certain activities aimed at undermining the state’s security or solvency or which constitute crimes under international law. However, in principle it is not allowed to regulate activities of foreign nationals or entities operating wholly outside the legislating state’s territory. One area where this has become increasingly prevalent is through the exercise of export controls over foreign nationals and legal persons. The United States (US) has long been engaged in the exercise of this type of extraterritorial jurisdiction and is, without doubt, the state that is most proactive in doing so. This chapter considers US extraterritorial claims with respect to its export control and sanctions legislation and explores the limits of this practice under public international law.

Export Control Regimes—Present-Day Challenges and Opportunities

The system of export control regimes is an important instrument to prevent the proliferation of both weapons of mass destruction and conventional weapons. However, this system faces several structural and recent challenges. The regimes are informal, and consequently, their measures are non-binding upon states. Second, the regimes consist of a selective group of countries, excluding some dominant arms exporters. New technology is rapidly changing the military field, and it is difficult for the export control regimes to keep up with these developments. Further, most of the regimes were designed when states were the most important international actors while currently legitimate and illegitimate non-state actors play an ever-increasing role for export controls. In addition, it is unclear how the regimes will advance with the multipolar world order of the twenty-first century. All new developments could lead to the proliferation of weapons, making efforts to prevent proliferation more relevant than ever. There are several opportunities to reform and strengthen the export control regimes. Cooperation could help the regimes to remain relevant. The sharing of good practices can help the regimes to find the least disruptive and effective non-proliferation measures. Setting up a paradigm-based regime instead of a weapon-based regime may be more suitable for the future. In addition, a revision of the decision-making process would help the regimes to respond swiftly to developments in the field.