Amid all the brouhaha about the export of "dual-use" material, however, it's often unclear if state authorities, politicians, academics and businesses really agree on what they mean when they use the term. When trying to explain the confusion to my students, I refer to the “Milka cow syndrome”. The Swiss confectionist's advertising has convinced us to associate its purple-and-white cow with the production of milk chocolate, even though we know such a creature does not actually exist. Likewise, the term "dual-use" does not formally exist in international trade treaties, yet we all associate it with export controls on sensitive goods.
At least we can identify several interpretations of the term – referring to bodies such as the Nuclear Suppliers Group, the Australia Group and the Wassenaar Agreement, which do make reference to "dual use". It can comprise items that are both commercial and military, items to be used in nuclear and non-nuclear programmes, items which are trigger listed and non-trigger listed, or equipment that has conventional and WMD (weapons of mass destruction) applications.
UN Security Council Resolution 1540 is considered the main legally binding document constraining states to enforce effective measures to prevent the proliferation of WMD and their means of delivery. It carefully avoids the debate by referring to the need to control “related materials” as defined by relevant multilateral treaties and national control lists.
At the national level, there are similar differences in definition. Japan refers to items with civilian and potential military use, while the United States talks about goods with both commercial and military – or proliferation – applications. The EU's regulation on the issue tries to bring together different international definitions. The list of items the regulation controls includes military-use items, security items that have potential military application and those that could be used for human rights abuses.
Getting the definition right is essential. It could have an impact on the international fight against proliferation. Looking back over the historical development of international, regional and national trade-control regimes, lists of controlled items have usually been amended after the discovery of attempts to get around the system. The best-known case was the nuclear weapons research programme conducted by Saddam Hussein's Iraq in the 1980s, which systematically used components of controlled items and items with technical specification just below the controlled parameters to avoid the obligation to apply for export licences.
The rapid evolution of sensitive technologies means that attempts at control are often one step behind. To counter that risk, international control regimes have introduced the concept of catch-all clauses that cover dual-use items not specifically listed, but which could present proliferation risks. Such mechanisms have come to be seen as essential to preserve the efficiency of international dual-use trade regimes.
To further strengthen the effectiveness of international dual-use trade control and avoid unfair competition between supplier states, priority should be given to the adoption of common international definitions.
This article is part of Friends of Europe’s upcoming discussion paper on the future of dual-use technologies in Europe.
The full discussion paper will be available in early September. Read the other articles here.