Discussion Prompt: To what extent can and should surveillance technology be subject to export control?

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It’s too easy for an exporting country to feign ignorance once their products cross borders and end up being used to illegally surveil citizens. This is particularly true for EU Member States, which strive to champion human rights worldwide, but often miss the mark. The existing sanctions and controls — i.e. ‘sticks’ — aiming to stem mis-use of exported surveillance technologies are fraught with issues of effectiveness. With soft power being the EU’s stronger suit anyway, it makes sense to try a complementary carrot approach, like putting respect for human rights at the forefront of trade agreements.

In no small measure, surveillance and oppression around the world continues to be “Made in the EU”. Over the last decade, however, the EU has intensified its regulation of technology exports that could be used by illiberal regimes to undermine civil liberties and political rights. Broadly speaking, the EU’s policy options to that end fall into two categories: carrots and sticks. The two options it has tried thus far, sanctions and export controls, are sticks.

As previous contributors to this panel have argued, sanctions and export controls have been fraught with issues of effectiveness, largely due to a lack of tangible incentives for exporting EU Member States to ensure their technologies aren’t used in human rights violations once beyond their borders. Just a few weeks ago, German public prosecutors searched the premises of Munich-based company FinFisher, under investigation for illegally exporting spyware to Turkey’s autocratic regime, where it was allegedly used to spy on opposition protesters. If this (among a long list of allegations against FinFisher and similar companies) is true, then export ‘controls’ clearly didn’t prevent them from exporting without a permit from the Federal Office of Economics and Export Control (BAFA).

Meanwhile, sanctioning importing countries like Turkey is usually ineffective unless it’s done as a mass embargo with all main trading partners on board. Given this tall order, the EU is left with sanctioning its own exporting Member States and/or companies through criminal proceedings — unlikely — or pursuing alternative policy options.   

This article will explain the advantages of the EU pursuing a positive incentive-driven policy to ensure third-countries employ dual-use technologies in line with human rights standards. Dual-use refers to goods (including cyber-surveillance technologies) that can be used for both civilian and military applications, and have a risk of being mis-used. 

On this quest for policy alternatives, the EU can draw from its history of carrot dangling, like its long-standing Generalised Scheme of Preferences (GSP) trade incentive programmes. The GSP comprises three trade arrangements: 1) the standard GSP, 2) the Generalised Scheme of Preferences Plus (GSP+), and 3) the Everything But Arms (EBA). All vary in terms of conditionalities and beneficiary country groups (i.e. least developed or low and lower-middle income countries), but all grant partial or complete removal of customs duties and/or tariffs for products being imported into the EU. According to the EU, its intention behind these trade arrangements is to help vulnerable countries “alleviate poverty and create jobs based on international values and principles, including labour and human rights”. 

Beyond the stick

As Mark Bromley stresses in his article for about:intel, export controls cannot be the only tool used to ensure ethical use of dual-use technology. While the EU can, as he suggests, make the existing controls work more effectively, I argue that concurrently the EU could try employing positive incentivising trade arrangements, too. In doing so, it could make use of programmes tried and tested in the field of development in an effort to complement its stick-heavy approach, which has proven to be sporadically effective and politically arbitrary. For example, a recent report by Amnesty International explains that due to technological advancement outpacing legislation, “facial recognition technologies are not on the control list of the EU export regulation framework” – which at face value is a major omission if the goal is to stop human rights abuses.

In his article for about:intel, Edin Omanovic argues that “one of the easiest and most realistic opportunities for government authorities is to use existing security cooperation relationships around the world to improve legal and governance standards”. Development/political/trade agreements like the GSP+ in particular, are designed to do exactly that: improve legal and governance standards in beneficiary countries. Unlike the standard GSP or EBA, the GSP+ is arguably even more effective in this regard, as this enhanced scheme is completely voluntary. Countries must meet certain economic and legal criteria, but ultimately it is up to them and in their self-interest to apply, as it slashes tariffs to zero on about 66% of EU tariff lines.  

For some beneficiary countries this can mean big business. In 2018 alone, the EU imported 6.7 billion Euros worth of products from Pakistan — mostly comprising textiles and clothing — of which 5.8 billion were exported under the GSP+ scheme. Said another way, more than 76% of the country’s exports enter the EU duty and quota free, which is roughly 20% of Pakistan’s exports globally. It is no coincidence that Pakistan exports more to the EU than to any other country, even though its top trading partner in terms of total trade is China. 

In order to qualify for the GSP+, countries must have ratified the 27 UN and ILO relevant international conventions on human- and labour rights, environmental protection, and good governance, plus be subject to monitoring by international bodies regarding the effective implementation of said conventions. Even the other two programmes  — the standard GSP and the EBA — while not requiring countries to apply, still include an incentive mechanism as the benefits can be withdrawn in cases of human right violations. A prime example is the recent decision to suspend Cambodia’s EBA tariff preferences due to widespread and ongoing violations of the rights to political participation and to the freedoms of expression and association. The economic impact amounts to about ⅕, or 1 billion Euros, of its yearly exports to the EU.

This economic aspect is taken up by Omanovic. He further states that one of the largest issues with export controls of dual-use technology is that they “give national [European Member State] authorities significant scope to prioritise economic and bilateral interests over human rights; meaning that in effect, national authorities authorise the vast majority of license applications that are made to them”. If the issue lies with economic interest, then why doesn’t the EU embed more economic incentives in its policies? If money rules the world, it makes sense to monetarily incentivise human rights as much as possible. Conditionalities in trade agreements and incentive arrangements are nothing new so it might be prudent to include proper application of dual-use technologies as one of the conditions; the following section outlines how this policy recommendation can be implemented in practice.

Human rights incentives 

If a state wishes to use dual-use technology it imported from the EU for legitimate purposes, then theoretically that state should be pleased at the opportunity to gain a favorable trade arrangement in return for fair use. For example, an acceptable use of biometric identification technologies could be facial recognition, fingerprint readers, and even iris recognition to verify identity and increase security at border controls. Meanwhile non-acceptable, is for instance, the Chinese Public Security Bureaus’ collection of biometric data using the same digital surveillance technologies to racially profile Uyghurs in Xinjiang; many of whom are then illegally detained in “re-education” camps. 

Just as the three GSP schemes require varying levels of human rights standards be met for countries to remain beneficiaries, so too, could this condition be applied to states and their deployment of dual-use technologies in a comparable (or even the same) trade arrangements. My logic here builds on similar analyses, which found that the EU’s GSP schemes are an even better mechanism to promote human rights and good governance standards than the EU’s Free Trade Agreements.

Furthermore, the advantage of adding proper use of dual-use technologies as a condition to trade arrangements like the GSP scheme(s), is that it can be applied to all of the technologies used by a beneficiary country – regardless of whether they were imported from EU Member States or elsewhere. The GSP+, for example, requires implementation of core human rights conventions writ large, not just in certain circumstances or with certain technologies.  

Admittedly, one caveat is that incentivising schemes like the GSP+ only work insofar as the EU is willing to enforce the conditionalities and decertify a country when it violates the terms of the arrangement. Despite numerous examples of country violations, due to diplomatic considerations actual decertification of the GSP+ is rare, with the withdrawal of Sri Lanka from the scheme in 2010 being the exception to prove the rule. Just as enforcement of export controls often lacks political will, so does the enforcement of trade scheme conditionalities. 

Criticised for being too political of a process, the GSP+ is currently undergoing reform. Ideas proposed by civil society, business communities, and national governments to give the scheme more teeth include:

  1. Making the country monitoring process transparent and more inclusive, with a wider range of stakeholders’ feedback; 
  2. Modifying the scheme to allow for partial withdrawal when only certain sectors violate the conditions; and 
  3. To negotiate publicly available roadmaps with the beneficiary countries, which have clear and time-bound human rights benchmarks that must be met, or risk decertification from the scheme.

Complementary policies 

Despite these caveats, it is still definitely worthwhile for the European Parliament, as well as relevant EU Directorates-General (DG Trade and DG DEVCO), to apply a policy option like the GSP schemes to the challenge of dual-use technologies. Not only can carrots be more effective than sticks, but in this case, they can be employed side-by-side. Incentives complement rather than detract from the sanction-based policy options currently employed. They also complement the reforms proposed, among others, by Bromley and Omanovic in this very forum – namely soft law mechanisms such as industry self-regulation standards, and reforming security cooperation programmes. This mixed-methods approach could help the EU finally break the regulatory deadlock and stop European corporations from proliferating tools of repression to autocracies around the world.

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