By: Poppy Doolan

Concerns relating to China’s alleged human rights violations have been increasingly at the forefront of U.S. policymaking priorities.[1] In 2020, Human Rights Watch asserted that the Chinese Communist Party has suppressed political freedom, implemented high tech surveillance, and strictly censored its internet to maintain its power and control.[2] Human Rights Watch called China’s international cyber-attack “the most intense attack on the global system for enforcing human rights since that system began to emerge in the mid-20th century.”[3] These violations are happening amidst heightened tensions between the United States and China due to the escalating trade war.[4] As a result, U.S. government agencies have made policy changes to address human rights concerns by utilizing pre-existing trade mechanisms.[5]

Most recently, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) issued a final rule to amend the Export Administration Regulations (“EAR”).[6] The amendment published on October 6, 2020 states that BIS will consider human rights issues in determining whether to approve an export license.[7] The amendment will allow BIS to deny applications based on whether an item “may be used to engage in, or enable violations or abuses of, human rights including those involving censorship, surveillance, detention, or excessive use of force.”[8] This is a significant departure from the EAR’s previous language, which permitted a review of human rights concerns only when there was “evidence that the government of the importing country may have violated human rights.”[9] BIS’ October 6th amendment not only adds that the agency should consider whether a particular good could be used for human rights violations, rather than just the violations of the importing country, but it additionally requires the consideration of human rights concerns in almost every export license review under the EAR.[10]

On the same date as the rule was implemented, BIS imposed an additional export license restriction on water cannon systems.[11] This decision was implemented to address U.S. water cannon systems exported to Hong Kong and used by the police force to control protesters.[12] However, the export control applies to water cannon systems exported to any country for crowd control purposes except to NATO member countries.[13] Therefore, while this policy is specifically designed to control the export of water cannons to Hong Kong, it has the potential to be applied more broadly to systems exported to other countries.[14]

While BIS’ recent rules are targeted towards China and Hong Kong, the implications for U.S. exporters may be much broader, and signal a shift towards a much more comprehensive export control regime to address not only past but potential future human rights violations.[15] For exporters of technology products including sensors, security equipment, and communications, or any other product that could assist in a human rights violation, there is a much higher likelihood that BIS will deny the export licensing application.[16] Exporters will need to take greater precautions in determining and documenting the end-use of the exported product.[17] The rulemaking is just one effort among many by the U.S. government to use trade measures, and specifically export controls, to target Chinese human rights violations.[18] As this set of reforms gains traction, exporters should continue to be cognizant of the proposed changes and participate in comment processes to maintain a streamlined export compliance regime.


[1] See Gerry Shih, U.S. Report Calls for Sanctions on China for Human Rights Abuses, Influence operations, Wash. Post, https://www.washingtonpost.com/world/asia_pacific/us-report-calls-for-sanctions-on-china-for-human-rights-abuses-influence-operations/2020/01/08/08b75596-31be-11ea-971b-43bec3ff9860_story.html (noting recent aggressive steps set forward by the U.S. Congressional-Executive Commission on China to target the China’s increasingly high-tech tirade against human rights, including stricter controls on U.S. exports of sensitive technology).

[2] Kenneth Roth, China’s Global Threat to Human Rights, Hum. Rts. Watch, https://www.hrw.org/world-report/2020/country-chapters/global (last visited Oct. 22, 2020).

[3] Id.

[4] See Gerry Shih, U.S. Report Calls for Sanctions on China for Human Rights Abuses, Influence operations, Wash. Post, https://www.washingtonpost.com/world/asia_pacific/us-report-calls-for-sanctions-on-china-for-human-rights-abuses-influence-operations/2020/01/08/08b75596-31be-11ea-971b-43bec3ff9860_story.html.

[5] See 15 C.F.R. § 744 (2019) (including 28 Chinese technology companies on BIS’ designated entity list for violating human rights); see also Allison J. Stafford Powell & Andrea Tovar, US Government Adds 28 Chinese Entities Associated with Human Rights Violations and Abuses, Sanctions & Exp. Controls Update (Oct. 14, 2019), https://sanctionsnews.bakermckenzie.com/us-government-adds-28-chinese-entities-associated-with-human-rights-violations-and-abuses/.

[6] 15 C.F.R. § 742.7 (2020).

[7] Id.; see also Sylvia Costelloe et. al., Human Rights Now Part of Export Licensing Review for Nearly All Export Licenses, JD Supra (Oct. 14, 2020), https://www.jdsupra.com/legalnews/human-rights-now-part-of-us-export-24411/ (explaining the applicability of BIS’ October 6, 2020 rule).

[8] 15 C.F.R. § 742 (2020).

[9] See Sylvia Costelloe et. al., Human Rights Now Part of Export Licensing Review for Nearly All Export Licenses, JD Supra (Oct. 14, 2020), https://www.jdsupra.com/legalnews/human-rights-now-part-of-us-export-24411/ (comparing the EAR export licensing policy before October 6, 2020 with the licensing policy implemented on October 6, 2020).

[10] See id. (noting the exception for items controlled for short supply).  

[11] 15 C.F.R. § 742 (2020); see Ian Cohen, BIS Imposes Export Controls on Water Cannons, Revises Crime Control Licensing Policy, Exp. Compliance Daily (Oct. 6, 2020), https://exportcompliancedaily.com/news/2020/10/06/bis-imposes-export-controls-on-water-cannons-revises-crime-control-licensing-policy-2010050040 (stating that the imposed rules will give BIS greater authority to consider human rights issues in making an export license determination).

[12] See 15 C.F.R. § 742 (2020) (stating that the regulation is in compliance with a 2019 Congressional mandate prohibiting the licensing of water cannons for crowd control purposes).

[13] Id.

[14] Id.

[15] See Peter Lichtenbaum et. al., Cyber-Surveillance Export Control Reform in the United States, Exp. Compliance Training Inst. (Feb. 3, 2019), https://www.learnexportcompliance.com/cyber-surveillance-export-control-reform-in-the-united-states-update/.

[16] See Peter Jeydel et. al., New Human Rights Licensing Policy under U.S. Export Controls – Convergence with the EU? Int’l Compl. Blog (Oct. 6, 2020), https://www.steptoeinternationalcomplianceblog.com/2020/10/new-human-rights-licensing-policy-under-u-s-export-controls-convergence-with-the-eu/.

[17] See id.

[18] See Peter Lichtenbaum et. al., Cyber-Surveillance Export Control Reform in the United States, Exp. Compliance Training Inst. (Feb. 3, 2019), https://www.learnexportcompliance.com/cyber-surveillance-export-control-reform-in-the-united-states-update/.

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