The Export Administration Act (EAA) authorizes the President to control the export of "dual-use" goods and technology for national security and foreign policy purposes. "Dual-use" items are goods or technology that are commercial or civil in nature and can be used to produce sophisticated, dangerous weaponry. The EAA expired ten years ago, and although it has been continued by various Executive Orders since, Congress has failed to renew the legislation. As part of the larger export control regime in the United States, the EAA has been an utter failure. Dual-use goods have made their way into the hands of a number of dangerous nations, and the EAA has done little to prevent the illegal or undesirable transfers.
There are many flaws in the present export control regime. A multitude of statutes and regulations govern dual-use technology transfers, forming a bureaucracy that is impossible to adhere to for the private sector and impossible to manage for the government. An international regime, the Wassenaar Arrangement offers a glimmer of hope for global cooperation in dual-use transfers, though it also has shortcomings. U.S. companies waste time seeking to comply with the EAA and the regime is also unable effectively to follow up on the end-use and end-user of dual-use technology.
This Note argues that a four-pronged approach is necessary to improve export controls on dual-use items. It calls for strengthening end-use and end-user verification, increasing transparency in dual-use transfers, and bolstering the Wassenaar Arrangement. In addition, this Note proposes that the newly created Homeland Security Department should be given oversight of dual-use technology transfers in the new Export Administration Act. By developing an EAA reflective of the need for improved security and increased flexibility, the twin goals of the U.S. export control regime can be realized: the protection of national security and promotion of U.S. industry in the international marketplace.
Nathan T.H. Lloyd,
Rebuilding a Broken Regime: Restructuring the Export Administration Act,
37 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol37/iss1/6