Biden Administration’s Secret Ingredient for China: Human Rights on Export Control

As the US has fortified the export control policy against China to rein in its technological advance since the Bush administration, in which direction will the export control policy evolve, or what type of rationale will be utilized to justify the policy toward China? As Henry Kissinger called “a balance between security and human rights,” the convergence between two values becomes animate. Borrowing the phrase “with a cherry on top,” in other words, President Biden’s secret ingredient of maintaining a technological edge over China is to put the cherry of human rights on top of his national security export control policy – likely a persisting theme for years to come.

On the heels of the Summit for Democracy, the Biden administration announced the launch of the “Export Controls and Human Rights Initiative.” Positioning human rights at the center of export control, this initiative regulates the export of certain technologies and high-tech products that flare the flame of repression in authoritarian countries. Specifically, the Biden administration emphasized the human rights issue as a rationale behind regulation on trade with China’s high-tech sector. He raised human rights violations during the first phone call with President Xi and most recently signed the Uyghur Forced Labor Prevention Act to demonstrate US opposition to forced labor in Xinjiang. In contrast to what Henry Kissinger called “a balance between security and human rights,” we are witnessing the convergence of security and human rights in the same direction, in limiting the flow of US technology and high-tech products. 

Compared to his predecessors, however, the use of export control policy in response to human rights abuse was unprecedented before the Biden administration. Dating back to the Bush administration, which first established specific export restrictions on China, restrictions had been based on national security concerns. In the years that followed, non-proliferation and counterterrorism dominated the export control system. Then, the Obama administration embarked on renovating the US export control system via the Export Control Reform, which was completed during the Trump administration and was fortified by the Export Control Reform Act of 2018. The Export Control Reform modified control lists to include both fundamental and emerging technologies necessary for national security.

While the Trump administration pursued a hawkish approach toward China, the addition of the human rights issue as a justification for export control policy came out at the very last minute of his presidency. In October 2019 and June 2020, the Department of Commerce (DoC) added 52 Chinese entities to the list under the Export Administration Regulations (EAR) by citing “the abuse of human rights” in China. 

But the Biden administration was the first to actively repurpose human rights allegations as a justification for export control policies to hinder technology export to China. Among the 52 entities – the majority of which are Chinese high-tech companies – 48 companies violated human rights for minority groups in the Xinjiang region in 2020, according to the Department of Commerce (DoC). Recently, the Biden administration imposed export restrictions on 34 Chinese entities and Cambodia, citing human rights violations and the use of unethical military technology. 

To maintain technological prowess during “the strategic competition with China,” the Biden administration not only expands the rationale behind export controls, but also broadens its scope. Section 744.21 of the EAR, which designates the list of controlled products to China, Russia, and Venezuela for military purposes, initially regulated only military end-use exports to China. While China was the only country whose imports destined for military end users were not regulated until April 2020, the Trump administration expanded the restriction to include Chinese military end users. Afterward, the Biden administration enlarged the section of EAR by establishing a new “Military End User (MEU)” list and setting a new restriction on Military-Intelligence End Uses and End Users. Based on two policies, 57 Chinese entities affiliated with military organizations and the Intelligence Unit in the Joint Chiefs of Staff Department were named on the lists. Among these listed entities, most have developed critical and emerging technologies, such as quantum computing, even allegedly brain-control weaponry. Given the history of US export control policy toward China, the recent policies have ultimately broadened the scope of restriction from military end-use to specific military intelligence units within advanced technology sectors.

Based on US technologies’ leading position, controlling exports—or implementing export control policies—helps protect its technological advantage over China. To this end, we witness the convergence of two values when it comes to the United States’ China policy. This linkage derives from the US perception of the Chinese deficit in human rights protection and authoritative behaviors in a disparate direction from those that the US and its allies protect. The “human rights on export control” thus has two implications. As a literal definition, on the one hand, the US puts the cherry of human rights on top of the sundae—the underlying trend of US export control policy. On the other hand, the US crafts human rights issues in a way that serves its national interest in standing up for its partners in peril and to slow Chinese technology acquisition and development.

The US and its closest allies consolidate their strategy to operate human rights allegations in the foreign policy areas. Last January, the Bureau of Industry and Security who takes control of one of the US export control lists published the “Promoting Human Rights and Democracy” section, laying down all pertinent export control policies based on human rights. Australia and New Zealand announced their concern about Chinese human rights circumstances in Hong Kong and Xinjiang. Most recently, Japan in February adopted the resolution on denouncing “serious” human rights violations in China. With more and more countries joining the united front of human rights against China, US measures to control exports to China, as a result, are likely to become increasingly frequent, detailed, and fortified in pursuit of their role as guardians of human rights.

The author would like to thank Dr. Bob Dohner for his invaluable comments. 

Image Source: Global Times

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Sanghyun Han

Sanghyun Han is an M.A. Candidate at the Department of Political Science and International Relations, Seoul National University. He is currently working at the Asia Security Initiative, Atlantic Council under the Korea Foundation Global Challenger program. His research interests are emerging technologies, economy-security nexus, and US-China competition, on which he published two respective book chapters.

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