Academic journal article Houston Journal of International Law

The Wall Still Stands! Complying with Export Controls on Technology Transfers in the Post-Cold War, Post-9/11 Era

Academic journal article Houston Journal of International Law

The Wall Still Stands! Complying with Export Controls on Technology Transfers in the Post-Cold War, Post-9/11 Era

Article excerpt


What a troublesome thing a wall is! I thought it was to defend me, and not I it!

--Henry David Thoreau (1)

Protection of capabilities and technologies readily available on the world market is, at best, unhelpful to the maintenance of military dominance and, at worst, counterproductive, undermining the industry upon which U.S. military-technological supremacy depends.

--Report of the Defense Science Board Task Force on Globalization and Security (2)

The fall of the Berlin Wall signaled the end of the Cold War and a dramatic easing of military tensions between the United States and any plausible military rival. This geopolitical watershed naturally raised expectations that the extensive restrictions on the international transfer of commercial technology and hardware had become largely unnecessary and would be lifted to a significant extent. The rationale undergirding export controls on trade in commercial goods and technology with a possible military end-use--threat of a large-scale conventional or nuclear conflict--had markedly diminished. Moreover, because U.S. dominance in technology was no longer a given, as it was during much of the Cold War, and U.S. companies had increasingly found that they must export products and technology in order to remain competitive in the global marketplace, unilateral U.S. controls became unrealistic and largely self-defeating. As the competitiveness and health of the export-dependent U.S. technology sector has a direct bearing on the U.S. ability to develop on its own new generations of "smart" defense systems, it seemed obvious that relaxing unnecessary restrictions on technology exports could well advance U.S. national security. (3)

At first, the U.S. government reacted consistently with these expectations, eliminating restrictions on the transfer of certain types of technology in the early 1990s in response to the deflation of East-West tensions. The government liberalized trade with Eastern European countries, and raised the threshold for technology subject to national security or foreign policy controls, thereby freeing exports of technology at lower levels. (4)

Soon, however, the government reversed course on liberalization. Despite tremendous changes in post-Cold War international relations, the export control burden on U.S. business actually has increased in many respects since the collapse of the Soviet Union. There are still over five agencies enforcing an array of controls on the transfer of goods and technology to specified destinations, pursuant to over forty statutes. (5) The number of export license applications filed with U.S. government agencies that control technology exports actually increased after the end of the Cold War. (6) While the United States certainly continues to face threats from terrorist networks and certain countries of concern, these threats are of a different scale and magnitude than the threat posed by the organized military of the Soviet Bloc nations and do not warrant the same type of extensive technology controls. (7)

Since the events of September 11, 2001, the trend to tighten restrictions has gathered pace, casting a pall over the entire licensing process, not only anti-terrorism controls aimed at so-called "rogue" states and end-users with potential terrorist connections.

This post-Cold War paradox is rooted in several causes.

* Failure to Keep Pace with Technology.

Although remaining export controls were set at a specific technology level that may have been highly sophisticated and sensitive at the time the control level was established, the rapidly evolving pace of technological advancement often renders the delineated control levels outmoded, restricting exports of generic and freely available technology; (8)

* Expanding Unilateral Foreign Policy Controls.

Recent U.S. administrations have embraced economic sanctions, including embargoes, as a policy tool to be used against a growing list of countries for political rather than national security purposes, motives not shared by other countries supplying similar technology; (9)

* Resistance to Change. …

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