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Published online by Cambridge University Press: 10 February 2025
Today export controls are all over the news. The so-called October rules regulating U.S. advanced semi-conductor chip exports to China represent a significant expansion of U.S. efforts to control the export of upstream advanced technology where the direct military applications remain unknowable. The U.S. sanctions and export control policy against Russia involve the most far-ranging and internationally coordinated export control regime since the end of the Cold War. If the House Foreign Affairs Committee and the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party get their way, export controls will become even more central to U.S. economic policy vis-à-vis China, and even more trade and research-collaboration restrictive. Not for the first time, U.S. export control policy is being called an act of economic war.
Thanks to Jeffrey Dunoff and Mark Dallas for their helpful feedback.
1 See Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification (Oct. 7 IFR), 87 FR 62186; Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification; Updates to the Controls to Add Macau, A Rule by the Industry and Security Bureau on Jan. 18, 2023, 88 FR 2821.
2 See Foreign Affairs Committee – Chairman Michael McCaul, 90-Day Review Report of Commerce Department's BIS (Dec. 7, 2023), at https://foreignaffairs.house.gov/press-release/mccaul-releases-90-day-review-report-of-commerce-departments-bis.
3 The Select Committee on the CCP, Reset, Prevent, Build: A Strategy to Win America's Economic Competition with the Chinese Communist Party (Dec. 12, 2023), at https://selectcommitteeontheccp.house.gov/media/policy-recommendations/reset-prevent-build-strategy-win-americas-economic-competition-chinese.
4 Alex W. Palmer, “An Act of War”: Inside America's Silicon Blockade Against China, N.Y. Times Mag. (July 12, 2023), at https://www.nytimes.com/2023/07/12/magazine/semiconductor-chips-us-china.html (“Last October, the United States Bureau of Industry and Security issued a document that—underneath its 139 pages of dense bureaucratic jargon and minute technical detail—amounted to a declaration of economic war on China.”). As Michael Mastanduno, allies, and adversaries have long argued that certain U.S. policies amounted to economic warfare. See Michael Mastanduno, Economic Containment: CoCom and the Politics of East-West Trade 40–47 (1992) (defining the term “economic warfare”). See the book's index for the many references to economic warfare.
5 The few legal books insiders have published are helpful for those who are compelled to follow the labyrinth of U.S. export-control related rules, regulations, and policies, but they do not explain U.S. export control policy writ large. See, e.g., Eric L. Hirschhorn, Brian J. Egan & Edward J. Krauland, U.S. Export Controls and Economic Sanctions (4th ed. 2021).
6 Mario Daniels & John Krige, Knowledge Regulation and National Security in Postwar America 13 (2022).
7 Hugo Meijer, Trading with the Enemy: The Making of US Export control Policy Toward the People's Republic of China 24 (2016).
8 I now understand that most export control writings move from topic to topic. The strategy is to then provide just enough background to understand each topic, which makes it difficult to reconstruct the larger context and bigger picture of U.S. policy. Also confusing, however, is that Daniels and Krige wanted to hit on all of the major controversies, even when the relationship to knowledge control is indirect or secondary.
9 Mastanduno, supra note 4.
10 Meijer's book goes much deeper into the 1990s policy debates behind the focus on technological leadership. See Meijer, supra note 7, Ch. 4 (discussing the Run Faster and the Control Hawks coalitions).
11 Mastanduno, supra note 4.
12 Id. at 40–47 (discussing economic warfare as a strategy); 71–74 (discussing U.S. beliefs after World War II); 234–42 (discussing President Reagan's economic warfare grand strategy and European disagreement with the policy).
13 Meijer, supra note 7. The Review returns to this point in discussing Meijer's book.
14 Mastanduno, supra note 4, at 74–82.
15 Id. at 88. Mastanduno explains that in order to smooth over European concerns about the 1952 Battle Act, a Congressional effort to use U.S. funding to force European countries to implement U.S. export controls, the State Department promised to CoCom partners that they would uphold a generous exceptions policy, and thereby allow critical trade with Central European countries. Mastanduno argues “[b]y legitimizing an exceptions procedure, the allies compromised what had been an unconditional embargo on List I items. In future years CoCom members would request exceptions not only for hardship cases but also to develop export markets in the East or, in the case of the United States, to advance particular foreign policy interests. The politicization of the exceptions procedure contributed to the weakening of CoCom during the 1970s and 1980s.”
16 Id., Ch. 4.
17 Meijer has an interview-based account of CoCom's demise and U.S. efforts to sustain cooperation through the creation of the Wassenaar Arrangement. Meijer, supra note 7, at 129–34.
18 Meijer conducted his research at a time when the Department of Commerce, Department of State, and Department of Defense were publicly and vocally aligned around an export controls reform agenda. This collaboration, and Secretary of Defense Robert Gates’ public endorsement of the reform agenda, was unusual. Yet the Control Hawks viewpoint did not go away. Rather, export control policy reform ended up being an exception that did not prove a rule.
19 The Treaty was negotiated between 1965 and 1968, and it entered into force in 1970. UNODA, Treaty of the Non-Proliferation of Nuclear Weapons (NPT), at https://disarmament.unoda.org/wmd/nuclear/npt.
20 For more, see Enia, Jason, Greasing the Wheels of the Nuclear Nonproliferation Regime: The Political Economy of Nuclear Suppliers Group Rules, 3 J. Peace & Nuclear Disarmament 385 (2020)CrossRefGoogle Scholar. See also Andrew Feickert, Cong. Res. Serv. CRS RL31848, Missile Technology Control Regime (MCTR) and International Code of Conduct Against Ballistic Missile Proliferation (ICOC): Background and Issues for Congress (Apr. 8, 2003).
21 The Nuclear Supplier Group was established in 1975; the Australia Group (linked to prohibitions on the use and spread of chemical and biological weapons proliferation) was established in 1985; the Missile Technology Control Regime was founded in 1987; the Wassenaar Arrangement, established in 1996, was the replacement to CoCom. While lawyers might struggle to understand the legal bases of these institutions, insiders label these informal and mostly untransparent entities multilateral export control regimes. An association of a control and these regimes renders the control “multilateral.”
22 See Rasmussen, Niels Aadal, DIIS Brief, Chinese Missile Technology Control – Regime or No Regime?, Danish Inst. Int'l Stud. (Feb. 2007)Google Scholar.
23 UN General Assembly, Report of the Secretary General, Seventy-Seventh Session Promoting International Cooperation on Peaceful Uses in the Context of International Security, UN Doc. A/77/96 (June 13, 2022).
24 Daniels & Krige, supra note 6, at 32.
25 Id. at 104–10.
26 Mastanduno, supra note 4, at 132–42.
27 Id., Ch. 6.
28 Daniels & Krige, supra note 6, at 133–34.
29 Id., Ch. 2.
30 Id. at 21.
31 Id.
32 Id.
33 Id. at 26. To put my cards on the table, I do think that post-COVID, economic security is emerging as a major new issue.
34 Id. at 18.
35 Id. at 17–18.
36 Id. at 23. Daniels and Krige discuss objections to the National Security viewpoint. Given their U.S. focus, Daniels and Krige give short shrift to Mastanduno's arguments about how U.S. officials often embrace the less hawkish positions of U.S. allies.
37 See especially id. at 98.
38 Id. at 143–45. See note 46 infra (explaining why the Reagan administration took extreme measures).
39 Id.
40 Id. at 321–22.
41 See Michael German, The “China Initiative” Failed US Research and National Security. Don't Bring It Back, The Hill (Sept. 19, 2024), at https://thehill.com/opinion/national-security/4886821-china-initiative-restart-harmful.
42 An MIT study is highly critical of the China Initiative, noting that it “strayed far from its mission.” See Guo, Eileen, Aloe, Jess & Hao, Karen, The US Crackdown on Chinese Economic Espionage Is a Mess. We Have the Data to Show It, MIT Tech. Rev. (Dec. 2, 2021).Google Scholar A study on how the China Initiative has impacted scholars of Chinese descent, encouraging them to leave the United States and decreasing grant proposals to federal agency sponsored funding. See Xie, Yu, Lin, Xihong, Li, Ju & Huang, Junming, Caught in the Crossfire: Fears of Chinese-American Scientists, 120 Proc. Nat'l Acad. Sci. e2216248120 (2023)CrossRefGoogle ScholarPubMed.
43 Mastanduno, supra note 4, at 327. Mastanduno noted that Department of Defense officials saw the thefts as greatly improving Soviet military capability. With greater access to documents, Daniels and Krige list and demonstrate the impact of the leaks. Daniels & Krige, supra note 6, at 137–42.
44 Mastanduno, supra note 4, at 233–308.
45 Id., Ch. 7.
46 The State Department managed to never implement Congress's 1950 Battle Act mandate to sanction European partners, and the sanctioning elements of the Bucy Report were also seen as a non-starter. President Reagan was the first U.S. president to threaten sanctions, and it did not go well. See id. at 83–89 (regarding the Battle Act); 210–13 (where even Defense Department officials recognized that sanctioning allies was a problem); 243–52 (discussing Reagan's efforts to stop the building of a pipeline to deliver oil from Russia).
47 Meijer, supra note 7, at 57.
48 Id. at 59–79.
49 Id. at 93–100.
50 Id. at 199–203.
51 Id. at 18.
52 Meijer, supra note 7, at 151–57. My argument is that the failures of U.S. policy in the 1970s and 1980s created a reception for what were essentially repackaged arguments. Meijer sees the Control Hawks as located in Congress, with some support in think tanks and among former and career Pentagon officials (at 157–61). He also sees business as “pressing in the same direction as the Run Faster coalition” but mostly for economic-interest reasons (at 161).
53 Daniels & Krige, supra note 6, discussion at 252–57, quote at 252.
54 Id. at 253.
55 Meijer, supra note 7, at 118–21
56 Id. at 146.
57 In my view, Meijer's characterization of the Pro-Trade camp plays into the security narrative wherein anyone that disagrees is putting profits over security. Indeed Mastanduno shows that the United States and foreign advocates of détente thought that liberalizing trade would be a better national security strategy (Mastanduno, supra note 4, at 132–34, 169–70). Given the just discussed Reagan policy, it is also clear that President Reagan saw liberalizing export controls vis-à-vis China and Central Europe as a better national security strategy.
58 Meijer, supra note 7, at 149–50.
59 The arguments against unilateral sanctions were present in the 1960s, leading up to the Export Control Administration Act of 1969 that led to the détente liberalization of export controls. Also, the idea that there was now ample foreign supply of important technologies was part of the discussion since the 1970s, when Japan became a major technology exporter. The only thing that was different in the 1990s is that Secretary of Defense Robert Gates took on the hawks in the Department of Defense, and his vocal support for export control reform and the pointlessness of over-control made it much harder for Congressional Control Hawks to resist the reform efforts.
60 Daniels & Krige, supra note 6, at 104.
61 The reoccurring struggles repeatedly end up in a similar place because university officials constantly push back against control efforts: Fundamental research, published research, and open-source knowledge are not subject to controls. See id., Ch. 6 for more.
62 Meijer has a newer book that discusses European Perspectives. Hugo Meijer, Awakening to China's Rise: European Foreign and Security Policies Toward the People's Republic of China (2022).
63 Mastanduno, supra note 4, at 324.