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In recent years, both the United States and the European Union (EU) have modernized their export control regulations, particularly those related to digital technology. Yet, experts disagree on the purpose and intent of these changes.

Scholar Cindy Whang, for instance, argues that the United States has centered its export control policies around the concept of geoeconomics, or an increasing “securitization of economic policy and economization of strategic policy.” The EU, on the other hand, has modernized its export control regime to position human rights as a central pillar of its dual-use export controls. According to Whang, the infusion of geoeconomics in U.S. national security and the EU’s incorporation of human rights considerations are “made mutually exclusive of each other” and detrimental to unifying export controls. Another scholar, Olga Hrynkiv, contends that U.S. export controls conceptualize national security as “at least in part intertwined with its economic policy concerns and the race for technological supremacy,” whereas the EU “emphasizes the human security dimension of its export control[s]” and “seems to be more resilient and better able to defend its values without resorting to excesses of securitization.”

Yet, recent developments in the respective export control policies of the United States and the EU undermine this dichotomized narrative—human rights and geoeconomic concerns are prominent in both jurisdictions’ export regulations. While the EU has undoubtedly been a vanguard in using export controls to advance fundamental rights, the United States has also taken substantial steps to enshrine human rights principles in its export control policies. Likewise, while the United States has shown a far greater willingness than the EU to use export restrictions to secure its geoeconomic interests, exemplified by its curtailment of certain advanced technologies to China, the EU’s sweeping sanctions against Russia demonstrate the bloc’s willingness to use export controls to protect its geoeconomics interests as well.

Export Controls for Human Rights

The EU is often portrayed as a “key norm-setter” when it comes to controlling the export of surveillance technologies. The bloc began advocating for stronger regulations of cyber-surveillance exports between 2009 and 2011, when journalists and researchers revealed that European companies had provided surveillance technologies to governments in Bahrain, Egypt, Iran, and Syria. Cognizant that EU-based firms had been major exporters of surveillance technology, the EU attempted to get its house in order. In 2016, the European Commission kick-started a process of reforming the EU’s regulations on dual-use exports—technologies that can be used for both civilian and military purposes. The process culminated in a new regulation in 2021. In addition to explicitly referencing human rights as a consideration in its export controls, the new regulation created several mechanisms so that EU regulators could control a wider range of dual-use items, enhance accountability from exporters, and increase transparency about how member states were implementing export control rules. While certain human rights protections proposed by the European Commission were ultimately scaled down due to pressure from member states, the resulting political compromise still represented a modest but steady stride toward enshrining the protection of fundamental rights as a normative pillar of EU’s dual-use export control regime.

Compared to the EU, the United States is often portrayed as a laggard in regulating digital technologies domestically. But when it comes to denying authoritarians access to American technology, the United States has taken a more active role. In 2018, then president Donald Trump signed the Export Control Reform Act (ECRA), which expanded the U.S. Department of Commerce’s ability to impose unilateral controls on items not covered under existing international agreements (notably the Wassenaar list). ECRA affirmed that “carry[ing] out the foreign policy of the United States, including the protection of human rights and the promotion of democracy” is one of the act’s policy purposes. In October 2020, U.S. officials amended the Export Administration Regulations (EAR)—a set of export guidelines administered by the Department of Commerce’s Bureau of Industry and Security (BIS)—to enhance “consideration of human rights concerns when reviewing almost all license applications for items on the Commerce Control List.” In March 2023, the BIS further amended the EAR to “explicitly confirm that the foreign policy interest of protecting human rights worldwide is a basis for adding entities to the Entity List” (emphasis added).

The United States has taken concrete actions in furtherance of these policies. For instance, regulators have taken aggressive steps to tackle China’s “tech-enhanced authoritarianism,” adopting wide-ranging sanctions against Chinese entities found to be materially supporting the Chinese Communist Party’s brutal atrocities against Uyghurs in the western Xinjiang region. According to the Uyghur Human Rights Project, between October 2019 and March 2023, the BIS put a total of seventy-four Chinese government and business entities on its entity list, preventing them from accessing U.S. technology.

The United States has also stepped up its global leadership to curb the proliferation of digital surveillance. For example, in combating the spread of spyware, the U.S. government not only imposed sanctions on major vendors, such as the NSO Group, Cytrox, and Intellexa, but President Joe Biden also signed an executive order in March 2023 limiting federal agencies’ use of commercial spyware. During the second Summit for Democracy, the United States led a group of twenty-four countries to launch a voluntary code of conduct for enhancing export controls to prevent human rights violations. The nonbinding document will not be a silver bullet for ending the flow of goods and technologies to human rights abusers, but it reflects a policy shift that human rights ought to be taken into account in the conduct of international trade.

Export Controls for Geoeconomics

This is not to say that protecting human rights is the primary goal around which the U.S. export control system is designed. One of the ECRA’s national security policy goals is to maintain the United States’ leadership in the science, technology, engineering, and manufacturing sectors. In particular, the ECRA focuses on controlling the exports of “emerging” and “foundational” technologies, which are deemed critical to innovation and U.S. competitiveness in global markets. Hence, under the ECRA, U.S. dual-use export controls are no longer just about mitigating military risks. They are redesigned to secure, as U.S. National Security Adviser Jake Sullivan put it, “as large of a lead as possible” in U.S. technological and, hence, economic leadership.

U.S. export control measures against China exemplify this geoeconomic approach. On October 7, 2022, the BIS issued a new rule significantly expanding the scope of export restrictions against Chinese actors. Under this rule, export controls are not tailored to Chinese entities found to be aiding and abetting repression in China or even entities found to have ties with the Chinese military. Instead, the controls aim to set back China’s AI development by limiting its access to Western technologies across at least four layers of the AI development stack: high-end chips, chip design software, semiconductor manufacturing equipment, and components to build manufacturing equipment. While the BIS notice does reference China’s use of high-end chips for committing human rights abuses, undermining China’s technology base is likely the overriding concern, since the restrictions seem disproportional for purely addressing human rights issues.

European allies similarly demonstrate a growing incorporation of geoeconomics in their export restrictions policies. In March 2023, after months of U.S. persuasion, the Netherlands—home to ASML, the only company in the world that can produce highly sophisticated chip-making machines—announced new export controls on semiconductor technology. In a letter to parliament, trade minister Liesje Schreinemacher outlined the three strategic goals of the new controls: 1) preventing Dutch goods from contributing to undesirable end use; 2) preventing unwanted strategic dependencies in the long term; and 3) maintaining Dutch technological leadership. The first principle falls within the purview of the EU’s policy of incorporating human rights in its export controls, but the second and especially the third justifications move beyond pure human rights or traditional national security logics—they echo the United States’ rationale of widening the technological gap vis-à-vis adversaries.

While pressure from the U.S. government likely influenced the Dutch government’s decision, this does not undercut the latter’s motivations. The Hague’s move to curb tech exports coincides with an EU-led initiative to securitize economic and trade relations with geopolitical rivals. The bloc unveiled the European Economic Security Strategy in June 2023, acknowledging the need to “[complete] traditional approaches to national security with new measures to safeguard our economic security” and advocating for “a comprehensive strategic approach to economic security, de-risking and promoting [the EU’s] technological edge in critical sectors.” The new strategy signifies a shift in EU policy, challenging the bloc’s modus operandi of separating trade matters from national security issues. As one expert describes it, “The EU’s division between trade instruments controlled by the European Commission and security instruments controlled by member states is increasingly inadequate in the face of technological and industrial rivalry where economic security and national security are intertwined.”

To be sure, analysts have pointed out that the United States and the EU are “only partially aligned on the appropriate depth of technology decoupling from China.” But differences on China should not mask the bloc’s newfound drive to better integrate economic and security strategies. According to experts Matthias Matthijs and Sophie Meunier, in recent years the EU has undergone a “geoeconomics revolution” that has transformed Brussels into “a major macroeconomic and geoeconomic actor in its own right.” The question is not whether but from whom and to what degree the EU is hoping to achieve economic security.

When dealing with an adversary that it deems sufficiently threatening, the EU has shown an ability to muster the political will and regulatory capacity to protect its strategic interests. Russia’s invasion of Ukraine illustrates that point. Moscow’s aggression has forced Europe to securitize economics on an unprecedented scale. European countries have applied robust sanctions and trade restrictions not just on cutting-edge technology and dual-use goods but also on commodities and luxury goods. The list of banned products “is designed to maximise the negative impact of the sanctions for the Russian economy.” Interestingly, China’s complicity in Russia’s war efforts prompted the EU to extend trade restrictions against Beijing. In June 2023, Brussels imposed sanctions on a handful of Chinese entities for supporting Russia’s war machine, reflecting the EU’s increased willingness to wield economic tools to defend its geopolitical interests.

Conclusion

When it comes to regulating the export of digital technology, the United States is often described as self-interested, relying on geoeconomics calculi, whereas the EU is perceived to be largely driven by normative ideals and human rights principles. In fact, both jurisdictions have strengthened their legal basis for using export controls to pursue a broad set of foreign policy objectives—including geoeconomics objectives as well as human rights goals. While the substantive provisions differ, both jurisdictions have elevated human rights language in their export control regimes, and both have prioritized geoeconomics in enacting high-tech trade restrictions.