Emerging And Disruptive Technologies From The Legal Perspective of Dual-Use Technologies Presented by: Dr. Székely Date: 7 March 2024 The Dual-Use Problem Illustrated - Characteristics of the improvised UAV: • 1. Off-the-shelf platform; • 2. Heavily adapted using specialist knowledge and items; • 3. Intended for a different (military, or otherwise nefarious) use, than it was developed for. - The problem of dual use occurs in the case of: • 1. Knowledge; • 2. Items; • 3. Technologies. The Dual-Use Regulatory Problem Briefly Explained - - Conceptual 'zones' of 'use': • Military • Dual • Civilian Policy implications of the regulation of dual-use knowledge, items and technology: • 1. Maintaining national and global security (in the classical meaning); • 2. (If we take an extensive view not limited to military/civilian use, preventing global, existential threats); • 3. Conversion between military and civilian development and hiding military development; • 4. Resolving the dual-use dilemma, and creating the dual-use security dilemma; • 5. Securitization of economic interests; • 6. Erecting tariff-like barriers and furthering hybrid trade and security policy in other ways. Dual Use (Un)Defined - Possibilities for defining the conceptual limits of dual-use technology: • 1. Dual civilian and military (destructive/nefarious/malevolent) purpose in antiterror and anti-criminal contexts (mostly present in soft-law and hard law multilateral and sometimes unilateral arrangements); • 2. Dual civilian and military/law-enforcement purpose in civil rights protection contexts, to refer to undesired end-use of the technology (mostly present in unilateral instruments); • 3. Peaceful and non-peaceful purpose, in non-proliferation contexts; • 4. In the field of bio-technologies and Al, technologies that may result in harm if used with malintent or even deployed/released inadvertently. - The problem raised in the regulatory context is either the lack of a definition for dual use or the presence of purpose-based definitions, where the purpose is mostly 'in the eye of the beholder' (the 'I'll know it when I'll see it' doctrine). This problem is especially acute in so- called 'catch-all' instruments such as the USA and China export restriction regimes. Dual Use (Un)Defined (2). A Tentative Definition For Military Civilian Dual Use - 'An item (knowledge, technology, artefact) is dual use if there is a (sufficiently high) risk that it can be used to design or produce a weapon, or if there is a (sufficiently great) threat that it can be used in an improvised weapon, where in neither case is weapons development the intended or primary purpose.' An Example Of Dual-Use Emerging Technology Control Regimes: The US Export Control System - A two-pronged system: International Traffic in Arms Regulation (ITAR) and Export Authorization Regulations (EAR) for dual-use technologies. - Proscribed items lists for dual-use technologies are maintained by the Bureau of Industry and Security (BIS). - Major new rules contained in the Export Control Reform Act of 2018 (ECRA). - Based on the ECRA the BIS established a list of emerging and foundational technologies, where export regulation is necessary, without defining dual use. - The 'BIS list' includes: additive manufacturing (popularly as 3D printing), advanced computing technology, advanced materials (including nanomaterials), advanced surveillance technology, artificial intelligence and machine learning, various biotechnologies, brain-computer interfaces, data analytics technologies, hypersonic technology, (advanced) logistics technology, microprocessor technology, position, navigation and timing technologies (e.g. global positioning systems), quantum information and sensing technologies, and robotics. - The US systems aims to securities international trade and maintain US technological advantage over adversaries, not only to prevent the spread of dual-use technology. - This approach is markedly different from that pursued by the EU, which reserved dualuse technology export regulation for situations when human rights concerns emerge, or international sanctions are imposed (such as in the case of Russia). - The US export control system for emerging and foundational dual-use technologies is detrimental to free trade and introduces elements of economic competition into a domain meant to ensure national and global security in the classical sense. - The post 2018 situation, meant to control technological outflows is a manifestation of deglobalization. What Is Needed For A Comprehensive And Clear International Regime On Dual-Use Technologies? - 1. A generally agreed-upon and bindingly codified definition of 'dual use', for catch-all instruments; - 2. Binding free-trade agreements between states which adhere to common standards on dual-use technologies between such states; - 3. An enforcement body to police compliance with such agreements, and ensure impartial application in the context of economic policy securitization; - 4. Unified proscribed items lists, especially in the field of emerging and disruptive technologies, where they are currently lacking.