Since the 1980s, China has been accused of selling nuclear technology to multiple nations, including North Korea, Pakistan, and Iran. Without a robust export control regime, these transfers were hard to track and hard to prevent. However, on December 1, 2020, China’s new Export Control Law (ECL) went into effect. This law is China’s first comprehensive export control regime and increases their export control standards. It controls for dual-use goods, or items that can be used for military or civilian use, nuclear materials, and shifts the burden of compliance to the exporter for the end-use of items. It is important to understand how this law may impact U.S.-China relations and China’s compliance with multilateral export control regimes.
The ECL is China’s first comprehensive legislation regarding the export of sensitive material. Previously, China’s export controls consisted of piecemeal regulations. The first draft of the ECL was presented in 2017, with another draft presented at the end of 2019. The final vote came in the midst of a battle over the social media app TikTok, which the U.S. Department of Commerce has labeled a threat to U.S. national security due to its invasive export of privacy data. While the timing of the final vote to pass the ECL in 2020 protected TikTok, there were both international and domestic factors driving this overhaul of the system.
Although the ECL is comparable to the United States’ export control laws and controls for the export of nuclear materials, it faces enforcement challenges. Due to China’s changing bureaucratic structure and a lack of funding, strictly enforcing export controls has been an issue. However, this provides an opening for the international community, specifically the United States, to assist with ensuring these laws are enforced as efficiently as possible.
In 2004, China was turned away from one multilateral export control regime, the Missile Technology Control Regime (MTCR) due to their shady standards. The passing of the ECL provides an opportunity for the international community to reach out and offer membership to China, if Beijing can provide strict enforcement mechanisms. Although the MTCR is an informal regime that does not impose legally binding obligations, it is an important symbolic step in preventing the proliferation of sensitive materials. The inclusion of China, a known proliferator, into the MTCR strengthens the overall system of multilateral export control regimes, provides a platform for dialogue, and enhances nonproliferation efforts.
The United States can also work with China on creating common control lists. By ensuring commonality across export control laws, the chance for violations decrease. This step could be through a joint memorandum of understanding (MOU) for controlled items, specifically dual-use goods and nuclear technology. Despite not being legally binding, MOUs can create international norms and may be an outline for other nations looking to create sophisticated export control regimes.
As China’s Foreign Minister Wang Yi said “We hope that the next U.S. administration will return to a sensible approach, resume dialogue with China, restore normalcy to the bilateral relations and restart cooperation.” This call for cooperation in combination with China’s recent adherence to the Arms Trade Treaty, which regulates conventional arms sales, and the ECL will hopefully end China’s murky history in exporting sensitive materials and arms to other nations. This is especially important as Iran, a former beneficiary of China’s vague export laws, announced it has expanded uranium enrichment to the 20% mark. By engaging China to properly enforce export controls, specifically in relation to dual-use goods and nuclear technology, the United States has the chance to improve relations and work together to prevent any further spread of nuclear technology. With the Iran Nuclear Deal back in play, it is important to control sensitive technology and nuclear “know-how” as much as possible.
The United States should leverage this opportunity to not only engage unilaterally, but also open the door for China to join other multilateral export control regimes. China is currently only party to the Nuclear Suppliers Group, which controls for nuclear and nuclear-related exports. China’s progress in establishing export control standards that more closely align with the international community sets the stage for China to join the Australia Group, which controls for chemical and biological weapons, the Wassenaar Arrangement, which focuses on conventional weapons, and the MTCR. Each regime would also expand China’s control lists, allowing them to be more comprehensive. These regimes would expose China to transparency measures and may pave the way for more international cooperation in other arenas that require verification.
In a time of uncertainty and minimal cooperation, an increase of standards that work to prevent the spread of sensitive technology should be celebrated. It should also be followed by engagement to build on these standards. Despite the rocky relationship between the United States and China, the ECL may provide diplomatic openings for cooperation during a time of heightened nuclear tensions.
Jessica Budlong is a research assistant at the Center for Global Security Research at Lawrence Livermore National Laboratory, where she focuses on arms control.
The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States government or Lawrence Livermore National Security, Inc. LLNL-JRNL-818441.