Sci Eng Ethics DOI 10.1007/s11948-014-9519-y ORIGINAL PAPER

Evolution of Different Dual-use Concepts in International and National Law and Its Implications on Research Ethics and Governance Johannes Rath • Monique Ischi • Dana Perkins

Received: 13 July 2013 / Accepted: 20 January 2014  Springer Science+Business Media Dordrecht 2014

Abstract This paper provides an overview of the various dual-use concepts applied in national and international non-proliferation and anti-terrorism legislation, such as the Biological and Toxin Weapons Convention, the Chemical Weapons Convention and United Nations Security Council Resolution 1540, and national export control legislation and in relevant codes of conduct. While there is a vast literature covering dual-use concepts in particular with regard to life sciences, this is the first paper that incorporates into such discussion the United Nations Security Council Resolution 1540. In addition, recent developments such as the extension of dual-use export control legislation in the area of human rights protection are also identified and reviewed. The discussion of dual-use concepts is hereby undertaken in the context of human- and/or national-security-based approaches to security. This paper discusses four main concepts of dual use as applied today in international and national law: civilian versus military, peaceful versus non-peaceful, legitimate versus illegitimate and benevolent versus malevolent. In addition, the usage of the term to describe positive technology spin-offs between civilian and military applications is also briefly addressed. Attention is also given to the roles civil society and research ethics may play in the governance of dual-use sciences and technologies.

Disclaimer: Unless otherwise specified, the opinions presented here are those of the authors and may not necessarily reflect the views of the 1540 Committee, its Group of Experts or the UN Security Council J. Rath (&)  M. Ischi Department Integrative Zoologie, University of Vienna, Althanstrasse 14, 1090 Vienna, Austria e-mail: [email protected] D. Perkins UN Security Council 1540 Committee, Group of Experts, New York, NY, USA e-mail: [email protected]

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Keywords Dual use  Terminology  Biosecurity  Ethics  Governance  Human security  National security

Introduction The Book of Genesis 11, 1–9 describes how God confounded speech to successfully obstruct the creation of something meaningful. The story of Babel stands as a metaphor for the importance of using one language to make progress in solving problems. Publications of Khrustalev and Rassadin (2012) and Suk et al. (2011) about the ‘diffusion of dual-use technology’ demonstrate that in scientific literature the term ‘dual use’ is used today to describe different and even opposing framings. This inconsistent definition of the term ‘dual use’ in the literature is a reflection of the inconsistent usage and historical changes of the meaning of the term and concepts in political and legal discussions over the last decades. The term first appears in discussions over technology transfers between civilian and military applications1 and is associated with a concept where civilian and military research and technology go hand in hand to maximize their usage in a win–win scenario. Only later on, when the term started to be used in non-proliferation legislation, like export control laws, to address the problem that the same materials, technologies or knowledge might be used for wanted and unwanted purposes, the so-called dual-use dilemma emerged (Atlas and Dando 2006). Most of the international nonproliferation legislation and codes, with the exception of the Wassenaar Arrangement (1995), do not draw on the term dual use, but refer to terms such as civilian versus military purposes, peaceful versus non-peaceful purposes, benevolent versus malevolent purposes or weapons-related purposes in describing concepts of dual use. In recent years, several authors (Galev 2003; McLeish and Nightingale 2005; Atlas and Dando 2006; Miller and Selgelid 2007; Ehni 2008; Resnik 2009; Forge 2010; van der Bruggen 2012; Kuhlau 2013) acknowledge the existence of different concepts of dual use in ethical discussions. Using expressions with specific semantic meanings is, however, a presupposition to any meaningful ethical discourse (Alexy 1978; Habermas 1991). The concurrent application of distinct concepts of dual use in international and domestic law as well as in research ethics may impede the effective national implementation of international treaties, conventions, arrangements and relevant Security Council resolutions and overall the governance of dualuse sciences and technologies. The systematic evaluation of the evolution of dual-use concepts applied in international and national legislation is still missing. The following text reviews the evolution of different dual-use concepts in international and national legislation and codes of conduct. It examines implications of these ongoing developments in relation to governance and the role research ethics and civil society may play in the risk mitigation of dual-use sciences and technologies. 1

United States Congress. Office of Technology Assessment (OTA). (1993). Defense Conversion: Redirecting r&d. OTA-ITE-552. Washington, DC: Government Printing Office.

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Evolution of Dual-use Concepts in International and National NonProliferation and Anti-terrorism Regimes 1.

The concept of dual use in international arms control legislation—a traditional civilian versus military purpose concept extended to include a benevolent versus malevolent purpose concept through the incorporation of anti-terrorism and anti-criminal measures.

At the international level, the ‘Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies’ (1995) is an arrangement that focuses on restricting the access of civil technologies to enhance foreign military capacities (Table 1). As such, it distinguishes not only between civilian and military uses of dual-use technologies but also between accepted military uses by allied forces and unwanted military uses by non-allied forces. Historically, also other multilateral dual-use export control regimes (Nuclear Suppliers Group (NSG); Missile Technology Control Regime (MTCR); and the Australia Group) were established to address the risk of proliferation of weapons and means of their delivery in a military context. Since 9/11, however, a conceptual transition has taken place, and these multilateral export regimes also took steps to address the risk of terrorism (Table 1). 2.

The concept of dual use in national export control legislation—a traditional civilian versus military purpose concept extended to include a benevolent versus malevolent purpose concept through the incorporation of anti-terrorism/ anti-criminal and human rights protection concepts.

At the national level, export control legislation aims to implement the objectives of these international arrangements and focuses on denying non-allied countries access to certain strategic and military items by prohibiting or curtailing the exportation of military equipment, munitions, tools and materials, whenever necessary in the interest of national security. In the USA, for example, the original concept of dual use in export controls refers to commercial materials, equipment, software and technologies (so-called dual-use items) that though not developed for the military could be useful for military purposes. Separate export controls were established to distinguish them from those specifically designed for military applications. The Export Administration Regulations (EAR), 15 C.F.R. 730–774, govern the transfer and export (including deemed export of dual-use items and technologies), while the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120–130, govern the control of defence articles and services (arms). The dual-use purpose items are listed on the Commerce Control List (CCL), while the defence article and services are enumerated on the US Munitions List (USML). Items classified as dual use for export control purposes that are not listed on the CCL are designated as EAR99 and consist of the majority of commercial products and may include items with solely civilian uses. The requirement to obtain an export licence for an EAR99 item may be invoked in the case of an export of such item to an embargoed or sanctioned country, to a party

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123 GUIDELINES FOR TRANSFERS OF NUCLEAR-RELATED DUAL-USE EQUIPMENT, MATERIALS, SOFTWARE, AND RELATED TECHNOLOGY (INFCIRC/254, Part 2): ‘With the objective of averting the proliferation of nuclear weapons and preventing acts of nuclear terrorism, …’b ‘…The MTCR was initiated partly in response to the increasing proliferation of weapons of mass destruction (WMD), … While concern has traditionally focused on state proliferators, after the tragic events of 11 September 2001, it became evident that more also has to be done to decrease the risk of WMD delivery systems falling into the hands of terrorist groups and individuals’.d

Nuclear Suppliers Group

Missile Technology Control Regime

‘…F. The risk of controlled items falling into the hands of terrorist groups and individuals…’e

‘The Wassenaar Arrangement … transfers of conventional arms and dual-use goods …. transfers of these items do not contribute to the development or enhancement of military capabilities …’a

‘…Participating States … prevent the acquisition of conventional arms and dual-use goods and technologies by terrorist groups and organisations, as well as by individual terrorists’

The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies

‘[MTCR] Category II items include other less-sensitive and dual-use missile related components, as well as other complete missile systems….’g

‘The Annex is divided into ‘‘Category I’’ and ‘‘Category II’’ items. It includes a broad range of equipment and technology, both military and dual-use, …’f

‘…none of their exports of goods or technologies contribute to nuclear weapons programs…’c

‘…to prevent the acquisition of armaments and sensitive dual-use items for military end-uses…’

Provisions regarding military capacities (illustrative examples)

Provisions regarding terrorism (illustrative examples)

International export control regime or agreement

Table 1 Since 9/11, multilateral export regimes went beyond the traditional civilian versus military dichotomy (and state proliferation concerns) to also include antiterrorism provisions (and non-state-actors proliferation concerns)

J. Rath et al.

j

i

h

g

f

e

d

c

b

a

‘The Australia Group is a cooperative and voluntary group of countries seeking to counter the spread of technologies … by states and terrorists…’

Australia Group

‘Evidence of the diversion of dual-use materials to biological weapons programs in the early 1990s led to participants’ adoption of export controls on specific biological agents. …’j

‘…The principal objective of Australia Group participants’ is to use licensing measures … do not contribute to the spread of CBW…’i

Provisions regarding military capacities (illustrative examples)

http://www.australiagroup.net/en/origins.html

http://www.australiagroup.net/en/objectives.html

http://www.australiagroup.net/en/media_june2013.html

http://www.mtcr.info/english/FAQ-E.html

http://www.mtcr.info/english/guidelines.html

http://www.mtcr.info/english/guidetext.htm

http://www.mtcr.info/english/

http://www.nuclearsuppliersgroup.org/A_test/press/2012-06-Seattle_NSG_Public_Statement__FINAL_.pdf

http://www.nuclearsuppliersgroup.org/A_test/01-eng/09-guide.php?%20button=9

http://www.wassenaar.org/guidelines/docs/Guidelines%20and%20procedures%20including%20the%20Initial%20Elements.pdf

‘… to limit the risks of proliferation and terrorism involving chemical and biological weapons (CBW) by controlling tangible and intangible transfers that could contribute to CBW activities by states or non-state actors,…’h

Provisions regarding terrorism (illustrative examples)

International export control regime or agreement

Table 1 continued

Evolution of Different Dual-use Concepts

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of concern or in support of a prohibited end-use.2 Similarly, for ITAR controls not only the items listed on the USML, but any other item or technology that has been specifically designed, developed, configured, adapted or modified for a military purpose and that does not have a ‘predominant civil application’ would also fall under the ITAR purview. A similar distinction of civilian versus military (dual use) versus military-only use items is seen in the national legislation and enforcement of many countries, including the European Union Council (EC) Regulation no. 428 (2009)3 as amended. EC 428/2009 specifies that ‘Dual-use items are items, including software and technology, which can be used for both civilian and military purposes. It includes all goods that can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices’. Export licensing requirements may be implemented for items not on the list if the item is intended for ‘a military end-use and the purchasing country or country of destination is subject to an arms embargo; or use as parts or components of military items that have been exported from the EU without authorisation or in violation of an authorisation’.4 Items specifically designed for military purposes are included on the Common Military List of the European Union.5 In recent years, globalization and sweeping changes in the political, economic, technological, societal and security environment have led to substantive changes in the dual-use concept applied in export controls, in particular, with regard to considerations of non-military end-uses and end-users of concern (‘solely civil uses’) as well as considerations of foreign policy (e.g. the US has a policy of denying applications that involve end-uses linked to drug trafficking, terrorism, international organized crime and other criminal activities), international sanctions and embargoes, and violations of internationally recognized human rights or religious freedom.6 A notable example in the extension of the dual-use concept into the human rights context is provided by a recent European Parliament legislative resolution.7 3.

Dual use and the global WMD non-proliferation regime: a peaceful versus nonpeaceful purpose concept of dual use

While the export control regimes and agreements discussed above reference the nuclear, chemical or biological non-proliferation treaties as a basis for controlling dual-use items, these treaties encompass the dual use primarily through a peaceful versus non-peaceful purposes concept (Table 2). Implementation at the national 2

http://beta-www.bis.doc.gov/index.php/licensing/commerce-control-list-classification/export-controlclassification-number-eccn.

3

http://trade.ec.europa.eu/doclib/docs/2009/june/tradoc_143390.pdf.

4

http://europa.eu/legislation_summaries/internal_market/single_market_for_goods/external_dimension/ cx0005_en.htm.

5

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:085:0001:0036:EN:PDF.

6

http://www.bis.doc.gov/news/2013/2013_foreign_policy_report.pdf.

7

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT?TA?P7-TA-2012-0383?0?DOC ?XML?V0//EN.

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Evolution of Different Dual-use Concepts Table 2 Examples of wording in national legislation and draft legislation defining dual use in a benevolent–malevolent human rights context Example

Reference

‘…prohibit or impose an authorisation requirement on the export of dual-use items not listed in Annex I for reasons of public security or human rights considerations’

European Parliament legislative resolution of 23 October 2012 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dualuse items

‘An authorisation shall also be required for the export of dual-use items …are or may be intended, in their entirety or in part, for use in connection with a violation of human rights, democratic principles or freedom of speech as defined by the Charter of Fundamental Rights of the European Union, by using interception technologies and digital data transfer devices for monitoring mobile phones and text messages and targeted surveillance of internet use (e.g. via monitoring centres or lawful interception gateways)’

level of the three main non-proliferation regimes [(Treaty on the Non-Proliferation of Nuclear Weapons (NPT) (1968), the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC) (1972), and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) (1997)], originally aimed at curtailing the WMD proliferation by states, also addresses in many instances the proliferation by non-state actors. Although challenged recently,8 the NPT, in contrast to the BWC and CWC, supports the principle of nuclear deterrence to ensure peace, thereby complicating the peaceful versus non-peaceful concept of dual use applied in the WMD area. While it can be argued that the safeguards and overall efforts of the International Atomic Energy Agency (IAEA) as the implementing and compliance monitoring body for the NPT limit the risk of terrorists’ acquisition of nuclear weapons and related materials, the NPT itself does not reference non-state actors. The 2010 NPT review conference9 seems to imply that illicit trafficking should be addressed irrespective of its subjects-whether states or non-state actors. However, instead of expanding its non-proliferation focus to cover non-state actors, the 2010 NPT Review Conference noted instead the entry into force in 2007 of the International Convention for the Suppression of Acts of Nuclear Terrorism10 and urged states to join it. There is no such convention to address chemical or biological terrorism specifically. Multilateral initiatives to detect, investigate and respond to 8

http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/npt/prepcom13/statements/ 24April_SouthAfrica.pdf.

9 10

http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2010/50%20(VOL.I). http://www.un.org/ga/search/view_doc.asp?symbol=A/Res/59/290.

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proliferation by non-state actors, such as the Global Initiative to Combat Nuclear Terrorism (GICNT), are limited to the nuclear area of the WMD terrorism spectrum. Similarly to NPT, ‘peaceful’ purposes are also enshrined in the CWC and BWC. However, unlike the NPT, past review conferences of CWC11 and BWC12 specifically address the risk of terrorism and proliferation by non-state actors. Resolution 1540 that was adopted on 28 April 2004 by the United Nations Security Council under Chapter VII of the United Nations Charter obliges state, inter alia, to refrain from supporting by any means non-state actors from developing, acquiring, manufacturing, possessing, transporting, transferring or using nuclear, chemical or biological weapons and their delivery systems. It is the only international instrument that covers the entire spectrum of WMDs (nuclear, chemical and biological), their related materials and means of delivery with regard to non-state actors. As such, it effectively addressed the gaps in the international non-proliferation regimes (NPT, CWC, BWC) in addressing the risk of illicit trafficking by non-state actors including terrorism. UNSCR 1540 (2004) imposes binding obligations on all states to adopt legislation to prevent the proliferation of nuclear, chemical and biological weapons, and their means of delivery, and to establish appropriate domestic controls over related materials. The Security Council defined WMD-related materials as ‘materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery’. States are required to implement and enforce appropriate controls over nuclear, chemical and biological weapons-related materials in order to: account for and secure items in production, use, storage or transport; physically protect such materials; detect, deter, prevent and combat the illicit trafficking and brokering through effective border controls an law enforcement efforts; control the export, transit, trans-shipment and re-export and the provision of funds and services related to such export and trans-shipment that would contribute to proliferation; and penalize violations. Through UNSCR 1540, the Security Council called upon States ‘‘to renew and fulfill their commitment to multilateral cooperation, in particular within the framework of the International Atomic Energy Agency, the Organization for the Prohibition of Chemical Weapons and the Biological and Toxin Weapons Convention, as important means of pursuing and achieving their common objectives in the area of non-proliferation and of promoting international cooperation for peaceful purposes… [and] promote the universal adoption and full implementation, and, where necessary, strengthening of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear, biological or chemical weapons’’. As such, UNSCR 1540 complements and reinforces existing nonproliferation regimes. However, neither UNSCR 1540 (2004) nor follow-up related UNSCRs (1673, 1810, 1977) discussed or defined the concept of dual use, but they imply the 11

http://www.opcw.org/index.php?eID=dam_frontend_push&docID=16406.

12

http://www.unog.ch/80256EE600585943/(httpPages)/92CFF2CB73D4806DC12572BC00319612?Open Document.

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peaceful versus non-peaceful purpose concept, in the overall goal of the UNSCR 1540 (2004). In addition, the effective implementation of the binding obligations set forth by UNSCR 1540 with regard to ‘related materials’ (which are in the broad category of ‘dual-use’ materials, equipment and technology) as defined by the Security Council with reference to items ‘covered by relevant multilateral treaties and arrangements, or included on national control lists’ would not be possible without a clear identification of ‘dual use’ in the context of the multilateral treaties to which States are parties to, and a thorough evaluation of this concept when considering national legislation for implementation of relevant international obligations. In conclusion, the peaceful versus non-peaceful purpose concept of dual use applied in the area of international WMD non-proliferation treaties and related legislation integrates the civilian versus military purpose concept of dual use with a benevolent versus malevolent purpose concept of dual use into one overarching framework concept. 4.

The concepts of dual use in national and international biosecurity oversight

Whether a civilian versus military, a benevolent versus malevolent or a peaceful versus non-peaceful purpose concept of dual use is applied, with the exception of export control lists, there is hardly any guidance on determining the potential contribution of a dual-use material or technology to a weapons programme or assessing its risk of misuse by non-state actors. Basically, one may say that the States parties to multilateral export regimes and agreements or non-proliferation regimes and instruments tacitly agree with the ‘I know it when I see it’ standard famously used in a US Supreme Court decision in order to avoid a shorthand description (Gewirtz 1996). This all changed in the field of biotechnology and life sciences, with the publication of the seminal ‘Fink report’ (National Research Council 2004). The report assessed the capacity of advanced biological research ‘to cause disruption or harm’ when there is a ‘risk that dangerous agents that are the subject of research are stolen or diverted for malevolent purposes’ and when there is a ‘risk that the research results, knowledge, or techniques could facilitate the creation of ‘novel’ pathogens with unique properties or create entirely new classes of threat agents…’ that can be used as weapons or inadvertently harm life, material or the environment. The report lists seven classes of experiments (the Experiments of Concern) involving biological agents that are illustrative examples of research of concern and the concept of dual use. Based on the Fink report’s recommendations, the US Government established the National Science Advisory Board for Biosecurity (NSABB). This federal advisory committee chartered to provide advice, guidance and leadership regarding biosecurity oversight of dual-use research, defined as biological research with legitimate scientific purpose that may be misused to pose a biologic threat to public health and/or national security. Notably, the NSABB emphasizes that it can be argued that virtually all life sciences research has dual-use potential, but it also describes a subset of dual-use research that has the highest potential for generating information that could be misused, which NSABB calls ‘dual-use research of

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concern’ (DURC). DURC information is reasonably anticipated to pose a threat when directly misapplied and could have broad potential consequences to public health or other aspects of national security (e.g. that threaten populations rather than individuals).13 The NSABB definition of DURC is thus ‘research that, based on current understanding, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals, the environment, or material’. The NSABB definition of DURC thus implies intent to cause harm (i.e. ‘directly misapplied by others’) and is supportive of a benevolent versus malevolent dual-use concept that includes military applications. The concept of intent to cause harm (by would be criminals or terrorists) was highlighted by NSABB when assessing the dual-use potential of research concerning the transmissibility of H5N1 in mammals (Herfst et al. 2012; Imai et al. 2012), which described the generation of mutations in H5N1 that enable the airborne transmission of the virus between ferrets. Information resulting from such research was deemed to be DURC.14 The H5N1 research precipitated the release of the US Government’s Policy for Oversight of Life Sciences Dual Use Research of Concern15 in March 2012, which was followed by the Policy for Institutional oversight of Life sciences dual Use Research of Concern.16 The H5N1 research mentioned above also triggered an informal consultation on DURC led by the World Health Organization (WHO) since these experiments were considered ‘life sciences research intended for benefit, but with results which might be easily misapplied to produce harm’.17 Of note, the concept of dual use is not used consistently with the same meaning in various biosecurity documents published by WHO. In its ‘Laboratory Biosafety Manual’ (2004), it applies a malevolent–benevolent purpose concept, whereas the ‘Laboratory Biosecurity Guidance’ (2006) includes a civilian versus military as well as a benevolent versus malevolent purpose concept of dual use. The third document issued by WHO in the biosecurity context, the ‘Responsible life sciences research for global health security’ (2010), applies a legitimate versus illegitimate purpose definition of dual use (Table 3). In 2007, the Royal Netherlands Academy of Arts and Sciences issued a Code of Conduct for Biosecurity. The Code uses the term ‘dual use’ regularly but does not provide an explicit definition of it. It is, however, evident that it follows the NSABB concept in applying a benevolent versus malevolent purpose concept of dual use but includes a military versus peaceful purpose concept of dual use (Table 3). A similar usage of the term is also applied by the European Group on Ethics in Science new

13

http://oba.od.nih.gov/biosecurity/pdf/Framework%20for%20transmittal%200807_Sept07.pdf.

14

http://oba.od.nih.gov/oba/biosecurity/PDF/03302012_NSABB_Recommendations.pdf.

15

http://oba.od.nih.gov/oba/biosecurity/PDF/United_States_Government_Policy_for_Oversight_of_DURC_ FINAL_version_032812.pdf. 16

http://www.phe.gov/s3/dualuse/Documents/oversight-durc.pdf.

17

http://www.who.int/csr/durc/durc_feb2013_full_mtg_report.pdf.

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Technologies in its Opinion 25 ‘Ethics in Synthetic Biology’ (2009)18 addressing the potential malicious use of synthetic biology. Although using slightly different wording and emphasises, the World Medical Association0 s Declaration of Washington (2002) also applies a dual-use concept consistent with a peaceful versus non-peaceful purpose distinction (Table 3) and puts a strong emphasis on malicious intent. The Inter Academy Panel Statement on Biosecurity (2005) uses the idea of constructive versus destructive purposes but links it to the BTWC definition on peaceful versus non-peaceful purposes (Table 4).

Human Security or National Security: Why it Matters in the Interpretation of Dual-use Concepts It has been said that security is in the eye of the beholder (Paris 2004), and if the task of dual-use governance is to support security, we first might have to ask: What kind of security do we want to address in the governance of dual use? At least two different notions of security are important in the current discussion over dual-use governance. There is one side, national security as a state-centred security approach and on the other side is the human security19—as an individual human beingcentred approach to security. Many of the important treaties relevant to dual-use discussions were originally rooted in national security. The NPT, BWC, CWC and conventional nonproliferation treaties focussed in the beginning on military dual-use technologies relevant to national security interests. Although the inclusion of terrorist and criminal (or other non-state actor) considerations in the fora of international nonproliferation regimes is driven by national security interests, the human security (at the individual instead of national level) is becoming more and more the focus of national and international attention. This new focus has also shifted attention from national security issues related to potential military uses of dual-use technologies to people-centred security issues. A further step towards human security in dual use is the inclusion of political security, another important component of human security. Fundamental human rights and freedoms considerations are becoming a rapidly emerging element of dual-use governance (e.g. dual-use export control legislation on surveillance technologies).

A Discussion of Dual-use Concepts Identified in Legislation and Codes of Conduct 1.

The civilian versus military purpose concept of dual use

Today, this national-security-based interpretation of dual use is applied in nonproliferation arrangements focussing on dual-use technologies of conventional 18

http://ec.europa.eu/bepa/european-group-ethics/docs/opinion25_en.pdf.

19

UNDP (1994). Human Development Report, http://hdr.undp.org/en/reports/global/hdr1994/chapters.

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J. Rath et al. Table 3 International non-proliferation regimes and the peaceful versus non-peaceful concept of dual use Illustrative example

Reference

‘Purposes Not Prohibited Under this Convention means:

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC)a

(a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes’; ‘Microbial or other biological agents, or toxins …. that have no justification for prophylactic, protective or other peaceful purposes’

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC)b

‘… not to provide …, to any non-nuclear-weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this article’

Treaty on the Non-Proliferation of Nuclear Weapons (NPT)c

‘… right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful….’ ‘Decides …to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials’ a

UNSCR 1540 (2004) Adopted by the Security Council at its 4956th meeting, on 28 April 2004d

http://disarmament.un.org/treaties/t/cwc/text

b

http://disarmament.un.org/treaties/t/bwc/text

c

http://disarmament.un.org/treaties/t/npt/text

d

http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=411366744

weapons and other technologies used in military undertakings (e.g. cryptography, ballistic and missile technologies). As such, the concept is suitable to address the classical non-proliferation situation by preventing foreign military access to dualuse materials, technologies and knowledge, while at the same time allow its own military to take advantage of such technologies. A national-security-based military versus civilian purpose concept stands at the beginning of classical national export control legislation or treaties like the Wassenaar Agreement. In this context of national security, governance of dual use rests on national legislation (e.g. export control authorities), non-proliferation activities by individual states and groups of states or international organizations. A human-security-based interpretation of civilian versus military purpose concept of dual use is the European Union approach applied in funding research within its 90 billion Euro flagship programme Horizon 2020. Horizon 2020 restricts funding to research having an ‘exclusive civil applications focus’.20 The foundation for such an application of a civil versus military concept must be seen in the support 20 Articl 16/2 of Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing Horizon 2020—The Framework Programme for Research and Innovation (2014–2020) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52011PC0809:EN:NOT.

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Evolution of Different Dual-use Concepts Table 4 Examples of wording in non-US biosecurity-related documents defining dual use in a benevolent–malevolent context Example

Reference

‘Laboratory biosecurity refers to institutional and personal security measures designed to prevent the loss, theft, misuse, diversion or intentional release of pathogens and toxins’

WHO Laboratory biosafety manual Third edition (2004)a

‘Dual-use

WHO Biorisk management Laboratory biosecurity guidance (2006)b

Initially used to refer to the aspects of certain materials, information and technologies that are useful in both military and civilian spheres. The expression is increasingly being used to refer not only to military and civilian purposes, but also to harmful misuse and peaceful activities’ ‘Dual-use life sciences research knowledge and technologies generated by legitimate life sciences research that may be appropriated for illegitimate intentions and applications’

WHO Responsible life sciences research for global health security A guidance document (2010)c

‘Dual use is one of the key terms employed in discussions of the risks of misuse of biological agents. One general description of the term is given by the American National Science Advisory Board for Biosecurity…’

A Code of Conduct for Biosecurity Dutch Academy of Sciences (2007)d

‘…, there is concern about the possible misuse of research… It may be difficult to distinguish legitimate biomedical research from research by unscrupulous scientists with the malign purpose of…

WMA Declaration of Washington on Biological Weapons (2002)e

… have a moral and ethical obligation to consider the implications of possible malicious use of their findings… … condemning the development, production, or use of toxins and biological agents that have no justification for prophylactic, protective, or other peaceful purposes’ ‘But some science and technology can be used for destructive purposes as well as for constructive purposes’ a

Inter Academy Panel Statement on Biosecurity (2005)f

http://www.who.int/csr/resources/publications/biosafety/Biosafety7.pdf

b

http://www.who.int/csr/resources/publications/biosafety/WHO_CDS_EPR_2006_6.pdf

c

http://whqlibdoc.who.int/hq/2010/WHO_HSE_GAR_BDP_2010.2_eng.pdf

d

http://www.fas.org/biosecurity/resource/documents/IAP%20-%20Biosecurity%20code%20of% 20conduct.pdf

e

http://www.wma.net/en/30publications/10policies/b1/

f

http://www.interacademies.net/File.aspx?id=5401

of non-military conflict prevention and resolution measures. Such peaceful measures of conflict mitigation form a central element in human-security-based concepts of security. Governance of this aspect of dual use within Horizon 2020 will rely on ethics boards recruited from civil society.

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2.

The benevolent versus malevolent purpose concept of dual use

Besides the civilian versus military purpose concept, benevolence and malevolence are important concepts in many codes of conduct addressing dual use. Whereas benevolence and malevolence are suitable frames in a human-securitycentred dual-use discussion, both terms are difficult to apply in a national security context, as it quickly results in discussions over whether military should be considered a benevolent or malevolent institution. The increasing focus on malevolent activities by terrorists and criminals in the discussion over dual use, as well as the recognition of human rights-related misuses of technologies in recent dual-use legislation contributes to anchoring the benevolent versus malevolent concept of dual use in a human-security-based understanding of security. Further developments will show whether this concept has the potential to support a general human-security-centred dual-use concept by addressing issues as diverse as individual, group, political, health, food, environmental or economic security. In all of these areas of human security, civil society is a much stronger actor than in national security, pointing to stronger role of civil society in governance of such issues, when it comes to concerns over dual use. 3.

The peaceful versus non-peaceful purpose concept of dual use

The concept of dual use that differentiates between peaceful and non-peaceful purposes is the key concept applied in the WMD context. Originally focussed on national security issues by banning all military uses of WMD, recent amendments to existing and new legislation have clarified that the ban also addresses uses by malevolent non-state actors such as criminals and terrorists. Including terrorism and criminal activities adds an individual-centred human security element. Therefore, the peaceful versus non-peaceful concept of dual use is made of two elements: firstly, a military versus civilian purpose concept reflects national security interests and secondly a benevolent versus malevolent concept reflecting human security interests. This has implications on the appropriate dual-use governance approach (Steyn 2013) and most likely will be best served by combined activities from national and international authorities as well as from civil society. 4.

The legitimate versus illegitimate purpose concept of dual use

Reference to a legitimate versus illegitimate purpose concept of dual use may reflect both national and human security interests. However, to restrict the dual use discussion to a lawfulness assessment can be problematic. Of concern are often existing inconsistencies and gaps in national and international legislation, as well as the limitations legislation faces in keeping up with fast-progressing and ethically problematic dual-use research areas such as biotechnology or surveillance technologies. Oversight in such a concept of dual use would be clearly assigned to international and national authorities and courts. 5.

The good military and good civilian purpose concept of dual use

Although not used in legislation, a discussion over different meanings of the term dual use needs to mention the good military and good civilian purpose dual-use

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concept (Brzoska 2006).21,22 Slightly varying subconcepts exist and have been described as ‘warfare and welfare’, ‘civil-military-integration’, ‘spin-in’, ‘commercial-off-the-shelf-technologies’, ‘conversion-reversion’ or simply ‘dual use’. Addressing such a technology transfers in applied ethics depends not only on the direction of the transfer, the type of technology, legal and ethical limitations of the military applications, but also on the moral status assigned to the military in general. The concept itself is founded in economic interests and to a lesser degree in national security interests (Table 5).

Different Thresholds for Dual-use Oversight: Depending on a Civilian Versus Military or Benevolent Versus Malevolent Dual-use Concept The practical governance of dual-use concerns in a national security context based on a civilian versus military dual-use concept on the one hand and a humansecurity-based dual-use concept based on benevolence versus malevolence on the other hand relies on different thresholds. This was mentioned by Steyn (2013) in the context of the biological weapons, where he points to differences in governing military-related dual-use concerns and terrorism-related dual-use concerns. Different agent lists and material thresholds, for example, affect the suitable framework for governance. If we take past experiences on military bioweapons programmes, we recognize that such programmes involve sophisticated technologies and large amounts of materials. Governance of such technologies and amounts of materials of concern in a national security context involves bilateral and multilateral consultations and/or the involvement of the UN. Mechanisms to address such military dual-use concerns have led to the establishment of international control agencies (e.g. IAEA, OPCW), sanctions by the UNSCRs or national and international export control regimes. The role of ethics and civil society in this context has focussed on creating awareness among researchers, e.g. about the moral consequences when working in such programmes, identifying the type of research that may support such weapons programmes or the familiarization of researchers with the legal framework. In contrast, historical examples of misuse by non-state actors indicate that the technologies used are simple and the amounts of materials needed small. Limiting such concerns needs a different governance approach. Today, law enforcement agencies and national administrative authorities play a leading role in addressing this issue. But as thresholds on the complexity of dual-use technologies decrease and such technologies and materials become widely used in benevolent applications and research, law-based oversight by national authorities becomes challenging. In this situation, civil society and research ethics can play an important part to fill this gap. Besides awareness raising, research ethics is taking on an important role in the development of a culture of security, by proposing codes of conduct, best practices and other safeguards. In addition, research ethics and civil society carry out classical oversight functions, e.g. through peer reviews at the level of funding-, research- or 21

United States Congress. Office of Technology Assessment (OTA) (1993).

22

United States Congress. Office of Technology Assessment (OTA) (1994).

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publishing institutions (Rappert 2008; Uhlenhaut et al. 2013). Since different governance frameworks have different competencies to address the various concerns in dual use, the combination of all available resources in a ‘Web of Prevention’ has been recommended (Benzuidenhout 2012).23 A practical example from the biosecurity area may demonstrate how different dual-use concepts and its relation to thresholds affect governance approaches. In recent years, synthetic biology and gain-of-function experiments have been widely discussed with regard to their dual-use potential. Synthetic biology as an emerging engineering discipline builds—at least for the time being and in contrast to simple genetic modifications—on complex strategies to develop tailored biological artefacts. This contrasts gain-of-function experiments, which rely on an artificial selection process based on naturally occurring genetic diversity. Such experiments are relatively simple and do not require substantial investments. Primary concerns with regard to synthetic biology should be on military dual uses, since the complexity, technology and expertise needs make malevolent applications by terrorists and criminals unlikely. In contrast, gain-of-function experiments might be of higher concern with regard to malevolent use by terrorists or criminals, but of less interest for military weapons programmes since additional requirements such as protection of forces or weaponization suitable for military applications would still require additional steps—steps that would have to be included already in the design approach when using synthetic biology. As a consequence, this should lead to different focuses in governance and oversight. For synthetic biology, focus should be on classical non-proliferation measures and the application of access controls (e.g. export controls, sanctions) on critical technologies and knowledge for countries suspected of running clandestine biological weapons projects. Such safeguards are usually handled and developed at an international level or national legal level. In contrast, governance of gain-offunction experiments should focus on national anti-terrorism initiatives. Given the widely available expertise needed to conduct such experiments, the limited amounts of materials and the unsophisticated infrastructure, law-based governance approaches will become difficult to implement effectively. In this situation, governance of dual use by civil society through self-governance, institutional oversight and by promoting of a culture of security might be a more effective approach. The role of ethics in both situations varies, where in synthetic biology, its role (at least for the time being) should focus on making researchers aware of the global ban of biological weapons and engage researchers in preventive proliferation concepts. The primary role of ethics in gain-of-function scenarios should be in supporting institutional oversight and developing guidance concepts to ensure that personnel, facility and transfer security measures are in place. As technologies such as synthetic biology advance very fast and are becoming more widely accessible and easier to use, it is anticipated that the terrorist/criminal 23 International Committee of the Red Cross. Appeal on Biotechnology, Weapons and Humanity. Geneva: International Committee of the Red Cross; September 25, 2002. http://www.icrc.org/Web/Eng/ siteeng0.nsf/iwpList515/274D020806432963C1256C3E005C4338.

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Underlying principle

National Security

Human Security

National security, civil security, economic interests

Human security (environmental, food, health, individual, community and political security)

National Security and Human Security (individual and community security)

Dual-use concept

Civilian versus military (limiting civil technologies to nonaligned military)

Civilian versus military (limiting spin-in of civilian technologies for military applications)

Civilian versus military (supporting spin-offs and spin-ins of military and civilian applications)

Benevolent versus Malevolent

Peaceful versus nonpeaceful

Civil society, international institutions, national authorities International institutions, national authorities, civil society

Ethics and codes of conduct, national legislation, e.g. export controls, international legislation, e.g. sanctions

National legislation, e.g. export control, classification of information, international inspections, ethics and codes of conduct

DURC concept outlined in Fink report

BTWC, NPT, CWC, DURC concept outlined in US Government Policy for Oversight of Life Sciences Dual use Research of Concern





Implementing a European Union Strategy on Defence-related industries. COM 97 (583)a

National authorities

Key contributor to governance

Civil society

National legislation, e.g. export controls

Key governance options

Ethics and codes of conducts

Article 16/2 of the regulation establishing Horizon 2020—The Framework Programme for Research and Innovation (2014–2020)

Wassenaar arrangement (original version before extension into non-state actors)

Examples of legislative texts and codes

Table 5 Overview of different dual-use concepts and consequences on governance

Biological dual-use agents (military, terrorist, criminal abuses)

Biological weapons related technologies suitable for terrorist and criminal abuse, surveillance technologies

All technologies with potential military and civilian applications

All technologies with potential military applications

Dual use in the context of conventional military applications

Technological examples

Evolution of Different Dual-use Concepts

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Lawfulness

Legitimate versus illegitimate

All legislative acts

Examples of legislative texts and codes

National and international legislation

Key governance options

National authorities, national courts

Key contributor to governance

Every research activity that is regulated by law

Technological examples

a Implementing a European Union Strategy on Defence-related industries. COM 97 (583) http://ec.europa.eu/internal_market/publicprocurement/docs/defence/com97583-final_en.pdf

Underlying principle

Dual-use concept

Table 5 continued

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Evolution of Different Dual-use Concepts

misuse concerns will increase and thereby also the need for rethinking current governance approaches, such as controlling DNA synthesizing technologies.

Seemingly Minor Changes in Definitions Can Shift the Underlying Principle of Dual Use and Result in Different Governance Approaches The Fink report provided a widely accepted definition of dual-use research of concern. The definition is well in line with a human-security-based concept of security by focusing on issues such as health security and food security in relation to malevolent uses of biological agents. As a result of the controversy over the publication of H5N1 DNA sequences, the US government has changed the definition developed by the Fink Committee and added national security in a new definition of DURC.24 The inclusion of national security creates challenges to the decentralized governance approach based on civil society actors outlined in the Fink Report and follow-up work by the NSABB. Any governance concept that builds on civil society and ethics, e.g. through the work in institutional review committees and self-governance of researchers, is limited in addressing issues related to national security. Information on what constitutes national security threats is usually restricted and not made available to civil society actors. But without such information, governance of a DURC concept that includes national security considerations remains difficult. This was illustrated by the recent decision of a Dutch court to uphold the need for an export licence for publishing the ‘gain-of-function’ H5N1 research arguing that ‘decisions on what is and what is not research with potential consequences for international proliferation cannot be left to individual researchers without compromising states’ obligations under UN resolution 1540 passed in 2004…’.25 The reference to UNSCR 1540 in the court decision suggests that further discussion is needed at the EU level of what constitutes ‘basic research’ exemption in the context of EC Regulation no. 428 (2009) and relevant national legislation. The recent voluntary withholding of DNA sequence data in a publication related to the discovery of a new Clostridium botulinum toxin (Hooper and Hirsch 2013) suggests that civil society actors may take a proactive role in managing dual-use risks, but it also draws attention to the risks posed to research and development in general if decisions to withhold data are made casually, arbitrarily or frequently (Casadevall et al. 2013) and thus impede the free flow of information that provides the basis for further scientific advances. These two examples underline the importance of paying attention to dual-use definitions and underlying concepts. Seemingly minor changes in definitions can result in substantial changes with regard to the roles civil society and research ethics can play in the governance of dual use. The example indicates that whenever 24

United States Government Policy for Oversight of Life Sciences Dual Use Research of Concern http:// oba.od.nih.gov/oba/biosecurity/pdf/united_states_government_policy_for_oversight_of_durc_final_version_ 032812.pdf. 25 http://blogs.nature.com/news/2013/09/court-upholds-need-for-export-permits-for-risky-flu-research. html.

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changes in the definition lead to an increase in the weight given to national security considerations compared to the weight given to human security considerations, civil society and research ethics will become less important relative to other governance approaches.

Conclusions While recognizing the common and overarching theme of dual use in ethics, namely that materials, technologies and knowledge can be used for good and for harmful purposes, important conceptual differences within this broad definition exist. The rapid evolution of different concepts in international and national legislation addressing dual use has led to the piggy-packing of new concepts of dual use on the original civilian versus military dichotomy. This evolution is driven by the application of new notions of security. As demonstrated in this article, whether the dual-use concept is founded in national security or in human security will impact substantially on the suitable approach to governance and the roles research ethics and civil society play. Civil society can be an important partner in governance of dual use, especially with regard to research ethics (Selgelid 2009). However, it will be important to clearly define ex ante the relevant dual-use concept that should be addressed, since application of different concepts, e.g. a military versus civilian or a benevolent versus malevolent concept, will affect different stakeholders but also require different thresholds, different safeguards and different approaches to governance. Civil society also has an important role to play both nationally and internationally, to work with governments and communities to create and strengthen norms to drive political initiatives towards further policies, agreements or resolutions or strengthening the existing multilateral non-proliferation treaties. The concepts of dual use identified in this analysis could form the basis for further work on context and concept-specific assessment criteria, safeguards and governance options. Such work is urgently needed in order to minimize negative impacts of dual-use governance on fundamental rights and freedoms (e.g. academic freedoms), development (e.g. export controls) and/or public health (e.g. censorship of public health relevant information), while at the same time aiming to achieve an optimal level of security.

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Evolution of different dual-use concepts in international and national law and its implications on research ethics and governance.

This paper provides an overview of the various dual-use concepts applied in national and international non-proliferation and anti-terrorism legislatio...
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