Focus: Perspectives on Dual Use

In the realm of traditional military national security, a commodity is usually understood to be dual use if it has legitimate civilian as well as military applications—some necessary adaptations notwithstanding.¹ The same definition applies in the broader realm of international peace and security.² The term “commodity” includes physical artifacts as well as software or basic technologies. While many goods or technologies fall under this definition in principle, a dual use good must more specifically be a “major or key element for indigenous development, production, use or enhancement of military capabilities.”³ The use of such goods or technologies can encompass legitimate military applications, but it can also include illegitimate use when the goods or technologies are employed in ways that are not compatible with international legal obligations, including international humanitarian law (IHL). Beyond the classical dichotomy of civilian and military use, the term “dual use” can also be applied when legitimate, well-intentioned research does not have military applications per se, but could still be misused for malign purposes such as illegal weapons programs or criminal or terrorist acts.

While dual-use applications can be more easily identified with regard to technologies that are already in existence or use, as well as the applied R&D of technologies in advanced stages (such as prototypes), they are typically less clear and more difficult to predict in earlier stages of development and in basic research. Here, the responsibility of the individual researcher to critically examine possible unintended consequences must be emphasized. Unintended consequences may involve illegitimate use of knowledge and technology, but may also include legally permitted military use, in cases where researchers or relevant institutions have committed to conducting to purely civilian research. While individual responsibility is important, new institutional forms of regulation may need to be developed for new technologies that could have serious security implications. With this in mind, leading researchers in the field of artificial intelligence have, for instance, recently called for the establishment of an international organization to oversee developments in this key technology of the 21st century.⁴

This chapter first provides a general overview of dual-use regulations and legal considerations. It then discusses in more detail the areas of research and technology that are at the center of this publication: research and development with relevance for conventional weapons, on the one hand, and potential risks of biological research, on the other.

Dual-Use Regulation

While the early debates about dual-use regulation emerged in the context of (strategic) export/trade controls,⁵ the dual-use problem has increasingly impacted other areas of international law related to international peace and security.

Strategic trade controls, such as national export control regulations, have traditionally been the instrument of choice for the regulation of dual-use items. Such regulations were largely perceived as being of a political nature, allowing unilateral (or at most coordinated) strategic priorities to be set rather than following a broader arms control agenda. With a robust administrative law framework for the licensing of exports, largely following models of arms export regulation, national authorities enjoyed a wide range of discretionary powers. Public discourse often focused on the ineffectiveness of such rules and the political priorities pursued by governments in this context. National legal frameworks, largely developed during the Cold War, continue to exist. It is noteworthy that the European Union (EU)⁶ has followed a similar approach since overcoming the debate about whether or not strategic export control legislation was a matter of member state or Union competence. In the EU context, it is important to note that the implementation of EU legislation continues to be the responsibility of the member states, i.e., there is no administrative implementation of dual-use controls by the Union itself.

The internationalization of dual-use export control regulation⁷ has typically been channeled through soft law instruments. Legally nonbinding cooperative arrangements such as the Wassenaar Arrangement, the Nuclear Suppliers Group, the Zangger Committee, the Missile Technology Control Regime, and the Australia Group were given preference, as they preserved national discretion in respect of which goods, software, and technology might be transferred to whom. In this context, alliance considerations often trumped arms control perspectives.

Certain weapon systems, however, are regulated beyond export control. Notably, all weapons of mass destruction have been regulated or banned by legally binding international agreements. In particular, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) prohibits non-nuclear weapon states from acquiring nuclear weapons. Biological weapons are comprehensively prohibited by the 1972 Biological Weapons Convention (BWC). The Chemical Weapons Convention (CWC), opened for signature in 1993, bans all chemical weapons. All three of these treaties contain the obligation for member states to prevent the proliferation of the weapons in question. At the same time, nonproliferation and arms control agreements can include provision to support the sharing of technology. The CWC includes concrete provisions on international trade with chemicals and international development (CWC Article XI. 2. (b)), and the BWC and the CWC more generally obligate member states to promote international cooperation and avoid hampering technological exchange in the realms of biology and chemistry, respectively. The NPT not only allows the civilian use of nuclear energy, but also requires states that use nuclear energy to assist other states that do not yet possess this technology in developing civilian use (NPT Article III). There is thus an inherent tension between nonproliferation and international cooperation that carries over to the question of how to handle dual-use goods and technologies.

Lastly, how to treat dual-use research in domestic institutions is a separate issue. There is a lively ongoing debate which includes discussions about appropriate governance strategies and measures, in particular concerning what is referred to as “dual-use research of concern” (DURC)—research that could produce results that pose an immediate risk of misuse with potentially grave consequences. Initially focused on the life sciences, this debate has widened to include the governance of dual-use research in other scientific disciplines as well.

In 2013, the German government requested that the national Ethics Council consider the topic. In 2014, the Council published its Opinion (Stellungnahme).⁸ The report focused on the responsibility of researchers in the life sciences and recommended measures such as raising awareness of the problem, establishing codes of conduct for responsible research, and devising a legally binding framework for DURC. Around the same time, the German Research Foundation (DFG) and the German National Academy of Sciences Leopoldina published their recommendations which focused entirely on the self-regulation and self-governance of science, emphasizing the freedom of research which is a constitutional right in Germany.⁹ The DFG/Leopoldina recommendations, updated in 2022, extend beyond the life sciences and address all academic and scientific disciplines. The recommendations have gained traction in German academia since 2014 and are currently the predominant approach to handling dual-use research in Germany.¹⁰

Legal Considerations

Generally, it is important to emphasize that the dual-use dilemma requires regulatory techniques that go beyond purely objective criteria.¹¹ Separating civilian from military purposes requires the inclusion of an object—the commodity in question—and purpose—more precisely, the intended use, i.e., a subjective element. While the scope of interpretation is limited in respect of definitions primarily based on objective criteria, the interpretation and application of subjective elements, such intentions and purposes, creates many more uncertainties. This is why dual-use regulation is often not only accompanied by criteria for the interpretation of such subjective elements, but also by an institutional setup, raising the question of who decides, i.e., who interprets and who applies. While the criteria for the interpretation and institutional design that are necessary for regulating dual-use items can normally be accommodated at the national level (with a more or less “closed” legal system), the regulation of dual-use items at the international level poses numerous challenges, not least in light of the absence of a comprehensive institutional and administrative setup at that level, and given the incompleteness and openness of the international legal system. States have so far taken different approaches to address these challenges.

In the BWC and CWC, for instance, the object and purpose of materials and technologies were integrated into the definition of prohibited weapons. This led to the emergence of what is referred to as the “general purpose criterion” (e.g., Article II. 1. (a) CWC: “except where intended for purposes not prohibited under this Convention”; Article I BWC which defines the prohibition as applying to biological agents and means of delivery designed to be used “for hostile purposes or in armed conflict”).¹² It is noteworthy that the BWC and CWC could only emerge as “comprehensive” arms control treaties because they included these subjective elements in the definition of prohibited weapons. The challenge was to develop provisions which would narrow down the scope for interpretation of the “general purpose criterion.”¹³ At the same time, in the case of the CWC, it is important to note that although it enjoys the support of one of the most impressive international organizations set up to implement an international convention, the role of the Organization for the Prohibition of Chemical Weapons (OPCW) is limited when it comes to handling the “general purpose criterion.” Interpretation of the criterion largely continues to be in the hands of states parties, who, however, have the option of coordinating their approach and their efforts to implement the treaty provisions nationally. The latter is also true for the BWC which does not have an international implementation agency at all.

The integration of subjective elements into the definition of sensitive dual-use materials at the international level has not been underpinned by international administrative procedures, decision-making powers, or the establishment of public authorities. There is thus a conceptual imbalance in the handling of dual-use issues internationally. The UN Security Council (UNSC) has attempted to reduce some of the ensuing uncertainties through the adoption of UNSC Resolution 1540 (2004), but these efforts to concentrate both regulatory and decision-making powers in the hands of the UNSC have been of limited success. For the time being, therefore, the international community will have to live with this imbalance between (internationally agreed) subjective criteria and (national) powers of (administrative) decision-making. The most promising, though also challenging, way ahead when it comes to reliably addressing dual-use problems at the level of international law is to include (objective) criteria which could narrow down the interpretative scope of subjective elements while at the same time maintaining the comprehensive scope of the prohibitions. In the absence of international regulation, states have followed different approaches to tackle the dual-use problems in the area of conventional weapons and in the field of biology, as outlined in the following sections.

Dual Use and Conventional Weapons

From the perspective of an individual country, dual use in relation to conventional weapons is not initially disadvantageous, as production for the civilian and military sectors may allow economies of scale to be achieved in production (e.g., when producing CPUs or plane engines), which means that the individual good can be produced more cheaply for all consumers—civilian and military alike. As with traditional defense equipment, the tensions arise when it comes to the possible export of those goods. Here, the economies of scale as a result of mass production and thus the business interest to be justified in civilian terms stand in contrast to the possible security policy risks or ethical problems that arise if actors who are not considered trustworthy by the exporters gain access to certain goods or technologies. This in turn may lead to regional or global instabilities, the use of these goods or technologies against the civilian population by ruthless leaders, or simply losing one’s national technological edge over those actors.

Regimes limiting and regulating, inter alia, the export of dual-use goods, such as for example the Wassenaar Arrangement, explicitly aim at contributing

“to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. Participating States seek, through their national policies, to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities. The aim is also to prevent the acquisition of these items by terrorists.”¹⁴

As in the case of the Wassenaar Arrangement and other regimes focused on the restriction of exports, members of the regime do have the capability to produce the relevant technology and often make use of it. While some regimes, such as, for example, the Missile Technology Control Regime even restrict the exchange of technology among members (at least in principle), other regimes permit this exchange of technology.

It is important to note that the question of which specific technology or commodity is dual use and is therefore of military significance cannot be decided in the abstract, but is dependent on time and space. Technologies which are clearly dual use in a strict sense but do not play an important role on today’s battlefields or in military operations more broadly might be less rigorously restricted, or not restricted at all. Earlier generations of computer CPUs, which were restricted during the Cold War but can be used, albeit to a very limited extent today, would be an example of how goods that were once regulated are now seen as unproblematic, while the US and other Western players are keen to restrict China’s and Russia’s access to next-generation chip manufacturing technologies in order to leave these potential competitors at least a generation behind.

Accordingly, regimes such as Wassenaar maintain comprehensive and regularly updated lists that explicitly name goods and technologies subject to export restrictions. The member states make adjustments in two directions: On the one hand, they release technologies that have become obsolete or irrelevant, on the other, they include new technologies that are considered to have a special military capability.

The dual-use problem is fueled by the fact that since the end of the Cold War, the relationship between civilian and military research and development has changed significantly. Although there are certainly many counterexamples, it can generally be said that the driving forces behind the evolution of high technology during the Cold War were very often military developments that then found their way into civilian applications.¹⁵ This relationship shifted after the 1990s, especially in the realm of microcomputing and telecommunications. The general availability of state-of-the-art microelectronics and the spread of knowledge in that realm has made the restriction of dual-use technology more difficult. The current international security climate and the renewed debate in Germany about the appropriate relationship between civilian and military research, which includes calls for intensified research into dual-use technologies and commodities to enhance military capabilities, may pose additional challenges for dual-use governance, at least in the German context.

Dual Use and Biology

In biology and biotechnology, the dual-use problem takes on a different character, but is nevertheless pertinent. As outlined above, biological weapons are comprehensively prohibited by the BWC, and the prohibition arguably extends even beyond the treaty. Hence, there are no legitimate offensive military applications for biology and biotechnology, while activities for “prophylactic, protective and other peaceful purposes,” including biodefense, remain permitted under the BWC.

In the field of biology, the concept of dual use is a crucial one, given the strong overlap between biodefense and health-related research. Many public health measures, such as those aimed at containing infectious disease outbreaks or mitigating their effects, are also important for biodefense to deter and protect against biological weapons attacks. After all, a population well protected against disease outbreaks is a less attractive target for a biological weapons attack. There is, moreover, a more specific dual-use aspect to biodefense, as some of the steps needed to develop offensive or protective measures related to biological weapons can be very similar. This applies, for instance, when it comes to understanding immune responses to potential biological warfare agents, which could be researched either to strengthen immune response (defensive) or to evade it (offensive). Similarly, vaccines for biowarfare agents could be developed to protect troops and populations against a biological attack (defensive) or to provide protection for troops planning to carry out a biological attack (offensive). Thus, determining the offensive or defensive nature of state-run biological activities can depend to a considerable extent on contextual factors and the intent of those carrying out the activities in question. This poses particular challenges for the verification of compliance with the BWC and for the investigation of alleged violations, as well as for the control of specific technologies and their transfer.

Another dimension of the dual-use problem in the biological field concerns the potential for legitimate, useful research to create additional, unintended, biological risks. These could stem from laboratory accidents or from the intentional misuse of biological materials and technologies for nefarious purposes, such as criminal or terrorist acts involving biological agents. Dual-use research in this sense is not a new phenomenon—one of the earlier well-publicized examples being the “mousepox experiment,” published in 2001, in which Australian researchers accidentally removed immunity against mousepox in mice when they tried to induce infertility through genetic engineering to control Australia’s excessive mice population.¹⁶ This raised concerns that the experiment could be used to weaken immunity against smallpox in humans. Other well-known examples include the chemical synthesis of the polio virus in 2002,¹⁷ the reconstruction of the extinct 1918 Spanish Flu virus in 2005,¹⁸ or the modification of the canine distemper virus in 2013 to make it potentially infectious for humans.¹⁹

The most prominent instance of research carried out with good intentions but also posing potential new risks are the 2011/12 experiments with the H5N1 variant of avian influenza. Researchers in the US and the Netherlands had tried to enhance the transmissibility of the virus in ferrets, whose immune system is a good model for human immune processes, to assess its pandemic potential.²⁰ An H5N1 pandemic could have even more severe consequences for humans than the COVID-19 pandemic, so preventing a global outbreak is of paramount public health interest. However, critics of the experiment pointed out that this type of research could help create the very risk it sought to address in the first place. This sparked a global controversy about dual-use research of concern (DURC). The H5N1 experiments also triggered a discussion about the handling of dual-use research in Germany.

As in other areas of arms control, there are no universal international transfer or other regulations for biological weapons-related commodities or dual-use research. The Australia Group is an informal arrangement in which 43 states and the EU coordinate their chemical and biological weapons-related exports. Its members have compiled lists of materials, equipment, and technologies that are considered dual use and are to be subject to national export controls by those members. Under BWC Article IV, all BWC member states are expected to enact national export controls to implement the nonproliferation obligation of the Convention, but the exact scope of these controls is left to the discretion of the individual states.

There are no globally agreed definitions, concepts, or strategies for dual-use governance in the life sciences, either. The World Health Organization (WHO) published a “Global guidance framework for the responsible use of the life sciences” in 2022 which “aims to provide values and principles, tools and mechanisms to support Member States and key stakeholders to mitigate and prevent biorisks and govern dual-use research.”²¹ The implementation of this framework is entirely voluntary, which corresponds to the approach followed within the BWC regime to focus on voluntary measures and self-regulation, such as raising awareness of the dual-use problem or promoting codes of conduct for life scientists, to contain the risks stemming from research with dual-use potential. This requires continuous monitoring of scientific and technological developments—something that is currently left entirely to individual states whose capacities vary greatly. In the BWC context, there are ongoing discussions about installing a scientific advisory mechanism that could also support the recognition of research with dual-use potential. However, for the time being, the regulation of such research remains in the hands of individual states.

Conclusion

When it comes to national and international security, dual-use problems take different forms, which can be addressed by different governance approaches. The first is export control measures, which usually follow national strategic priorities (and are sometimes internationally coordinated). They can cover technologies that are relevant to prohibited weapons systems, but also technologies for weapons that are legal under international law. Often such export controls mean that technology available in one country is not made available to other countries based on political assessments. Second, international prohibition of weapons can be achieved through disarmament agreements such as the CWC or BWC. These agreements aim at the universal prohibition of the weapons in question, which means that states willingly renounce military options that would otherwise be available to them. Nuclear weapons are not generally prohibited, as the five legal nuclear-armed states are allowed to retain their nuclear weapons (even though they, too, are obligated to abolish them eventually), but are still subject to specific restrictions. The dual-use dilemma here concerns the difficulty of distinguishing whether goods are intended for prohibited military purposes or for legitimate applications. Third, regulation can extend to dual-use research, including, but not limited to, research that could produce results posing an imminent risk of misuse with potentially serious consequences. Here, ethical issues play a role as well as legal considerations. At least in Western countries, significant emphasis is placed on the self-regulation of science in this process, since dual-use issues must be weighed against the freedom of research (which is a constitutional right in Germany).

The following chapters take up all these facets. The chapters on emerging disruptive technologies in the conventional realm (including artificial intelligence and semiconductors, drones and additive manufacturing) deal with weakly regulated dual-use technologies. In some cases, such as additive manufacturing, regulation via export control is especially difficult since the required technology is globally available. In others (such as drones), some, albeit weak, export control measures do exist. In many cases, regulation through collective and cooperative arms control measures would be desirable from the point of view of international stability, but this is unlikely, at least in the short term. The contributions focusing on the risks and benefits of scientific and technological developments in biology and biotechnology stress the responsibility of the individual scientists. They describe the increasing convergence of artificial intelligence and biology, misuse potential of oncolytic virus engineering, and opportunities to support biological disarmament arising from developments in detection and identification technologies. Where applicable, they propose specific approaches for scientists to mitigate dual-use risks. Taken together, the contributions show just how difficult it is to determine the civilian versus military potential of technological developments, and to recognize, assess, and deal with the potential for misuse of otherwise useful research. They emphasize the role of intention in these processes and point out the related challenges for regulatory approaches. They also show that technological developments, even those with dual-use potential, can harbor various benefits, and that awareness of the dual-use dimension can help us find the balance between mitigating the risks and exploiting the benefits.