Setting the publication of ‘dual-use research’ under the export authorisation process: ‘the H5N1 case’

The main purpose of this article is to explore whether trade controls as currently implemented by national authorities in Europe and the United States represent a suitable means for monitoring research of dual-use concern. The narration of the ‘H5N1 case’ and the distinct paths followed by the Dutch and US authorities provide the impetus to draw three main lessons. First, setting the publication of research under the authorisation process is interwoven with certain legal and practical challenges. Second, the applicability of the ‘basic scientific research’ exemption is contentious in both the European and the US context. Third, trade controls are not the only tool available for overseeing dual-use research. Through a painstaking description of legal provisions, comments on the dual-use potential of life sciences and identification of shortfalls in the legal frameworks, the paper ends with some broader conclusions on the oversight and governance of dual-use research: Trade control implications are intensified in a research context and thus, the adoption of clear-cut laws or guidance by governments and regulatory authorities could be of great help; Both the US and the EU authorities strive to interpret trade control exemptions applicable to dual-use research; A combination of both self-governance initiatives and top-down regulatory and coordinating measures may constitute a way forward for the effective oversight of dual-use research.