Select Committee on Trade and Industry Minutes of Evidence


Memorandum submitted by the UK Working Group on Arms



  1.1  This submission focuses specifically on the EU Code of Conduct on arms exports. It is written by the UK Working Group on Arms which comprises Amnesty International (UK), the British American Security Information Council, Christian Aid, International Alert, Oxfam (GB), Saferworld and Save the Children Fund. [28]It is intended to complement individual submissions from some of these organisations that focus on their different areas of expertise.

  1.2  The European Code of Conduct agreed by Foreign Ministers on 25 May 1998 is an important first step towards establishing responsible international controls on arms exports. The UK Working Group welcomes the Government's leadership role in its establishment and acknowledges the difficulty in getting agreement across the 15 Members States. However, the agreement fails to provide full respect for international humanitarian law and falls short of establishing adequate EU mechanisms and procedures for Member States to take co-ordinated action to effectively monitor and control transfers by Members States and their nationals of military, paramilitary and security equipment and services. As European Union arms exports account for 40 per cent of weapons sales to developing countries there is an urgent need for an improved European Code; one which can lead the way in providing for more effective international controls and help ensure that the effects of human rights, development and regional security are considered above short-term commercial interests.

  1.3  The Code of Conduct is in two parts: a set of export guidelines outlining what considerations should play a part in decisions to license arms exports and a number of operative provisions which detail the basic procedures for notification, consultation and review between Member States. This submission makes a series of recommendations as to how the existing guidelines and operative provisions need to be strengthened and furthermore, what existing loopholes need to be addressed as a matter of urgency if the Code is to achieve its objective of setting "high common standards".

  1.4  The UK Government as the co-sponsor of the Code and as Europe's largest arms exporter has a special duty to continue to work for a strengthened, water-tight agreement. With the first annual review of the Code due in June 1999, the German Presidency of the European Union (January to June 1999) presents an important opportunity for progress. The UK Working Group urges the Government to begin immediate dialogue with the new German Government on strengthening the Code.


  2.1  Criterion 2 of the Code states that Member States will "not issue an export licence if there is a clear risk that the proposed export might be used for internal repression". There is considerable difficulty in the Code's use of the term "internal repression". This phrase is ambiguous and not adequately comprehensive. It is not used in international human rights or humanitarian law. Under this wording, the UK control system could still allow licences for exports to recipient forces even if they are likely to commit breaches of humanitarian law in the context of an internal armed conflict. This wording may allow exports to those forces even if they are likely to be used to abuse human rights and violate humanitarian law outside their own borders: for example, when serving in other countries or during cross border attacks on their own nationals who have fled internal fighting. So arms authorised, for example, to Turkey could be used against the Kurds in Northern Iraq. Since many of the worst atrocities and repressive acts are committed in the context of armed conflict, this is a serious flaw in the control system.

  The Government should replace the term "internal repression" so that it covers all violations of international human rights standards, international conventions and humanitarian law.

  2.2  Overall, the proposed guidelines are ambiguous in many places and leave far too much room for subjective interpretation. While outlining the types of considerations to be taken into account when granting export licences, they fail to specify how, and at what point, these concerns will have a material impact on arms export decisions.

  In marginal cases, where it is unclear as to whether a proposed export might breach one of the guidelines, the Code should state that there will be a presumption that the export will be denied.


3.1  Consultation on Undercutting

  Member States have agreed to notify each other when they deny an export licence. Unfortunately, a country that wishes to take up a licence that has already been denied is only required to consult with the country that issued the initial denial, rather than with all 15 Member States. This limited level of consultation carries with it certain potential dangers. In the first place, it will inevitably lead to a lack of consistency in European Union arms exports because no common picture of what arms exports are in fact being licensed will exist until the circulation of the annual reports (see below). Much greater consultation is essential if Member States are to achieve their stated objective of adhering to "high common standards". Furthermore, the Code fails to specify a time frame in which Member States have to circulate denials. There is, as a result, a chance that one Member State may unwittingly undercut another. If and when details of undercutting eventually emerge through the annual reports the net effect could prove to be divisive, possibly leading to a culture of undercutting as governments become increasingly uncertain that exports they refuse will not be taken up by other Member States.

  The Code should insist on in depth multilateral consultations between all 15 Member States when one country wants to grant a licence that another has refused. A 10 day limit should be set for the circulation of denials.

3.2  Control Lists

  Member States failed to agree a common list of equipment to which the Code of Conduct controls will apply, although members have agreed to "work for the early adoption of one". Until then, national lists will apply "incorporating where appropriate elements from relevant international lists". This is extremely concerning because many national and international lists do not include much of the military, security and police equipment which could most easily be used to abuse human rights.

  Member States of the EU should urgently adopt a harmonised, extensive control list which covers exports and licensed production of major conventional weaponry, small arms, police and paramilitary training equipment and services and dual-use goods. There should be a special list of equipment which is prohibited from export including anti-personnel mines and electro-shock weapons. The Government has indicated that it will seek to establish such a list of prohibited equipment with its EU partners, although this initiative will be separate from the Code. It is crucial that the Government follows through on this commitment.

3.3  Annual Report

  "Achieving greater transparency" is one of the stated objectives of the Code. However, there are no provisions in the text to help realise this. Member States have to compile annual reports of their arms exports and on their implementation of the Code, but only for confidential circulation to each other. The EU Council of Ministers will also prepare a consolidated European report but again this will not be published. The net effect of this is that it has removed any reference to public or parliamentary accountability from the Code of Conduct.

  All governments should have to publish annual reports of their arms exports. It is encouraging that the British Government is due to publish one in October 1998. The consolidated European report should also be published. This will allow post facto review of arms export policy and, as such, represents the minimum level of scrutiny.


  4.1  There are a number of omissions from the Code of Conduct which threaten to undermine its efficacy. The following are essential elements of an effective Code which should be introduced urgently.

4.2  Prior Parliamentary scrutiny

  A truly transparent and accountable system of arms exports would be one that requires Member States to allow national parliaments (or committees thereof) to scrutinise proposed arms exports in advance of the granting of licences. In Sweden, an all-party Export Control Committee has the power to scrutinise forthcoming licences. The Swedish government has never granted a licence for an export that the committee has objected to.

  A committee of parliamentarians in each Member State should examine all arms export licence applications to countries where there are serious concerns over human rights violations, internal instability or civil wars, regional or international conflilct, or high military expenditure as a proportion of social expenditure.

4.3  End-Use Controls

  Unless there are rigorous controls on the end-use of arms, seemingly legitimate exports can be used for proscribed purposes or diverted to governments which abuse human rights. Current procedures for monitoring the final use of weapons exports are woefully inadequate and futhermore, vary widely within the Union. Indeed, very few Member States have follow up mechanisms to ensure that, once exported, the equipment remains with the stated end-user. For example in the BMARC scandal British naval cannon were sold to Singapore only to be re-exported to Iran. The recently published Government White Paper does give a commitment to addressing this issue and to explore ways to coordinate policy with other EU Member States.

  Member States should adopt a common system of end-use controls with end-use certificates that are regarded as legally binding contracts and which could be revoked if broken. In addition, a system of follow up checks should be established to ensure that the goods remain with the intended recipient. These checks could be carried out by British Embassy or Consular staff.

4.4  Control of brokering

  Many arms deals organised by companies or individuals in the EU involve the transfer of arms and security equipment and services from third countries without the weapons touching EU soil (eg the arms transfers from Bulgaria to Sierra Leone, organised from London by Sandline). The EU Code does nothing to address this issue and this is a loophole that must be urgently addressed. The recent White Paper on Strategic Export Controls does plan to extend the powers of Government to allow it to prosecute UK citizens who broker deals in contravention of UN, EU, OSCE and national embargoes. However, arms brokers in the UK would still be free to broker deals that would not be allowed if the weapons were exported directly from Britain. The issue also remains to be tackled at the European level.

  All arms brokers should be registered with EU national governments and the information gathered in a central database. All transactions proposed by arms brokers should require a licence whether or not the equipment actually passes through EU territory. Such legislation is already in place in a number of countries such as Germany.

4.5  Control of Licensed Production

  Another weakness of the Code is the failure to tackle overseas licensed production where one arms or security manufacturer enables another company to manufacture its product under licence in a second country. Such agreements are increasingly supplementing, or even taking the place of, exports of equipment. For example, Heckler and Koch (a subsidiary of British Aerospace) have just won a contract to transfer technology for the local production of 200,000 combat assault rifles in Turkey. Yet there are no controls on licensed production deals in the Code.

  All licensed production deals involving EU-based firms should be scrutinised and approved by EU governments in advance of any contracts being signed.

4.6  Legal Status of the Code

  The Member States have agreed to adopt the EU Code of Conduct on Arms Exports only as a Council Declaration (under the Common Foreign and Security Policy). This type of politically, but not legally, binding agreement has not been sufficient to ensure a common approach amongst the Member States under the eight common criteria on conventional arms exports agreed by the Council of Ministers in 1991 and 1992.

  The decision that the code should not be legally binding upon Member States means that the need for parliamentary and public scrutiny becomes even more pressing. It is important that EU governments are held accountable for their implementation of the Code.

13 October 1998

28   These organisations have differing mandates and areas of speciality and while we, individually, do not have detailed policy on all areas covered by the Code, we can each comment on specific elements and expand on the recommendations given. Amnesty International policy does not include opposition to, or support for, comprehensive arms embargoes, arms transfers which alter a strategic military balance, or criteria to determine excessive military expenditure. Back

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Prepared 10 December 1998