Annex D
Declaration by EU Member States on an EU
Code of Conduct for Arms Exports
A. EU member states are commited to the
maintenance of a strong defence industry which is a strategic
part of their industrial base as well as their defence effort.
They recognise that defence exports can contribute to international
stability by strengthening bilateral and collective defence relationships
in accordance with the inherent right of self defence recognised
by the UN Charter.
B. EU member States are amongst the leading
arms exporters in the world, with approximately 40 per cent share
(1996) of the world market. They therefore have a special responsibility
to promote restraint and transparency in the transfer of conventional
arms and of technologies for military use.
C. Wishing to reinforce their co-operation
within the framework of CFSP, and on the basis of the common criteria
agreed at the Luxembourg and Lisbon European Councils in June
1991 and June 1992, EU member states have agreed to strengthen
the exchange of information relevant to the export of conventional
arms, with the aim of setting high common standards for arms exports
from all EU member States.
D. All EU member States agree to circulate
through diplomatic channels details of licences refused in accordance
with the following Code of Conduct for military equipment, as
well as for items on which the list of dual-use goods in Annex
1 of Council Decision 94/942/CFSP, as amended, when there are
grounds or believing that the end user of such dual-use goods
will be the armed forces or the internal security forces of the
recipient country together with an explanation of why the licence
has been refused. Before any member state grants a licence which
has been denied by another member state for an essentially identical
transaction within the last three years it will first consult
the member state which issues the denial. If following consultations
the member State nevertheless decides to grant a licence. It will
notify the member State issuing the original denial giving a detailed
explanation of its reasoning. The decision to transfer or deny
the transfer to any item will remain at the national discretion
of each member. A denial of a licence is understood to take place
when the member State has refused to authorise the actual sale
or physical export of the equipment concerned.
E. EU member States agree to keep such denials
and consultations confidential and not to use them for commercial
advantage.
F. In order to maximise the efficiency of
this Code, EU member States agree to examine the scope for harmonising
their export control procedures and to consider the adoption of
an ad hoc EU list for military equipment.
G. In application of the above principles,
EU member States have adopted the following code of conduct:
EU CODE OF CONDUCT
1. RESPECT FOR
THE INTERNATIONAL
COMMITMENTS OF
EU MEMBER STATES
An export licence should be refused if approval
would be inconsistent with:
(a) the international obligations of member
States and their commitments to enforce UN, OSCE and EU arms embargoes;
(b) the international obligations of member
States under the Nuclear Non-Proliferation Treaty, the Biological
and Toxin Weapons Convention and the Chemical Weapons Convention;
(c) their commitments to the Australia Group,
the Missile Technology Control Regime, the Nuclear Suppliers Group
and the Wassenaar Arrangement;
(d) their commitment not to export all forms
of anti-personnel land mines.
2. THE RESPECT
OF HUMAN
RIGHTS IN
THE COUNTRY
OR FINAL
DESTINATION
Member States will:
(a) take into account respect for human
rights and fundamental freedoms in the recipient country;
(b) not issue an export licence if there
is a clearly identifiable risk that the proposed export might
be used for internal repression.
For these purposes equipment which might be
used for internal repression will include:
(i) Equipment where there is clear evidence
of the recent use of similar equipment for internal repression
by the proposed end-user, or where there is reason to believe
that the equipment will be diverted from its stated end-use or
end-user and used for internal repression;
(ii) Equipment which has obvious application
for internal repression, in cases where the recipient country
has a significant and continuing record of such repression, unless
the end-use of the equipment is judged to be legitimate, such
as protection of members of security forces from violence.
The nature of the equipment proposed for export
will also be carefully considered. Certain goods have more obvious
potential for use in internal repression than others. In other
cases, there may be prima facie reasons for believing that a particular
equipment might be used in such roles in certain circumstances.
Any proposed export which is to be used by the recipient country
for internal security purposes should be considered particularly
carefully.
Internal repression includes extra judicial
killings, arbitrary arrest, tortue, suppression or major violation
of human rights and fundamental freedoms. In some cases, the use
of force by a government within its own borders does not constitute
internal repression. The use of such force by governments is legitimate
in some cases, eg to preserve law and order against terrorists
or other criminals. However force may only be used in accordance
with international human rights standards.
The attitude of recipient states towards relevant
human rights instruments should also be taken into account although
non-adherence should not preclude countries from receiving arms.
3. THE
INTERNAL SITUATION
IN THE
COUNTRY OF
FINAL DESTINATION,
AS A
FUNCTION OF
THE EXISTENCE
OF TENSIONS
OR ARMED
CONFLICTS
Member States will not allow exports which would:
(a) prolong or aggravate an existing armed
conflict, taking into account the legitimate requirement for self-defence;
(b) be used other than for the legitimate
defence and security needs of the recipient country.
4. PRESERVATION
OF REGIONAL
PEACE, SECURITY
AND STABILITY
Member States will not issue an export licence
if there is a clearly identifiable risk that the intended recipient
would use the proposed export aggressively against another country,
or to assert by force a territorial claim. However, a purely theoretical
possibility that the items concerned might be used in the future
against another state will not of itself lead to a licence being
refused.
When considering the risk that the country for
which arms are destined might use them for international aggression,
EU member States will take into account:
(a) the existence or likelihood of armed
conflict between the recipient and another country;
(b) a claim against the territory of a neighbouring
country which the recipient has in the past tried or threatened
to pursue by means of force;
(c) whether the equipment would be likely
to be used other than for the legitimate national security and
defence of the recipient;
(d) the potential for the equipment to increase
the capability of one nation in such way as to lead to instability
in the region;
(e) the risk of reverse engineering or technology
transfer.
The need not to affect adversely regional stability
in any significant way will also be considered. The balance of
forces between neighbouring states, their relative expenditure
on defence, and the need not to introduce into the region new
capabilities which would be likely to lead to increased tension,
will all be taken into account.
5. THE NATIONAL
SECURITY OF
THE MEMBER
STATES AND
OF TERRITORIES
WHOSE EXTERNAL
RELATIONS ARE
THE RESPONSIBILITY
OF A
MEMBER STATE,
AS WELL
AS THAT
OF FRIENDLY
AND ALLIED
COUNTRIES
Member States will take into account:
(a) the potential effect on their defence
and security interest and those of allies and other member States;
(b) the potential effect on their economic,
financial and commercial interest, including their long-term interests
in having stable, democratic trading partners;
(c) the potential effect on their relations
with the recipient country;
(d) the potential effect on any collaborative
defence production or procurement with allies;
(e) the protection of their essential strategic
industrial base;
(f) the risk of use of the goods concerned
against their forces or those of their allies;
(g) the need to protect military classified
information and capabilities;
6. THE BEHAVIOUR
OF THE
BUYER COUNTRY
WITH REGARD
TO THE
INTERNATIONAL COMMUNITY,
AS REGARDS
IN PARTICULAR
TO ITS
ATTITUDE TO
TERRORISM, THE
NATURE OF
ITS ALLIANCES
AND RESPECT
FOR INTERNATIONAL
LAW
Member States will take into account the record
of compliance with regard to:
(a) support or encouragement of terrorism;
(b) international commitments, in particular
on the non-use of force;
(c) non-proliferation and other areas or
arms control and disarmament.
7. THE EXISTENCE
OF A
RISK THAT
EQUIPMENT WILL
BE DIVERTED
WITHIN THE
BUYER COUNTRY
OR RE
-EXPORTED UNDER
UNDESIRABLE CONDITIONS
In assessing the impact of the proposed export
on the importing country and the risk that exported goods might
be diverted to an undesirable end-user, the following will be
considered:
(a) the legitimate defence and domestic security
interest of the recipient country, including any involvement in
UN or other peace-keeping activity;
(b) the technical capability of the recipient
country to use the equipment:
(c) the risk of the arms being re-exported
or diverted to an undesirable end-user including terrorist organisations
(anti-terrorist equipment would need particularly careful consideration
in this context).
8. THE COMPATIBILITY
OF THE
ARMS EXPORTS
WITH THE
TECHNICAL AND
ECONOMIC CAPACITY
OF THE
RECIPIENT COUNTRY,
TAKING INTO
ACCOUNT THE
DESIRABILITY THAT
STATES SHOULD
ACHEIVE THEIR
LEGITIMATE NEEDS
OF SECURITY
AND DEFENCE
WITH THE
LEAST DIVERSION
FOR ARMAMENTS
OF HUMAN
AND ECONOMIC
RESOURCES
Member States will consider whether the proposed
export would seriously undermine the economy of the recipient
country taking into account its:
economic and social development;
economic reform programmes.
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