EU CODE OF CONDUCT ON ARMS EXPORTS
The Council of the European Union,
BUILDING on the Common Criteria agreed at the
Luxembourg and Lisbon European Councils in 1991 and 1992,
RECOGNISING the special responsibility of arms
exporting states,
DETERMINED to set high common standards which
should be regarded as the minimum for the management of, and restraint
in, conventional arms transfers by all EU Member States, and to
strengthen the exchange of relevant information with a view to
achieving greater transparency,
DETERMINED to prevent the export of equipment
which might be used for internal repression or international aggression,
or contribute to regional instability,
WISHING within the framework of the CFSP to
reinforce their cooperation and to promote their convergence in
the field of conventional arms exports,
NOTING complementary measures taken by the EU
against illicit transfers, in the form of the EU Programme for
Preventing and Combating Illicit Trafficking in Conventional Arms,
ACKNOWLEDGING the wish of EU Members States
to maintain a defence industry as part of their industrial base
as well as their defence effort,
RECOGNISING that states have a right to transfer
the means of self-defence, consistent with the right of self-defence
recognised by the UN Charter,
has drawn up the following Code of Conduct and operative
provisions:
CRITERION ONE
Respect for the international commitments of
EU member states, in particular the sanctions decreed by the UN
Security Council and those decreed by the Community, agreements
on non-proliferation and other subjects, as well as other international
obligations.
An export licence should be refused if approval
would be inconsistent with, inter alia:
(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 in the frameworks of
the Australia Group, the Missile Technology Regime, the Nuclear
Suppliers Group and the Wassenaar Arrangement;
(d) their commitment not to export any form
of anti-personnel landmine.
CRITERION TWO
The respect of human rights in the country of
final destination
Having assessed the recipient country's attitude
towards relevant principles established by international human
rights instruments, Member States will:
(a) not issue an export licence if there
is a clear risk that the proposed export might be used for internal
repression;
(b) exercise special caution and vigilance
in issuing licences, on a case-by-case basis and taking account
of the nature of the equipment, to countries where serious violations
of human rights have been established by the competent bodies
of the UN, the Council of Europe or by the EU;
For these purposes, equipment which might be
used for internal repression will include, inter alia,
equipment where there is evidence of the use of this or 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.
In line with operative paragraph 1 of this Code, the nature of
the equipment will be considered carefully, particularly if it
is intended for internal security purposes. Internal repression
includes, inter alia, torture and other cruel, inhuman and degrading
treatment or punishment, summary or arbitrary executions, disappearances,
arbitrary detentions and other major violations of human rights
and fundamental freedoms as set out in relevant international
human rights instruments, including the Universal Declaration
on Human Rights and the International Covenant on Civil and Political
Rights.
CRITERION THREE
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
provoke or prolong armed conflicts or aggravate exisiting tensions
or conflicts in the country of final destination.
CRITERION FOUR
Preservation of regional peace, security and stability
Member States will not issue an export licence
if there is a clear risk that the intended recipient would use
the proposed export aggressively against another country or to
assert by force a territorial claim.
When considering these risks, EU Member States
will take into account inter alia:
(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 need not to affect adversely regional
stability in any significant way.
CRITERION FIVE
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 of the proposed
export on their defence and security interests and those of friends,
allies and other member states, while recognising that this factor
cannot affect consideration of the criteria on respect of human
rights and on regional peace, security and stability;
(b) the risk of use of the goods concerned
against their forces or those of friends, allies or other member
states;
(c) the risk of reverse engineering or unintended
technology transfer.
CRITERION SIX
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 inter alia
the record of the buyer country with regard to:
(a) its support or encouragement of terrorism
and international organised crime;
(b) its compliance with its international
commitments, in particular on the non-use of force, including
under international humanitarian law applicable to international
and non-international conflicts;
(c) its commitment to non-proliferation and
other areas of arms control and disarmament, in particular the
signature, ratification and implementation of relevant arms control
and disarmament conventions referred to in sub-para) (b) of Criterion
One.
CRITERION SEVEN
The existence of a risk that the 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
interests 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 capability of the recipient country
to exert effective export controls;
(d) the risk of the arms being re-exported
or diverted to terrorist organisations (anti-terrorist equipment
would need particularly careful consideration in this context).
CRITERION EIGHT
The compatibility of the arms exports with the
technical and economic capacity of the recipient country, taking
into account the desirabilty that states should achieve their
legitimate needs of security and defence with the least diversion
for armaments of human and economic resources
Member States will take into account, in the
light of information from relevant sources such as UNDP, World
Bank, IMF and OECD reports, whether the proposed export would
seriously hamper the sustainable development of the recipient
country. They will consider in this context the recipient country's
relative levels of military and social expenditure, taking into
account also any EU or bilateral aid.
OPERATIVE PROVISIONS
1. Each EU Member State will assess export
licence applications for military equipment made to it on a case-by-case
basis against the provisions of the Code of Conduct.
2. This Code will not infringe on the right
of Member States to operate more restrictive national policies.
3. EU Member States will circulate through
diplomatic channels details of licences refused in accordance
with the Code of Conduct for military equipment together with
an explanation of why the licence has been refused. The details
to be notified are set out in the form of a draft pro-forma at
Annex A. Before any Member State grants a licence which has been
denied by another Member State or States for an essentially identical
transaction within the last three years, it will first consult
the Member State or States which issued the denial(s). If following
consultations, the Member State nevertheless decides to grant
a licence, it will notify the Member State or States issuing the
denial(s), giving a detailed explanation of its reasoning.
The decision to transfer or deny the transfer
of any item of military equipment will remian at the national
discretion of each Member State. 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 item of military equipment
concerned, where a sale would otherwise have come about, or the
conclusion of the relevant contract. For these purposes, a notifiable
denial may, in accordance with national procedures, include denial
of permission to start negotiations or a negative response to
a formal initial enquiry about a specific order.
4. EU Member States will keep such denials
and consultations confidential and not use then for commercial
advantage.
5. EU Member States will work for the early
adoption of a common list of military equipment covered by the
Code, based on similar national and international lists. Until
then, the Code will operate on the basis of national control lists
incorporating where appropriate elements from relevant international
lists.
6. The criteria in this Code and the consultation
procedure provided for by paragraph 3 of the operative provisions
will also apply to dual-use goods as specified in Annex 1 of Council
Decision 94/942/CFSP as amended, where there are grounds for believing
that the end-user of such goods will be the armed forces or internal
security forces or similar entities in the recipient country.
7. In order to maximise the efficiency of
this Code, EU Member States will work within the framework of
the CFSP to reinforce their cooperation and to promote their convergence
in the field of conventional arms exports.
8. Each EU Member State will circulate to
other EU Partners in confidence an annual report on its defence
exports and on its implementation of the Code. These reports will
be discussed at an annual meeting held within the framework of
the CFSP. The meeting will also review the operation of the Code,
identify any improvements which need to be made and submit to
the Council a consolidated report, based on contributions from
Member States.
9. EU Member States will, as appropriate,
assess jointly through the CFSP framework the situation of potential
or actual recipients of arms exports from EU Member States, in
the light of the principles and criteria of the Code of Conduct.
10. It is recognised that Member States,
where appropriate, may also take into account the effect of proposed
exports on their economic, social, commercial and industrial interests,
but that these factors will not affect the application of the
above criteria.
11. EU Member States will use their best
endeavours to encourage other arms exporting states to subscribe
to the principles of this Code of Conduct.
12. This Code of Conduct and the operative
provisions will replace any previous elaboration of the 1991 and
1992 Common Criteria.
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