TECHNICAL ASSISTANCE RELATED TO WEAPONS
OF MASS DESTRUCTION
(21272)
—
| Draft Joint Action concerning the control of technical assistance related to
weapons of mass destruction and certain military end-uses.
|
| Legal base:
| Article 14 TEU; unanimity
|
| |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 5 June 2000 |
| Previous Committee Report:
| None; but see (21118) — : HC 23-xv (1999-2000), paragraph
10 (19 April 2000)
|
| To be discussed in Council:
| 13 June 2000 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
|
Introduction
8.1 On 19 April, we cleared a draft Council Regulation
setting up a Community régime for the control of exports
of dual-use items and technology[11].
It was expected to be adopted before the end of April and to come
into force 90 days later. It will control, among other things,
the transfer of dual-use technology by intangible means, such
as e-mail and fax. However, the legal base for this revised Regulation
is Article 133 of the EC Treaty, under which there is no Community
competence to control the movement of persons across borders.
The proposed Joint Action
8.2 In an Explanatory Memorandum dated 5 June,
the Minister for Competition and Consumer Affairs at the Department
of Trade and Industry (Dr Howells) points out that:
"Persons who travel
across borders to communicate information or provide expertise,
instruction, training etc. may also transfer technology by intangible
means, or more generally provide technical assistance as defined
in Article 1 of the Joint Action."
8.3 If provision is to be made for the control
of forms of technical assistance involving such movement, the
Minister says that a Joint Action is necessary. The Portuguese
Presidency has, therefore, proposed under the Common Foreign and
Security Policy the Joint Action we consider here. It is intended
to complement the Council Regulation and will control various
forms of technical assistance related to weapons of mass destruction,
where that assistance is provided outside the EU. This would apply,
for example, the Minister says, where someone travelled outside
the EU in order to repair, provide maintenance for or help assemble
weapons of mass destruction or missiles capable of their delivery.
8.4 From the unofficial text provided by the
Government, we see that the technical assistance will be taken
to include the transmission of working knowledge or skills and
includes oral forms of assistance. Article 2 subjects this technical
assistance to controls, defined as 'prohibition or an authorisation
requirement', "where it is provided outside the European
Community by a natural or legal person established in the European
Community and is intended, or the provider is aware that it is
intended, for use in connection with ....". There then follows
a list of different types of activities, such as the development
of chemical weapons.
8.5 The Joint Action also requires Member States
to consider the application of similar controls to the provision
of technical assistance on military end-use list items, other
than those referred to in Article 2, in countries subject to certain
arms embargoes.
8.6 Article 5 calls on Member States to lay down
control provisions, if these are not already in place, and to
"determine the sanctions to be taken at national level".
The Government's view
8.7 The Minister says that the substance of the
Joint Action is consistent with the Government's proposals for
new legislation as set out in its White Paper on Strategic Export
Controls (Cm 3989). This proposes to extend controls to the transfer
of technology by any means and the provision of technical services
related to weapons of mass destruction and long-range missiles.
He adds that policy will be reviewed in the light of responses
to the White Paper.
Consultation
8.8 The Minister comments:
"It has not been possible
to carry out consultations on the proposed Joint Action, as the
text has only recently become available. There will be opportunities
for views to be expressed when the Government introduces measures
to implement the Joint Action in due course, if it is adopted.
However, the Government's proposals for new export control legislation,
which contain proposals in relation to weapons of mass destruction,
were set out in the White Paper mentioned above, and were the
subject of wide consultation, the results of which were announced
before the House of Commons by the Secretary of State for Trade
and Industry on 11 November 1998."
Conclusion
8.9 This proposal is unusual in our experience
of Joint Actions, in that new primary legislation will be required
to implement it in full, according to the Minister.
8.10 The Minister says that there has been
little time for consultation on this proposal, but refers to consultations
on the White Paper on Strategic Export Controls as though these
were an adequate substitute. He does not tell us whether he has
consulted the Lord Chancellor's Department or the Home Office,
both of which could be expected to have views on sanctions to
be applied to persons travelling abroad. He gives no indication
of what sanctions he envisages might be applied and how these
would operate.
8.11 We are not content to clear this proposal
on the basis of the meagre information supplied, leaving further
scrutiny to the measures the Government will bring forward, if
the Joint Action is adopted. We need a much clearer idea now,
for instance of whether the sanctions would be civil or criminal
and would only be applied after the event, or whether the Government
would seek to prohibit travel on the basis of a person's intention
to supply the technical assistance referred to in the Joint Action.
If so, how will this be monitored and enforced? We also
ask the Minister whether the Joint Action is intended to thwart
'brokering', where technical assistance is provided outside the
EU which would otherwise be subject to internal controls.
8.12 The Minister tells us that the proposal
is due to be "considered" at the General Affairs Council
on 13 June. We do not expect the Government to agree to this Joint
Action before it has responded to our questions on the concerns
it raises. Meanwhile, we shall not clear the document.
11 (21118) -; see headnotes to this paragraph. Back
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