Memorandum From Saferworld (1 December
The purpose of this memorandum is to inform
members of the Defence Select Committee of Saferworld's concerns
regarding the implications of the Framework Agreement for national
and European controls on arms exports. As the six largest arms
producers in the EU, the Parties to the Framework Agreement (France,
Germany, Italy, Spain, Sweden and the UK) are responsible for
90 per cent of all EU arms exports. It is therefore Saferworld's
view that agreement between these six to "bring closer, simplify
and reduce, where appropriate, national export control procedures
for Transfers and Exports of military goods and technologies"
(Part 1, Article 1(d)) may have a significant impact on the application
of the guidelines set out in the EU Code of Conduct on Arms Exports.
This impact need not be negative. To the extent
that the Framework Agreement is intended to "bring closer...national
export control procedures", Saferworld recognises that it
could harmonise controls and help prevent the export of arms from
the EU to countries with poor human rights records and to regions
of instability and conflict. Nevertheless a potential tension
exists between adherence to the EU Code of Conduct and the "simplification
and reduction of national export procedures" for the purpose
of promoting "a more competitive and robust European defence
technological and industrial base" (Preamble, paragraph 6).
In the context of the Agreement, a competitive industrial base
is not an end in itself, rather it is intended to "contribute
to the construction of a common European security and defence
policy". If this ultimate purpose of furthering common defence
and security is to be met, the Agreement must support rather than
undermine responsible controls on arms exports. The recommendations
made by Saferworld in this paper are designed to ensure that this
is indeed the case.
1. THE "WHITE
At the heart of Saferworld's concern regarding
the potential impact of the Framework Agreement on European arms
export policy are the so-called "white lists of permitted
export destinations" compiled by Parties participating in
a Co-operative Armament Programme (CAP). Saferworld is concerned
that the white lists may potentially lead to the "fast-tracking"
of arms exports to sensitive destinations, thus undermining adherence
to the EU Code of Conduct.
Confidentiality of the white lists
The white lists will be confidential and Saferworld
is concerned that this may lead to exports to unknown and potentially
sensitive destinations being fast-tracked through the national
export licensing process. If there is to be confidence in the
system the lists should be made public.
The Government's justification for confidentiality
is that the white lists are analogous to the advice already dispensed
informally by individual national governments to domestic arms
manufacturers (which is not publicised). However, it is Saferworld's
view that there can be no real comparison between the white lists
and such advice. The white lists are more than declarations of
interest in potential export destinations; compiled on the basis
of a formal consensus reached between all countries party to a
Co-operative Armaments Programme (CAP) they will inevitably be
viewed as having a higher status.
Saferworld recommends that the white lists should
be subject to Parliamentary Prior Scrutiny by the Quadripartite
Select Committee on Strategic Export Controls (QSC).
The general case for the Prior Parliamentary
Scrutiny of arms export licence applications was put by the QSC
in its "Further Report and Parliamentary Prior Scrutiny"
(17 July 2000). Confidential prior scrutiny of white lists by
the QSC would not undermine commercial competitiveness and would
help to ensure a full and consistent application of the guidelines
set out in the EU Code of Conduct.
Failing the introduction of Prior Parliamentary
Scrutiny, Saferworld believes that at the very least the white
lists should be subject to retrospective scrutiny by the QSC and
be made public.
The relationship between the white lists and national
export control procedures
Concern regarding the potential fast-tracking
of exports to potentially sensitive destinations is generated
by the lack of clarity as to exactly how the white lists will
interrelate with current national export control procedures. In
view of the rapidly changing internal and regional situation in
many potential recipients of arms from EU Member States, it is
vital that exports to white listed destinations are still assessed
individually against the EU Code of Conduct export criteria.
In spite of the Government's reassurance that
the white lists will not function as export licences, it is difficult
to see how they will not influence decision-making at the national
level. Whilst in theory the licensing authorities in the country
of final export could refuse to issue a licence for the export
of goods manufactured under a CAP to a permitted destination,
in practice such a refusal could only appear contradictory in
view of the initial approval of that destination for inclusion
on the white list and would therefore encounter strong opposition,
both from the industry and from other countries participating
in the CAP.
Saferworld urges the Select Committee to seek
a guarantee from the Government that the white lists will not
act as fast-track mechanisms for exports to sensitive destinations
and that individual export licences will still be required.
The drawing up of white lists
Under current national export licensing procedures
decisions are made by the Ministry of Defence, the Foreign Office
and the Department of Trade and Industry. The Department for International
Development is also consulted with regard to applications for
exports to developing countries. It is not clear whether the same
procedure will apply for the drawing up and approving of the white
Saferworld would like the Defence Select Committee
to clarify whether the inter-departmental procedure for the drawing
up of the white lists is the same as that for the granting of
arms export licences.
The removal of a country from a white list
Removal of a permitted destination from a white
list is envisaged "in the event of significant changes in
its internal situation, for example, full scale civil war or a
serious deterioration of the human rights situation, or its behaviour
becomes a threat to regional or international peace, security
and stability, for example as a result of aggression or the threat
of aggression against other nations", but only after a lengthy
consultation process of up to three months. However, "Any
Party involved in the programme may require a moratorium on Exports
of the product to the permitted destination in question for the
duration of that process". Whilst welcoming this provision,
Saferworld is nevertheless concerned that the criteria for determining
whether a country should be removed from a white list are less
detailed than the principles set out in the EU Code of Conduct.
The Framework Agreement should state explicitly
that the principles set down in the EU Code are the criteria against
which the removal of a permitted destination from a white list
Consistency across the EU
The EU Code of Conduct contains the operative
provision that any Member State, which refuses to grant a licence
for the export of arms to a particular destination, should inform
other Member States of that refusal and the grounds for making
it. Saferworld is concerned that the secrecy surrounding the drawing
up of the white lists by countries participating in a CAP will
undermine this commitment to information sharing as other EU Member
States will not be informed of a decision not to put a particular
destination on a white list.
Saferworld proposes that, in accordance with
the EU Code of Conduct, any decision not to include a destination
on a white list should be circulated to all EU partners.
2. OTHER CONCERNS
Annual reporting on strategic export controls
The government has maintained that, as current
UK export licensing procedures, including the scrutiny of the
Annual Report on Strategic Export Controls by the Quadripartite
Select Committee, would remain in force, the Framework Agreement
does not undermine its commitment to transparency. However, this
reassurance fails to assuage Saferworld's concerns because the
responsibility for issuing export licences will lie solely with
the government of the country from which the finished product
is to be exported. Therefore, although the approval of the UK
government will be required for all co-operatively produced arms
exports, arms containing UK-made components could be exported
to sensitive destinations from foreign soil without the knowledge
of the UK Parliament or public.
The government has committed itself, in Appendix
E, Paragraph 15 of the 1999 Annual Report on Strategic Export
Controls to "provide details of the (Framework) Agreement
and its implications" in Part One of the 2000 Report. However,
this commitment is not sufficient to allay concerns that the Agreement
will undermine current standards of government transparency on
strategic export controls.
Saferworld recommends that all exports of jointly
produced goods, regardless of the country of final export, be
recorded in subsequent Annual Reports on Strategic Export Controls.
These records should include full details of
the type, quantity and end-user of the goods exported. In addition,
the government should encourage all EU Member States to produce
detailed national annual reports and improve the clarity and transparency
of the joint Consolidated Report.
As with annual reporting on strategic export
controls, responsibility for end-use controls on arms exported
under a CAP will lie with the country of final export. The collective
responsibility which countries participating in a CAP must accept
for arms exported under that programme enhances the need for the
harmonisation of end-use controls. The design and stringency of
national end-use assessment, certification and control systems
currently vary significantly across the EU. Germany and Sweden
have in place certain provisions which could be identified as
representing elements of best practice in the field of end-use
certification and monitoring. Examples of such practices are requirements
for explicit assurances not to re-export equipment without prior
consent and post-export follow-up checks (Germany) and advanced
export data collection systems (Germany and Sweden).
Saferworld calls on the Defence Select Committee
to urge the Government to introduce strengthened end-use controls
following these models in its forthcoming export licensing legislation
and to encourage other Parties to the Framework Agreement to do