APPENDIX 14
Letter from the Foreign and Commonwealth
Office to the Clerk of the Committees
Your letter of 27 March included several questions
following up the Foreign Secretary's 21 March oral evidence session
with the Quadripartite Committee. Question 11 of your letter,
and our response sent on 15 April were as follows:
"11. In his answer to Q25 of the oral evidence,
the Secretary of State undertook to write to the Committee about
the case for a thorough-going look at the EU Code of Conduct in
the light of events since 11 September. When might the Committees
expect his response?
The Government is examining the case for reviewing
the EU Code of Conduct in the light of events since 11 September.
The Committee will be informed of the Government's conclusions
on this issue as soon as possible."
The Government has now examined the case for
reviewing the EU Code of Conduct in the light of events since
11 September. The Code is very similar to the Consolidated EU
and National Arms Export Licensing Criteria, so many of the conclusions
outlined by the Foreign Secretary in his written reply to a Parliamentary
Question on 13 December 2001 (HC 975W), on the criteria and UNSCR
1373, apply to the EU Code of Conduct as well.
The EU Code is clear about the need to prevent
arms flows to terrorists, set out in criteria six and seven as
follows:
"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; . . ."
"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: . . .
(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 one of the Code is also very clear
about the requirement on EU Member States to prevent the proliferation
of Weapons of Mass Destruction:
"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: . . .
(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 Control Regime, the
Nuclear Suppliers Group and the Wassenaar Arrangement; . . ."
As Mr Dowse, Head of Non-Proliferation Department,
pointed out in response to Question 25 of the Oral Evidence Session,
all EU Member States are members of the key non-proliferation
regimes, and the EU is actively engaged in work by those regimes
to ensure that their lists, aims and procedures are consistent
with the need to prevent arms flows to terrorists.
The CFSP Working Group on Conventional Arms
Exports (COARM), which has oversight of the implementation of
the EU Code of Conduct, had a brief informal discussion on whether
the Code should be amended in September 2001, in the immediate
aftermath of the terrorist attacks. The Group concluded informally
that the Code was already sufficiently robust on the prevention
of arms flows to terrorists.
The EU Code does not include the language in
the second consolidated criterion, referred to in the 13 December
PQ, that HMG:
"considers that in some cases the use
of force by a Government within its own borders, for example to
preserve law and order against terrorists or other criminals,
is legitimate and does not constitute internal repression, as
long as force is used in accordance with the international human
rights standards described above".
We have always taken the view that the inclusion
of this language in the Consolidated Criteria does not contradict
our obligations under the EU Code. It merely clarifies what is
arguably an obvious point: that the use of force is not internal
repression if it does not breach international human rights standards.
For example, criteria four (external aggression) and six (international
law) do not explicitly include text on the legitimate use of force.
Nevertheless, we believe it is consistent with these criteria
(and the EU Code) to view the use of force by a destination country
as legitimate, so long as it is not used aggressively against
another country or to assert by force a territorial claim, and
so long as force is used in accordance with that country's international
obligations and commitments, including under international humanitarian
law.
The Foreign Secretary has therefore concluded
that the EU Code of Conduct does not need to be amended in response
to the terrorist attacks of September 11 or in order to be compliant
with UNSCR1373. The Code as currently drafted provides adequate
safeguards against the supply of arms and other controlled goods
to terrorists, while allowing Member States to equip those conducting
legitimate, responsible campaigns against terrorism.
27 June 2002
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