ANNEX: LETTER TO THE FOREIGN SECRETARY
Letter from the Chairman dated 23 March 2004 to
Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth
Affairs, on the Review of the EU Code of Conduct on Arms Exports
You helpfully remarked during our evidence session
last month that you were "in the market for proposals"
for change to the EU Code of Conduct on Arms Exports. I understand
that an important discussion on the ongoing review of the Code
will take place later this week, and I wanted to let you have
some initial thoughts before this meeting takes place. I have
sought to ensure that this letter reflects for the most part views
that I believe my colleagues on the Committee would share, but
I should stress that I have not had the chance to discuss it with
them.
Transparency has been a central concern of the Committee.
The Code does not currently place any obligations on Member States
to publish information about their arms exports. Most Member States
do publish some information, but it varies enormously from country
to country both in content, and in how the information is compiled
and presented. I strongly believe that there are grounds for including
in the Code a commitment by Member States to publish information
on arms exports. This should include information by category of
equipment matched to country of destination, as in the British
Government's Annual Reports. It would also be useful to have a
commitment to seek convergence in terms of how this information
is gathered, analysed and presented, so that meaningful comparisons
can be made between different countries.
The status of the Code itself is an issue which may
be considered in the course of the review. You suggested in your
evidence to us that it was a Common Position of the European Council.
In fact, it does not have this status, unlike, for example, the
Common Position on Brokering. While I can understand your concerns
about making the Code justiciable or subject to qualified majority
voting, this would not be the case if its status were upgraded
to that of a Common Position or Common Strategy, as it falls under
the Common Foreign and Security Policy Pillar of the Treaties.
Nor is it likely to become the case in the foreseeable future.
Upgrading the status of the Code would send out a clear signal
of the importance that Member States attach to it, without in
fact changing its legal status in any practical way.
The Criteria themselves are widely regarded as successfully
encapsulating the principles on which licensing decisions should
be based. There are, however, a few areas in which tighter definition
would be useful.
One factor which is not explicitly mentioned in the
Code is law and order. As we know too well here in the United
Kingdom, strategic exports, small arms in particular, can lead
to increased levels of violent and other crime, which would not
be considered to be an 'armed conflict' under the terms of Criterion
3. There is a case for making it explicit in the Code that equipment
will not be permitted for export if there is a clear risk that
it might make law and order more difficult to maintain. This would,
of course, encompass terrorist acts.
Criterion 8 is the least satisfactorily defined of
all the existing criteria I understand that there have been discussions
within COARM on how the criterion should be interpreted, but it
would be highly desirable to have a clearer definition on the
face of the Code of what this criterion means. In my own opinion,
consideration of sustainable development issues in this context
should not be limited toonly the very poorest countries. Nor should
it be limited to whether the cost of equipment is beyond the means
of a purchasing Government. It is also important to look at the
sustainable development impact of the equipment itself. Inexpensive
small arms can have as great an impact on sustainable development
as an expensive air traffic control system. This should be reflected
in the defmiticri of this criterion.
I have a few much more minor suggestions about the
other criteria.
Criterion 2 refers to 'internal repression', unusual
terminology which is not reflected in international law. It is
unclear if this criterion would encompass repression carried out
beyond national borders.
It is unclear whether Criterion 4 would always encompass
pursuing a territorial dispute by means of force, especially where
the ownership of the territory in question was undetermined.
Under Criterion 6 it would be valuable to include
explicitly full participation in the UN Register on Conventional
Arms as a measure of a buyer country's commitment to arms control.
I also have a number of suggestions regarding the
Operative Provisions of the Code.
The Code needs to be brought up to date to reflect
the EU Common Position on Arms Brokering and to recognise the
importance of controlling intangible transfers of the software
and technology associated with items on the common list. In particular,
the denial 'and undercut provisions of the Code should be explicitly
extended to applications for brokering licences and, to the intangible
transfer of technology. Operative Provision 3 of the Code refers
to the "actual sale or physical export" of military
equipment. This should be changed to include export by intangible
means. A mechanism also needs to be found to link denial and undercut
notifications for exports with equivalent notifications for brokering.
For example, if a Member State issues a denial notification for
a brokering licence application for the transfer of equipment
to an end user, another Member State intending to issue an export
licence for the same equipment to the same end user should
be required to issue an undercut notification. A similar mechanism
needs to be found to ensure that denial notifications for intangible
export licence applications apply to subsequent applications
for export licence applications for equivalent technology in tangible
form, and vice versa.
The Code should include an obligation to gather and
share information on the export of production equipment, to enable
an overview at European level of the extent to which the proliferation
of production equipment might be a cause for concern, and to enable
measures to be taken. to limit this proliferation.
Operative Provision 3 should be strengthened to require
a Member State intending to undercut a denial notification to
consult first with all other Member States, not just to consult
with the Member State issuing the denial. This would ensure that
any decision to undercut was taken on the basis of information
available to all Member States. Member States should also be obliged
to notify all other Member States of undercuts that they carry-out,
and to give reasons for why they have decided to undercut.
Operative Provision 6 states that the Code will apply
to dual-use goods "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".
I would argue that concerns about the acquisition and sale of
dual-use goods apply to non-state end users as well. There is
presumably a case for extending this provision explicitly to civilians
whose motivation for acquiring these goods might be suspect.
I hope that you find these thoughts a helpful contribution
to the ongoing review of the Code.
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