Select Committee on Defence Fourth Report


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.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2004
Prepared 18 May 2004