Appendix 18: Memorandum from the UK Working
Group on Arms[55]
INTRODUCTION
A Review of the EU Code of Conduct on Arms Exports
is currently underway, and at the Committee's evidence session
with the Foreign Secretary in February, FCO officials indicated
that they anticipate the final revision to be ready by the autumn.[56]
The Review is an opportunity to address some
of the weaknesses in the existing EU export control regime. In
discussions held with officials late last year it was suggested
that no limits had been placed on the subjects for discussion
and revision. In such circumstances, it is crucial that this Review
is not the exclusive preserve of governments. Yet to date, the
process has been conducted inter-governmentally, with very little
involvement from outside. The statement by the Foreign Secretary
during the evidence session that the Government is open to proposals
for the review is therefore extremely welcome, as is the indication
from the QSC of its intention to examine this issue. However,
the Irish Government set 25 March as a deadline for member and
accession states to submit proposals for change to the Presidency
of the EU, despite the fact that no procedures have been established
for engaging in consultation outside of government. The UK Working
Group on Arms is therefore concerned that the ability of Parliament
or other external observers to influence this process will be
strictly limited, and is urging all interested parties to contact
the Government to ensure a fair hearing. This submission sets
out a number of issues that the UK Working Group on Arms believes
should be addressed in the Review.
BACKGROUND
The EU Code of Conduct, agreed by member states
in 1998, was an important step forward for EU Member State co-operation
over export controls. Implementation of the Code in the intervening
five-plus years has resulted in a number of positive developments
including enhanced transparency and accountability in EU arms
export policy. There has also been a number of additional supporting
agreements and initiatives, including a Common Military List and
a Common Position on Arms Brokering. The operation of the denial
notification system has been crucial, particularly to countries
without extensive and sophisticated intelligence capabilities
that otherwise may be unaware of the risks posed by particular
exports to particular destinations.
Despite these positive developments, it is difficult
to assess whether the Code has actually led to increased restraint
to any significant degree since EU states are still supplying
arms to countries that abuse human rights, suffer internal instability,
or that are situated in regions of conflict and tension. Furthermore,
there are a number of areas where there is a pressing need for
improvement: some relate to issues that have been addressed by
the member states, but inadequately; others relate to issues that
have yet to be addressed.
Although the Code is a dynamic instrument, and
as mentioned above developments in this issue area have been ongoing
since its inception, there remains a significant range of elements
of export control still to be addressed. The EU Code Review would
appear an ideal opportunity to consider all outstanding issues,
thereby creating a fully comprehensive and effective EU-wide arms
export control regime. The principal areas for member states to
focus their attention on are as follows:
Export Criteria
1. Language: There is a need to
strengthen the language of the EU Code, particularly with regard
to international humanitarian law (IHL—criterion 6). Current
provisions relating to IHL, whilst being inadequate, are also
non-binding on member states. Steps should be taken to ensure
that this and other criteria are fully reflective of states existing
responsibilities under international law, inter alia, by incorporating
all the elements of the draft Arms Trade Treaty[57]
into the EU Code.
2. Clarity: There is a need for
making the application of the Code as clear as possible and for
reducing the scope for differing interpretations of the criteria.
For example, this should involve defining those circumstances
where a licence should not be granted rather than saying what
factors should be "taken into account".
3. Guidelines: In order to address
the widely different interpretations of the Code Criteria, there
is a need for the development of guidelines to assist the member
states in interpreting the criteria and the indicators that are
used to carry out assessments; these guidelines would be particularly
helpful to the Acceding Countries.
Operative Provisions
1. Applying the Code to all relevant
transactions: The Code should apply to brokered transactions
of controlled goods, licensed production overseas, transhipments
of controlled goods through the EU and intangible transfers of
controlled technology (transfer of technology by electronic means)
as well as to physical exports of controlled goods from EU states.
2. Denial notification issues:
— Swift notification of all denials:
There is a need to ensure that denials are swiftly notified
to other member states, for example, by circulating them via electronic
means instead of through the cumbersome "diplomatic channels".
Provisions also need to be agreed for taking into account denials
which some countries issue following "informal" or "preliminary'
approaches from industry and which can replace a formal licence
application.
— Adequate record-keeping: The
establishment and maintenance of a central database of denials
would ensure that all member states would have access to the information
relating to existing denials. The extension of this database to
include a record of denial consultations and their outcomes would
also be desirable as would the inclusion of information on suspect
or unreliable end-users.
— Promoting greater convergence
and understanding amongst EU member states on the application
of the Code: By sharing information on denial consultations
amongst all EU states and not just bilaterally all EU States may
understand the issues raised during the consultation provisions
leading to a more consistent application of the Code.
— Widening the impact of the Code:
By sharing information on denials with non-EU countries that
subscribe to the Code, convergence and restraint can be encouraged
amongst a wider group of states. EU member states should move
towards sharing information with the remaining Associate Countries
(eg Bulgaria and Romania) and could hold out such involvement
as a reward for progress in arms export control such as the publication
of an annual report and the development of strong legislative
and administrative procedures. An annual meeting of all states
that subscribe to the Code to ,discuss its-application and evolution
would also enhance the sense of such countries as partners in
the EU Code and give substance to the concept of "alignment"
to the EU Code.
3. Control list issues: The EU Commission
has developed a proposal for a regulation controlling the export
of non-military (police and security) equipment that may be used
in internal repression. It is essential that there is speedy agreement
on such a regulation since. this is a major issue that has yet
to be addressed even after almost six years of the Code's operation.
4. Annual Reporting:
— Producing comprehensive national
Annual Reports: Not all EU member states produce Annual Reports
on their arms exports. Of those Reports that exist, moreover,
many provide insufficient information to allow national parliaments
and publics to conduct a fully informed appraisal of their government's
implementation of the EU Code. Accordingly there is a need to
develop common provisions for the production of national annual
reports based on best practice.
— Ensuring all states provide comparable
information in the context of the Annual Review: Even after
five years of the EU Code, member states are providing incomparable
data for inclusion in the Annual Consolidated Report on the operation
of the Code. Member states need to harmonise their methods of
data collection and evaluation so that there is consistency in
terms of information provided in the Consolidated Report and what
it means.
— Ensuring that the Consolidated
Report allows for informed analysis of how the Code is operating:
The current level of information provided in the EU Code Consolidated
Report provides only a limited insight into the operation and
effectiveness of the EU Code. Disclosure of more detailed information,
for example on denials and consultations, would help to enhance
transparency and accountability in the operation of the Code.
Ensuring all states have the same understanding
of key principles: Member states have agreed that the day-to-day
operation of the Code will lead to a convergence of thinking on
what constitutes an "essentially identical transaction"
and thus when consultations need to take place between states
on possible undercutting. However, a concerted effort to develop
a common definition of an "essentially identical transaction"
is needed to prevent member states unwittingly undercutting each
other, and thereby to ensure that the Code is consistently applied
by all member states. States have agreed that for the moment they
will use a broad interpretation of the concept of "essentially
identical": there is a need to develop an approach which
explicitly provides for an interpretation based on whether transactions
might have essentially identical consequences, eg where they would
contribute to similar capabilities of the end-user, or raise the
same risks for diversion, human rights or regional stability.
Other issues
1. End-use issues: Member states
have agreed a list of provisions which should be incorporated
into an end-use agreement; additionally they have agreed a further
(optional) list of provisions which could be required from any
end-user undertaking. Member states should expand the list of
required provisions to include those recommended provisions. In
addition, member states should reach swift agreement on those
circumstances in which an end-user certificate should be required
and they should further agree on what should be the response when
end-use assurances are found to have been broken. EU States should
exchange information and maintain an EU (or wider) database regarding
re-export and diversion risks. This should be supplemented by
an active and focussed information exchange on end-use issues
so that countries without extensive intelligence resources can
benefit from the knowledge of larger member states. EU states
should also reach agreement on invoking end-use monitoring provisions.
Arguments have been made that EU states do not have the power
or capacity of the US, for example, and so cannot take such steps,
however by working in concert member states could overcome this
difficulty.
2. Arms-brokering issues: Member
states have agreed a Common Position on Arms Brokering but it
does not go far enough. Member states need to strengthen the agreement
to include extraterritorial controls and the requirement that
all EU States establish a register of arms brokers. Member states
should also agree-that all must introduce controls within a two-year
time-frame.
3. Licensed production overseas (LPO)
and incorporation issues: Few member states currently operate
controls on the production of arms by national companies overseas
raising concerns about the global proliferation of arms manufacturing
capabilities. Member states should agree to subject all LPO and
incorporation deals (where components are exported for incorporation
into a weapons system overseas) to a licensing requirement. This
licensing requirement should include scrutiny of all such deals
against the Code of Conduct—taking account of the nature
and quantities of the goods to be produced and their ultimate
destination and end-use.
4. Transit issues: There is currently
no co-ordination of EU member states' policies regarding the transit
of controlled goods through their territory. Indeed, the apparent
lack of regulation in this area raises the prospect that weapons
could be passing through the Community to countries which would
not receive direct exports of the same from EU member states.
This issue must be addressed with a view to full regulation in
this area. In the first instance, member states need to agree
on those circumstances in which a transit licence is required.
5. Assisting Acceding states in implementing
the Code: Member states need to be more proactive in offering
help and should suggest areas in which their expertise could be
offered, since accession countries may be unaware of what is required
of them in this area. Member states should also establish a mechanism
which enables the provision of all necessary assistance to Acceding
countries so as to facilitate their full compliance with the Code
and associated agreements, possibly through establishment of a
dedicated fund allowing the provision of legal and technical assistance.
6. Enhancing the impact of the Code:
Member states should adopt the Code of Conduct as a legally-binding
instrument in order to encourage stricter application of its provisions
by member states. If this is not possible; member states should
undertake to incorporate the criteria and operative provisions
of the Code into their national law.
7. Consistency in implementing. international
embargoes: It is essential that member states agree a common
interpretation of all EU, UN and other international embargoes
to which EU states are a party. Differing interpretations serve
to undermine the credibility and the operation of the Code.
8. Consistency in MS approach to sensitive
regions/countries/end-users: Currently member states "concert"
on national policies towards sensitive regions, countries and
end-users, although there is little indication of how extensive
or systematic such exchanges are. An agreed common approach to
particular regions of tension or instability or to human rights
crisis zones would be a significant step towards ensuring consistency
in the application of the Code's principles by all.
9. Enhancing accountability in EU arms
export policy: While member states have undertaken to develop
a dialogue with the European Parliament, it is important that
this forum is offered an enhanced role in scrutinising implementation
of the Code and making recommendations for its improvement. The
EU Code review also provides an opportunity to set out certain
minimum standards to ensure that national parliaments play an
active part in monitoring government policy and practice in this
area, for example as occurs in the UK. Such steps would enhance
accountability and help engender greater public confidence in
the operation of the Code.
March 2004
55 For the purpose of this briefing the UK Working
Group consists of Amnesty International, BASIC, International
Alert, Oxfam and Saferworld Minutes of evidence taken before the
Quadrigpartile Select Committee, Strategic Export Controls 25
February 2004 Q27. Back
56
Minutes of evidence taken before the Quadripartite Select Committee,
Strategic Export Controls, 25 February 2004, Q27. Back
57
The draft arms Trade Treaty, as proposed by an international
grouping of NGOs, does not cover all the elements in the EU Code,
for example with regards to several of the operative provisions.
The context of a review of the EU Code would however seem to provide
an opportunity to ensure that where the EU Code falls short, it
is amended to reflect all the obligations contained in the draft
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