House of Commons - Defence - Written Evidence

Select Committee on Defence Written Evidence

Appendix 12: Memorandum from Quadripartite Committee Specialist Advisor, Dr Sibylle Bauer

GOVERNMENT REPORTING ON ARMS EXPORT POLICY TO PARLIAMENT

The quantity and quality of information on arms exports available to parliament and the public has increased considerably since the end of the cold war. In the European Union in particular, reporting has become the norm, rather than the exception. Information on arms export policy can be obtained either from governments and governmental agencies, or from non-governmental actors, such as companies, journalists, NGOs and research institutes that compile statistics from official and other sources. Since unofficial information does not constitute a formal basis on which to hold policy-makers to account, only official information is considered here in response to the question of: to what extent governments have made their arms export policies transparent; what mechanisms are in place to transmit information; and which instruments and structures parliament have at their disposal to scrutinise arms export policy. To this purpose, the practices of major European arms producers other than the UK, as well as Australia, Canada and the United States are analysed. The paper also provides an overview of EU reporting in the context of the EU Code and the role of the European Parliament.

I. NATIONAL REPORTING AND THE ROLE OF PARLIAMENTS IN THE EU

EU member states' legislation on arms exports is by definition publicly available, while the same is not necessarily the case for guidelines and procedures of decision-making. The extent to which criteria for decision-making are put down in writing and made public varies throughout the EU. Procedures are usually explained in official publications, including websites, as this is important for companies applying for licences. Systematic reporting on export decisions became widespread in the EU only in the 1990s. Prior to this, information on actual exports was available in the form of trade statistics based on customs data. However, these statistics only render arms export policy transparent to a very limited extent, however, as they may be difficult to obtain, and their categories only permit limited conclusions because customs data are not compatible with control list categories. [9]

Ad hoc reporting has been common practice over many decades, mostly in the form of government responses to parliamentary questions. The volume, detail, and therefore usefulness of information all depend on a variety of factors,in particular the country, the government in power and domestic circumstances, such as public and media interest. In turn, the extent to which reporting leads to scrutiny depends on whether parliament uses the information to hold the government to account.

MAJOR EU ARMS EXPORTERS

France

In 2000 the French Government published its first report on arms exports. This report related back to 1998. Subsequent reports were issued between 12 and 24 months after the end of the reporting period, and the report for 2002 and 2003 was released jointly only in January 2005. [10] The reporting requirement in the context of the EU Code, reinforced by domestic pressure, prompted the introduction of a reporting system.

For each recipient country, the report for 2002 and 2003 provides:

— the value of military assistance and sales by the Ministry of Defence; the explanatory text provides additional detail such as the model delivered, on selected contracts;

— the quantity and type of small arms and light weapons delivered and ordered between 1999 and 2003;

— the value of military equipment orders and actual exports, broken down by the categories, land, sea and air;

— the value of government-to-government transfers, broken down into SALW, other military equipment, and civilian items.

For denials, the report provides information in four separate statistics:

— the number of times each of the eight criteria was evoked;

— a breakdown of the number of denials by geographical region;

— a broad description of the types of equipment refused; and

In 2000 the first-ever parliamentary report on French arms export control policy was produced by the defence committee. [15] It examines the French export control system, [16] the European and international context (including other countries' policies), [17] and the question of transparency. The section on transparency covers the economic viability of arms exports, legal provisions, other countries' transparency practices, [18] and the first government report. The report drew up specific suggestions for improving the government report, [19] all of which were followed. Other recommendations included annual briefings of the Foreign and Defence Committees by the Defence and Foreign Ministers, followed by a public debate, and the establishment of an advisory committee on arms exports. The latter would be tasked with analysing French arms export policy, in particular the annual report, and providing suggestions for improvement. Parliamentarians were not among the proposed members, who would include representatives from the defence industry, trade unions, industrial associations, NGOs, the general secretary on national defence and other individuals. Finally, the report proposes the establishment of a body to monitor arms exports to examine the economic viability of arms exports.

The National Assembly's investigative function has been applied to arms exports on several occasions, for example regarding arms exports to Rwanda. [20]

Germany

Until 2000, there was no regular reporting on arms exports. Information was provided to parliamentarians on an ad hoc basis in response to oral and written questions and thus became public. These statistics were typically limited to values of "weapons of war" exports per recipient region, and details on exports of surplus equipment. For "other armaments", the total value per broad equipment categories was indicated. On one occasion, the Government response was so comprehensive that it amounted to a report on arms exports. [21]

The change of government in 1998 prompted the publication of the first report on arms exports in 2000. [22] The EU Code's reporting requirement therefore coincided with national drivers, possibly making the report more substantial than it would have been without the supporting role of the European transparency trend.

The fact that reports have been published almost a year after the end of the reporting period and therefore up to two years after licensing decisions were made, reduces the usefulness of information for holding decision-makers to account. In terms of substance, reports have improved over the years.

For each recipient country, the report provides:

— the number, total value and military list rating of licences granted; for

selected countries the type of equipment authorised is further described;

— the number and military list rating of licences denied, together with the

reasons for denials according to the EU Code criteria;

— types and quantities of small arms and light weapons licensed for export; and

— the value of actual exports for "weapons of war".

The report provides information about cases dealt with by judicial authorities. It also contains summaries and documentation of relevant national, regional and international agreements and developments.

Not all parliaments in the EU have a tradition of drafting parliamentary reports. There is no such practice in Germany. Parliamentary guidance for executive decision-making can be exercised through resolutions (Bundestagsbeschlüsse). The Bundestag has adopted several resolutions on the Government's arms export reports. [23] To date, the Government has only implemented some of the recommendations made. The Bundestag has also adopted resolutions on export policy, for example one in 2004 requesting the Government to uphold the arms embargo against China.

There have also been a number of parliamentary inquiries into arms exports to specific recipient countries, such as South Africa and Iraq.

There is no institutionalised notification or consultation prior to a licensing decision. Two exceptions are the information of parliamentary committees on the transfer of surplus equipment of the German armed forces, and information on military assistance provided to the Budgetary and Foreign Affairs Committees due to the parliament's budgetary powers. In the past, the Budgetary and Defence Committees were informed about surplus weapons transferred abroad, partly in advance and partly in retrospect. [24]

The instrument of Parliamentary Reservation confers on the Bundestag the authority to ratify international agreements. In the case of the LOI Framework Agreement, the Government decided that a parliamentary reservation did not apply. Similarly, the Parliament did not participate in the 1972 and 1983 agreements on exports of jointly produced equipment with France and the

UK. [25]

Military assistance to other countries requires parliamentary approval, not only with regard to the recipient country, but also the financial volume per country. Agreements cannot be concluded without involvement of the Foreign Affairs and Budgetary Committees. [26]

Italy

Since 1990, the Italian Government has been legally required to submit an annual report on arms exports to Parliament. [27] The Italian law outlines elements to be included in the report (licences granted and deliveries for import, export and transit of armaments) and a deadline for annual submission, 31 March. The rather voluminous report (451 pages for 2002) consists of six parts compiled by the Ministries of Defence, Foreign Affairs, Foreign Trade, Interior and Finance, and the Treasury. [28]

The report is unusual in a number of ways. The Italian Government is the only one in the EU to break down detailed information on licences issued and deliveries by individual company. For each company, the Foreign and Finance Ministries provide the number, detailed description of items and value for licences granted and deliveries, although the destination is not disclosed. [29] They can generally be concluded when combining the information provided in the different ministries' reports and other sources such as the EU Code report. Therefore, while many puzzle pieces are provided, assembling them is mostly left to the reader.

Information on recipient countries is contained in separate statistics detailing the total value of export authorisations, deliveries and bank transactions per recipient country. The values for the three different categories do not match, however, since not all licences are transformed into deliveries, at least not in the same year the license was granted, nor is the payment necessarily made that year.

Statistics on banks involved in financial transactions, provided by the Treasury, represent a unique feature of Italian reporting. [30] The report thus breaks taboos on disclosing information on financial arrangements and producing companies, which in many other countries are justified on commercial confidentiality grounds.

Spain

The Spanish Government has published reports on arms exports since 1995. [31] The first report, which covered the years 1991 through 1994, contained summary information. [32] Further detail has been added over the years. A report published in 1998 for the first time details the value of exports per recipient country, covering the years 1991 to 1996. This increase in transparency followed both a campaign initiated by Spanish NGOs to end secrecy in arms transfers (called "Killing Secrets"), and a formal request for a report by Parliament. The Spanish Parliament agreed two documents on arms export reporting, one on arms trade transparency of 18 March 1997, and one on transparency and development of export controls for small arms and light weapon (SALW) of 11 December 2001. [33]

Statistics on exports of defence materials and dual-use goods and technologies have to be presented to Parliament every six months. The Secretary of State of Tourism and Trade presents the annual report to the Parliament's Defence Committee. The report to Parliament must include "essential data" on countries of destination.

For each recipient country, the report for 2003 provides:

— the value actual exports;

— the military list ratings of actual exports; and

— the number and value of licences granted.

For denials under the EU Code, the report provides their number, the broad category of equipment denied, the Code criteria evoked to justify a refusal, and the number of bilateral consultations. The annex contains documentation, such as the Spanish submission in the framework of the EU Code and the intergovernmental OSCE small arms reporting system. The latter includes five categories of small arms and eight categories of light weapons exports, and export authorisations to OSCE states. The Spanish Government is considering the provision of additional information in the report for 2004.

Sweden

In 1985, the Swedish Parliament was the first in Europe to receive an annual report on arms export policy from its Government. These are submitted by early spring. [34] The Government added both further detail and additional types of information over time. This enhancement of transparency can be attributed to the EU Code reporting dynamic, domestic and international NGO pressure and the fact that during the 1990s, Sweden lost the leading role with regard to arms export transparency it had during the 1980s and early 1990s.

For each recipient country the report provides:

— the values and the relevant Swedish military list categories together with a summary description of the equipment for both export licences and actual exports; and

— export licences denied and criteria invoked (since reporting year 2003).

For major arms-producing companies, the value of military exports is provided. The countries in which companies obtained manufacturing rights from Sweden are also listed. The reports also provide an overview of international developments and relevant Government decisions at the national level, in the EU and in international fora.

The Parliament has several instruments at its disposal to scrutinise the Government's implementation of the legislation in place and to expose discrepancies between stated government policy and practice.

Parliament annually holds a debate on the Government's arms exports report. The debate is based on a Foreign Affairs Committee report, which scrutinises the annual report and puts forth motions. Debates also take place in the context of legislative procedures. The LOI Framework Agreement was the subject of in-depth parliamentary debate in advance of ratification. Numerous debates have been held on specific controversial deals, such as exports to Indonesia in the mid-1990s, often on the basis of reports by the Committee on the Constitution.

Besides the committees specialising in armaments issues (the foreign affairs and defence committees), the Standing Committee on the Constitution has a key role to play through its task to "examine the ministers' performance of their duties and the handling of Government business".[35] To this end, it has the "right to access all Government documents relating to a particular matter, even if they are classified information".[36] Every year since at least 1990, the Committee of the Constitution has addressed arms trade issues and investigated arms exports to specific recipients. [37] Reports include evidence from Government officials. It was on recommendation of the Committee on the Constitution that the Government investigated the issue of follow-on deliveries during the second half of the 1990s.

The Parliament is involved in decision-making on foreign policy matters through the Foreign Affairs Advisory Council, FAAC, an advisory body on foreign affairs. It consists of the Speaker and nine other members, who are elected by Parliament from among its Members and is presided by the head of state, the King. [38] Until the mid-198Os, Parliament and Government both agreed that the FAAC could fulfil the advisory function for Government on arms export policy and that the creation of a separate body was not necessary. The Parliament however recommended that "the Government continuously seek the advice of the Advisory Council on Foreign Affairs regarding the choice of countries and important matters of principle". The Government agreed that the Advisory Council should be a consultative body and declared that it should "continuously obtain the advice of the Council on questions of the choice of countries, co-operation agreements relating to joint development and production of military equipment as well as on matters of principle, which shall also include issues which affect larger-scale exports".[39]

The idea of establishing a parliamentary committee to advise the Government on arms export matters was first put forward by a 1969 commission tasked with preparing the revision of arms export regulations. The proposal was rejected by both Government and Parliament. [40] Based on a parliamentary decision to increase transparency and accountability of decision-making on arms exports, an Advisory Board for War Material Export Questions was established in 1985. This enabled parliamentarians from different parties represented in Parliament to gain greater insight into the licensing process through privileged access to information, greater specialisation and regular dedication of time to this specific specialisation and regular dedication of time to this specific issue. [41] It also created an instrument for voicing objections. In 1996, the Advisory Committee was renamed Export Control Council (ECC) and linked to the licensing authority ISP.

The legal basis of the ECC is provided through a 1995 Ordinance, [42] which assigns an Export Control Council to the head of ISP as an "advisory council on export control questions". The ECC comprises the head of ISP (the chair) and a maximum of 10 members. The chair is obliged to keep members informed of issues relevant to its work. If possible, the chair should consult with the advisory body before referring a decision on the export of arms or dual-use goods to the Government. At the Inspector's discretion other relevant issues can be presented to the Council.

The current ECC consists of current and former Members of Parliament from all parties represented in Parliament. The body is informed ex post of all decisions made by the ISP. The main part of the meetings deals with specific, precedent setting cases on which a decision on a pre-notification of the applying company has not yet been taken. The ISP, not the Government decides which cases to take to the ECC. ECC discussions are on preliminary opinions in response to written inquiries as to whether an export license can be expected, not on the final licensing decision.

BEST PRACTICE OF OTHER ARMS EXPORTERS IN THE EU

Reporting

Belgium was the first EU Member State to identify the type of recipient in a given country in the annual report on arms exports. [43] The Danish report also identifies the type of recipient within the country (industry, defence or police). Finland identifies deliveries to United Nations forces based in countries such as Afghanistan and Pakistan.

Since 1991, the Belgian Government has been legally obliged to provide Parliament with an annual report on the implementation of its arms export legislation. A 2003 revision sets a time frame for the submission of the report to Parliament and sets out compulsory elements, such as specific data on licences granted and exports, steps taken to prevent the diversion and undesired re-export of Belgian arms, and the implementation of the EU Code of Conduct. This partially transfers the definition of the reporting format from the government to parliament. [44]

In Finland, detailed information about each license can be obtained from the Defence Ministry upon request, immediately after the license was granted. [45] Since 2000 the Finnish Government has also posted its Code submissions on the Defence Ministry's website. [46] For each recipient country, the Finnish report provides:

— the military list (ML) sub-category and equipment quantity, number and total value of licences granted; and

— the military list sub-category, equipment quantity, description and value for each ML sub category for actual exports.

The Netherlands Government is the most transparent with regard to both export licences refused and granted. Since 1996, the Netherlands Government has submitted a report on arms exports to Parliament—since 1997 on a biannual basis. [47] Since 1997 it has also published an annual report on its arms export policy. For each denial, the following details are indicated:

— the intended destination;

— the recipient within the country;

— the end-use (if not identical with the recipient);

— a detailed description of the equipment (eg "turbojet engine for training aircraft, adjusted for military use");

— the military list rating

— the reason(s) for the denial based on the Code criteria; and

— the date and number of the denial notification within the CFSP information exchange.

Since the introduction of monthly online statistics in November 2004—following requests from political parties and NGOs for more up-to-date information—the Netherlands Government published the most detailed and timely information on licences granted in the EU. [48]

For each recipient country, the statistics provide:

— the date of licence issuance, of licence application, and of expiry;

— the registration number and type of licence;

— the EU and national ML categories and a detailed description of the item;

— the value; and

The Irish government has published monthly licences—albeit with less detail than the Netherlands— on exports for years, but the most recent statistics available in February 2005 were from September 2003. [50]

The Netherlands report also presents an overview of COARM and POLARM deliberations, which occasionally gives insights that go beyond the Council's consolidated report. In addition, the report includes a list of surplus equipment delivered and provides a detailed description of the equipment, the recipient country and the end-user. Parliamentary questions on arms export policy are also listed. Detailed information on arms exports can also be obtained by invoking the 1991 law on the openness of public administration.

Parliamentary mechanisms

Several EU governments consult their parliaments in specific cases on an ad hoc basis. In the Netherlands, advance information and consultation of parliament is practised for a limited category of arms exports. The defence committee receives lists of surplus weapons and makes recommendations on how to dispose of such weapons, whether through export, possibly with certain restrictions, or destruction. These lists are confidential unless the Government considers that neither commercial confidentiality nor the interests of the country of final destination prohibit a publication. [51]

Parliaments have also passed resolutions on specific destinations. In the Netherlands, for example, a private member's motion passed in January 2001 requested the Government to "limit the issuance of licences for the export of military goods to India and Pakistan to return shipments following repair and to shipments of spare parts for goods supplied previously and thus for the time being not to grant licences for new deliveries of military goods".[52]

THE TEN NEWLY ACCEDED EU MEMBER STATES

In December 2004 the Czech Government was the first among the 10 new EU members acceded on 1 May 2004 to issue a national report on arms exports. [53]

However, the majority of the ten submitted data to the Sixth Annual Report on implementation of the EU Code, although this will only be required from the Seventh Annual Report. The Czech Republic, Hungary, Malta, Poland and Slovenia submitted values of both actual exports and licences granted, while Slovakia submitted data on export licences. Estonia, Latvia and Slovakia provided information on denials. Since the revised Code is likely to include a requirement to publish an annual report on arms exports, all EU members can be expected to do so in the near future.

CONCLUSIONS

Reporting

The quality and format of EU national reports vary considerably and make different elements of arms export policy transparent. Most governments provide detailed information on licences granted, and some provide additional information on actual exports. [54] Major conventional weapons included in the UN Register are an exception, since all EU members' submissions cover deliveries of such weapons. Finland and Italy provide information on arms quantities in their national reports, and Spain, Germany and France provide this information for SALW. For major conventional weapons, quantities for EU exports can again be found in the UN Register submissions. Similarly, detailed descriptions of armaments are not included in most national reports, but are provided in Register submissions.

By 2004, all countries issuing annual reports identified recipient countries, not only recipient regions. Belgium and Denmark also provide information on the type of recipient within the country. Conditions attached to an export, in the form of clauses in the contract or separate political agreements, are largely kept secret in EU countries. These may refer to the prohibition of re-export without prior approval by the supplier country or geographical restrictions for deploying equipment.

As regards financial aspects, most countries disclose total values per country, and some by equipment category, but not the value of individual contracts, with the exception of Italy. Italy is the only country to list banks involved in transactions. No EU government provides systematic information on financing arrangements, such as offsets, direct or indirect subsidies, and export credits. Information on offsets is usually only available through the media or from companies. Few EU members refer to exporting companies. Italy lists exports of specific companies without explicitly disclosing the destination. Sweden provides a list of the major exporters.

As to reporting on exports of jointly produced equipment under the Framework Agreement, only one Global Export Licence from the UK to France has been reported in 2003. Clear reporting on country shares in exports of joint projects would increase the transparency of indirect exports. The lack of detailed data on deliveries by the UK and Germany precludes any conclusions as to what extent an open license has been used. [55]

Only the Dutch, German and Swedish governments provide a break-down of denials by recipient country. The Netherlands provides a maximum of available information through the inclusion of the same level of detail circulated to other governments, while the majority of governments do not name countries to which export licences were refused.

Role of parliament

Parliament can assume a variety of functions in arms export policy: election/dismissal of the government, legislation, deliberation, representation, control, advice and co-decision. The form of these functions and the extent to which they are exercised differ from one country to the next. A parliament's legal powers do not necessarily translate into influence on and scrutiny of policy-making, and vice versa. Rather, tradition, interest, competence, capacities and domestic circumstances play a key role.

National parliaments in the EU use a variety of instruments to control government action in the field of arms export policy, including oral and written questions to government, committee reports and evidence-taking sessions. With the exception of the UK and Sweden, no instruments and structures specific to arms export policy have been set up scrutinise arms export policy.

Effective parliamentary scrutiny of arms export policy requires the availability of in-depth and timely information. Only in the 1990s did regular reporting on arms exports become widespread in the EU. Most national reports are formally submitted to parliament (in Sweden, Italy, Belgium, Spain, the Netherlands, the UK, France and Germany). Finland, Portugal, Ireland and Denmark do not submit reports to parliament, but publish reports or statistics. Although timely information is the key to effective control, some reports are published over a year after the end of the reporting period. In three EU countries (Belgium, Italy and the UK), export laws oblige the government to annually submit a report on its arms export policy to parliament. The Italian and Belgian laws outlines elements to be included in the report and a deadline for annual submission. Some EU governments, notably the Netherlands and the UK, have made an effort to produce more timely information through the production of monthly and quarterly reports.

Three challenges to parliamentary scrutiny of a general nature can be identified: First, unless parliamentarians obtain unsolicited information through government briefings, they first have to be aware of the documents' existence in order to exercise scrutiny. Second, while parliamentarians of relevant committees are rarely refused at least some level of access to documentation, the contents may have been censored to reduce the document to the level of classification held by the MP. And third, confidentiality requirements may not permit parliamentarians to publicly discuss issues related to these documents. One should however add that the executive is not necessarily responsible for these constraints. With few exceptions such as France, parliament has the legislative power, including the right of initiative, and therefore regulates access to information, including its own access.

Most parliaments regularly debate issues related to arms exports, usually related to specific exports or other topical questions. The Swedish, Dutch and German parliaments hold plenary debates on arms exports on the basis of the government's report.

Parliament's right to put written and oral questions to government can and has been used for the purpose of questioning the government on its arms export policy, albeit to varying extents. The utility of this instrument for effective scrutiny depends on the timeliness and quality of responses, which depend on many variables such as the country, the government in power, domestic circumstances and the international environment. Evidence-taking sessions (and therefore oral questions) can take place in specialised committees, which can either be permanent or ad hoc, that is, set up for a specific purpose and dissolved once the mandate is fulfilled. Not all parliaments in the EU have a tradition of drafting parliamentary reports.

Parliament's investigative function can be applied to arms exports. Powers vary from country to country. In some states, inquiries are conducted by individuals selected by the government.

Only in Sweden do MPs formally exercise an advisory function in arms export policy formulation and implementation. However, several EU governments consult their parliaments in specific cases on an ad hoc basis, such as exports of surplus weapons. More generally, parliaments use instruments such as resolutions and reports to provide input into policy formulation and implementation.

To conclude, the variety of instruments used by EU parliaments to influence arms export policy paints a colourful picture. In spite of substantial differences between national practices, a general strengthening of the role of parliament in this policy area can be observed, closely linked to and caused by the improvement in government reporting. The quality of government reporting, however, does not automatically translate into effective scrutiny. Nevertheless, the role of parliament extends far beyond a mere scrutinising role.

II. REPORTING ON THE EU CODE OF CONDUCT ON ARMS EXPORTS

Reporting on implementation of the EU Code of Conduct on Arms Exports since 1999 has increased the transparency of arms export policy in the EU. By the end of 2004, the EU Council had published six annual reports. [56] The reports are based on submissions from national governments on member states' arms exports and their implementation of the Code. While the EU Code reports are relevant for all 25 national parliaments, only the European Parliament appears to actively scrutinise the report and publishes its own report in response.

The reports on implementation of the Joint Action on Small Arms also include relevant information. [57] These documents do not report on export policy implementation, but contain valuable information on changes in national legislation, guidelines, and procedures. While laws and regulations are easily available to national citizens, publication in the Official Journal ensures availability in all official EU languages, and thus to interested parties from other countries.

THE COUNCIL REPORTS ON IMPLEMENTATION OF THE EU CODE OF CONDUCT ON ARMS EXPORTS

The annual Code reports document information exchanges, decisions (such as improved information and consultation mechanisms) and future priorities of the Council Ad Hoc Working Party on Conventional Arms (COARM), which includes representatives from all EU governments and the European Commission. A compendium of decisions taken over the past years has been incorporated since the Fourth Report (published in 2002), thus establishing what could be called the political equivalent of case law. At the end of 2003, a User's Guide was published on the Council website, which was updated in December 2004. While these decisions cannot be legally enforced, intergovernmental accountability through peer pressure and the threat of repercussions can serve as an effective enforcement mechanism. In addition, parliaments and the public can refer to such documented positions when they hold their governments to account.

The consolidated reports also identify issues to be addressed in future COARM meetings. Progress on these subjects is evaluated in subsequent reports, which creates a new level of accountability: the Council sets goals for itself and reports publicly on the progress made towards achieving them.

As regards the implementation of the operative provisions (information exchange and consultation mechanisms), reports include the number of denial notifications circulated and consultations over potential undercuts, but fail to indicate the results of intergovernmental consultations, and hence preclude an evaluation of the effectiveness of the mechanism, for example whether the Code has prevented undercutting.

The quantity and quality of statistical data annexed to the annual report have increased considerably over the six reporting years. Until 1999, the reports provided the total value of either licences granted or deliveries. For 2000, the numbers and values of export licences or exports were broken down by exporting country and importing region for the first time. The following report also includes a breakdown of data by exporting and importing country. The Sixth Report broke down export licences and/or exports by EU Common Military List Category, if available. As a result, whereas the First Report's table could still be fitted onto one page, the Sixth Report contains over 200 pages of figures.

As regards denials, the Sixth Report provides the total number of denials issued by each EU government and the frequency with which individual criteria were evoked. A separate column informs about the number of individual criteria evoked for each recipient country. This precludes conclusions as to whether EU countries have applied different criteria to the same recipient country, and how a government assesses the situation in a given recipient country. Only a breakdown of denials both by supplier and recipient would give some insight into the way in which the criteria are applied in different EU member states.

In spite of the exponential increase in data, the report's statistical annex still falls far short of making EU governments' export policies fully transparent. First, financial data are of limited use for a credible assessment of the way a government interprets and implements export criteria and operative provisions. To this purpose, one requires the quantity and types of weapons for which export licences were requested and/or denied and for deliveries as well as the type of end-user within the country. One would also need to consider the final destination of components and sub-systems, which are to be incorporated and re-exported to a third country.

Second, the comparability of the data submitted is limited. Different levels of transparency in Member States and the absence of standardised reporting requirements have led to inconsistencies in the EU report and rendered it difficult to compare the figures. For example, the time frame referred to is not always identical and the values provided refer to export licences for some countries and to deliveries for others. [58] Moreover, substantial transfers, such as those made in the context of government-to-government agreements and open licences, have been excluded from national licensing data. And as regards actual exports, some countries use - largely unreliable - customs statistics, while countries such as Finland, France, Hungary and Sweden use industry data. Reports have also contained internal discrepancies, but these have been somewhat reduced over time.

Nevertheless, the consolidated report has increasingly made national arms export policies and international cooperation in the EU more transparent to the European Parliament and national parliaments (whether they use this information to scrutinise their governments is a different matter). The Code reporting system introduced a crucial element of accountability, making intergovernmental negotiation, consultation and decision-making processes more transparent by documenting decisions, unresolved issues and future agenda items, and making them available to parliaments and the public. This makes it more difficult for governments to back down from established and documented positions, even if they are not formally included in the text of the Code.

The Code reporting system has prompted an increase in national transparency, in particular but not exclusively for countries with a tradition of secrecy. Even for Sweden, which for a long time topped the transparency hierarchy in Europe as the only country publishing a national report on arms exports, the Code led to more detailed national reporting. For all EU countries, the joint report enhanced comparability and availability, if only through provision of electronic information in all official EU languages through publication in the Official Journal and the provision of World Wide Web links for national reports. The Code also contributed to the creation of a regional transparency norm, since a routine establishes an expectation of reporting by national governments. An obligation to produce a national report may even be codified in a revised Code in 2005.

THE ROLE OF THE EUROPEAN PARLIAMENT

The European Parliament (EP) has created no instruments specific to arms export policy. Rather, general mechanisms and structures are used, in particular those within foreign and security policy. Consequently, the role of the Parliament in matters related to arms exports has evolved in proportion to its role in broader policy areas. During European Political Co-operation, the EP's role was limited to adopting resolutions, initiating debates, and putting oral and written questions to the Presidency and the Commission. More important than the limited instruments was the fact that the policy area itself was confined to very limited discussion and co-ordination. With the expanding second-pillar dimension of arms exports through the Maastricht Treaty's establishment of the Common Foreign and Security Policy (CFSP), a wider range of scrutiny instruments became available. Moreover, the multifaceted and cross-pillar nature of arms export policy has opened up many ways for Parliament to address this issue. Arms export policy has been raised within the context of the context of the common market, the external trade policy, human rights, development, industrial policy, CFSP and ESDP (European Security and Defence Policy).

The Parliament's rather extensive legislative powers do not extend to the CFSP. However, first-pillar legislation on dual-use goods may create a precedent for arms exports.

Already in the 1980s, the EP raised the issue of arms exports in debates and reports. During the second half the 1990s, the number of parliamentary activities increased, and the range of arms export topics widened. This occurred in parallel to, and on many occasions in direct response to, intensified Council activity in this field, in particular in the context of the EU Code of Conduct on Arms Exports of 1998.

Key instruments for monitoring and scrutinising arms export policy include oral and written questions to Council and Commission, reports and resolutions. The Parliament's oversight of Community activities was originally limited to the activities of the Commission, but has been extended to the Council of Ministers and the bodies responsible for foreign and security policies.

Developing the dialogue with the EP was listed as one of the priorities of COARM for 2004. For the first time in 2004 contact with the EP was extended beyond a Presidency briefing of the Foreign Affairs Committee. In addition to addressing the Foreign Affairs Committee's Sub-committee on Security and Disarmament on the issue of the Code review, the Netherlands Presidency invited the European Parliament's rapporteur on the EU Code of Conduct[59] to speak at an informal meeting on the EU Code review held in The Hague in October 2004 and to brief a COARM meeting at the end of 2004. Therefore, gradually and very cautiously, a role of the Parliament in the evaluation of the Code's implementation has been established.

The committees draw up reports on and prepare opinions for other committees. Since the 1970s, the EP adopted reports that raised arms export-related issues. Since the Council has annually presented a report on implementation of the EU Code to the Parliament, the latter responds with a report, which includes a resolution detailing considerations and recommendations. The annual reports on the CFSP and on the EU's human rights policy, and reports on the defence industry have discussed selected aspects of arms export policy.

The Maastricht Treaty provided that the Parliament "may ask questions of the Council" on matters of CFSP (J.7, now Art. 21). A large number of written and oral questions have been put to the Council and the Commission by individual MEPs on arms-export-related subjects. The Maastricht Treaty established the right of Parliament to be consulted by the Presidency "on the main aspects and the basic choices of the common foreign and security policy." Parliament has expressed its views and issued advice, recommendations and requests throughrecommendations and requests through resolutions, reports and debate. Apart from resolutions adopted in the context of parliamentary reports, a substantial number of urgency resolutions have addressed arms export-related issues.

To conclude, arms export policy cooperation within the EU created a role for the European Parliament in this policy area previously limited to national parliamentary scrutiny. The actual role of Parliament through active use of its instruments is limited by the amount, quality and timing of information available to the Parliament on the one hand, and the interest, time and competence of parliamentarians on the other. Generally, the EP has taken an active interest in the issue of arms exports and has used the instruments at its disposal. Beyond the use of existing mechanisms, the Parliament has also proactively sought to expand its influence.

III. REPORTING TO PARLIAMENT BY OTHER MAJOR ARMS EXPORTERS

AUSTRALIA

The Australian Government annually publishes a report on arms exports. The report refers to the past financial year. The report for the 3rd and 4th quarters of 2001 and 1st and 2nd quarters of 2002 was published in February 2003. [60] For each recipient country, the report provides the number and total value of permits issued for military and dual-use exports. [61]

CANADA

Since 1990, the Canadian Government has published an annual report on its arms exports. For each recipient country, the report provides the financial value and description of exports under each military export list category, together with an indication of whether this export falls under weapon systems and munitions, support systems or parts. [62]

Data on actual exports is based on information provided by companies. However, the statistics exclude exports of military equipment to the US because most of these items do not require an export licence. According to the Government's report, arms exports to the US are estimated to account for over half of Canada's exports of military goods and technology.

UNITED STATES[63]

Since 1996, US law requires the Government to submit a report on the preceding fiscal year's arms exports to Congress by 1 February. [64] The report consists of two parts, issued by the authorities overseeing the different types of exports. The Department of Defense informs about Foreign Military Sales (FMS), Excess Defense Articles (EDA), Drawdowns and International Military Education and Training. The Department of State reports on Direct Commercial Sales (DCS), which are negotiated directly between industry and the customer. [65]

For each recipient country, the Department of Defense provides:

— the quantity, value and type of arms exported under the FMS programme; for EDA, also the model;

— the financial value of Military Education and Training; and

— the financial value of Drawdown Assistance (assistance approved by the President, during 2003 for Iraq and Afghanistan).

For each recipient country, the State Department provides:

— the quantity, value and type of arms licensed for export; and

— the value and type of defence services licensed for export.

The US Congress is informed in advance of certain exports, and formally has the power to block specific sales, albeit with certain restrictions. The specifics are outlined in the Arms Export Control Act, and have been modified over time. The right of Congress to be notified and raise objections depends on both the type of export and its financial value. Congress must be notified if a proposed sale exceeds $14 million for "major defence equipment" and $50 million for other articles, training or services. Transfers of excess defense articles have to be notified if their value exceeds $7 million.

Industry, NGOs and other parties have proposed a number of changes to the current system of notification over the years. As a result, the dollar-threshold for NATO countries, Australia, Japan and New Zealand was increased in 2002. Initiatives to further increase the thresholds have failed to succeed so far. The Arms Export Control Act was amended to require congressional notification for commercial sales of firearms for values of at least $1 million.

An objection to an export requires a decision by both the House of Representatives and the Senate. This objection has to be raised within 15 days for NATO countries, Australia, Japan and New Zealand, and within 30 days for all other countries. If the President opposes the congressional veto, a two-thirds majority of Congress is required to uphold the objection. This two-thirds objection can only be overridden if the President invokes an emergency situation.

The right to block a sale is limited in a number of ways. First, the US President can override a Congressional veto. Second, sensitive or controversial exports, for example of small arms, may fall below the value threshold. Third, transfers declared particularly sensitive or confidential for national security reasons, as well as transfers by intelligence agencies are exempt from the notification procedure. Fourth, a transfer can be divided into several contracts to keep it under the value threshold. And fifth, the time frame is very short given the busy Congressional schedule, and notifications can fall into, or intentionally be made during, recess.

While no export has been formally blocked by Congress veto to date, some exports have been cancelled, delayed, or modified as a result of Congressional pressure. Congress has exerted substantial influence through raising the political costs of an export (deterrent function) and/or shaping its modalities (the quantity, level of technological sophistication, or conditions attached). In addition, Congress can restrict or prohibit exports to specified destinations by adopting legal provisions. Congress also has decisive influence over the export of surplus because it has to approve the costs of transport.

Advance information on certain arms sales is not only available to Congressional bodies, but also to the public. The Pentagon publishes information about the type, model, producer, quantity and price of proposed FMS on its Internet site[66] when it notifies Congress. Comprehensive information on the sale is also published a few days later in the Federal Register. While information on proposed DCS is also published in the Federal Register, this information is not only less detailed, but usually also published several weeks after Congress was notified. The most detailed information tends to be available on the export of surplus equipment.

To conclude, the US Congress is the only parliamentary body to have a formal role and limited veto in decision-making on arms exports, in addition to its extensive powers to scrutinise government policy.

Sibylle Bauer

February 2005

(1) were furnished by grant under chapter 2 or chapter 5 of part II of this Act or under any other authority of law or by sale under chapter 2 of the Arms Export Control Act;

(2) were furnished with the financial assistance of the United States Government, including through loans and guarantees; or

(3) were licensed for export under section 38 of the Arms Export Control Act and, if so, a specification of those defense articles that were exported during the fiscal year covered by the report."

9 This is because customs data are categorised based on technical characteristics, not the type of end-user, Bauer, S and Bromley, M, The European Union Code of Conduct on Arms Exports: Improving the Annual Report, SIPRI Policy Pate no 8, Nov 2004, URL http://www.sipri.org. Back

10 French Ministry of Defence, Rapport au Parlement sur les exportations d `armement de la France en 2002 et 2003 ["Report to Parliament on France's arms exports in 2002 and 2003"] (Paris: Ministry of Defence, Jan. 2005). Reports are available in print and at URL http://www.defense.gouv.fr. Back

11 Each time a company plans to transfer equipment for trials and presentations abroad, to negotiate a contract with a customer, or to transfer licences or documentation, it must lodge a request for "agreement in advance" France's annual reports provide no data on definite export permits ("autorisations d'exportation de matériels de guerre" or "AEMG"). Back

12 These are based on industry data. When calculating the value of French exports the Ministry of Defence only includes the French share of a particular export, based on the French R&D contribution. The share manufactured by co-operating parties or subsidiaries located outside France is not included. In the case of equipment exported to a foreign manufacturer to be integrated in a system that it then exports the Ministry of Defence records the export as an export to the final destination country. Back

13 Data on orders ("prises de commandes") are based on contracts which were signed and entered into force during the year in question. Where foreign components are used, only the French contribution is counted. Back

14 The report for 2001 also mentioned the number of consultations which led to the revocation of the denial notification by another government due to changes in the recipient country, a license refusal, postponement of the decision, or the conclusion that the transaction was not to be interpreted as "essentially identical". Back

15 Rapport d'information sur le controle des exportations d'armement', presente par Jean-Claude Sandrier, Christian Martin et Alain Veyret, Députés, French National Assembly doc no. 2334 (Paris, 25 Apr 2000), URL http://www.assemblee-nationale.fr/rap-info/i2334.aspP2370 535319. Back

16 The legal framework, licensing procedures, competent authorities and ministries, and export control mechanisms. Back

17 Arms export controls systems of other countries, international control regimes, the EU Code, the adaptation of the French system to the changed environment, and the Letter of Intent process. Back

18 Germany, the UK, Italy, Sweden and the USA. Back

19 According to the parliamentary report, the government should cover small arms in detail, name recipient contries, provide the reasons for denials of export licences, and include transfers in the context of military and defence co-operation. Back

20 Rapport d'information de MM. Pierre Brana et Bernard Cazeneuve, déposé en application de l'article 145 du Re"glement par la mission d'information de la commission de la Défense, sur les opérations militaires menées par la France, d'autres pays et l'ONU au Rwanda entre 1990 et 1994, French National Assembly document no 1271, Paris, 15 Dec 1998, URL http://www.assembleenationale.fr/dossiers/rwanda.asp. Back