20 Control of exports of military technology
and equipment
| (28092)
—
| Common Position Defining Common Rules Governing the Control of Exports of Military Technology and Equipment
|
| Legal base | Article 15 EU; unanimity
|
| Deposited in Parliament | 30 November 2006
|
| Department | Foreign and Commonwealth Office
|
| Basis of consideration | EM of 30 November 2006
|
| Previous Committee Report | None
|
| To be discussed in Council | 11-12 December 2006 General Affairs and External Relations Council
|
| Committee's assessment | Politically important
|
| Committee's decision | Cleared
|
Background
20.1 The background is set out in the preamble, which recalls
that Member States:
— intend
to build on the Common Criteria agreed at the Luxembourg and Lisbon
European Councils in 1991 and 1992, and on the European Union
Code of Conduct on Arms Exports adopted by the Council in 1998;
— recognise
the special responsibility of military technology and equipment
exporting States;
— are
determined to set high common standards which shall be regarded
as the minimum for the management of, and restraint in, transfers
of military technology and equipment by all Member States,
and to strengthen the exchange of relevant information with a
view to achieving greater transparency;
— are
determined to prevent the export of military technology and equipment
which might be used for internal repression or international aggression
or contribute to regional instability;
— intend
to reinforce cooperation and to promote convergence in the field
of exports of military technology and equipment within the framework
of the Common Foreign and Security Policy (CFSP);
— have
taken complementary measures against illicit transfers, in the
form of the EU Programme for Preventing and Combating Illicit
Trafficking in Conventional Arms;
— adopted
Joint Action 2002/589/CFSP on the European Union's contribution
to combating the destabilising accumulation and spread of small
arms and light weapons;
— adopted
Common Position 2003/468/CFSP on the control of arms brokering;
— support
the UN Programme of Action to Prevent, Combat and Eradicate the
Illicit Trade in Small Arms and Light Weapons in All Its Aspects,
adopted in 2001;
— on
13 June 2000, adopted the European Union Common Military List,
which is regularly reviewed (amended most recently in 2005),[41]
taking into account, where appropriate, similar national and international
lists.
20.2 The preamble also notes:
— that
States have a right to transfer the means of selfdefence,
consistent with the right of selfdefence recognised by the
UN Charter;
— the
wish of Member States to maintain a defence industry as part
of their industrial base as well as their defence effort;
— that
the strengthening of a European defence technological and industrial
base, which contributes to the implementation of the Common Foreign
and Security Policy, in particular the Common European Security
and Defence Policy, should be accompanied by co-operation and
convergence in the field of military technology and equipment;
— that
Member States intend to strengthen the European Union's export
control policy for military technology and equipment through the
adoption of this Common Position, which updates and replaces the
European Union Code of Conduct on Arms Exports
The draft Common Position
20.3 Article 1 requires each Member State to
assess the export licence applications made to it for items on
the EU Common Military List mentioned in Article 12 on a casebycase
basis against the criteria detailed in Article 2.
20.4 The export licence applications mentioned in
paragraph 1 shall include:
— applications
for licences for physical exports, including those for the purpose
of licensed production of military equipment in third countries;
— applications
for brokering licences;
— applications
for "transit" or "transhipment" licences;
— applications
for licences for any intangible transfers of software and technology
by means such as electronic media, fax or telephone.
Member States' legislation shall also indicate in
which case an export licence is required with respect to these
applications.
20.5 Article 2 contains seven detailed criteria,
relating to:
— Member
States' international obligations, in particular UN or EU sanctions
and non-proliferation agreements;
— respect
for human rights and international humanitarian law in the country
of final destination;
— the
internal situation in the country of final destination as a function
of the existence of tensions or armed conflicts;
— preservation
of regional peace and security;
— national
security of Member States and of Member States' dependent territories,
as well as that of friendly and allied countries;
— behaviour
of the buyer country with regard to the international community,
and in particular its attitude towards terrorism, the nature of
its alliances and respect for international law;
— the
risk of diversion within the buyer country or re-exportation under
undesirable conditions; and
— compatibility
of the exports of the military technology or equipment with the
technical and economic capacity of the recipient country, taking
into account the desirability that states should meet their legitimate
security and defence needs with the least diversion of human and
economic resources for armaments.
20.6 In his 30 November 2006 Explanatory Memorandum,
the Minister for Europe (Mr Geoffrey Hoon) says that the key changes
introduced by the Common Position are:
— updated
references to internal agreements;
— clear
reference to International Humanitarian Law in Criterion Two (which
is already included in UK legislation, but not covered in other
EU Member States legislation) ;
— language
on respect for re-export provisions; and
— explicit
coverage of the risk of diversion to terrorists, and of reverse
engineering or unintended technology transfer.
20.7 He explains that UK legislation (The Export
Control Act (2002)) will not need updating as a result of the
Common Position, but the Government will update the "EU and
National Export Licensing Criteria" as set out in a statement
by the then Minister of State for Foreign and Commonwealth Affairs
on 26 October 2000, to take account of the adoption of the Common
Position.
20.8 The Minister says that replacing the previous
EU Code of Conduct on Arms Exports with the Common Position "represents
a significant advance in the minimum standards and processes applied
by all EU member States". Although the licensing of defence
exports remains at the national discretion of each Member State,
the new Common Position — unlike the EU Code of Conduct
— is legally binding (under Article 15 TEU).
20.9 Moreover, while the previous EU Code of Conduct
covered only the physical export of goods, the new Common Position
extends this coverage to include licences for trafficking and
brokering, and for the intangible transfer of technology: "The
secondary legislation implemented under our Export Control Act
means that UK practice is already in line with these and other
changes".
20.10 He notes that the UK, and the European Union,
is supporting efforts to work towards an international legally
binding treaty on the trade in all conventional arms, or Arms
Trade Treaty (ATT): "Adoption of a legally binding set of
rules within the EU is in line with this longer-term aim".
20.11 Finally, he says that the General Affairs and
External Relations Council will consider the Common Position on
12 December, and that the Government supports adoption and implementation
of the Common Position at the earliest opportunity.
Conclusion
20.12 So do we. This Common Position has been
agreed among Member States for some while. Given the EU's stated
aspirations and settled policy, it is time to enact it, and not
for continuing endeavours to link this with other considerations.
20.13 We now clear the document, with a report
to the House.
41 OJ No. C 127, 25.5.05, p. 1. Back
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