Annex 1: The Consolidated Criteria
The Consolidated Criteria are the consolidation of
the UK's national criteria and the 1998 EU Code of Conduct on
Arms Exports.
In a Written Answer (dated 26 October 200, c200W)
Peter Hain, the then Minister of State in the FCO, announced the
establishment of the Consolidated Criteria:
Laura Moffatt: To ask
the Secretary of State for Foreign and Commonwealth Affairs what
steps the Government have taken to consolidate the UK's national
criteria against which the Government assess licence applications
to export arms and dual-use equipment with those of the EU Code
of Conduct on Arms Exports; and if he will make a statement. [135683]
Mr. Hain: Licences to
export arms and other goods controlled for strategic reasons are
issued by the Secretary of State for Trade and Industry, acting
through the Export Control Organisation of the DTI. All relevant
individual licence applications are circulated by DTI to other
Government Departments with an interest, as determined by those
Departments in line with their own policy responsibilities. These
include the Foreign and Commonwealth Office, the Ministry of Defence
and the Department for International Development.
In the Foreign Secretary's reply to my hon. Friend
the Member for East Ham (Mr. Timms) on 28 July 1997, Official
Report, column 27, he set out the criteria which would be used
in considering advance approvals for promotion prior to formal
application for an export licence, applications for licences to
export miliary equipment, and dual-use goods where there are grounds
for believing that the end-user will be the armed forces or internal
security forces of the recipient country. As my right hon. Friend
said then, the Government are committed to the maintenance of
a strong defence industry as part of our industrial base as well
as of our defence effort, and recognise that defence exports can
also contribute to international stability by strengthening collective
defence relationships; but believe that arms transfers must be
managed responsibly. We have since taken a range of measures designed
to ensure the highest standards of responsibility in our export
control policies. These include the adoption during the UK's Presidency
of the EU of a Code of Conduct on Arms Exports; the publication
of Annual Reports on Strategic Export Controls which are among
the most transparent of those of any arms exporting country; the
ban on the export of equipment used for torture; the ratification
of the Ottawa Convention on anti-personnel landmines and the passage
of the Land Mines Act; and our many efforts to combat illicit
trafficking in and destabilising accumulations of small arms.
Since the Council of the European Union adopted the
EU Code of Conduct on Arms Exports on 8 June 1998, all relevant
licence applications have been assessed against the UK's national
criteria and those in the Code of Conduct, which represent minimum
standards that all member states have agreed to apply. The criteria
in the EU Code of Conduct are compatible with those which I announced
in July 1997. At the same time there is a large degree of overlap
between the two. It is clearly in the interests of Government
Departments involved in assessing licence applications, British
exporters and other interested parties that the criteria which
are used should be set out as clearly and unambiguously as possible.
With immediate effect, therefore, the following consolidated
criteria will be used in considering all individual applications
for licences to export goods on the Military List, which forms
Part III of Schedule 1 to the Export of Goods (Control) Order
1994; advance approvals for promotion prior to formal application
for an export licence; and licence applications for the export
of dual-use goods as specified in Annexe 1 of Council Decision
94/942/CFSP when 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, or that the goods
will be used to produce arms or other goods on the Military List
for such end-users. The criteria are based on those in the EU
Code of Conduct, incorporating elements from the UK's national
criteria where appropriate. As before, they will not be applied
mechanistically but on a case-by-case basis, using judgment and
commonsense. Neither the fact of this consolidation, nor any minor
additions or amendments to the wording of the two sets of criteria
used before, should be taken to imply any change in policy or
in its application.
An export licence will not be issued if the arguments
for doing so are outweighed by the need to comply with the UK's
international obligations and commitments, by concern that the
goods might be used for internal repression or international aggression,
by the risks to regional stability or by other considerations
as described in these criteria.
CRITERION ONE
Respect for the UK's international commitments,
in particular sanctions decreed by the UN Security Council and
those decreed by the European Community, agreements on non-proliferation
and other subjects, as well as other international obligations.
The Government will not issue an export licence if
approval would be inconsistent with, inter alia:
a. The UK's international obligations and its commitments
to enforce UN, OSCE and EU arms embargoes, as well as national
embargoes observed by the UK and other commitments regarding the
application of strategic export controls;
b. The UK's international obligations under the
Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons
Convention and the Chemical Weapons Convention;
c. The UK's commitments in the frameworks of the
Australia Group, the Missile Technology Control Regime, the Nuclear
Suppliers Group and the Wassenaar Arrangement;
d. The Guidelines for Conventional Arms Transfers
agreed by the Permanent Five members of the UN Security Council,
and the OSCE Principles Governing Conventional Arms Transfers
and the EU Code of Conduct on Arms Exports;
e. The UK's obligations under the Ottawa Convention
and the 1998 Land Mines Act;
f. The UN Convention on Certain Conventional Weapons.
CRITERION TWO
The respect of human rights and fundamental freedoms
in the country of final destination.
Having assessed the recipient country's attitude
towards relevant principles established by international human
rights instruments, the Government will:
a. Not issue an export licence if there is a clear
risk that the proposed export might be used for internal repression;
b. Exercise special caution and vigilance in issuing
licences, on a case-by-case basis and taking account of the nature
of the equipment, to countries where serious violations of human
rights have been established by the competent bodies of the UN,
the Council of Europe or by the EU.
For these purposes equipment which might be used
for internal repression will include, inter alia, equipment where
there is evidence of the use of this or similar equipment for
internal repression by the proposed end-user, or where there is
reason to believe that the equipment will be diverted from its
stated end-use or end-user and used for internal repression.
The nature of the equipment will be considered carefully,
particularly if it is intended for internal security purposes.
Internal repression includes, inter alia, torture and other cruel,
inhuman and degrading treatment or punishment; summary, arbitrary
or extra-judicial executions; disappearances; arbitrary detentions;
and other major suppression or violations of human rights and
fundamental freedoms as set out in relevant international human
rights instruments, including the Universal Declaration on Human
Rights and the International Covenant on Civil and Political Rights.
The Government considers that in some cases, the
use of force by a government within its own borders, for example
to preserve law and order against terrorists or other criminals
is legitimate and does not constitute internal repression, as
long as force is used in accordance with the international human
rights standards described above.
CRITERION THREE
The internal situation in the country of final
destination, as a function of the existence o tensions or armed
conflicts.
The Government will not issue licences for export
which would provoke or prolong armed conflicts or aggravate existing
tensions or conflicts in the country of final destination.
CRITERION FOUR
Preservation of regional peace, security and stability.
The Government will not issue an export licence if
there is a clear risk that the intended recipient would use the
proposed export aggressively against another country, or to assert
by force a territorial claim. However, a purely theoretical possibility
that the items concerned might be used in the future against another
state will not of itself lead to a licence being refused.
When considering these risks, the Government will
take into account inter alia:
a. The existence or likelihood of armed conflict
between the recipient and another country;
b. A claim against the territory of a neighbouring
country which the recipient has in the past tried or threatened
to pursue by means of force;
c. Whether the equipment would be likely to be used
other than for the legitimate national security and defence of
the recipient.
The need not to affect adversely regional stability
in any significant way, taking into account the balance of forces
between the states of the region concerned, their relative expenditure
on defence, the potential for the equipment significantly to enhance
the effectiveness of existing capabilities or to improve force
projection, and the need not to introduce into the region new
capabilities which would be likely to lead to increased tension.
CRITERION FIVE
The national security of the UK, or territories
whose external relations are the UK's responsibility, and of allies,
EU Member States and other friendly countries.
The Government will take into account:
a. The potential effect of the proposed export on
the UK's defence and security interests or on those of other territories
and countries as described above, while recognising that this
factor cannot affect consideration of the criteria on respect
of human rights and on regional peace, security and stability;
b. The risk of the goods concerned being used against
UK forces or on those of other territories and countries as described
above;
c. The risk of reverse engineering or unintended
technology transfer;
d. The need to protect UK military classified information
and capabilities.
CRITERION SIX
The behaviour of the buyer country with regard
to the international community, as regards in particular to its
attitude to terrorism, the nature of its alliances and respect
for international law
The Government will take into account inter alia
the record of the buyer country with regard to :
a. its support or encouragement of terrorism and
international organised crime;
b. its compliance with its international commitments,
in particular on the non-use of force, including under international
humanitarian law applicable to international and non-international
conflicts;
c. its commitment to non-proliferation and other
areas of arms control and disarmament, in particular the signature,
ratification and implementation of relevant arms control and disarmament
conventions referred to in sub-para b) of Criterion One.
CRITERION SEVEN
The existence of a risk that the equipment will
be diverted within the buyer country or re-exported under undesirable
conditions.
In assessing the impact of the proposed export on
the importing country and the risk that exported goods might be
diverted to an undesirable end-user, the following will be considered:
a. the legitimate defence and domestic security
interests of the recipient country, including any involvement
in UN or peace-keeping activity;
b. the technical capability of the recipient country
to use the equipment;
c. the capability of the recipient country to exert
effective export controls.
The Government will pay particular attention to the
need to avoid diversion of UK exports to terrorist organisations.
Proposed exports of anti-terrorist equipment will be given particularly
careful consideration in this context.
CRITERION EIGHT
The compatibility of the arms exports with the
technical and economic capacity of the recipient country, taking
into account the desirability that states should achieve their
legitimate needs of security and defence with the least diversion
for armaments of human and economic resources
The Government will take into account, in the light
of information from relevant sources such as United Nations Development
Programme, World Bank, IMF and Organisation for Economic Cooperation
and Development reports, whether the proposed export would seriously
undermine the economy or seriously hamper the sustainable development
of the recipient country.
The Government will consider in this context the
recipient country's relative levels of military and social expenditure,
taking into account also any EU or bilateral aid, and its public
finances, balance of payments, external debt, economic and social
development and any IMF- or World Bank-sponsored economic reform
programme.
OTHER FACTORS
Operative Provision 10 of the EU Code of Conduct
specifies that Member States may where appropriate also take into
account the effect of proposed exports on their economic, social,
commercial and industrial interests, but that these factors will
not affect the application of the criteria in the Code.
The Government will thus continue when considering
export licence applications to give full weight to the UK's national
interest, including:
a. the potential effect on the UK's economic, financial
and commercial interests, including our long-term interests in
having stable, democratic trading partners;
b. the potential effect on the UK's relations with
the recipient country;
c. the potential effect on any collaborative defence
production or procurement project with allies or EU partners;
d. the protection of the UK's essential strategic
industrial base.
In the application of the above criteria, account
will be taken of reliable evidence, including for example, reporting
from diplomatic posts, relevant reports by international bodies,
intelligence and information from open sources and non-governmental
organisations.
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