Annex 6: The revised UK Consolidated Criteria
(2014)
On 25 March 2014 the Business Secretary, Vince Cable
made the following Written Ministerial Statement revising the
UK's Consolidated Criteria.[540]
RT HON DR VINCE CABLE, SECRETARY OF STATE FOR BUSINESS, INNOVATION
AND SKILLS; DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS
THE CONSOLIDATED EU AND NATIONAL ARMS EXPORT LICENSING CRITERIA
25 MARCH 2014
The UK's defence industry can make an important contribution to
international security, as well as provide economic benefit to
the UK. The legitimate international trade in arms enables governments
to protect ordinary citizens against terrorists and criminals,
and to defend against external threats. The Government remains
committed to supporting the UK's defence industry and legitimate
trade in items controlled for strategic reasons. But we recognise
that in the wrong hands, arms can fuel conflict and instability
and facilitate terrorism and organised crime. For this reason
it is vital that we have robust and transparent controls which
are efficient and impose the minimum administrative burdens in
order to enable the defence industry to operate responsibly and
confidently.
The Government's policy for assessing applications for licences
to export strategic goods and advance approvals for promotion
prior to formal application for an export licence was set out
on behalf of the then Foreign Secretary on 26 October 2000, Official
Report, Column 200W. Since then there have been a number of
significant developments, including:
- the entry into force of the Export Control Act 2002
- the application of controls to electronic transfers of software
and technology and to trade (brokering) in military goods between
overseas destinations
- the adoption by the EU of Council Common Position 2008/944/CFSP
of 8 December 2008 defining common rules governing control of
exports of military technology and equipment
- further development of EU export control law, including: the
adoption of Council Regulation (EC) 1236/2005 of 27 June 2005
concerning trade in certain goods which could be used for capital
punishment, torture or other cruel, inhuman or degrading treatment
or punishment; Directive 2009/43/EC of 6 May 2009 simplifying
terms and conditions of transfers of defence-related products
within the Community; and the re-cast Council Regulation (EC)
428/2009 of 5 May 2009 setting up a Community regime for the control
of exports, transfer, brokering and transit of dual-use items
- the adoption by the UN General Assembly on 2 April 2013 of an
international Arms Trade Treaty, which the UK signed on 3 June
2013.
The Government believes that the procedures for assessing licence
applications and our decision-making processes are robust and
have stood the test of time. We also believe that the eight Criteria
continue to adequately address the risks of irresponsible arms
transfers and are fully compliant with our obligations under the
EU Common Position and the Arms Trade Treaty. Nevertheless it
is appropriate to update these Criteria in light of developments
over the last 13 years. In particular: the list of international
obligations and commitments in Criterion 1 has been updated; there
is explicit reference to international humanitarian law in Criterion
2; and the risk of reverse engineering or unintended technology
transfer is now addressed under Criterion 7 rather than Criterion
5. There are also minor changes to improve the clarity and consistency
of the language used throughout the text. None of these amendments
should be taken to mean that there has been any substantive change
in policy.
These Criteria will be applied to all licence applications for
export, transfer, trade (brokering) and transit/transhipment of
goods, software and technology subject to control for strategic
reasons (referred to collectively as "items"); and to
the extent that the following activities are subject to control,
the provision of technical assistance or other services related
to those items. They will also be applied to MOD Form 680 applications
and assessment of proposals to gift controlled equipment.
As before, they will not be applied mechanistically but on a case-by-case
basis taking into account all relevant information available at
the time the licence application is assessed. While the Government
recognises that there are situations where transfers must not
take place, as set out in the following criteria, we will not
refuse a licence on the grounds of a purely theoretical risk of
a breach of one or more of those Criteria. In making licensing
decisions I will continue to take into account advice received
from FCO, MOD, DFID, and Other Government Departments and agencies
as appropriate. The Government's Strategic Export Controls Annual
Reports will continue to provide further detailed information
regarding policy and practice in strategic export controls.
The application of these Criteria will be without prejudice to
the application to specific cases of specific criteria as may
be announced to Parliament from time to time; and will be without
prejudice to the application of specific criteria contained in
relevant EU instruments.
This statement of the Criteria is guidance
given under section 9 of the Export Control Act. It replaces the
consolidated criteria announced to Parliament on 26 October 2000.
CRITERION ONE
Respect for the UK's international obligations and commitments,
in particular sanctions adopted by the UN Security Council or
the European Union, agreements on non-proliferation and other
subjects, as well as other international obligations.
The Government will not grant a licence if to do so would be inconsistent
with, inter alia:
a. The UK's obligations and its commitments to enforce United
Nations, European
Union and Organisation for Security and Cooperation in Europe
(OSCE) 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 obligations under the United Nations Arms Trade Treaty;
c. The UK's obligations under the Nuclear Non-Proliferation Treaty,
the Biological and Toxin Weapons Convention and the Chemical Weapons
Convention;
d. The UK's obligations under the United Nations Convention on
Certain Conventional Weapons, the Convention on Cluster Munitions
(the Oslo Convention), the Cluster Munitions (Prohibitions) Act
2010, and the Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on Their Destruction
(the Ottawa Convention) and the Land Mines Act 1998;
e. The UK's commitments in the framework of the Australia Group,
the Missile Technology Control Regime, the Zangger Committee,
the Nuclear Suppliers Group, the Wassenaar Arrangement and The
Hague Code of Conduct against Ballistic Missile Proliferation;
f. The OSCE Principles Governing Conventional
Arms Transfers and the European Union Common Position 2008/944/CFSP
defining common rules governing control of exports of military
technology and equipment.
CRITERION TWO
The respect for human rights and fundamental freedoms in the
country of final destination as well as respect by that country
for international humanitarian law.
Having assessed the recipient country's attitude towards relevant
principles established by international human rights instruments,
the Government will:
a. Not grant a licence if there is a clear risk that the items
might be used for internal repression;
b. Exercise special caution and vigilance in granting 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 European Union;
c. Not grant a licence if there is a clear risk that the items
might be used in the commission of a serious violation of international
humanitarian law.
For these purposes items which might be used for internal repression
will include, inter alia, items where there is evidence of the
use of these or similar items for internal repression by the proposed
end-user, or where there is reason to believe that the items will
be diverted from their stated end-use or end-user and used for
internal repression.
The nature of the items to be transferred will be considered carefully,
particularly if they are intended for internal security purposes.
Internal repression includes, inter alia, torture and other cruel,
inhuman and degrading treatment or punishment; summary or arbitrary
executions; disappearances; arbitrary detentions; and other major
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.
In considering the risk that items might be used for internal
repression or in the commission of a serious violation of international
humanitarian law, the Government will also take account of the
risk that the items might be used to commit gender-based violence
or serious violence against women or children.
CRITERION THREE
The internal situation in the country of final destination,
as a function of the existence of tensions or armed conflicts.
The Government will not grant a licence for
items 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 grant a licence if there is a clear risk
that the intended recipient would use the items aggressively against
another country, or to assert by force a territorial claim.
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. The likelihood of the items being used other than for the legitimate
national security and defence of the recipient;
d. 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 and territories whose external
relations are the UK's responsibility, as well as that of friendly
and allied countries.
The Government will take into account:
a. The potential effect of the proposed transfer 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 items being used against UK forces or against
those of other territories and countries as described above;
c. 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 for 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 instruments
referred to in criterion one.
CRITERION SEVEN
The existence of a risk that the items will be diverted within
the buyer country or re-exported under undesirable conditions.
In assessing the impact of the proposed transfer on the recipient
country and the risk that the items might be diverted to an undesirable
end-user or for an undesirable end-use, the Government will consider:
a. The legitimate defence and domestic security interests of the
recipient country, including any involvement in United Nations
or other peace-keeping activity;
b. The technical capability of the recipient country to use the
items;
c. The capability of the recipient country to exert effective
export controls;
d. The risk of re-export to undesirable destinations and, as appropriate,
the record of the recipient country in respecting re-export provisions
or consent prior to re-export;
e. The risk of diversion to terrorist organisations or to individual
terrorists;
f. The risk of reverse engineering or unintended
technology transfer.
CRITERION EIGHT
The compatibility of the transfer 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 transfer 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
Article 10 of the EU Common Position 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 Common Position.
The Government will thus continue when considering 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 international relations;
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.
540 HC Deb, 25 March 2014, cols 9-14WS Back
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