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Final Analysis:
EU Code of Conduct On The Arms Trade
Amnesty, BASIC, Christian Aid, Oxfam,
Saferworld, World Development Movement
Introduction
Comments on Criteria
Criterion Two: Human Rights
Criterion Six: Terrorism and International
Law
Criterion Eight: Diversion of Resources
Comments on Operative Procedures
Consultation on Undercutting
A Common Control List
The Annual Report
Legal Status of the Code
Essential Additional Measures
Introduction
The EU Code of Conduct on the arms trade agreed by Foreign
Ministers on 25 May 1998 is an important achievement and represents
significant progress towards the development of common EU
controls over the arms trade. Nonetheless, the agreement does
fall well short of the essential standards for an effective
Code of Conduct set by non-government organisations and which
the international obligations of the Member States require.
Moreover, in so far as the final agreement required decisions
to be made on the wording of the human rights criteria, on
the form of consultation and notification on undercutting,
and on the nature of the annual review, it is disappointing
that the agreement has failed to incorporate, in their entirety,
the stronger or more rigorous options as set out in the fifth
draft text.
In addition, there are a number of other areas such as control
of international arms brokering, licensed production agreements,
end-use certification and monitoring which, despite NGO pressure,
have not been addressed. This will need to be rectified in
the near future if the Code is to achieve its aims of high
common standards in management of and restraint in conventional
arms transfers.
The following is a critique only of those key decisions which
were taken by Foreign Ministers on 25 May 1998. For a detailed
exposition of the full recommendations for an effective EU
Code of Conduct on the arms trade which are made by the above
organisations see the analyses of previous drafts of the EU
Code and in particular 'Proposals for an Effective EU Code
of Conduct on the arms trade' February 1998.
Criteria
Criterion Two: The respect of human rights
in the country of final destination
Under criterion two, the clause which requires the Member
States to exercise restraint when considering the export of
arms to countries with a record of repression is not as restrictive
as was hoped. The Member States were faced with a choice of
two formulations: the first advocated caution - on a case
by case basis, taking into account the nature of the equipment
- in the export of arms to countries where human rights violations
had been "established by the competent bodies of the UN or
the EU"; the second, more restrictive option, advocated restraint
in the export of arms in general to recipients which are guilty
of serious human rights violations, however, it also implied
that Member States should abstain from licensing, to such
end-users, exports of equipment which has a potential for
use in repression.
Unfortunately the final text of the Code incorporates the
first option which is expanded to include "special caution
and vigilance in issuing licences" where competent bodies
of the UN or the EU to have established that there are serious
violations of human rights in the recipient country. While
acknowledging the legitimacy and authority of the judgments
of these institutions, it is possible that a prospective recipient
may be guilty of human rights violations which, owing to their
recent occurrence, or (as in the case of Algeria) the refusal
of access to UN/EU investigators, have not been censured by
the EU or the UN.
The failure of the agreed EU Code to incorporate the more
restrictive option represents a missed opportunity in terms
of ensuring that maximum restraint is exercised in the supply
of military, paramilitary and security equipment to regimes
which abuse human rights.
Beyond this, the bracketed text which gives examples of 'internal
repression' and the risk of the diversion of equipment for
use in repression has been retained in large part and strengthened
somewhat. This is a welcome inclusion. It is important to
note, however, that the term 'internal repression' does not
equate with 'violations of international human rights standards
and/or humanitarian law'. The term 'internal repression' is
not used in international human rights law, as its application
is limited to situations where potential recipients might
use the equipment to abuse human rights across national borders.
Accordingly, where the term 'internal repression' appears
in the text of the Code of Conduct, Member States should interpret
this as meaning 'violations of international human rights
standards and/or humanitarian law'.
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.
It should be noted that there is still an error in section
b) of the guidelines under criterion six. This states that
"(Member States will take into account inter alia the
record of the buyer country with regard to: 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". However,
it should be noted that international humanitarian law refers
to the use of force not the non-use of force.
Notwithstanding this error, it is disappointing that the
final guidelines agreed under criterion six only require the
Member States to "take into account" the record of the recipient
in terms of its compliance with international law. In practice,
however, it is to be hoped that the Member States will deny
exports of arms to countries where the arms may be used in
a manner which fails to comply with the international commitments
of the recipient.
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 text under criterion eight now refers to EU and bilateral
aid as a consideration in export licensing. This inclusion
is welcome, however, the text still fails to articulate how
this and other considerations will affect export licensing
decisions.
Operative Provisions
Consultation on Undercutting
The penultimate draft of the Code of Conduct set out two
alternatives for the consultation mechanisms which related
to the procedures for the Member States following a decision
to take up a licence which had been denied by another Member
State. Unfortunately the Member States have agreed on the
more limited option. This requires any Member State wishing
to undercut a denial to consult with and ultimately inform
only the Member State which issued the denial in the first
instance. The other alternative, to inform all Member States
of a decision to undercut, would have served the purposes
of transparency to much greater effect.
The decision to restrict consultation and notification on
undercutting to bilateral exchanges carries with it certain
potential dangers. In the first instance, bilateral consultation
between the Member State wishing to undercut and the Member
State which issued the denial is unlikely to facilitate the
development of a common approach towards sensitive end-users
amongst the wider group of Member States. Secondly, because
any decision by a Member State to go ahead and take up a licence
denied by another will only be notified to the Member State
issuing the denial, undercutting is likely to take place virtually
in secret. If and when details of undercutting eventually
emerge, the net effect could prove divisive, possibly leading
to a reduction in the number of denials issued and/or an increase
in undercutting.
There remains the possibility that Member States which have
issued denials will seek, informally, to notify to the wider
group, a decision by another Member State to undercut. Rather
than relying on ad hoc procedures, however, a clear priority
for the Member States in the development of the Code of Conduct
should be the establishment of full multilateral consultations
on undercutting before and after a decision to undercut is
taken. Moreover, the Member States should agree to notify
an appropriate committee of their national parliament in order
that the purposes of transparency and accountability may be
fully served. In view of Foreign Minister Vedrine's statement
that "we shall see how to go further", progress in this area
could well be possible in the short term.
A Common Control List
The Operative Provisions also state that "EU Member States
will work for the early adoption of a common list of military
equipment covered by the Code, based on similar national and
international lists". Until this process is completed, national
lists will form the basis of denial notification and consultation
"incorporating where appropriate elements from relevant international
lists". It is unfortunate that the Member States could not
agree on a common comprehensive list at the same time as the
Code of Conduct. However it is essential that this process
is completed without delay because some national and international
control lists do not cover the full range of goods and services
used in defence and law enforcement to which the Code should
apply. Utilisation of national and international lists for
any length of time could lead to a gap in the application
of controls on the part of some Member States.
The Member States should, moreover, ensure that the agreed
EU Code control list contains: i) all types of major conventional
weaponry, all types of small arms and light weapons, police
and paramilitary equipment, military and paramilitary training
equipment and services; and ii) a list of prohibited equipment
- such as anti-personnel mines, death penalty equipment, leg
irons, electro-shock items etc.- whose sole or primary practical
use results in serious abuses such as breaches of humanitarian
law and international human rights standards.
The Annual Report
The provisions for an annual review which are contained within
the final text of the Code fall some way short of the level
of public transparency which is necessary for the proper regulation
of the arms trade. In the previous text two alternatives were
advanced. One required the Member States to compile an annual
report on their defence exports and on the implementation
of the Code and, further, for a consolidated report to be
provided to the Council of Ministers and the public. The second
weaker option provided for an annual meeting to review the
Code from which a report would be drafted for submission the
Council only.
Clearly the first option went significantly further in terms
of transparency and accountability as it required the Member
States to provide details of their arms exports and for some
form of report to be made public.
While welcoming the decision by the Member States to undertake
an annual review of the Code, it is disappointing, that the
option chosen is, in fact, a watered down version of the first
option. While still requiring the Member States to produce
a report on their arms exports, it is stressed that this should
take place in confidence. Moreover, while a consolidated report
is to be produced, it appears that this will only be provided
to the Council of Ministers, and not to national parliaments,
the European Parliament, or the public. This is a major weakness
in the Code of Conduct. The net effect of this formulation
is thus to remove any reference to public or parliamentary
accountability from the Code of Conduct. As such the provisions
for the annual review of the Code are unlikely to facilitate
achievement of the aims of "greater transparency" which are
articulated so clearly in the Preamble to the Code. If the
aims of transparency and accountability are to be realised,
the Member States should, immediately, commit themselves to
publishing their national reports on defence exports as well
as the consolidated report on the implementation of the Code.
This will allow post facto review of arms export policy
and, as such represents a minimum standard.
A truly accountable system would be one which requires Member
States to allow national parliaments (or committees thereof)
to scrutinise proposed arms exports in advance of the granting
of licences (as is the case in Sweden). In particular those
licences which may be granted to countries where there are
serious concerns over human rights violations, internal instability,
regional or international conflict, or high military expenditure,
should be scrutinised and evaluated by national parliaments.
Legal Status of the Code
The political and legal status of the proposed EU Code will
be crucial to its effective implementation. It is disappointing,
therefore, that the Member States have agreed to adopt the
EU Code of Conduct on Arms Exports only as a Council Declaration
(under CFSP). However, this type of politically, but not juridically,
binding agreement has not been sufficient to ensure a common
approach amongst the Member States under the eight common
criteria on conventional arms exports agreed by the Council
of Ministers in 1991 and 1992.
The decision that the Code should not be legally binding
upon the Member States means that the need for parliamentary
scrutiny over arms exports from the EU becomes even more pressing.
EU governments must be held accountable for their implementation
of the Code of Conduct and, in the absence of any legal mechanism
for achieving this, increases the importance of parliamentary
scrutiny over EU arms exports and the need for the Council
to publish the consolidated annual report (see above).
Essential Additional Measures
In spite of concerted pressure from the non-government sector,
the EU Code of Conduct which was agreed by Foreign Ministers
on 25 May 1998 contains no reference to the need to control
the activities of international arms brokering agents, the
need to control licensed production of military, paramilitary
and security equipment or the need for common EU controls
governing end-use. The absence of even a reference to these
issues is a major disappointment. The lack of EU controls
in these areas means that significant loopholes will continue
to exist through which the controls set out in the Code of
Conduct may be circumvented. The Member States should, therefore,
seek to address these omissions at the earliest opportunity
by agreeing common EU controls on international arms brokering,
on end-use certification and monitoring and on licensed production.
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