BASIC RESEARCH REPORT

Export Controls in the
Framework Agreement Countries 

Executive Summary | Introduction | France | Germany | Italy
Spain | Sweden | United Kingdom | Conclusion | End Notes

France

Primary Legislation⁵ 
The primary legislation for France’s export regime – the Decree Law of 18 April 1939 – created a national regime for war material, arms and munitions.  This decree states “exportation, under any cus-toms regime, without authorization, of war material or analogous material, is prohibited.”  Additional authorization must be sought if a company is filling a military order for a foreign government.  It also gave the defense minister a “coordinating and centralizing role for the regulation and orientation of state control” for all articles covered by the decree.

Secondary legislation dealing with the more specific details of export – the Order in Council of 2 October 1992, relating to the procedures for importing and exporting war materials, arms and munitions, and analogous material – modified a 1973 order of the same name.  It states that the prime minister and the defense minister are the only government officials with the right to authorize the “transfer” of military technology.

In addition, it specifies the exact consultation procedure for each export license, creating a seemingly transparent decision-making process.  There is also the decree of 6 May 1995, which makes reference to the application of the 1939 Decree Law.

Licensing Procedures
Decisions rest with the Prime Minister, with the advice of the Inter-ministerial Committee on the Export of War Weapons (CIEEMG), chaired by the Secretariat General of National Defense, and comprising the ministers of Foreign Affairs, Defense and Finance as well as others, e.g. the minister for Home Affairs, sitting as observers.  The CIEEMG takes into account specific situations such as embargoes, conflict zones and serious human rights violations when making its decisions.

There are two stages in exporting war material.  Prior authorization is required from the French government before deals are negotiated or contracts are signed.  Prior authorization is by and large granted for one year and can be extended for up to three years in certain cases.  Before the goods are exported, the Director General of Customs must grant a “war material export authorization” after receiving approval from the CIEEMG.

Criteria for Determination of Export Destinations
France issued a policy statement in June 1995, which outlined national criteria taken into consideration before licensing arms for export.  Decisions are made on a case-by-case basis and reflect the following:

• Respect for French international commitments, including U.N. and EU sanctions.
  
  

• State of relations with country in question – especially the existence of defense agreements.
  
  

• Capacity of arms to impact on security of France, the European Union and other allies.
  
  

• Behavior of country in the international community – particularly its attitude towards terrorism.
  
  

• Proportionality between requested weapons and country’s security needs.
  
  

• Existence of internal tensions.
  
  

• Risk of misuse of weapons.
  
  

• Compatibility of weapons with technical and financial capabilities of the country.⁶ 

A report issued by the Ministry of Defense to Parliament in 2000 stated that respect for human rights invariably would be taken into account, but French non-governmental organizations (NGOs) have made the case that in practice this criterion is not always applied.⁷ 

Enforcement Mechanisms
The 1992 Order in Council states:

“Delivery of an export authorization can be subject to: proof that the envisaged material for export is directly delivered to the qualified authorities in the importing country or, with the consent of those authorities, to a private establishment, designed and agreed to by the authorities of the importing country and to that end; the commitment of the qualified authorities of the importing country not to authorize, without prior consent of the French authorities, the resale or transfer under any form whatsoever to a third country, of all or part of the material whose expedition is envisaged.  The delivery of the export authorization can be deferred until the minister of foreign affairs and the minister of defense have been able to carry out, each for what concerns them, the verification that they deem necessary.”⁸

From this statement, it is clear that French exports might be subject to end-use or end-user verification, but that it is not required for all exports or even for any of them.  In addition, the lack of a required ‘no re-export’ agreement means that French weapons then can be sold and transported to other nations.

Transparency and Parliamentary Scrutiny
In March 2000, the first annual report on arms exports (covering 1998 exports) was submitted to the French Parliament by the Ministry of Defense.  In December 2000 the second annual report was published, which covered 1999 exports.  However, the requirement to submit this report is not legislated – it is only a political obligation.

In April 2000, the parliamentary Defense and Armed Forces Committee unanimously adopted seven proposals designed to enhance transparency, which were put forward by a parliamentary inquiry.  Among the recommendations were more detailed annual reports and the institution of yearly parliamentary debate on the export of defense equipment.  However, to date there have been no serious improvements in transparency.

Implementation
Lack of oversight has led to many questionable transactions that have come to light in recent years.  According to the 1998 U.N. Conventional Arms Register (the most recent information available), France exported 36 armored combat vehicles to Indonesia.⁹   The register also shows the sale of three combat aircraft to Qatar, which has announced recently a huge ‘gift’ of equipment to the Algerian military.

There is room for doubt about the stringency of the controls cited by the French authorities. When export information previously considered classified was made available, as in the case of Rwanda, the 1998 parliamentary inquiry found that “weapons and ammunition were ceded in 31 cases without application of the proper procedure,” and that “the same situation existed in respect of other countries.”¹⁰  

Although the French government has begun attempts at increasing transparency with the introduction of annual reports to Parliament, these are not enough.  A major reform of French end-use verification (i.e.- making end-use certificates mandatory for all exports) is necessary for France to fulfill, in spirit, its commitments under the EU Code of Conduct.

Germany

Primary Legislation¹¹

“German defense exports are regulated in the Basic Law, the War Weapons Control Act and the Foreign Trade and Payments Act in conjunction with the Foreign Trade and Payments Ordinance.  In addition, the German government adopted `Political Principles’ on April 28, 1982 to provide the licensing agencies with guidelines for the scope of and limits to the discretion open to them.”¹²

The War Weapons Control Act of 1961 – Germany’s primary legislation – states that no weapons can be imported into, exported from, or transported through German territory without a license from the German government.  The Ministry of Economics governs commercial exports, while the Ministry of Defense is responsible for all matters relating to the federal armed forces.

The German government issued a policy statement on 19 January 2000, in order to modify some aspects of its arms export policy.  The purpose was to affirm Germany’s desire to pursue a restrictive policy on arms exports.  The policy details:  criteria for export destination determination; differentiation of export restrictions among NATO countries, EU members, NATO-equivalent countries, and all other countries¹³ ; procedures for dealing with joint venture activities; and end-use requirements.

Licensing Procedures
No permit is required to negotiate a contract – a license only needs to be issued before the military equipment is actually exported.  The Federal Foreign Office, the Federal Ministry of Economics and the Federal Ministry of Defense, in conjunction with the Federal Chancellory, will evaluate requests for licenses.¹⁴   A license must be refused if there is a danger that the war weapons will be used in a way which disturbs the peace, that international commitments entered into by Germany will be violated, or that the applicant is not sufficiently reliable.¹⁵ 

A license may be cancelled at any time and will be cancelled if any of the criteria for refusal become evident after a license is issued.  However, in practice this has happened very rarely and there is no specific policy regarding the cancellation of licenses.  Germany issues three different types of licenses depending on the number of recipients and the number of shipments.  An individual license allows the export of at least one piece of equipment to a single recipient named on the license.  A collective export license allows the export of a group of equipment to several named recipients.  A general export license allows the export of a certain type of equipment to multiple locations.  If there is a general license for a good, there is no need for individuals to apply for additional licenses to export it.  The licenses vary in terms of validity depending on the project.  There is no national register of legal exporters.  Applications are submitted to the Ministry of Economics, which judges the applications with the assistance of the Ministry of Defense and the Foreign Office.

Criteria for Determination of Export Destinations
New policy principles, issued in January 2000, tightened criteria for determining export destinations, as well as introduced measures to enhance transparency.  In this new policy statement, the German government states, “the issue of human rights in the countries of destination and end-use is a key factor in deciding whether or not to grant licenses for the ex-port of war weapons and other military equipment.”¹⁶ 

Therefore, the Federal Government will raise objections – generally following consideration of the matter by the Federal Security Council – against such exports involving the use of German components in the following cases:

• Exports to countries involved in armed conflict, unless such conflict is covered by Article 51 of the UN Charter.
  
  

• Exports to countries where an outbreak of conflict is imminent, or where exports may stir up, perpetuate or exacerbate latent tensions and conflicts. 
  
  

• Exports where there are reasonable grounds to suspect that they may be used for internal repression as defined by the EU Code of Conduct for Arms Exports or the sustained and systematic abuse of human rights.
  
  

• Exports that would impair the vital security interests of the Federal Republic of Germany.
  
  

• Exports that would impose such a strain on relations with third countries that even Germany’s own interest in the cooperative venture and in maintaining good relations with its cooperation partner must rank second.¹⁷

The German government also will take into account whether the country in question:  supports terrorism and international organized crime; complies with international obligations under humanitarian law; has signed and ratified the arms control arrangements specified in the EU Code of Conduct for arms exports; and supports the U.N. Register of Conventional Arms.

The January 2000 policy statement also mandated a restrictive policy to be followed in regard to exports to non-NATO/NATO-equivalent/EU countries.

Enforcement Mechanisms
Germany requires end-use certificates to be submitted with all license applications.  If the end-user is a foreign government, then a governmental end-use certificate is necessary.  If the end-user is a private individual or a corporate entity, a private end-use certificate must be submitted in addition to an international import certificate, issued by the foreign government.  This is supposed to prevent exports of arms to individuals without their government’s knowledge.  These end-use certificates also “preclude re-exports without prior authorization” from the German government.  Any recipient government found to be in violation of an end-use agreement will “be excluded from receiving any further deliveries of war weapons or other military equipment related to war weapons.”¹⁸ 

Germany’s end-use control system was revised in January of this year to include more specific restrictions on joint venture cooperation and exports.  Germany will seek a balance between its interest in collaboration and its fundamentally restrictive arms export policy.  Germany reserves the right, through consultations, to object to cooperative projects. 

Cooperative venture partners are required to inform the German government if they intend to supply components relevant to the manufacture of war weapons.  Partners must include their export intentions, as well as legally binding agreements on end-use.

Export licenses for war weapons and other military equipment may be granted only if agreement is reached that there will be no re-export without prior authorization from the German government.  Recipient countries also will be assessed to determine whether or not they are able to carry out effective export controls.  Any recipient country that violates an end-use certificate or does not prevent re-export will be excluded from receiving any further deliveries of military equipment as long as those conditions persist.

The Federal Customs Administration is responsible for preventing violations of the export controls, including breaches of embargoes.  Supervision includes conducting examinations of the exporting companies via regional finance offices and investigations by the customs investigation service.  

Transparency and Parliamentary Scrutiny
The German federal government now is required to submit an annual report to the Bundestag on the principles and practices of its arms export policy.  This report, mandated by the January 2000 policy guidelines, was published first in September 2000, and marks a more comprehensive accounting of German export activity.  Now that detailed reporting will occur on an annual basis, it appears that the German parliament will have an opportunity to examine and debate its contents.  

Implementation
The German Green Party, the junior partner in the governing coalition, has been critical of any German arms exports going to a state where human rights abuses are known to take place.  In particular, the sale of 1,000 Leopard II tanks to Turkey split the coalition, as the Greens objected to the sale on the grounds that the tanks could be used for internal repression.  German Foreign Minister Joschka Fischer has said that human rights should be the deciding factor in determining arms sales.¹⁹

If Germany fully honors their new export control policy regarding end-use, they will have one of the strongest regimes in the world, over the objections of their arms producers.  This new policy, taken with the primary legislation that establishes the framework for Germany’s export control regime, could be used as a model for those countries wishing to reform their own.

Italy

Primary Legislation²⁰

Italy has a largely legislated system of arms export control.  Law Number 185, of 9 July 1990, states clearly that all activities related to the transfer of arms are subject to government regulation.  Therefore, all arms exports must be approved by the state and an export license must be obtained.²¹

The Ministry of Foreign Affairs and the Ministry of Defense have the responsibility for controlling the transfer of defense equipment to and from Italy.  Before the 1990 law, this was shared between the Ministry of Foreign Trade and the Ministry of Defense.

Italian law requires a National Companies Register of firms that operate in design, manufacture, import, export, maintenance, and other work with armaments.  Only those companies on the register may apply for arms export licenses.  The defense minister can suspend a company from the National Register, and the foreign minister can suspend authorization.

General guidelines for export policy are provided by the Inter-ministerial Committee Comitato Interministeriale Programmazione Economica (CIPE).  This is a new body, established at the level of the prime minister’s office by the 1990 law.  The CIPE will define the list of countries to which restrictive arms sales must be applied.  Members of this commission include the Ministers of Economy and Finance, Foreign Affairs, Budget, and Defense.  The Defense and Foreign Ministers have the right to veto any request, but the Ministers of the Interior, Finance, Industry and Trade, State Shareholders, and Foreign Trade all have some role in the consultative process.

Licensing ProceduresThe ministers of Defense and Foreign Affairs have ultimate control over the licensing process, with input from several other ministries.  There is a more relaxed end-user verification system for NATO and Western European Union members.

The first step of the export process is for the exporter to obtain a permit to engage in contractual discussions.  Requests for these permits are made to the Ministry of Defense, if the transfer is to a preferential customer and to the Ministry of Foreign Affairs, in all other cases.  The Ministry of Defense has 30 days to authorize or deny an application and the Ministry of Foreign Affairs has 60 days.  Once obtained, these permits are valid for three years.

The second step is to request authorization to export from the Ministry of Foreign Affairs.  The exporter must submit either an import certificate or end-use certificate, depending on the customer.  The Ministry of Foreign Affairs should use the Ministry of Defense to obtain any necessary technical advice, and then is responsible for making the decision whether or not to grant the export license based on its own political evaluation.

Italy issues only one type of export license.  It allows at least one shipment of specified goods to a specified destination.  Italy’s National Companies Register keeps a list of all firms allowed to engage in contractual negotiations.

Criteria for Determination of Export Destinations
Italian Law Number 185 (9 July 1990) prohibits certain categories of arms transfers:

• Export of arms to countries engaged in conflict (in violation of Article 51 of the U.N. Charter).
  
  

• Export of arms when contrary to Article 11 of the Italian Constitution, international obligations, national security, the struggle against terrorism and good relations with other states.
  
  

• Exports to countries embargoed by the UN, countries whose governments are responsible for proven human rights violations.
  
  

• Countries benefiting from Italian civil aid program whose military expenditure exceeds the  requirement for self-defense.
  
  

• Exports where there are inadequate guarantees on final destination. 

Enforcement Mechanisms
Under the 1990 law, exporting companies must provide the Italian licensing authority with either an import certificate, in the case of preferential customers, or an end-user certificate, in all other cases.  Companies that have reciprocal agreements with the Italian government controlling arms exports are eligible for import certificates.  This certification system is based on the U.S. Import Certificate/Delivery Verification regime, meaning that criteria for allies is less strict than those for other destinations.  There is no list of allied countries, but it comprises some NATO members, members of the Western European Union, as well as a few other countries.  The exporting company must then produce some sort of documentation that the specified end-user has received the shipment.  These additional conditions are not required of Italian allies.

An ad-hoc Inter-ministerial Committee is entrusted with the responsibility of overseeing the implementation of the provisions, as well as issuing criminal sanctions for violations.  In addition, the committee is tasked with ascertaining the final destination of each individual transaction.

Transparency and Parliamentary Scrutiny
The 1990 Italian law requires the government to report to Parliament on the year’s authorizations and deliveries of defense equipment.  The report includes the number and monetary value of each transfer and a list of importing countries.

The annual report is not formally debated by members of Parliament.  The Parliament has debated exports in specific cases they deemed troubling an official response from the government is not obligatory.

Implementation
At the time that the United States was attempting to close its re-export loophole in Europe, Italian firms had been granted exports of handguns totaling 18,803.²²   Italy was described as “keen” to lift the embargo against Indonesia only four months after it had been put in place.  According to the 1998 U.N. Conventional Arms Register, Italy exported six trainer combat aircraft to Eritrea.²³  While Italy’s record has improved greatly since 1990, a ‘no re-export’ clause and a universal end-use system for allies and non-allies alike would close many holes.  There is also a need for Italy to take greater responsibility if its commitment to refuse exports to human rights offenders is sincere. 

Spain

Primary Legislation²⁴ 
The basis of Spain’s system of arms export control is a Royal Decree from 1998 (491/1998 of March 12), which created a licensing system.  This system almost is purely regulatory in nature and is protected from oversight because negotiations and decisions are subject to the Official Secrets Act.²⁵   Only a few select members of Parliament belonging to the Secret Matters Committee can receive information about Spanish export policy, if they request to do so, though this Committee has never been convened for this purpose so far.

The Secretary of State for Trade chairs the inter-ministerial board that considers export applications.  This board is comprised of 10 representatives of the Ministries of Defense, Foreign Affairs, Economy, Domestic Affairs and Science and Technology.

Licensing Procedures
Spain issues two types of export licenses: an individual and a general license.  Individual export licenses allow the export of at least one shipment of a specified material to one destination.  It is valid for six months; companies may apply for an extension.  A general export license allows the unlimited export of material to at least one destination for a term of six months.

In Spain, applications for licenses are submitted to the Inter-ministerial Regulatory Board on Defense Equipment and Dual-Use Goods.  The Secretary of State for Trade, chairs this board.  Members include the undersecretary for Foreign Affairs, the under-director general for Foreign Trade of Defense and Dual-Use Material, and representatives of the Ministries of Defense, Domestic Affairs, and Science and Technology.

Criteria for Determination of Export Destinations
In addition to their formal multilateral commitments, Spain will revoke an export license if the transaction would endanger regional or global peace and stability, or threaten the general interests of national defense or foreign policy.

Specific criteria for determination of export destinations have not yet been introduced into Spanish legislation or regulations.  Article 9.3 a) of the Royal Decree dealing with arms export licenses just mentions that the Interministerial charged with granting export licenses will “take into account” the export criteria adopted by the EU Council in 1991 and 1992.  However, the Parliament has urged the government to adopt the eight criteria on exporting activities agreed by the European Union in 1992 and develop them.²⁶  In a parliamentary answer to a MP who asked about controls on brokering, the Spanish government recently announced that it intended to update this Royal Decree.

Enforcement Mechanisms
Spain, like France, has a minimal system of compliance that can be waived by governmental authorities.  End-user certificates from the government are necessary for exports of specified war materials; end-use certificates from companies are acceptable for other military equipment.  The requirement of an end-use certificate can be waived altogether by the Inter-ministerial Regulatory Board on Foreign Trade in Defense or Dual-Use Material if it decides such certification is not necessary.

Spain does not always require a “no re-exportation without prior authorization” clause to accompany an export license.

Transparency and Parliamentary Scrutiny
According to the 1998 Royal Decree, the government is now urged to introduce into Spanish legislation the criteria on transparency and controls agreed by the European Union, as well as compile an annual report with essential data, including the countries of final destination.  Since 1998, Spain has published three annual reports, however, detailed information regarding licenses granted is not contained within, as they only reflect the country and the value of the exports, but fail to include key details such as the type of product or the end-user.

The Spanish Parliament has no right to examine license applications prior to approval.  Due to the Official Secrets Act, only the members of the parliamentary Official Secret Committee would be allowed to oversee the government’s activities, and only on an a posteriori basis.  The government does send a report on arms and dual use goods exports to the Defense and Foreign Affairs Committees, but it takes between nine and 12 months to do so, preventing MPs from exercising proper control of the executive.

Implementation
“The problem of inconsistency is illustrated in Spain, where the value given by the Ministry of the Economy differs radically from a three-year average provided by the Ministry of Defense, which is more than five times higher.”²⁷  As the Official Secrets Act covers all Spanish arms exports, there are few publicized cases of questionable or unethical exports.  Until Spain reforms its export system to increase transparency, a more detailed analysis is all but impossible.

Sweden

Primary Legislation²⁸ 
The Military Equipment Act of 1992 governs the export of military equipment.  Activities involving the supply of military equipment may not be conducted in Sweden without a permit.  These activities also cannot be conducted by Swedish nationals abroad without a permit. 

Permits are issued by the National Inspectorate of Strategic Products, in consultation with the Ministry of Foreign Affairs and the Ministry of Defense.  These permits can be cancelled if the permit holder has violated any of the regulations contained in this act.  The Defense and Foreign Affairs Ministries are responsible for overseeing all arms export activity.

Licensing Procedures
Sweden’s licensing procedure is indicative of its small-scale industry.  Sweden issues one only type of export license, valid for the period of time requested by the exporter.  License applications must include the applicant’s name and place of residence; the type, quantity, and value of the equipment; the buyer consignee and end-user; reason for exportation; the period of validity; and intended date of exports.  The National Inspectorate of Strategic Products has a register of all war material producing and exporting companies.  In the latest government report (not yet available in English) it stated that there are 120 companies that have permission to produce war material and that around 40 of them exported such material during 2000.  The Foreign Affairs and Defense Ministries are both involved in the consultation process.

Criteria for Determination of Export Destinations
In addition to the above legislation, Sweden issued policy principles designed to illustrate the criteria behind government decisions to export military equipment.²⁹  Because “a certain volume of arms exports is necessary to sustain the Swedish defense industry, thus permitting Sweden to achieve its security policy objectives, not only for its own benefit, but also for stability in Europe as a whole,”³⁰  Sweden has adopted the following export criteria: 

• Exports are to be restrictive and limited to what is required to satisfy Swedish defense policy requirements. 
  
  

• To maintain its own security, Sweden should not supply arms which may aggravate conflicts which could ultimately spread into its vicinity.
  
  

• In view of its foreign policy aims, Sweden should avoid arms exports to countries in a state of war or conflict. 
  
  

• As a small country which does not participate in military alliances, Sweden favors the resolution of conflicts by peaceful means rather than by force, for example within the framework of the United Nations or by international mediation or arbitration. 
  
  

• For the same reason, the maintenance of respect for international law, humanitarian values and the inviolability of human rights are also very much in Sweden’s interests. Sweden is working for a world order in which stability, democracy and justice prevail.³¹ 

Exports to fellow Nordic and neutral countries are subject to a less stringent licensing process, as exports to those countries are not considered a security threat to Sweden; however, this less stringent regime is not a part of the primary legislation.

Enforcement Mechanisms
Swedish policy is based on its position as a militarily non-aligned country.   As a result the defense industry exports only to keep itself financially viable.  End-use certificates are required as part of the export licensing process for military equipment.  Sweden claims that it will not violate its international agreements.  In a policy statement from 1993, Sweden says that it should not export to states involved in armed conflict, arms races, or human rights abuses.  These guidelines, along with the EU Code of Conduct, seem to create a sufficiently responsible system.  

Transparency and Parliamentary Scrutiny
Since 1985, Sweden has published annual reports on its arms export activities.  While Swedish reporting was ahead of its time in the 1980s, the information contained within the report is now not as comprehensive as some other European countries.

Sweden has an Export Control Council, comprised of parliamentarians, which has the mandate of reviewing all decisions made by the National Inspectorate of Strategic Products on a monthly basis.  The council plays the role of adviser; however, the government has yet to overrule its objections.

Implementation
In 1999, Sweden granted an export license to Bofors for spare parts and ammunition for previously exported howitzer cannons to be shipped to India.  Several press sources state that these guns are in use in war-torn Kashmir.³² 

“The granting of a license to India would to all appearances fall under the ban on arms exports to a country at war,” said Henrik Landerholm, opposition Conservative chairman of the parliamentary Defense Committee.  Not only does this raise the question of whether Sweden is honoring its own armed conflict regulation, but also it is commonly acknowledged that India and Pakistan are engaged in an arms race. 

Sweden also licenses the export of several snow-capable personnel carriers to Pakistan.  It seems, in this particular situation, that Sweden is arming both sides of the conflict.  In addition, Sweden has sold JAS Gripen fighter planes to South Africa over the objections of two political parties and numerous NGOs.³³   South Africa claims that the jets are necessary to take part in African peacekeeping missions.  Critics claim that the deal was made for economic reasons; Sweden agreed to offset certain production projects to South Africa, increasing foreign investment in that country.

Other than end-use certificates, there is no strict compliance regime.  Intentional violations are punishable by two years in jail.

United Kingdom

Primary Legislation
The United Kingdom’s export regime is based on a law dating from World War II (although a revised system is currently being considered by the British Parliament).  The Import, Export and Customs Powers Act of 1939 affirms the government’s obligation to oversee the activities of exporters and establishes basic regulations and punishments for exporting to states at war with the United Kingdom.

The Foreign and Commonwealth minister, the Defense minister, and the head of the Department of Trade and Industry (DTI) identify themselves as those in government most responsible for the current export-licensing regime.³⁴  The DTI’s Export Control Organisation is responsible for evaluating applications and issuing export licenses.

The Foreign and Commonwealth Office issued a statement on 28 July 1997, announcing new criteria to be applied to issuing licenses for arms exports.  The new ‘stated’ policy takes such issues as arms embargoes, human rights and regional stability into consideration.

Most recently, a draft bill aimed at “improv[ing] the transparency of export controls and to establish their purposes” was outlined during the Queen’s annual speech, 6 December 2000.  This new legislation was proposed in response to the recommendations contained in the 1996 report by Lord Justice Scott.  The so-called Scott Report was prompted by an inquiry into the export of defense-related material to Iraq.  The draft Export Control and Non-Proliferation Bill would improve the 1939 law that has remained thus far relatively unchanged.  In March, the DTI put forward a bill that seeks to reform the 1939 law.  The draft Export Control Bill seeks to tighten arms export policies and go further than the Scott Report recommendations.

Licensing Procedures
In the United Kingdom, the DTI’s Export Control Organisation judges applications and issues licenses.  Although DTI is the department primarily responsible for issuing licenses, this process occurs in consultation with the Foreign Office, Ministry of Defence (and Department for International Development in cases which may have development implications).  NGOs argue that DTI’s lead role in license determination creates a conflict of interest – promotion of trade, while at the same time, controlling the export of defense equipment.  The United Kingdom issues three different varieties of licenses.  A Standard Individual Export License allows at least one shipment to a single recipient named on the license.  These are valid for two years in the case of permanent exports, one year in the case of temporary ones.  An Open Individual Export License allows at least one shipment to multiple recipients.  It is valid for two years in the case of military exports.  An Open General Export License (OGEL) allows the export of multiple shipments of a certain good from any exporter to any acceptable destination.  OGELs are valid until revoked, thus potentially quite dangerous.  A change in the internal situation of the recipient country may not trigger a response from the U.K. government, due to the potentially explosive political implications of revoking such a license – increasing the chance that defense equipment will be sent to undesirable destinations.

In the United Kingdom’s Third Annual Report on Strategic Export Controls, the ministers of the Foreign and Commonwealth Office, the Department of Trade and Industry, and Defence sign the report as those responsible for the export process.  Again, there is no formal structure for inter-ministerial discussion.

Criteria for Determination of Export Destinations
Changes to U.K. policy regarding the determination of export destinations were announced by the Secretary of State on 28 July 1997.  Stating the government’s commitment “to the maintenance of a strong defense industry. . .” and the desire to prevent “certain regimes from acquiring certain equipment,” the United Kingdom would work towards “setting high common standards to govern arms exports from all EU member states.”³⁵ 

The new criteria in considering arms export license applications are as follows:

• A license will not be issued if it conflicts with international obligations, such as U.N. and EU embargoes, international export control regimes and EU common criteria for arms transfers.
  
  

• Full consideration will be given to the potential effect on U.K. defense and security interests, economic and financial interests, the potential effect on recipient country, the potential effect on any collaborative defense production with allies, and the protection of the United Kingdom’s essential strategic industrial base.
  
  

• No export license will be granted if there is clear risk that the export will be used for internal repression or international aggression.
  
  

• The need to preserve regional stability and balance of forces between neighboring states will be taken into account.
  
  

• Also to be taken into consideration: the technical capacity of recipient to use the equipment; the legitimate security needs of recipient country; whether the purchase will undermine development efforts; the risk of re-export or diversion; the risk of use of goods against U.K. soldiers; and the need to protect U.K. classified information.³⁶ 

Enforcement Mechanisms
At this time, the United Kingdom is engaged in an attempt to reform and strengthen end-use regulations.  The government has stated that it practices inspection of specific transfers, however there is no systematic procedure to ensure compliance with U.K. national law or international obligations.

Britain currently requires an end-use certificate and a ‘no re-export’ agreement for each license.  Customs officials provide the only enforcement of these regulations once a license is issued.  Then Foreign Minister Robin Cook received much criticism from NGOs over the past few years because of the Labour Party government’s lack of initiative in introducing new arms export legislation.

Transparency and Parliamentary Scrutiny
As per the 1997 policy statement, the U.K. government is required to report annually to Parliament “on the state of strategic export controls and their application.”  The first report was completed in March 1999, and has been followed by two subsequent reports.

The latest report issued by the U.K. government is one of the most comprehensive efforts among EU members at enhancing transparency.

The parliamentary Quadripartite Select Committee – comprised of Members of Parliament from the select committees on International Development, Foreign Affairs, Defence, and Trade and Industry – recommended instituting parliamentary prior scrutiny of all military export licenses.  While all information would continue to remain confidential, this would allow for greater discussion on British arms exports.  This proposal was rejected by the British government, however the Quadripartite Select Committee has suggested that it will present new recommendations regarding prior parliamentary scrutiny.

Implementation
In recent years, the United Kingdom has authorized the export of handgun silencers to Turkey, at a time when there was no external threat to the latter nation.  This led some to believe that the silencers would be used in Turkey’s internal conflict with their Kurdish minority.³⁷  Although they were supposed to have ceased these exports, the United Kingdom continues to export arms to Uganda, which is heavily involved in the civil war in Congo.

Britain has exported Hawk training aircraft and other various equipment to the Indonesian army, which has been accused by the U.S. State Department of plotting a coup d’etat.  In addition to ethically questionable legal transfers, the United Kingdom also has been the site of several smuggling operations.  After one of the strictest handgun laws in the world went into effect, the United States became convinced that recent orders from British companies totaling 14,000 handguns would not remain in the United Kingdom.  When the United States passed a law attempting to force ‘no re-export’ agreements, several British companies were informed by the government to ignore the legislation.³⁸

Although the United Kingdom has regulations governing enforcement, there are obvious loopholes that need to be addressed.  There is a lack of a systematic approach to the monitoring of British arms sales.  In addition, the government has failed to control brokers and shipping agents.  The Labour government presented new legislation in March, upon re-elections they announced in June 2001, that the Arms Export Control Bill will be presented to Parliament during the coming Parliamentary session.  NGOs are concerned about certain gaps in the proposed legislation, namely, that the bill does not legislate for prior parliamentary scrutiny of arms export license applications, there are no specific measures on end-use monitoring, and weapons produced overseas under license from a U.K. company could still be exported to countries of concern.

CONCLUSION

As European countries move ahead with plans to consolidate their defense industries and harmonize defense export controls, the potential impact of the changes should be examined.  Export reforms will not necessarily lead to a lowering of controls.  In fact, they could result in increased European competitiveness, while enhancing cooperation between EU states and the United States. 

However, the risks associated with harmonization cannot be overlooked.  The laws and policies of France, Germany, Italy, Spain, Sweden and the United Kingdom vary greatly in some respects, and the need to reach agreement could drive standards down to lowest common denominator.  Already, the policy of secrecy in determining export destinations for joint venture equipment set by the Framework Agreement gives cause for concern.  In addition, the Framework Agreement itself contains no detailed explanation of how end-use monitoring and enforcement of third-party export restrictions will be achieved.

# # #

Executive Summary | Introduction | France | Germany | Italy
Spain | Sweden | United Kingdom | Conclusion | Endnotes

_______________

Endnotes

 ¹ Article 223 of the Treaty of Rome Establishing the European Community.

² Anthony, Ian, ed.  Arms Export Regulations.  Oxford: Oxford UP, 1991. p. 72.

³ EU Code of Conduct on Arms Exports, available at  http://www.basicint.org/eucode.htm.

⁴ For a more detailed examination of European policies on transparency, please see Bernardo Mariani and Angus Urquhart, Transparency and Accountability in European Arms Export Controls:  Towards Common Standards and Best Practice, Saferworld, December 2000.

⁵ Information provided by Martine Bernard, Amnesty International France, and Bruno Barrillot, L’Observatoire des transferts d’armements.

⁶ French Policy on Export Controls for Conventional Arms and Dual Use Goods and Technologies.  Information provided by France to the Wassenaar Arrangement on Export Control.  Available at http://projects.sipri.se/expcon/natexpcon/France/frenchpolicy.htm.

⁷ For more information, please see La Lettre de l’Observatoire, No. 22, June 2000, available at http://www.obsarm.org/. 

⁸ Available at http://projects.sipri.se/expcon/natexpcon/France/fraord.htm. 

⁹ For the complete 1998 UN Conventional Arms Register see http://domino.un.org/REGISTER.nsf.

¹⁰ For further information on the sales to Rwanda please see La Lettre de l’Observatoire, No. 17, March 1999.  “Les ventes d’armes légères de la France au Rwanda.”

¹¹ Information provided by Sibylle Bauer, Institut d’Etudes européennes (IEE), Université libre de Bruxelles (ULB), Brussels.

¹² Germany: Response to the Questionnaire on the OSCE Participating States Policy and/or National Practices and Procedures for the Export of Conventional Arms and Related Technology.  June 17, 1999.  Available at http://projects.sipri.se/expcon/natexpcon/Germany/frgosce.htm.

¹³ While Germany has not legislated a preferential policy for allied nations, the policy statement did state that exports to NATO countries, EU member states and countries with NATO-equivalent status (Australia, Japan, New Zealand, Sweden, Switzerland) are not restricted unless there are particular political grounds which warrant controls.

¹⁴ Policy Principles of the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment.  Berlin, 19 January 2000.  Available at http://projects.sipri.se/expcon/natexpcon/Germany/frg_guide.htm

¹⁵ ibid. 

¹⁶ ibid.  

¹⁷ ibid.

¹⁸ ibid.  

¹⁹ “Fischer: Restriktive Rustungsexportpolitik Gewollt.”  27 January 2000.  Translation by Kathleen Miller.

²⁰ Information provided by Emilio Emmolo, Amnesty International Italy and Bernardo Mariani, Saferworld.

²¹ Certain categories of weapons are exempted from controls:  sport and non-automatic weapons, government-to-government exports under military aid programs, and the transit of weapons by NATO allie^s.

²² Bonner, Raymond. “Loophole on Guns Feared in Europe.” New York Times. 19 April 1998.

²³ Trainer aircraft can be modified to function as light combat aircraft.

²⁴ Information provided by Raul Romeva, Autonomous University of Barcelona, and Alberto Estevez, Amnesty International Spanish Section.

²⁵ In 1986, the Council of Ministers decided that the minutes of the Interministerial body charged with granting or refusing arms exports licences were a “classified matter”.

²⁶ Spanish parliamentary motion on transparency and parliamentary control, 18 March 1997.

²⁷ “Transfers of major conventional weapons”, Bjorn Hagelin, Pieter D. Wezeman and Siemon T. Wezeman. (p.421-516).  In SIPRI Yearbook 1999: Armaments, Disarmament, and International Security.  Oxford; Oxford UP, 1999.  p. 442.

²⁸ Information provided by Rolf Lindahl, Swedish Peace and Arbitration Society.

²⁹ “Sweden’s Policy on Arms Exports,” Ministry for Foreign Affairs Information, October 1993.  Available at  http://projects.sipri.se/expcon/natexpcon/Sweden/ud1993.htm^.

³⁰ ibid.

³¹ ibid. 

³² Among those sources are two articles from Agence France Presse: “Swedish deputies could block arms sales to India,” 25 July 1999, and “Swedish Bofors authorized to resume arms exports to India,” 26 August 1999.

 ³³ Rolander, Niclas.  “Politics: Criticism of Swedish Arms Sales to South Africa.”  Inter Press Service.  19 March 1999.  

³⁴ Third Annual Report on Strategic Export Controls, July 2000. 

³⁵ “Criteria to be used in considering conventional arms export licence applications,” Statement by the Secretary of State for Foreign and Commonwealth Affairs, 28 July 1997.  Available at http://projects.sipri.se/expcon/natexpcon/UK/ukcriteria.html.

³⁶ ibid.

³⁷ Donnelly, Rachel.  “Weapons sales raise doubt over human rights in foreign policy.”  Irish Times.  17 September 1999.

³⁸ Bonner, Raymond.  “Loophole on Guns Feared in Europe.”  New York Times.  19 April 1998.  “‘We object to anybody putting conditions on U.K. companies,’ said Steve Williams, an official in Britain’s Department of Trade and Industry.  He and other British officials said British companies were advised they could ignore the law."

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