1009 The limitations of European Union reports on arms exports

From “The limitations of European Union reports on arms exports” (SIPRI)

By Paul Holtom and Mark Bromley 

The eight criteria of the European Union’s Common Position defining common rules governing control of exports of military technology and equipment

1. Respect for the international obligations and commitments of Member States, in particular the sanctions adopted by the UN Security Council or the European Union, agreements on non-proliferation and other subjects, as well as other international obligations.

2. Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law.

3. Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts.

4. Preservation of regional peace, security and stability.

5. National security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of friendly and allied countries.

6. Behaviour of the buyer country with regard to the international community, as regards in particular its attitude to terrorism, the nature of its alliances and respect for international law.

7. Existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions.

8. Compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country, taking into account the desirability that states should meet their legitimate security and defence needs with the least diversion of human and economic resources for armaments.

Source: Council Common Position 2008/944/CFSP of 8 Dec. 2008 defining common rules governing control of exports of military technology and equipment, Official Journal of the European Union, L335, 8 Dec. 2008.

Since 1991–92, when the European Council adopted eight criteria against which EU member states agreed to assess their arms exports (see below), there has been a concerted effort to develop harmonized arms export policies among EU member states.

The member states agreed to confidentially share information on the export licenses granted and denied and on actual exports of arms and military equipment. This information is publicly available in the annual reports.

These eight criteria were incorporated into the European Union Code of Conduct on Arms Exports (the EU Code of Conduct), which was adopted as a politically binding instrument in June 1998. Member states must deny an export license if the transfer is deemed to conflict with any of criteria 1–4 and must ‘take into account’ the factors listed in criteria 5–8 when considering a license application.

In December 2008 the EU member states replaced the EU Code of Conduct with the EU Common Position defining common rules governing control of exports of military technology and equipment.  Although the Common Position retained many of the elements developed under the Code of Conduct - including the eight criteria - there were several key changes.

First, the Common Position is a legal instrument, requiring member states to ensure that their national positions conform to common requirements. Second, it extended controls to cover the licensing of production abroad, brokering activities, transit and trans-shipment, and intangible transfers of technology.

As a fruit of all these agreements, since 1999 the European Union (EU) has published information on its member states’ issuing of arms export licenses and actual arms exports. These reports are intended as a means of monitoring harmonization between member states and their compliance with the EU’s rules on arms exports. In the last years the degree of detail on member states’ export licenses and actual exports that appears in the EU annual reports has increased substantially.

Despite being a legal instrument, the EU Common Position still leaves decisions on the granting and denying of arms export licenses in the hands of member states. As a result, there continue to be cases where the criteria of the Common Position are interpreted differently by member states. While the user’s guide is a useful aid in the harmonization of EU arms export policies, little work has been undertaken to assess whether harmonization is taking place.

The official data on export licenses and actual exports contained in these EU annual reports can be used by organizations for monitoring exports of arms and military equipment, and to assess member states' implementation of the EU Common Position on exports of military technology and equipment and the level of harmonization in states' exports. At present the EU annual report receives little critical attention from European parliamentarians and civil society.

EU arms embargoes

EU member states share a common view that mandatory United Nations arms embargoes should be respected. As a rule, for each UN arms embargo, the EU imposes a corresponding EU arms embargo. The EU has also imposed arms embargoes that go beyond the requirements of a particular UN arms embargo, as in the case of the arms embargo on Sudan. In addition, the EU has imposed arms embargoes on targets that are not subject to UN arms embargoes, including China, Guinea, Myanmar, Uzbekistan and Zimbabwe.

Following the entry into force of the 2007 Treaty of Lisbon, EU arms embargoes are announced via a Council decision.

In 2004 a ‘Sanctions formation’ group was established within the Council’s Foreign Relations Counsellors Working Group (RELEX). The mandate of RELEX/Sanctions also includes the collection of information on all alleged circumventions of EU sanctions.

Difficulties in monitoring exports

Using officially produced data to monitor exports of arms and military equipment from EU member states presents a number of challenges. While all EU member states report to the EU annual reports, not all member states make full submissions. The EU annual reports include more information about export licenses than about actual exports of arms. Another problem is that the EU annual reports do not systematically provide information on specific end-users or end-uses for particular transfers, and the reported country of destination is not always the final recipient. It is not possible to identify in the EU annual reports cases where components are to be exported for integration into a weapon system abroad and subsequently re-exported to a third country. Certain types of equipment destined for the armed and security forces of Central Asia may never appear in EU or national reports on arms export because they are considered to be civilian products and so do not fall within the scope of the exporter’s transfer controls.

One way to improve the use of the reports and the data on arms export licensing and exports, would be to strengthen parliamentary oversight at both the national and European levels.

There have been calls for the European Parliament to assess the implementation of the EU Common Position by Member States on a more regular basis – perhaps by establishing an annual review of the EU annual report. It would be necessary the creation of a mechanism to monitor the enforcement of EU arms embargoes and investigate allegations of violations. It is important to pay more attention to transfers of technology and licensed production by EU member states to Africa, especially if they have well-established relations with the military or security forces in countries of concern.


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