WSI

The Council of the European Union is finalising a new European Union Code of Conduct on Arms Exports to replace the present document dating back to 1998. The revision aims to close loopholes in existing regulations and to expand the scope of transactions covered by the Code of Conduct. The Council’s expert committee, COARM, produced a draft version, which is now being reviewed by member states’ governments.

The Code of Conduct harmonizes national rules for exports of conventional arms outside the European Union. Although the current version is not binding and leaves ultimate responsibility for arms exports within each member state, it does set an important example for international norms. The current Code of Conduct adopted on June 8, 1998 is commonly recognized as one of the most developed regional arms export control regimes.

Background

Unlike nuclear, chemical and biological weapons, trade in conventional arms – which cover a diverse range of land, air and sea-based weapons – is not addressed by an overarching international treaty. This despite the fact that conventional arms are the weapon of choice in contemporary conflicts. Small arms and light weapons (SALW, everything from revolvers to portable anti-aircraft missiles) in particular are responsible for thousands of conflict deaths and 200, 000 non-conflict deaths every year. At the same time, the four largest EU arms exporters quadrupled their share of conventional arms exports to developing countries, going from $830 million in 2003 (5.5%) to $4.8 billion in 2004 (22%) , according to the European Parliament.

Worldwide, efforts to regulate trade in conventional arms moves along two planes. First, several regimes including the EU Code of Conduct regulate legal trade (in the case of the Code, sales of conventional arms outside the EU). Second, a number of treaties deal with illicit trade – transactions made on the black markets. The two issues are closely linked. As one recent report notes, “most illicit weapons start their life cycles as legal weapons that are later diverted, sold, given away or stole.” Not surprisingly, many EU projects on small arms address both sides of the problems: legal trade through stricter export controls, illegal trade through better law enforcement, tracking etc.

Globally, the UN is leading the push for adopting national legislation regulating illicit trade. The July 9-20, 2001 UN Conference on the Illicit Traffic in Small Arms and Light Weapons adopted a Program of Action (PoA), which provides recommendations for action on, among other things, the destruction of SALW, international assistance to strengthen the ability of states in identifying and tracing illicit small arms etc. A Review Conference for the Program of Action is scheduled for July 2006.

As for controls of the legal conventional arms trade, no comprehensive legal framework exists. That gap is to be filled by the proposed International Arms Trade Treaty. ATT, as it is widely known, has strong support from a growing number of countries. In 2004 a coalition of non-governmental groups Oxfam, Amnesty International, International Action Network) prepared a draft treaty which would, among other things, establish an international registry of small arms transfers and ban the transfer of arms to any countries likely to use those arms to violate human rights or international humanitarian law. (In June and July 2005 the UK government tried to secure backing from G8 for a broader, less strict statement of principles, but to no avail.)

For their part, EU members threw their backing behind the ATT with the Council Conclusions of Oct. 3, 2005. The document states that "The Council … agreed that the United Nations was the only forum that could deliver a truly universal instrument and called for the start of a formal process at the United Nations at the earliest opportunity".

The ATT’s future is uncertain but several related regimes already regulate portions of the conventional arms market. Most notable are arms exports embargoes on specific countries. The EU recently imposed embargo on arms exports to Uzbekistan on Nov. 14, 2005; other countries targeted by such sanctions include the Democratic Republic of Congo, Ivory Coast and, most controversially, China see the China arms embargo section for more information).

Also, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Dec. 18-19, 1996) covers goods that, albeit civilian in origin, have potential military applications. Wassenaar is a voluntary framework consisting of agreed principles, but not mandatory practices.

European Initiatives

Beginning in the early 1990s, the Council of the European Union began crafting criteria for regulation exports of small arms from EU. Foreign Ministers’ meetings in 1991 and 1992 produced mostly declarations on the subject. In 1997, the EU took a decisive step toward combating illicit trade in conventional arms through the EU Program for Preventing and Combating Illicit Trafficking in Conventional Arms approved by the Council on June 26, 1997. The Program called on EU member states to approve relevant national legislation, to coordinate their efforts, to exchange information on illicit arms sales, and to assist countries affected by conflict.

EU regulation of conventional arms exports dates back to the passage of the current Code of Conduct in 1998. The Code consists of two sections. The first section lays down eight criteria which constitute grounds for refusing export licenses. These include human rights violations, internal and regional stability, risk diversion and sustainable development.

The second section puts down operative provisions or procedures for implementing the criteria. For example, it requires member states to consult one another on license denials through the “denial notification procedure” and encourages member states to harmonize national export control policies through exchanges of annual reports on their export control policies and implementation of the Code.

On Dec. 13, 2000, the EU added a Common Military List of Equipment to be covered under the Code. The list helps member states with implementation, and it is being continuously updated – the most recent version was passed in April 2005. Also, the User’s Guide to the EU Code of Conduct on Arms Exports, revised in Oct. 14, 2005, summarizes agreed guidance for implementation of the Code’s operative provisions. Implementation of the Code is reviewed by the European Council on an annual basis, the most recent review being the Sixth Annual Report from Dec. 21, 2004.

In December 2003, COARM, the Council’s expert group on arms exports, decided to update and expand the Code, in effect producing a new Code of Conduct. The Council’s highest sitting body, COREPER (Committee of Permanent Representatives of EU member states), endorsed the plan for a new Code on June 30, 2005. It is expected that the new language will address issues such as transit/transhipment, licensed production overseas and intangible transfer of software and technology.

In addition to the Code of Conduct, the EU Council Regulation (EC) No 1334/2000 of June 22, 2000 set up a Community regime for the control of exports of dual-use items and technology. The regulation stipulates that dual use items – hardware and software that can be used for both civil and military purposes – need authorization for exports. A separate piece of EU legislation, the 2003 Common Position on the control of arms brokering, aims to stop brokering activities in circumvention of EU and UN embargoes. It calls on the member states to set up clear legal framework on arms brokering and encourages them to consider controlling brokering activities outside of their territory carried out by their nationals.

Key issues in European Debates

Enforcement of EU Code of Conduct
The EU Code of Conduct is not legally binding; responsibility for arms exports control within the EU remains under the authority of each member state. National legislation varies widely – in case of the arms embargo on China, for example, both France and the UK sell hundreds of millions of euros of military equipment to China each year while Germany, which has much stricter national controls, exports minimal amounts. Studies also found that EU members continue to export arms to countries involved in civil wars or committing serious abuses. The European Parliament Resolution on the Council's Sixth Annual Report (2005/2013(INI)) called for the Code to be made legally binding. This would be a significant step toward reducing discrepancies in the enforcement of individual embargoes. However, there is political resistance among EU member states to a binding arms exports legislation, and it is not clear whether the new Code will carry more legal power than its predecessor.

Competencies
Both the Council and the Commission operate programs aimed at combating the spread of small arms. The vague division of responsibilities creates so much friction that in February 2005 the European Commission brought legal action against the Council of the European in the European Court of Justice. The case seeks to annul the Council-approved 2002 Joint Action on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons, one of the key documents guiding EU CFSP (common foreign and s ecurity policy) action in the realm. The Commission argues that small arms control is in its area of competence, and seeks to stop Council action on this point. The case is not expected to be resolved in the near future.

Reporting
The Code of Conduct requires that a confidential annual report on exports and implementation of the Code is to be circulated by each EU member state to the other EU states. The EU then produces a public report on the basis of the individual states’ submissions. However, the complete details of actual arms exports made by EU states are not set out in this public document, only values of licenses issued and deliveries made are listed. The reports do not list what specific weapon sale was denied, nor to whom. Individual states are free to give as much or as little detail in their national reports as they choose, and, as one report notes, “most choose a minimalist approach.” Many of these issues are expected to be fixed by the new Code of Conduct when it is approved.

Criteria
The current Code fails to impose clear binding obligations, by merely calling EU member states to “take into account” and “consider” certain objectives. Violations of international humanitarian law and human rights in the end-user state are not a categorical reason for refusing an arms export license, notes one report. Numerous criteria (2) fail to explicitly prohibit many items of security or crime control equipment and technology which can be used for “internal repression” or for torture, inhuman or degrading treatment, or the death penalty.

Time Line

July 2006: Review Conference on UN PoA
November 17, 2005: EP Resolution on European Council Sixth Annual Report on EU Code of Conduct
October 14, 2005: Adoption of revised User’s Guide
September 29, 2005: European Parliament Resolution on Breaches of Human Rights in China, in Particular as regards to Freedom of Religion
July 11-15, 2005: Second Biennial Meeting of States (BMS) to Consider the Implementation of the Program of Action (UN Conference)
April 25, 2005: Adoption of revised Common Military List of Equipment
December 21, 2004: European Council Sixth Annual Report on EU Code of Conduct
December 16-17, 2004: European Council Conclusions delay lifting arms embargo on China call for further progress in China
April 28, 2004: Adoption of UNSCR 1540 recommending all States of the international community to adopt export controls
July 7-11, 2003: First Biennial Meeting of States (BMS) to Consider the Implementation of the Program of Action (UN Conference)
November 2003: Adoption of User’s Guide of EU Code of Conduct
July 12, 2002: Adoption of Joint Action on Small Arms and Light Weapons Ammunition (2002/589/CFSP)
July 9-20, 2001: UN Conference on the Illicit Traffic in Small Arms and Light Weapons In All Its Aspects and adoption of its Program of Action (PoA)
March 15, 2001: EP Resolutions on the UN Conference on Illicit Trade in Small Arms and Light Weapons in All Its Aspects (B5-0189, 0201, 0209, 0218 and 0227/2001)
December 13, 2000: Adoption of Common Military List of Equipment covered by EU Code of Conduct
November 4, 2000: Adoption of OSCE Handbook of Best Practices on Small Arms and Light Weapons
October 7, 1999: EP Resolution on the First Annual Review of the EU Code of Conduct
December 17, 1998: Adoption of Joint Action on Small Arms (1999/34/CFSP)
June 8, 1998: Adoption of EU Code of Conduct on Arms Exports
June 26, 1997: Establishment of EU Program for Preventing and Combating Illicit Trafficking in Conventional Arms
December 18-19, 1996: Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies
June 27, 1989: European Council Declaration imposing an EU arms embargo on China following the crackdown on protesters near Tiananmen Square

Sources for further reading