Written by Carmen-Cristina Cîrlig,
Graphics by Giulio Sabbati,
The EU’s Common Position on arms exports is the only legally binding region-wide arrangement on conventional arms exports. While the Common Position has increased information-sharing and transparency of Member States’ arms exports, there is still scope for enhancing the convergence of national arms-exports policies and for stricter implementation of the criteria defined in the act.
EU Member States’ arms exports in 2013
According to the EU’s 16th Annual Report on arms exports, arms exports licensed by Member States in 2013 totalled €36.7 billion, the first decrease since 2010 (in 2011 – €37.5 billion; in 2012 – €39.8 billion). Exports to other Member States made up 29% of all EU arms exports (€10.7 billion). The Middle East was the main non-EU destination of EU arms exports (€ 7.7 billion). The main EU exporters (France, United Kingdom and Germany) accounted for 56% of all EU exports licensed in 2013 (NB: Normally, the value of export licences does not equal actual export values.)
The Common Position: overview
In 2008, the Council adopted Common Position 2008/944/CFSP (CP) which defines common rules governing the control of exports of military technology and equipment, replacing an earlier political agreement, the EU Code of Conduct on arms exports (1998). With the CP, the EU is the only regional organisation to have established a legally binding arrangement on conventional arms exports. At international level, all EU Member States signed, and 26 have so far ratified, the Arms Trade Treaty (ATT), in force since 24 December 2014. The aim of the CP is to enhance the convergence of EU Member States’ arms-export-control policies, arms exports remaining ultimately a matter of national competence. In this respect, the CP incorporates eight common criteria (minimum standards) to be taken into account by Member States when assessing export licence applications for military technology and equipment, but also for brokering, transit transactions and intangible transfers of technology. Moreover, the CP defines the scope of the items controlled – in a common EU Military List covering 22 categories of arms, munitions, military equipment and technologies. The EU List is aligned with the Wassenaar Arrangement (a voluntary export controls regime for conventional arms and dual-use items), and is regularly updated, most recently on 9 February 2015. The CP is implemented according to the User’s Guide developed within the Council’s COARM working party.
The common criteria defining rules on arms exports control
The eight common criteria for assessing arms export licences refer to: (1) respect for the international obligations and commitments of EU Member States, particularly sanctions (including arms embargos) and international agreements; (2) respect for human rights and international humanitarian law by the recipient country; (3) the internal situation in the recipient country; (4) risks to regional peace, security and stability; (5) national security of the Member States as well of their friends and allies; (6) behaviour of the buyer country towards the international community, including its attitude to terrorism and respect for international law; (7) risk of diversion towards an unauthorised end-user or end-use; and (8) compatibility of the arms exports with sustainable development in the recipient country. The assessments are made on a case-by-case basis.
Exchange of information and transparency
The Common Position establishes mechanisms for exchange of information on arms export licences and on actual exports (including their financial value); it also institutes the obligation of notifying licence denials and of bilateral consultations when a Member State intends to grant approval for an export licence ‘essentially identical’ to one already denied by another Member State. In 2011, COARM also created an information exchange system between the EU and third countries which aligned themselves with the CP. EU Member States are required by the CP to publish national reports on their arms exports. Also, they are required to provide information for the EU’s annual reports on arms exports (published since 1999). These contain data provided by Member States on the financial value of their arms export licence approvals and actual arms exports, broken down by destination and the categories of the EU Military List, as well as information on licence denials and the criteria invoked for the denials. The 16th Annual Report on arms exports, published in March 2015, includes data on arms exports for the 2013 calendar year. Only 21 Member States publish a national report and most Member States submit only partial information to the EU report.
Assessment of the implementation of CP 2008/944/CFSP
While the CP is assessed as having had a positive impact on EU national arms export policies, through better exchange of information and increased transparency, on the other hand implementation still remains with the Member States and further convergence of national policies is possible. In addition, there is no evidence of the CP having led to more restrictive European arms exports. External pressure, national strategic or economic-financial interests have in some cases trumped the application of the CP. The controversial sale of the French Mistral ships to Russia has been viewed as a case where national interests prevailed over thorough risk considerations. The French decision ultimately to cancel the deal was nevertheless taken without any reference to the CP. Most significantly there are no sanctions under the CP.
The Member States’ compliance with the common criteria has been put into doubt, in particular considering the lack of uniform interpretation. Concerning criterion 1, deliveries of military equipment to China is an example of Member States interpreting in various ways the obligations deriving from the 1989 political declaration instituting the arms embargo. Also, some Member States’ arms exports in recent years have been suspected of violating the EU embargos on arms in place. As for criterion 2, EU Member States have exported arms to states and authoritarian regimes where they were reportedly used to commit human rights abuses and infringe international humanitarian law. The EU Member States’ arms exports to Saudi Arabia (one of the largest EU markets in the past decade and second biggest recipient in 2013) and other Gulf or Middle Eastern countries are highlighted by experts, not only in the context of internal repression but also as fuelling a regional arms race and increased instability. Finally, criterion 7 on the risk of diversion to unauthorised end-users/end-use is one of the most invoked for licence denials, but situations of diversion of EU arms exports are still reported. In this context corruption in the defence sectors of recipient countries is a significant factor. Better end-user control of arms exports has been advocated, including proposals for creating a black list of problematic end-users.
Moreover, experts have called for new common criteria, including on the risk of serious corruption or on good governance. In addition, they have pointed to the need for a longer-term, future oriented approach to risk assessment, as well as for honest interpretation of the criteria by all Member States.
The review of the Common Position
A review of the CP was to take place three years after its adoption. In its November 2012 Conclusions, the Council assessed the CP as still suited for its stated objectives. However, improvements were to be made with respect to the guidelines for implementing the common criteria, to refining information exchange and improving the denials notification and consultation mechanism, as well as to ensure compatibility between the ATT and the CP. On 20 July 2015, the Council adopted new Conclusions on the CP’s review, emphasising the development of an IT platform for information-sharing on licence denials and the adoption of an updated User’s Guide to incorporate ATT-related guidelines. The next Review is set for 2018.
The European Parliament adopted resolutions on the topic in 1998, 2008 and 2013, in which the EP has called for a strict application of the common criteria and improved transparency. The report on Arms exports: implementation of Common Position 2008/944/CFSP (rapporteur Bodil Valero, Greens/EFA) to be debated on 16 December 2015 also underlines the need for effective and stricter implementation of the common criteria, including through a more coherent policy on embargos; calls for the introduction of a standardised reporting and submission procedure for information from Member States, as well as comprehensive reporting on licences denied; and suggests exploring the option of extending the criteria to the transfer of military and security personnel, to arms-export-related services and to private military services.