EU Common Position on Arms Exports
In 1998, European Union (EU) Member States agreed on a Code of Conduct that was to aid individual states in making arms exports decisions. This Code of Conduct was aimed at harmonising EU Member States’ arms export policies in the framework of a Common Foreign and Security Policy (CFSP). Member States introduced a Common Military List which is regularly updated and determines which exports are defined as arms exports and thus have to obtain a license. The Member States also agreed on a number of common criteria that have to be taken into account when issuing export licenses, i.e. when deciding whether arms should be exported or not.
The alignment of EU Member States’ processes of issuing arms export is supported by transparency in the decision-making processes. Since 1998, each Member has been presenting the licenses it has granted on its territory in an annual report. The level of detail in these reports differs from country to country. Generally, these reports show the financial volume of licenses granted, the types of weapons or goods exported, as well as the recipient countries. A summary of all country reports is published on a regular basis by the EU Council Working Party on Conventional Arms Exports (COARM).
On 8 December 2008, the European Council replaced the Code of Conduct with the EU Council Common Position defining common rules governing the control of exports of military technology and equipment. While the main goal and content remain the same, Member States have re-affirmed their commitment to harmonising European arms exports policy by agreeing on the Common Position. They have since been asked to transpose the rules and regulations of the Common Position into their national legislation and to thus confirm the binding nature of the new regulations.
In the Common Position, EU Member States recognise the special responsibility of military technology and equipment exporting states towards maintaining and fostering international security and peace. This recognition is reflected in eight criteria that are to be taken into account when issuing export licenses. Criteria are, for instance, the respect for human rights in the country of final destination, the preservation of national and regional stability as well as the compatibility of arms exports with the development of the recipient country (see a list of all criteria at the end of this text).
Notwithstanding all this, the envisioned harmonisation and greater transparency of individual licenses granted do not necessarily lead to a more restrictive arms exports policy. The preamble of the Common Position itself mentions that it is also intended to strengthen the European arms industry. Indeed, large parts of arms manufacturers welcome the creation of equal conditions for competition on the European arms market to which the Common Position is also contributing.
Even though the COARM-working group has elaborated a user guide for the Common Position, its scope for interpretation of whether or not a particular case meets certain criteria is vast. For example, in its annual report, the Working Group ‘Arms Exports’ of the German ecumenical church development organisation, GKKE, points to German arms exports that in its point of view do not meet the EU Criteria. A direct comparison between the actual practice of granting export licenses in individual countries still shows differences amongst the Member States.
Critics stress that the Common Position only registers and lists the transfer of military goods. Contrary to US export regulations, for instance, trans-border trade in military or military-relevant services are not taken into account. This means that, for example, a private security company within the EU who sells military services to a country or region in conflict is not bound by the Common Position.
The eight criteria of the EU Common Position are as follows:
1. International obligations: International or Regional Arms Embargos and Membership in Arms Control Agreements
Respect for Member States’ international obligations and commitments, in particular the sanctions adopted by the UN Security Council or the European Union, and agreements on non-proliferation and other subjects;
2. Adherence to Human Rights
Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law;
3. Internal Situation – Stability or Conflict
The internal situation in the country of final destination – Member States will not allow exports that would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination;
4. Preservation of regional peace, security and stability
Indication of the degree of regional peace, security and stability based on various conflict data sets.
5. National Security of Member States and Allies
Security of 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. Membership in Human Rights and Arms Control Conventions
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. Arms Export Controls
Existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions;
8. Danger of disproportionate military capacities impairing development
Compatibility of the exports 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 minimal diversion of human and economic resources for armaments.