1

J

United Nations Educational, Scientific and Cultural Organization Organisation des Nations Unies pour l'Éducation, la Science et la Culture

THE CODES OF CONDUCT TO CONTROL ARMS TRANSFERS

May 1998

UNESCO Chair on Peace and Human Rights Universitat Autónoma de Barcelona

THE CODES OF CONDUCT TO CONTROL ARMS TRANSFERS

May 1998

UNESCO Chair on Peace and Human Rights (Universitat Autónoma de Barcelona)

Facultat de Ciències Politiques, Edifici B, 08193 Bellaterra (Spain)

This report has been drawn up by a "Research Group on Arms Transfers Control" of the UNESCO Chair on Peace and Human Rights at the Autonomous University of Barcelona (UAB), formed by Vicenç Fisas (Chairholder), Raiil Romeva (lecturer on International Relations in the UAB and researcher at the UNESCO Center in Catalonia) and, in a personal capacity, Alberto Estevez, who is also the Amnesty International Spain coordinator of work on Military, Security and Police (MSP) transfers.

2

CONTENTS

Introduction 5

Declaration of the Director-General of UNESCO on the need to 7 establish and respect a Code of Conduct for arms sales

Principles of the European Union Code of Conduct on arms transfers 9

A European Code of Conduct on the Arms Trade (document developed 17 by the British American Security Information Council, Saferworld and the World Development Movement)

Summary of the critique of the British and French draft proposals for 23 a European Union Code of Conduct on the arms trade (developed by Amnesty International, BASIC, Oxfam UK and Ireland and Saferworld).

The Nobel Peace Laureates' International Code of Conduct on Arms 28 Transfers (May 1997)

Resolution adopted by the European Parliament on 15th January 1998 35 on a European Code of Conduct on arms exports.

Summary of the European comparative legislation on arms exports 37 control

Annex I: Declaration by EU Member States on an EU Code of 45 Conduct for arms exports

^

INTRODUCTION

Two and a half years after several European NGOs launched a proposal to develop a Code of Conduct to improve the existing arms transfers legislation in the European Union (EU), the EU Member States will shortly have a first opportunity to include a significant number of these proposals in a new EU regulation, which can also be the starting point so that, in the future, other similar measures of an universal scope are developed.

In view of such a significant opportunity to improve the control mechanisms of these transfers, the UNESCO cannot and does not want to keep out of the efforts that a large number of governments and NGOs are making so that the texts eventually agreed are effective and represent a real step forward in the common undertaking to promote a culture of peace, to improve the protection of human rights and strengthen conflict prevention mechanisms.

In order to contribute to a better spreading of the proposals that are being developed, this dossier compiles several documents that can help reflection and deci son-making on this matter. The first of these documents is the Statement that the General Director of the UNESCO issued on 8th January on the need to develop and respect a Code of Conduct on the arms trade, followed by a paper developed by the UNESCO Chair on Peace and Human Rights of the Universitat Autónoma de Barcelona (UAB) analysing the existing proposals and setting out some suggestions with a view to strengthen the introduction of human rights criteria in the Codes of Conduct.

Then, the original text of the proposal of a Code of Conduct launched in November 1995 by some European NGOs is reproduced, as well as a summary of the critique that several NGOs have developed on the British and French draft proposal for a European Union Code of Conduct, the proposal that several Nobel Peace Laureates launched in May 1997 to introduce an international Code of Conduct and the text of a resolution adopted by the European Parliament on 15* January. The last document summarises and compares the existing laws on the arms trade control in several countries.

The decisions that will shortly be taken at the EU level, however important they may be, will only be the beginning of a farther-reaching process focused on the control and transparency of a trade that very often leads to suffering an death. Thus, it is important that any steps taken in that direction are firm and, following the recommendations of the General Director of the UNESCO, they be taken with a firm belief that the year 2000, declared as the International Year of the Culture of Peace, is to be the year when significant international agreements concerning conventional disarmament are consolidated.

5

DECLARATION OF THE DIRECTOR-GENERAL OF UNESCO ON THE NEED TO ESTABLISH AND RESPECT A CODE OF CONDUCT

FOR ARMS SALES

Paris, January 8, 1998

In these first days of the year in which we celebrate the 50th anniversary of the Universal Declaration of Human Rights, I am greatly concerned by the enormous difficulties which still persits in places on the globe, where people's basic rights are diminished, owing to a lack of basic resources and the existence of armed conflicts. UNESCO, in co-operation with the United Nations High Commissioner for Human Rights, will continue to disseminate the Universal Declaration -especially in schools and in all languages - so that all people can know their rights, because none can claim or defend what they do not know.

The close of the century should mark the transition from the logic of force to the force of reason. Yet, current military spending is over US$800,000 million per year. We must reduce these enormous investments. We must invest in peace in the form of justice, freedom and equality, just as we have invested in war. At the least, we must prevent conventional arms traffic which is unregulated at the national and international levels, a significant part of which is directed at countries with serious shortcomings in terms of respect for human rights. Moreover, such countries are often highly militarised and are locked in conflict or burdened by situations of serious tension and instability.

In accordance with its fundamental principle "since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed", UNESCO, in conjunction with other organisations in the United Nations system, has pledged to encourage concrete and effective action for the promotion of a culture of peace, the protection of human rights and the improvement of conflict-prevention mechanisms. All of this is reflected in its Medium-Term Strategy for '996-2001 in wich the Organization pledges to examine the new conditions of security and the promotion of various methods aimed at bringing innovations to the task of conflict resolution and helping to pursue the analysis of the factors - like extreme poverty, social exclusion, racism, xenophobia, terrorism and the production of, traffic in and consumption of drugs - which impede the full and comprehensive enjoyment of human rights.

In view of the pernicious consequences of an arms trade marked by opacity, and considering that the indiscriminate sale of weapons fosters political instability, prolongs violent conflicts and undermines diplomatic efforts to resolve differences peacefully, I am fully aware of the responsability entailed by Article 26 of the Charter of the United Nations regarding "the establishment of a system for the regulation of armaments with the least diversion for armaments of the world's economic and human resources".

I warmly welcome the recent initiatives of some governments and non­governmental organisations and various Nobel prize-winners regarding the introduction of a code of conduct for the regulation of arms exports, either at world level or within the

7

European Union. I reaffirm UNESCO's active support for these initiatives in the firm belief that, through their insistence on respect for human rights and conflict prevention, they contribute to shaping a introduction and application of such a code of conduct, regional or sub-regional moratoria on exports and to avoid all transfers of armaments, in the absence of the guarantees necessary to ensure that they are not used to reinforce arbitrary rule, for terrorist activities or to violate human rights.

I invite the countries that have already adopted such initiatives to continue their efforts to improve mechanisms for the control of the trade in conventional weapons, including light weapons, and, at the same time, to make more information available annually in the United Nations Register of Conventional Arms.

I salute the efforts of some governments to pay attention to - and work with - the non-governmental organisations who monitor the observance of human rights. development and conflict prevention, with a view to formulating and aplying active and innovative policies relating to disarmament and the control of arms exports; I encourage them to continue such cooperation in the future; and I ask tern - with a view to preparing properly for the year 2000, which has been proclaimed International Year for the Culture of Peace - to take all possible measures for disarmament, in the belief that this would help to create an atmosphere of mutual confidence conducive to the necessary identification of further multilateral disarmament measures.

8

PRINCIPLES OF THE EUROPEAN UNION CODE OF CONDUCT ON ARMS TRADE

After die Gulf War, aware that Europe had been a major supplier of arms to Iraq in the years prior to the war, the European Council adopted seven common criteria to regulate arms exports in June 1991, to which an eighth criterion was added in June 1992. These criteria stress mat any decision to export arms should take into account the internal and regional situation of the purchasing country, the purchasing country's human rights record and the effect of the purchase on the country's economy.

Nevertheless, these eight criteria have serious limitations: they are neither specific enough nor detailed enough and there is no agreement as to how they should be interpreted. Due to these limitations, several European Non Governmental Organizations (NGOs), led by BASIC (British and American Security Council), Saferworld and World Development Movement, with the support of hundreds of organizations all over Europe, have promoted a Code of Conduct on arms transfers, with three aims:

defining more clearly terms of each criterion.

providing public mechanisms to monitor government practice as far as arms exports are concerned

setting the highest possible standards for the EU legislation on arms exports control

Thus, for example, the Code of Conduct proposes some requirements to allow an arms export to a given country, including:

its having signed and ratified certain Conventions and Disarmament Treaties, systematically reporting to the United Nations Register of Conventional Arms, not having committed systematic violations of internationally recognized human rights

within the previous three years, having ratified the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights, promoting civilian control of the military and security forces, not being engaged in a conflict, either internal or external, the fact that the transfer does not introduce wholly new technology into a region of

tension, not advocating national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence, a past failure to provide credible end-use certification, not having a disproportionate military expenditure or higher than public health and

education expenditure combined.

For the NGOs promoting the Code of Conduct, there are several reasons justifying the development of such a Code of Conduct, because:

there is no transparency as regards this trade and, under the current secrecy, monitoring the arms trade and acting in a preventive way is not possible,

the views of the NGOs and the civil society are not listened to, many of the major buyer countries of military equipment are renowned for not meeting

the requirements that movitate the existence of this Code,

9

the creation a Single Market may entail the relaxation of border controls. Thus, some arms exports may be routed through borders where there is less control,

at present, a possible deletion of article 223 of the Treaty of Rome would mean situating the exports control at a very low and permissive level. The deletion of this article only has sense if the EU controls are previously set at a higher level.

So that this is possible, the organizations promoting the Code of Conduct consider that the legislation incorporating these criteria should provide for:

the prior notification to the parliaments of the EU Member States of all contemplated transfers, before issuing an export licence (transparency and prevention)

the prior notification of the other European Union (EU) Member States of all major exports (cooperation)

the establishment of mechanisms to monitor the end-use guarantees of these exports (control)

the establishment of effective channels to receive information and hear the views of the NGOs (contrast)

In parallel with this initiative, in 1997 the USA considered a Code of Conduct worded in similar terms to the EU Code1. Several Nobel Peace Laureates2, led by Oscar Arias, are promoting an International Code of Conduct on Arms Transfers, worded in very similar terms as the Code developed by the aforementioned NGOs.

The process to introduce the EU Code of Conduct started with the UK government's announcement of their intention to adopt it during their sixth month presidency (January-June 1998). On 23d January 1998, the UK distributed a draft proposal of the EU Code of Conduct on arms transfers to the Member States. The UK had reached a consensus with France on the draft proposal. On 17th February, a meeting was held in Brussels to analyse the text of the British -French draft proposal for an EU Code of Conduct. This Code could be finalised for the Council's Arms Working Group (COARM) meeting on 29th April and will be presented to the General Affairs Council on 25th and 26Ul May.

Sweden, Belgium, the Netherlands, Ireland and Luxembourg support the British -French proposal. The organizations and specialists working in this field welcome any initiatives leading to harmonize the implementation of the arms exports controls based on the Eight

1 The first attempt to introduce this Code took place in 1994, its sponsors being Rep. Cynthia Mckinney and Sen. Mark Hatfield, later replaced by Sen. John Kerry. They joined forces with a group of NGOs under the unmbrella of the Arms Transfers Working Group, set up by BASIC, Saferworld, Demilitarization for Democracy, Federation of American Scientists and Human Rights Watch. In 1997, the Code of Conduct was unanimously passed by the House of Representatives, but not by a Joint Conference of the Senate and the House of Representatives. In 1998, the Code of Conduct will be featuring in the agenda of both chambers again. 2 The proposal of the Code is signed by the following people or organizations who were awared the Nobel Peace Price: American Friends Service Committe, Amnesty International, Óscar Arias, Norman Borlaug, His Holiness the Dalai Lama, International Physicians for the Prevention of Nuclear War, Mairead Corrigan-Maguire, Rigoberta Menchú, Adolfo Pérez-Esquivel, José Ramos-Horta, Joseph Rotblat, Desmond Tutu, Lech Walesa, Elie Wiesel and Betty Williams.

10

Common Criteria adopted in 1991-2. Still, the NGOs are concerned mat the proposals may not be adequate to protect human rights because they may not be rigorous, binding or comprehensive enough to stop unscrupulous arms dealers exploiting loopholes.

The Eight Common Criteria include "respect of human rights in the country of final destination " and "respect for international law ", and this has been reiterated in the 1993 OSCE Principles Governing Conventional Arms Transfers. However, neither the OSCE Principles nor the EU's Eight Common Criteria are yet binding on Member States, and there is as yet no common interpretation of how they should be most effectively implemented.

On 15th January 1998, the European Parliament (EP) adopted a resolution calling for, among other things, a clear list of sensitive destinations that should be subject to restrictions as regards the arms trade, a system of verifying and monitoring end-use provisions, as well as a system of mutual information and consultation on the granting and denial of export licences, increased levels of transparency and an annual review of the implementation of the Code of Conduct. The EP also called on other countries and regions to adopt Codes of Conduct, taking as a reference the polices adopted by the European Parliament.

In some countries, the discussion on the need to introduce a Code of Conduct has been preceded or accompanied by a social and political debate on the need to develop mechanisms allowing for increased transparency and parliamentary scrutiny on the arms transfers. Thus, for example, in March 1997, the plenary session of the Spanish Congress passed, unanimously, a motion calling for transparency and the arms trade, urging the government to "introduce and develop in the legislation the eight common criteria on arms trade and dual use goods adopted by the European Union in 1991 and 1992", "introduce in the legislation and the information concerning the arms trade all military, security and police transfers, including those of equipment, personnel, training or technology", and "providing the Defence and Foreign Affairs Committees with the essential data of the arms and dual use goods exports every six months". So far, the Spanish government has not publicly stated its support for the introduction of a Code of Conduct in the EU, despite the fact that over 1,000 NGOs and organizations of all kinds and nearly 200 Local Councils have expressed their support for this Code in Spain.

The introduction of a Code of Conduct in the EU, as well as the attempts to introduce a similar Code in the US, would be an significant major step to facilitate the adoption of the International Code of Conduct launched by several Nobel Peace Laureates in May 1997, be it by means of the appropiate UN mechanisms or a similar process to the one leading to the International Treaty to Ban Landmines. This International Code of Conduct complements the regional efforts in the EU and the US in favour of regional Codes and embodies article 26 of the UN Charter, calling for "the establishment of an arms regulating system".

The following are some cases illustrating how EU Governments have recently allowed the export of military and security equipment knowing that they are likely to be used for human rights violations:

Indonesia Serious human rights violations against demonstrators have been carried out by the Int lesian security forces in 1996 and 1997 using small arms and armoured vehicles. Despite a ban on the transfer of armoured vehicles, small arms and riot control equipment by the USA, and arms embargoes against Indonesia by Portugal and Sweden on human rights grounds, new contracts for the supply of armoured vehicles, water cannon, sub-machine guns and sophisticated internal surveillance equipment to Indonesia have been approved by the United Kingdom (UK) government. The German and French Governments have also approved of new export deals for light tanks and

11

armoured vehicles. At the same time, the Indonesian authorities increasingly try to prevent independent human rights monitors from entering outlying operational areas.

Under considerable public pressure since it announced its "ethical" foreign policy, the new UK government refused export licences for a very small quantity of "internal security" equipment proposed for Indonesia, but then stated that "firearms training systems, unless they are specialised equipment for military training or for simulating military scenarios, do not require an export licence" (21 July 1997). In other words, countries like Indonesia can just switch orders of the same equipment from the army to the police in order to get around UK controls. This may explain why the UK exporter admitted sending such equipment to Indonesia while the UK Government denies a licence has been issued. If the police are the recipients, one has to bear in mind that an official audit report found that a UK program to train Indonesian police had not included respect for human rights, contrary to the declared aim of the program.

Turkey: Several organizations in Europe and North America are pressing their governments to stop transfers of military helicopters, military transport vehicles and small arms which are known to have been used to facilitate political killings, "disappearances" and torture by the Turkish armed forces. In November 1996, the Turkish Government announced that it would no longer seek to purchase a number of military attack helicopters from the USA because the US government was "stalling" the order to clarify their possible use in human rights violations. The Turkish Government said it wanted to lease the helicopters from France or Russia instead.

While independent journalists are denied access to areas where civilian casualties are reported, and human rights defenders are systematically harassed and persecuted in the security zones, the French and Russian authorities have nevertheless allowed their helicopter manufacturing companies to launch a vigorous sales drive to Turkey. Moreover, the UK has provided about 80% of the components for the basic armoured patrol vehicle assembled in Turkey and used by the gendarmes to patrol areas in the security zones where human rights abuses have been committed - yet these components are not considered a military or para-military goods export by the UK.

Rwanda and the Great Lakes region: Military procurement documents found in eastern Zaire in late 1996 provided further confirmation of a report published by Amnesty International in June 1995 of secret arms flights involving United Kingdom and Nigerian traders delivering weapons and ammunition from Albania and Israel to Rwandese armed forces in eastern Zaire in mid-1994 when these forces were committing a genocide in Rwanda. Despite the Convention Against Genocide and the mandatory UN Security Council arms embargo, none of the traders have been prosecuted. Recent reports indicate that the clandestine arms trade continues to human rights violators in the region.

In order to give practical meaning to the stated EU policy, we appeal to all EU governments so that in the discussions on the Code of Conduct, they advocate including the following essential principles:

1.- International human rights standards and humanitarian law:

The EU arms control system must incorporate rigorous procedures to ensure respect for international human rights standards and humanitarian law. It is urgent that in the closing years of the Twentieth Century the governments, companies and individuals who supply

12

such military, para-military and security equipment, technology and training, as well as the associated logistics and finance, are subject to proper systems of control based upon international law. The Universal Declaration of Human Rights states that every human being has the inalienable right to life, liberty and security of person. The Geneva Conventions and Protocols prohibit arbitrary and summary executions, ^discriminate killings, mutilation, torture, cruelty and hostage-taking. Yet today mass violations of these basic rights are carried out in many armed conflicts around the world by government and armed opposition forces who are often given easy access to arms and associated military equipment and training.

2.- A consistent role in arms control for inter-governmental organizations

The rapid globalization of the arms industry, as well as other factors such as the growth of international arms trafficking syndicates, mean that national arms controls are insufficient to protect human rights. For the EU arms control systems to be effective, there has to be an expanded and consistent role in arms control for the United Nations and other relevant inter-governmental organizations such as the Wassenaar Arrangement, the OSCE (Organization for Security and Cooperation in Europe), the OAS (Organization of American States), ASEAN (Association of East Asian Nations) and OAU (the Organization for African Unity) etc., based upon common principles of international human rights standards and humanitarian law. EU governments can play a leading role in helping to encourage other inter-governmental organizations to establish responsible and coherent systems of arms control.

3.- The scope of international control lists

The scope of international control lists on arms to protect human rights can only begin to be effective if they cover all types of military, security and police transfers including the full range of equipment and technology used for such purposes, as well as licenced production deals, and financial and logistical support, for all transfers of such items. Moreover, the licencing system should cover all actors involved in the process: producers, reconditioners, wholesalers, retailers, brokers, bankers, official aid donors, transporters, insurers and, most importantly, the end-users. Governments cite commercial confidentiality or administrative cost as reasons not to disclose important data on financial support for such transfers, or do not disclose details of transhipment licences for weapons. In the present context of internationalisation of trade, it is crucial that such information about military transfers is available to parliaments.

4.- Training of foreign personnel

It is vitally important to include in the control system the provision of military, security and police training of foreign personnel. Such training, whether in the home country or recipient country, is sometimes linked by EU governments to the purchase of equipment and technology, and even to development assistance programs, but there is an absence of common standards amongst states regarding the human rights content and purposes of such training. Rigorous human rights criteria for the selection of candidates, trainers, curricula, and post-course monitoring are not agreed or made explicit. Nor is there a common EU agreement that effective systems of accountability and human rights protection should be established in the recipient country as a parallel requirement for the receipt of military, security and police training.

13

5.- Making sensitive transfers transparent

Procedures have to be put in place to make sensitive transfers transparent to parliaments before licences are issued - the cloak of secrecy surrounding arms exports cannot be justified by "commercial confidentiality" or "administrative cost" if there is a clear danger that the exports may be used for arbitrary and indiscriminate killings, torture, hostage-taking, mutilation and other grave human rights violations, and if the fundamental principles of international law are in danger of being undermined. We are not dealing here with ordinary civilian or consumer products, but with the export of goods and services designed to kill and cause injury and which can therefore easily be misused.

We believe that sufficient information must be available as to the recipient of the transfer before an agreement is finalized so that a proper assessment can be made of the human rights consequences of the transfer. In each case, there must be a human rights impact assessment which includes reports on the patterns of use of similar types of military, security and police (MSP) transfers. Especially in cases involving sensitive destinations and sensitive types of equipment, whether or not it is expensive or high technology, proposed transfers should be referred to the legislature.

6.- Effective and independent end-use monitoring

The control system, if it is to be meaningful, has to include resources and facilities for the EU to effectively monitor the end-use of arms transfers, and also for the sending country's parliament to receive reports from independent monitors. EU Member State Embassies and Consulates have military attachés in most parts of the world, including in countries where human rights are persistently violated. A commensurate duty on such attachés should be to follow the use of all sensitive military, security and police transfers. In addition, a basic requirement should be that any proposed recipient government must guarantee access, including reasonable access to security zones, for independent journalists as well as reputable human rights and humanitarian monitoring organizations.

7.- Harmonized end use certification

The licencing and end use certificate systems should be harmonized in such a way that if goods or services are misused for grave human rights violations, the relevant contracts for those types of goods and services can immediately be declared null and void. Where a military, security or police transfer is approved on the basis that the goods and expertise will be used in a particular way, that use must be specified in an end-use certificate and monitored. In the event that reliable evidence comes to light that the transfer has been used in serious human rights violations, the matter should be discussed by the sending government and representatives of the international community with the user's government. Any further transfers of that type should be immediately stopped in accordance with the terms of a clause relating to human rights in every end-user certificate issued by the sending government until satisfactory measures have been taken to prevent the repetition of such violations. This would also mean that spare parts, maintenance, training and other contractual obligations would cease when the violation was confirmed. The willingness of the authorities in the recipient country to cooperate with inquiries could then be taken into account in any decision on further transfers of the same type.

14

8.- Prohibited weapons, equipment and technologies

The control lists should specify clearly a list of prohibited weapons, equipment and technologies which under no circumstances can be licenced for transfer (for example, leg irons, electro-shock weapons and other items easily used for torture, as well as items already prohibited in international agreements such as dum dum bullets, blinding laser weapons and anti-personnel mines). These items should be defined so that variants using different names will fall within the prohibited list.

If all international transfers are banned, then the best way of enforcing the ban would be to prohibit the manufacture, possession and brokering of such items as well, and to encourage non-EU states to enforce similar measures. Moreover, the EU should have a mechanism so that the common list of prohibited items can keep pace with new technologies (for example, the transfer of new pepper gas sprays should be prohibited unless independent medical and other evidence can show conclusively that it is an indispensable and essential requirement of law enforcement equipment which can be used to uphold international human rights standards).

9.- Strict control of arms brokering

Furthermore, it is essential that steps are agreed which would clamp down on the activities of arms brokering agents. It is imperative that individuals engaged in this type of activity are brought within the law so that if they contravene the export control laws of the country in which they are based, they can be prosecuted, whether or not the arms or security equipment or technology pass through the territory of the EU.

Such extra-territorial powers are not unprecedented; in the UK under the Chemical Weapons Act, if a UK national assists in the acquisition of a chemical weapons capability by a third party, then they are subject to prosecution. Moreover, there should be no entities, government or non-government, within any of the MembeT States, which are exempt from export licensing obligations. Cases involving illicit trafficking in arms are often linked to brokering, therefore, all brokers should be registered with EU national governments and the information should gathered in a central EU database. All proposed transactions involving arms brokering agents should be subject to the licensed approval of national governments. Each licence application should, moreover, contain comprehensive details of the banking, insurance, credit, and transportation arrangements involved in the proposed brokering activities.

A binding £17 agreement

Although the Presidency Conclusions of the Amsterdam Summit stated that "The European Council called for renewed and sustained attention, in the framework of the Common Foreign and Security Policy, to developing responsible and coherent arms export control policy throughout the Union...", this was not integrated in the Treaty of Amsterdam. Article J. 7 of the revised Treaty simply states that "'the progressive framing of a common defence policy will be supported, as Member States consider appropriate, by cooperation between themselves in the field of armaments". There are still no provisions relating to the objectives of the Common Foreign and Security Policy (Article J.l) which support the EU's aim to develop an arms exports policy based upon the Eight Common Criteria.

15

All EU governments should introduce the Code of Conduct in their legislation and support the adoption by the Council -for instance in the form of a Common Position -of a binding EU Code of Conduct on Arms Transfers as a first step in the right direction.

This EU Code should incorporate the measures proposed above so that military, security and police transfers from the EU can be prevented from contributing to grave human rights violations. The EU Council of Ministers should adopt, by means of a series of Joint Actions (Article J.4 of Chapter 12 of the Amsterdam Treaty), consultation and implementation mechanisms, such as the development of a list of sensitive destinations.

Also, the EU Council of Ministers should introduce in the Joint Action adopting the Code of Conduct a provision establishing an annual review of the Code's implementation by the Member States. The governments of the EU Member States should, as a result of this, draft an annual report on the Code's implementation and make it available to their respective parliaments, as well as the Council of Ministers and the European Parliament with a view to their discussion and review.

16

A EUROPEAN CODE OF CONDUCT ON THE ARMS TRADE3

Proposals to expand and implement common European controls to regulate the transfer or export of military, security and police equipment, technology,

training and personnel

Introduction: The need for a Code of Conduct

The need for effective export controls

The Stockholm International Peace Research Institute recorded 31 major armed conflicts in 1995. Most of these have been fought predominantly with conventional weapons. Despite this, attempts to regulate the weapons trade have had limited success. Both sellers and buyers of arms often argue that they are meeting the legitimate defence needs of a country, set out in Article 51 of the United Nations Charter. In fact, the arms export policies of major exporting countries have been determined as much by commercial interests as by considerations of the impact of a particular arms export on internal, regional and international security. There is clearly a need for a more responsible and principled approach to arms export polices.

Progress to date

In June 1991, the European Council of Ministers agreed seven common criteria to govern arms exports, adding an eight in June 1992. In short, the criteria stress that any decision to export arms should take into account:

the internal and regional situation of the purchasing country; the purchasing country's human rights records and attitude to terrorism; the effect the purchase of arms will have on the country's economy;

Similar criteria were also adopted by the Organisation for Security and Co-operation in Europe in November 1993.

The limitation with these criteria as they stand is that they are not binding on governments, and there is no agreement as to how they should be interpreted. In the words of David Davis, Minister of Sate at the Foreign and Commonwealth Office:

"All El I Member Slates are committed to the criteria and base their national policies on them. While defence export policies remain the responsibility of national governments, there will inevitably be some differences between partner's policies ".

This document has been developed by the British and American Security Information Council, Saferwold and the World Development Movement, in association with Marc Weller (University of Cambridge) and Professor Françoise Hampson (University of Essex).

The three organizations are grateful for the information and comment received from Amnesty International (British Section).

17

The lack of a common interpretation of these criteria has resulted in peculiar discrepancies among the policies of EU member states. For example, the UK, the Netherlands and Germany have exported arms to Indonesia, whereas Sweden will sign no new contracts and and Portugal has a self-imposed arms embargo. Similarly, the UK, France and Belgium have been major suppliers of arms to countries in Sub Saharan Africa, whilst Sweden and Germany operate de facto arms embargoes.

The role of the "EU Code of Conduct"

The development of effective international controls over the arms trade will require the major exporting governments to reach a common interpretation and a common implementation of these agreed export criteria. The "EU Code of Conduct" is designed to help this process by:

defining the terms of each criterion, and providing firm measures against which arms sales can be judged. This enables the criteria to be used as a basis for determining which arms sales are legitimate, and which are not. In doing so, the Code of Conduct could form the basis for legislative controls;

providing a public mechanism for monitoring government practice. By laying out clear criteria, parliamentarians, journalists, NGOs and members of the public will be able to hold their government accountable for its arms sales. The Matrix Churchill "Arms to Iraq" and the Pergau Dam "Arms for Aid" scandals, have demonstrated the dangers of secretive arms exports.

The opportunity for common action

The British government has made a commitment to work for "an EU Code of Conduct setting high common standards to govern arms exports from all EU states ". The German government has said in the Bundestag that it "favours the most binding and uniform application possible of the fundamentals contained in the Code" [as drafted by Saferworld, BASIC and the World Development Movement]. The governments of Sweden, Netherlands, Belgium, Italy, Ireland and Luxembourg have also indicated their support for a common EU arms export policy based on the higher levels of existing restraint.

Given the level of support from Member States governments, there is now a significant possibility of establishing a common restrictive arms export policy. The UK Presidency of the EU presents an opportunity for the UK government -an enthusiastic supporter of an EU Code- to seek EU agreement on this issue.

Details of the "Code of Conduct"

The Code of Conduct is based on the eight arms export criteria as agreed by the European Council. On the following pages, each of these criteria has been highlighted in italics, followed by proposals for their practical implementation:

H<>:prranníeiít<>í.í^ntó

ipp&rtiag gpmwtem m p^^m. im^^m^u^à &&&&$&& pmm,iieàmm. 0â%m íbr arms expoïts aé a g r ^ at Ôœ I j ^ e p ^ t ^ mtâ&sm Bmçmw 0*$&& màMià^^a $et«w;

18

The respect for the international commitment of the Member States of the Union, in particular the sanctions decreed by the Security Council of the United Nations and those decreed by the Union, agreements on non-proliferation and other subjects, as well as other international obligations;

In particular, Member States shall abide by:

sanctions decreed by the United Nations Security Council, whether or not they have been adopted specifically under Chapter Vu of the UN Charter;

sanctions agreed by the Union, whether or not they have been adopted by way of binding Union legislation or non-binding EPC statement;

current and future agreements on non-proliferation and other subjects, including compliance with the Missile Technology Control Regime; the Nuclear Suppliers Group; the Australia Group; the Chemical Weapons Convention; the Council Regulation (EC) on the control of exports of dual-use goods from the Community; the Inhumane Weapons Convention; the Wassenaar Arrangement and the United Nations Register of Conventional Arms .

The respect of human rights in the country of final destination

In particular, the government of final destination:

shall not have committed gross and systematic violations of internationally recognised human rights within the previous three years, including: extra judicial or arbitrary executions. "disappearances", torture or severe mistreatment, systematic official discrimination, imprisonment, or detention, on the basis of race, ethnicity, gender, national origin or religious or political beliefs; nor have committed serious violations of the international law of war or equivalent violations of the laws of war in internal conflicts; nor be engaged in mass political killings resulting from a policy of repression;

shall have ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights;

shall give effect to the will of the people through fair, genuine and effective multiparty elections;

shall promote civilian control of the military and security forces, and have civilian institutions that determine national security policy and control the operations and spending of the armed forces, security forces and police.

The internal situation in the country of final destination, as a function of the existence of

tensions or internal armed conflicts4/

Internal stability shall be regarded as being threatened if:

me government or recipient party in the country of final destination is engaged in a conflict,

* The OSCE "Principles Governing Arms Transfers" have clearer language for this point, and reads: "the internal and regional situation in and around the recipient country, in the light of existing tensions or armed coflicts""

19

either internal or external, unless it is recognised by the United Nations to be defending itself against aggression.

The preservation of regional peace, security and stability;

Regional peace and security shall be regarded as being jeopardised if:

there exists an ongoing armed conflict in the region, or one involving the proposed importing state in particular, unless that state is engaged in an act of self-defence in accordance with Article 51 of the UN Charter or is playing a legitimate role in a United Nations mandated collective security action;

the importing state fails to recognise the right of other UN-recognised states within the region to exist;

parties to a former armed conflict fail to observe a cease-fire;

the transfer will introduce wholly new technology into a region of tension;

the importing state commits an act of intervention among other states in the region, in particular armed intervention;

the importing state advocates national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, in particular propaganda inciting individuals to overthrow their own or a foreign government, or inflammatory propaganda in pursuit of the vindication of territorial claims, or fails to take effective action against those in its jurisdiction who engage in such activities;

the transfer will lead to the creation of circumstances which will in turn lead to a large number of refugees leaving a state and considerable numbers of displaced persons, thus threatening the security and stability of neighbouring states.

5. The national security of the Member States of the Union and of territories whose external relations are the responsibility of a Union member, as well as that of friendly and allied countries;

In particular, Member States should:

avoid transfers which threaten the national security of other states and of territories whose external relational are the internationally acknowledged responsibility of another state. The security interests of a friendly and allied state shall not be invoked as a ground for exemption from the application of arms export restraints if the state has manifestly failed to meet any other of the seven criteria.

6. The 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;

The following indicators shall be used to identify the attitude of a prospective importing state concerning terrorism:

20

signature and ratification of the international conventions and instruments concerning terrorism or acts associated with terrorism. These include the Tokyo Convention on Offences and Certain Acts Committed Onboard Aircraft; the Hague Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aircraft; the Convention on Offences Against Internationally Protected Persons (New York Convention); the International Convention Against the Taking of Hostages (Hostages Convention); the Convention on the Physical Protection of Nuclear Material; and those acts referred to in Article 16 of the Proposed International Law Commission draft on Crimes Against the Peace and Security of Mankind;

compliance with these obligations, in particular compliance with the obligations relating to the apprehension and prosecution or extradition of terrorist suspects found within the territory of the prospective importing state;

determination by international agencies that a state is actively involved in terrorism, i.e., that it allows the use of its territory as a base for terrorists, supplies or directs terrorists or assists them in any other way;

the state has not been found responsible by a human rights enforcement agency or monitoring mechanism for killings in breach of human rights law.

Respect for international law, including compliance with the Chemical Weapons Convention; the Biological and Toxic Weapons Convention; the Nuclear Non-Proliferation Treaty; and the United Nations Register of Conventional Arms.

7. The existence of a risk that the equipment will be diverted within the buyer country or re­exported under undesirable conditions;

In particular, if the prospective recipient has demonstrated:

a past failure to provide credible end-use certification, or use or re-export in violation of end-use certificates, shall constitute prima facie evidence of a risk of repetition of the violation;

a refusal to permit verification of end-use shall also be considered prima facie evidence of undesirable practices which preclude export.

8. The compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate defence needs of security and defence with the least diversion for armaments of human and economic resources;

export restraints shall be applied to states which have acquired a military arsenal disproportionate to their defence needs. If military expenditure is higher than public health and education expenditure combined, this would be taken as prima facie evidence.

21

iîte çatiï iménç&m to mtèmal pmtigwmis çsf alî <«5BÉen̂ aatç4 »ffitífcyr *BCHÍ% a«d police

fte isiôr aoitfic^ea ,«f o&er £ure|)eaa Maaber Staies of áS juajor expoíts or îraasfem of

i$e e s i ^ l ^ a m W ^ ^ N e <^ràpk &j$H¡^ytóeltJfet£ gôveraiaest eaftjeeeive; arforsàsiion frota

tfes cleat áímíOB of »«|»ssfbiMes betwee» &$$&&&&& wfeíeii áeaí o» ate «ae IHHHÍ wife lite - lieeasi^j,. asad f » âpe «Éer feasá* wî&'&e pecaaeítoa of tite £$pHi ef w$&%tyf security aaá

22

SUMMARY OF THE CRITIQUE OF BRITAIN AND FRANCE'S PROPOSALS FOR AN EU CODE OF CONDUCT

ON THE ARMS TRADE5

Britain and France have tabled a proposal for a European Code of Conduct on the arms trade with the aim of securing agreement during the British Presidency of the EU. This is a welcome move. The stated objective of the Code is to "strengthen the exchange of information relevant to the export of conventional arms, with the aim of setting high common standards for arms exports from all EU member states." However, in its current form the Code falls way short of this objective. There is a worrying gap between the proposed text and the essential standards required for an effective Code.

The Code is in two parts: guidelines governing arms exports which are based on the British criteria announced in July 1997, and basic procedures for notification and consultation between member states on granting export licences. There is no section, however, on the additional measures - such as parliamentary scrutiny of sensitive export licences - which will be essential to the Code's effectiveness. And this is despite transparency being an objective of the Code proposal. This paper makes a series of recommendations as to how the proposed Code should be strengthened so that it does indeed set "high common standards".

1. Preamble

Aims: The first sentence of the Code preamble states that member states are "committed to the maintenance of a strong defence industry. When this is put at the start of a document about arms export control it begs the question what is the underlying purpose. The document also recalls "the inherent right of self defence recognised by the UN Charter", but fails to mention other basic rights and duties in the Charter.

The document should state that the security of the EU depends on the protection of human rights, the rule of law and economic and social development and that a strong defence industry should serve these aims. The preamble should also mention countries' duties under Article 1 of the UN Charter to promote respect for human rights, and acknowledge Article 26 which makes provision for an international system for the regulation of arms.

Information exchange and consultation: The proposed information exchange and consultation mechanisms are not sufficient to ensure the consistent implementation of the Code by all member states. For example:

Denial and approval notification: Member states have to notify each other when they refuse export licences but no details of the information or timeframe required are mentioned. If denials are not issued quickly, member states may unwittingly grant a licence which another has refused. There is also currently no provision to notify other countries of licences granted. This is a serious omission - dictators will presumably apply for arms to the country most likely to grant the licence. If this happens, without another country having first denied the licence, there is a grave danger that many sensitive exports will go unnoticed.

For further information, see the full text of the paper "Proposals for an effective EU Code of Conduct on the Arms Trade" jointly drawn up by Safeworld, BASIC, Amnesty International and Oxfam, issued in February 1998.

23

Comprehensive information is needed on the type of equipment denied, the prospective destination and end-user - and this should be circulated within 10 days. Member states should notify each other of all arms export licence agreements on an aggregate basis every month.

No undercutting: Britain and France propose that if one country wants to grant an export licence which another country has refused they must enter into bilateral discussions first. This limited consultation will lead to a lack of consistency in the Code's implementation and countries will not be able to develop a common picture of export policy. "High common standards" will, therefore, be impossible No timeframe is given for consultation either, this runs the risk of countries only mforming one another of an intention to undercut at the last minute, therefore, preventing serious consultation. The danger is mat a culture of undercutting emerges with countries not confident that exports they refuse will not be taken up by other member states.

In-depth multilateral consultations between all 15 member states are essential when one country wants to take up a licence that another has refused. Notification of an intention to undercut should be circulated 30 days in advance.

Control lists: The draft text commits member states "to consider the adoption of an ad hoc EU list for military equipment" to which the Code controls will apply. It is crucial that this list is comprehensive. It is likely that the list will not contain many of the types of para-military and police equipment which are often used to abuse human rights. For example, it would not control the UK firearms training system supplied to the Indonesian police. No mention is made in the draft text of the need for a list of prohibited equipment, such as electro-shock stun weapons which France and Germany still produce.

Member states should adopt harmonised, extensive control lists which cover exports and licensed production of major conventional weaponry, small arms, police and paramilitary training equipment and services and dual-use technologies. There should be a special list of equipment which is prohibited from export including anti-personnel mines and electro-shock stun weapons.

Export guidelines

The proposed guidelines are ambiguous in places and leave far too much room for subjective interpretation. While outlining the types of considerations to be taken into account when granting export licences, they fail to specify how, and at what point, these concerns will have a material impact on arms export decisions. If there is any ambiguity as to whether a prospective military export breaks one of the guidelines, there should be a presumption that the export will be denied. The guidelines should state clearly where arms exports should be denied and when there should be a presumption of denial. This paper makes recommendations for strengthening all eight guidelines. For example:

Human rights: The clear formulation of guidelines which relate to human rights are vital for both the credibility and effectiveness of foreign policy of EU member states. However, the draft text contains formulations which are sometines vague and contain loopholes which could be exploited.

There is a major loophole in the guidelines where the draft text states that exports of repressive equipment, even to dictatorships, may go ahead "if the end-use is judged to be legitimate such as the protection of members of the security forces from violence." This could mean that countries with a history of serious human rights violations could continue to receive a wide range of

24

military and security equipment which they would invariably argue are for their own protection.

The clause which allows exports of repressive equipment "if the end-use is judged to be legitimate such as the protection of members of the security forces from violence" should be deleted.

The guidelines also do not place enough emphasis on the potential use of equipment and they do not state that they cover deployments designed to intimidate the civilian population.

Greater emphasis should be placed on the potential use of equipment. And the guidelines should explicitly state that "used to abuse human rights" should explicitly include deployments designed to intimidate the civilian population.

One problem is the use of the term 'internal repression'. This is not used in international human rights law as it limits application in situations where potential recipients might use the equipment to abuse human rights across national borders. For example, it would not to apply to equipment which Turkey might buy to abuse the human rights of the Kurds in Northern Iraq.

The term 'internal repression' should not be in the guidelines where it means violations of international human rights standards and/or humanitarian law.

Regional security: The guidelines state that exports of defence equipment which might be used "aggressively against another country" or to "assert by force a territorial claim" should be refused. However, apart from this, the draft guidelines list a number of factors which member states should "take into account" when making export decisions, without stating at what point they should have a material impact. This runs the risk of important concerns being disregarded.

The guidelines should explicitly state that arms exports should be denied where a proposed sale might have a destabilising effect on a region. There should be a presumption of denial if a sale introduces a new degree of technology or capability, or if it leads to a significant change in the regional balance of power.

Development: The guidelines in the draft text for taking development issues into account are inadequate. Member states are required to "take into account" factors such as the recipient country's "public finances, balance of payments, external debt, economic and social development, economic reform programmes". But the guidelines do not state how these considerations should effect export licecnising decisions. In particular, there is no mention of how being a recipient of economic aid should effect the transfer of military and security equipment.

There should be a presumption that arms exports will be denied to countries which spend more on the military than on health and education combined. There should also be a presumption to deny exports which undermine the objectives of bilateral and multilateral aid.

Essential additional measures

The proposed Code states that it is the duty of member states to "promote transparency" and mention is made of the need to "harmonise export licensing procedures" but there are no measures included to ensure that these aims are realised. These are serious omissions which threaten to undermine the efficacy of the Code. The following are essential elements of an effective Code of Conduct which are overlooked in the current proposal:

25

Parliamentary scrutiny: A rigorous system of parliamentary scrutiny must be agreed and adopted in conjunction with the Code. In a democratic society it is essential that governments are held accountable to their legislatures for arms export policy; lack of accountability in this area often leads to human rights and regional security concerns being disregarded in favour of short term commercial profit. The Scott Report in the UK provided clear evidence of how a lack of accountability led a government to make serious errors of judgement in their arms export policy over a number of years.

Annual reports/European Register: Every member states should produce a public report of all arms export licences granted and denied al least annually and preferable biannually which should be debated by natioanl parliaments. The 15 different reports should be collated into a European annual register which should be debated by the European Parliament.

Advance notification to parliaments: Annual reports alone will not be sufficient because they only allow concerns to be debated retrospectively. Member states should, therefore, notify their parliaments in advance of all 'sensitive' arms export licence so that any concerns can be raised before exports are licensed. There should be a rolling EU register of all licences applied for which should indicate where the government intends to undercut a denial issued by another member state. Ideally this register should be set before the full session of parliament - as happens in the USA. At a minimum, a parliamentary committee should scrutinise such applications - as happens in Sweden.

End-use controls: At the moment all 15 member states operate different end-use systems and there is little to prevent irresponsible end-users from using arms for proscribed purposes. Unless there are rigorous controls on the end-use of arms and military equipment, seemingly legitimate exports can be dicerted to repressive regimes and countries in regions of instability. For example, in the BMARC scandal British naval cannon were sold to Singapore only to be re­exported to Iran. EU countries should agree a common system of end-use controls. End-use agreements should be regarded as legally binding contracts and a system of follow-up checks should be allowed.

Control of brokering: The proposed Code does nothing to tackle the problem of arms brokers. Many arms deals organised by companies or individuals in the EU involve the transfer of arms from third countries without the weapons touching EU soil. These brokers currently operate outside the law, as was demonstrated in the Mil-Tec case where a company based in the Isle of Man organised arms shipments from Albania and Israel to Rwanda in contravention of the UN arms embargo.

Member states should establish a central database of arms brokers. All proposed transactions should be subject to the licensed approval of national governments.

Control of licensed production: Licensed production agreements are increasingly supplementing, or even taking the place of exports of military, security and police equipment. Yet there are no controls on them in the proposed Code. The Code, therefore, would do nothing to prevent the lastest British co-production deal with Turkey for 200,000 Heckler and Koch assault rifles.

EU member states should not allow the licensed production of MSP equipment where there is a risk that it will be transferred to sensitive and proscribed destinations.

26

Annual review: There is no mention in the proposed text for any review of the Code's implementation. This is fundamental to its effectiveness.

The Council of Ministers should annually review the implementation of the Code and make recommendations for its development. The results of the review should be reported to national parliaments and the European Parliament for debate.

27

NOBEL PEACE LAUREATES' INTERNATIONAL CODE OF CONDUCT ON ARMS TRANSFERS

May 1997

Introductory Memorandum

We come from different nations with varied histories, and in the past, the world has honored each of our struggles for peace and justice with the Nobel Prize for Peace. Today, we speak as one to voice our common concern regarding the destructive effects of the unregulated arms trade. Together, we have written an International Code of Conduct on Arms Transfers, which, once adopted by all arms-selling nations, will benefit all of humanity, regardless of nationality, ethnicity, or religion.

This International Code of Conduct would govern all arms transfers, including conventional weapons and munitions, military and security training, and sensitive military and dual-use technologies. The Code stipulates that any country wishing to purchase arms must meet certain criteria, including the promotion of democracy, the protection of human rights, and transparency in military spending. Furthermore, this Code would prohibit arms sales to nations that support terrorism and to states that are engaged in aggression against other nations or peoples.

The international community can no longer ignore the repercussions of irresponsible arms transfers. Indiscriminate weapons sales foster political instability, prolong violent conflicts, and weaken diplomatic efforts to resolve differences peacefully. Arms transfers often take place under a cloud of secrecy, and generally respond to the desires of a few while ignoring the needs and rights of the many. Sadly, many governments continue to divert scarce resources toward arms purchases while their people live in abject poverty.

Millions of civilians have been killed in conflict this century, and many more have lost their loved ones, their homes, their spirit. In a world where 1.3 billion people earn less than 1 dollar a day, the sale of weapons simply perpetuates poverty. Our children urgently need schools and clinics, not machine guns and fighter planes. The dictators of this world, not the poor, clamor for arms.

Once in effect, this International Code of Conduct on Arms Transfers would prevent undemocratic governments from building sophisticated arsenals. Governments which systematically abuse internationally recognized human rights through practices such as torture or arbitrary executions would not receive military training. Countries who commit genocide would not be able to buy munitions. Governments engaged in armed aggression against other countries or peoples could not buy missiles. States that support terrorism would be prevented from acquiring weapons. In addition, all nations would be required to report their arms purchases to the United Nations. This Code of Conduct would undeniably promote global peace, and security, and protect human rights.

We call on all nations to endorse this International Code of Conduct on Arms Transfers. The citizens of the world must demand that leaders support this Code as well as similar efforts on the national and regional level. Only through solidarity, compassion, and courageous leadership can we make violence and its vestiges a distant memory of the past.

28

American Friends Sen/ice Committee Amnesty International Oscar Arias Norman Borlaug His Holiness the Dalai Lama International Physicians for the Prevention of Nuclear War Mairead Comgan-Maguire Rigoberta Menchú Adolfo Perez-Esquivel José Ramos-Horta Joseph Rotblat Desmond Tutu Lech Walesa Elie Wiesel Betty Williams

INTERNATIONAL CODE OF CONDUCT ON ARMS TRANSFERS

Preamble

Gravely concerned that international transfers of major conventional weapons, small arms and light weapons, and ammunition result every year in human misery and countless deaths, the majority of which are suffered by civilian populations;

Recognising that, according to the UN Charter, every state has a right to individual and collective self-defence against acts of aggression, and that every human being has the inalienable right to life, liberty, and security of person, as stated in the Universal Declaration of Human Rights;

Convinced that conflicts should be settled by peaceful means rather than by the use or threat of force;

Alarmed by the excessive stockpiling of conventional weapons and by their increasingly sophisticated and lethal levels of technology, both of which tend to increase instability through regional arms races;

Recognising mat internationally transferred arms and ammunition are frequently used to facilitate and commit human rights abuses and to prevent democratic governance, in contravention of international human rights law;

Recognising, moreover, that these weapons transferred internationally are frequently used to commit acts of aggression between and within states;

Mindful that weapons transfers often result in situations whereby vendor states confront enemies that they themselves have helped to arm;

Concerned that international arms transfers can undermine social and economic development in both exporting and importing countries by diverting scarce resources;

Noting that reduction of global military spending in many countries could release substantial resources for the social and economic development of all peoples and would permit dramatic increases in funding for demobilisation and conversion of resources to peaceful, productive uses;

ReafBrrning that the United Nations has an important role to play in maintaining international peace

29

and security through the regulation of armaments, as set forth in the Charter;

Welcoming, in this context, steps taken by Member States to provide for transparency and restraint of arms transfers, such as: the United Nations Register of Conventional Arms, the Panel of Governmental Experts on Small Arms, General Assembly resolutions on curbing the illicit transfer of conventional arms, the standardised reporting form of military expenditures, and the UN Disarmament Commission's Guidelines for International Arms Transfers;

Welcoming also that, in addition to measures of transparency and restraint, regulations on arms transfers have been achieved in specific cases, such as anti-personnel land mine export moratoria and arms embargoes;

Noting, however, that existing regulations are inadequate and that, in order to further the cause of global peace, security, and human rights, a more comprehensive international mechanism to regulate and monitor the transfer of arms must be established.

We hereby call on all governments to abide by the following rules and principles to govern international arms transfers:

Section I: Definitions

Article 1: Arms

For the purposes of this Code, arms include:

A. All weapons, munitions, sub-components and delivery systems, including, for example: battle tanks, armoured combat vehicles, military aircraft, artillery systems, military helicopters, missiles, paramilitary police equipment, mortars, machine guns and sub-machine guns, rifles, pistols, anti-tank weapons, mines, grenades, cluster bombs, and all types of ammunition.

B. Sensitive military and dual-use technologies, including, for example: encryption devices, certain machine tools, super-computers, gas-turbine and rocket-propulsion technology, avionics, thermal-imaging equipment and chemical irritants.

C. Military and security training including the provision of expertise, knowledge or skill in the use of such weapons, munitions, sub-components and sensitive technologies.

Article 2: Transfers

For the purposes of this Code, transfers are defined as:

A. Any transaction resulting in a change of title to, and/or control over, any arms defined in Article 1, and any physical movement of any arms defined in Article 1 from one jurisdiction to another. Such transfers include those conducted in return for direct payment, credit, foreign aid, grants, and goods received as a result of off-set or barter arrangements. They also include transfers of expertise, information, designs, technology or goods under licensing and co-production agreements, leasing arrangements, and arms deliveries in return for which the supplier receives no financial compensation, goods or services. Logistical and financial support for any of the above arrangements are also included.

B. Any provision by one or more persons to another in a different jurisdiction of expertise,

30

knowledge or skill in the use of arms as defined in Article 1 above.

Section II: Principles

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination, is in compliance with all of the following principles:

Article 3: Compliance with international human rights standards

A. Arms transfers may be conducted only if it can be reasonably demonstrated that the proposed transfer will not be used by the recipient state, or recipient party in the country of final destination, to contribute to grave violations of human rights, such as:

* genocide and other crimes against humanity, for example "ethnic cleansing"; * extra-legal, summary or arbitrary executions; * enforced disappearances; * torture or other forms of cruel, inhuman or degrading treatment or punishment; * detentions in violation of international human rights standards.

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

B. Vigorously investigates, prosecutes and brings to justice those responsible for the above-mentioned violations and abuses of human rights and violations of the laws and customs of war;

C. Makes it part of the training of the armed forces and law enforcement agencies that anyone ordered to commit the above-mentioned grave violations has a duty to refuse;

D. Works towards the establishment of impartial and independent bodies that oversee the protection of human rights and does not impede the free functioning of domestic and international human rights organisations.

Article 4: Compliance with international humanitarian law

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

A. Does not engage in, or sponsor, grave breaches of the laws and customs of war as set forth in the Geneva Conventions of 1949, and additional Protocols of 1977, and other rules and principles of international humanitarian law applicable during inter-state or intra-state armed conflict which, for example, prohibit arbitrary and summary execution, indiscriminate killing, mutilation, torture and cruel treatment, and hostage taking;

B. Provides access on a regular basis to humanitarian non-governmental organisations in time of conflict or humanitarian emergency, including access of the International Committee of the Red Cross to detainees.

C. Co-operates with international tribunals, either ad-hoc or general, with the power to adjudicate violations of the rules listed under (A).

31

Article S: Respect for democratic rights

Arms transfers may be conducted only if the proposed recipient state:

A. Allows its citizens to choose their representatives through free and fairly-contested periodic elections that feature secret balloting;

B. Permits its citizens to express their political views through the freedom to speak, disseminate ideas and information, assemble, associate, and organise, including the organisation of political parties.

C. Has civilian institutions that determine national security policy and control the operations and spending of the armed forces and law enforcement agencies;

Article 6: Respect for international arms embargoes and military sanctions

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

A. Is in compliance with international agreements relating to arms embargoes and other military sanctions decreed by the United Nations Security Council, whether or not they have been adopted specifically under Chapter VII of the UN Charter;

B. Is in compliance with arms embargoes and other military sanctions decreed by regional organisations or regional arrangements to which it is a party.

Article 7: Participation in the United Nations Register of Conventional Arms

Transfers may be conducted only if the recipient state fully participates in reporting arms transfers to the United Nations Register of Conventional Arms, as defined in United Nations General Assembly Resolution 46/36 L of December 9, 1991.

Article 8: Commitment to promote regional peace, security and stability

Arms transfers may be conducted only if the proposed recipient state or recipient party in the country of final destination:

A. Is not involved in an armed conflict in the region, unless it is recognised by the UN as being engaged in an act of self-defence in accordance with Article 51 of the UN Charter; or is playing a role in a UN-mandated operation;

B. Is not, as a result of this transfer, introducing weapons beyond those considered appropriate for its legitimate self-defence; or introducing a significantly more advanced military technology into the region;

C. Recognises the right of other UN-recognised states in the region to exist within agreed boundaries, and agrees to submit disputes relating to territorial claims to third party settlement;

D. Carries out and/or respects an agreed cease-fire as party to a former conflict;

E. Does not advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, in particular propaganda inciting individuals to overthrow

32

their own or a foreign government, or inflammatory propaganda in pursuit of the vindication of territorial claims;

F. Is not engaged in armed actions or practices which are likely to lead to a significant number of displaced persons or refugees.

Article 9: Opposition to terrorism

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

A. Has ratified, and is not in violation of, the international conventions and instruments concerning terrorism or acts associated with terrorism, including, for example: tin Tokyo Convention on Offences and Certain Acts Committed Onboard Aircraft; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; the Montreal Convention for the Suppression of Unlawful Acts Against the Safely of Civilian Aircraft; the Convention on Offences Against Internationally Protected Persons (New York Convention); the International Convention Against the Taking of Hostages (Hostages Convention); and the Convention on the Physical Protection of Nuclear Material;

B. Is in compliance with the international obligations relating to the apprehension and prosecution or extradition of terrorist suspects found within the territory of the recipient state; or of persons indicted by an international ad-hoc War Crimes Tribunal or by an international criminal tribunal;

C. Does not allow its territory to be used as a base for terrorists, or as a base to supply or direct terrorists.

Article 10: Promotion of human development

Arms transfers may be conducted only if the recipient state's expenditures on health and education combined exceed its military expenditures, unless the recipient state can reasonably demonstrate that such transfers are justified by exceptional needs to counter acts of aggression.

Section TTI: Implementation

Article 11: Enacting the Code

All States shall introduce national legislation and regulations which ensure effective implementation and enforcement of this Code. Such laws and regulations shall:

A. Incorporate this Code;

B. Provide mechanisms for public scrutiny of all transfers in advance of any decision to authorise a transfer;

C. Require end-use certification which incorporates the principles of the Code into legally binding conditions for the receipt of arms. End-user certification must identify both the recipient, and the actual use to which the equipment will be put;

D. Establish effective channels for receiving information on implementation of the Code from

33

non-governmental organisations.

E. Require States to make a crimina] offence any transfers made in violation of the Code, or any attempt to effect, to conspire to effect, or to incite any such transfer.

Article 12: Monitoring the Code internationally

All States shall:

A. Provide an annual report on the implementation of the Code to the Secretary-General of the United Nations who will report to the General Assembly;

B. Consult each other and cooperate with each other bilaterally, through the Secretary General of the UN, or through other appropriate international procedures to resolve any problems that may arise with regard to the interpretation and application of the provisions of this Code; and shall consider measures designed to encourage compliance, including collective measures in conformity with international law.

Article 13: Verification

C. Parties to the Code shall convene a review two years after this Code comes into operation with the specific purpose of developing an effective verification commission.

34

RESOLUTION ADOPTED BY THE EUROPEAN PARLIAMENT ON 15th JANUARY 1998 ON A EUROPEAN CODE OF CONDUCT

ON ARMS EXPORT

The European Parliament,

- having regard to its previous resolutions on the export or transfer of arms,

A. whereas the existing common EU criteria governing arms exports, agreed by the Council in 1991-1992, are being applied by each individual Member State according to its own interpretation and have not prevented the flow of arms from EU Member States to countries which violate human rights, to regions of instability and military aggressors

B. noting with satisfaction that the code of conduct on arms exports to non- member countries which fail to respect human rights or to regions in a state of war has been included among the priorities of the British Presidency and that several Member States have declared themselves in favour of its adoption,

C. noting that one of the central aims of the proposals for this code of conduct is to avoid situations in which a denial by one partner is quietly undercut by another,

D. convinced that any such EU code of conduct will be all the more successful when the other main arms exporters, such as the USA, but also the Russian Federation and China, agree to similar rules,

1. Welcomes the support voiced by many Member States for a common EU arms export policy and expects that the terms of this code of conduct will be formulated in such a way as to make it an effective instrument in restricting the flow of arms from the Union to countries which violate human rights, regions of instability and military aggressors;

2. Therefore insists that the proposed code of conduct should apply to exports and licensed production of a comprehensive list of goods and technologies, while narrowing as much as possible the scope for Member States" interpretations with regard to the granting or denial of individual export licences and especially that it should include a clear undercut mechanism;

3. Urges the Council and Member States, when establishing the code of conduct, to consider the need for reinforcement of the eight common criteria and calls upon the Council and the Member States to include in the code of conduct a clear list of sensitive destinations, a system of verifying and monitoring end-use provisions, as well as a system of mutual information and consultation on the granting and denial of export licences;

4. Calls on the Council to adopt such a code as a common position leading to a series of Joint Actions according to Article J of the EU Treaty;

5. Calls on the Council to involve Parliament actively in the drawing up of the code of conduct, to review annually the implementation of the code and present its findings to Parliament for debate;

6. Calls on the Member States to insist that the code of conduct include measures to improve the transparency and parliamentary scrutiny of arms export policy;

35

7. Calls on the Council and the Member States to encourage third countries, especially the associated countries, to sign the code of conduct and to take steps with a view to obtaining similar policies by other main arms exporters;

8. Instructs its President to forward this resolution to the Council, the Commission and the governments of the Member States.

36

SUMMARY OF THE EUROPEAN COMPARATIVE LEGISLATION ON ARMS EXPORTS CONTROL

Policies and regulations at state level

l i Laws at state level are still necessary

Arms exports, as well as other security and defence dimensions, are still under the State's sovereignty in the Fifteen EU Member States.

As long as there is not a community mechanism allowing to control the conventional arms exports from EU contries, each Member State has its own legislative or regulation framework, having developed its own administrative procedures. The features of these control models are, above all, a result of historical, economic or foreign policy considerations, although in many cases, the pressure of the public opinion has also proved to be decisive.

Some countries have a law or a set of laws regulating arms exports. On the other hand, others simply have more or less specific regulations. In addition, the very efficiency of these procedures varies a lot from one country to another. In general, the number of scandals in which a country is involved highlights the shortages which that country's control systems have.

After a large number of scandals of illegal arms trafficking involving EU companies (Irangate,

the Bofors company, etc.), some countries decided to improve their regulations6.

2i General features of the Fifteen EU Member States

There are significant differences as regards the definition of the criteria followed by the Member States to authorise or refuse a conventional arms export licence concerning the issuing of licences or the capacities devoted to monitoring the effective compliance with the regulations. Also, there are major differences among the Member States as regards transparency in their exports and their monitoring capacities.

2.1. EXCLUSION CRITERIA

There are control mechanisms in virtually every EU Member State. Under these mechanisms, any company, either public OT private, has to apply their home government for a special license. Eventually, the government decides whether to grant or refuse that export.

Although all the EU countries have to had to adopt, as a minimum, the Eight EU Common Criteria (1991-2), the ambiguity of the those criteria allow each Member State to interpret

6 The existence of a lot arms trafficking towards the Middle East -especially towards the 2 states engaged in the Iran-Iraq War was highlighted during the 80's. The pressure of the public opinion forced many countries that so far only had administrative regulations or procedures within the general framework of commercial exchanges to enact specific laws. This is the case, for example, in Italy, Spain, Portugal or Belgium.

37

them in a different way.

Most of the EU Member States have laws and regulations regulating conventional arms exports. In general, the wording of the laws is very vague as far as the definition of criteria that are to be followed to authorize or refuse conventional arms exports is concerned. Yet, this vagueness is wanted by the governments themselves. Thus, despite the fact that most countries consider it inappropiate to export arms to countries with a record of serious human rights violations or which are engaged in an open or underlying armed conflict, there are also very different perceptions as to the meaning of violating human rights or when there is a situation of undelying conflict.

Out of some significant cases, that of the Nordic countries could be highlighted. For instance, in Denmark, arms sales are forbidden in principle, but exceptions are allowed to be made as a result of the study of cases. Nevertheless, the Danish government excludes from the exceptions any country engaged in military actions, any territories where the conditions may be too "hot" or where they are very likely to end up in an armed conflict, including a civil war or agressions to certain groups of people. Finland also clearly specifies that they will not allow any arms exports intended to commit human rights violations or offensive military actions.

2.2. LISTS AND MECHANISMS TO AWARD LICENCES

Prohibited destinations

In general, the Member States are very reluctant to make public lists with prohibited destinations for their arms exports. Most frequently, they adopt the list of countries subject to UN, OSCE or EU embargoes as the list of countries where conventional arms cannot be exported.

Yet, some countries (such as The Netherlands or Sweden) prefer not to adopt any lists but analyse each application on a case by case basis.

Procedures to award licences

Most countries have adopted an authorization system based on the issuing of export licences, which are usually awarded after a team of government experts has analysed the dossiers provided by the exporting company.

Each country has a political body in charge of awarding licences, although they are usually Interministerial Boards where the Ministries of Foreign Affairs, Defence, Interior, Economy, Foreign Trade or Justice are represented. In some cases, one of the Ministries is responsible for the final decision, although they have to consult with the other Ministries. In those cases where the decision may entail major political consequences, the decision is referred to the Council of Ministers.

Types of licence

Some Member States (e.g. Belgium, Finland, Ireland, Portugal, Spain or Sweden) only have one type of licence. Yet, others (Austria, Germany, the UK) have different models that they distribute according to each case. Finally, some countries, such as The Netherlands, may award individual or collective licences.

38

End-use certificate

In nearly every Member State, the dossier presented to the corresponding authorities has a so called "end-use" document. This document is a certifícate of final destination and non-reexport signed by a political or diplomatic authority of the buyer country. This is an essential document as far monitoring is concerned.

Regarding this, two kinds of quite frequent fraud should be highlighted, the first being what Adam, De Vestel and Zaks7 call a false truth, i.e., the document presented is false. Hence the importance of double-checking the thruthfulness of the documents before awarding any licences. Also, very few Member States do this double-checking, for instance by means of their diplomatic authorities in the buyer country.

The second trick is what the aforementioned authors call a truth that is false, the document being true, but the buyer country turning out to be a broker that simply cedes its name to end up sending the arms to a third country. Regarding this, it is essential to develop control mechanisms guaranteeing the final destination of the exported arms.

In the NATO framework, the end-use is replaced by an "international import certificate", a compromise under which the receiving country's government assumes the political responsibility of their subsequent use.

Government control mechanisms: Parliamentary Scrutiny over arms exports: current practice

Little by little, some governments have developed an interest in establishing measures allowing for further transparency as regards the arms trade and the creation of parliamentary scrutiny mechanisms prior to the exports which may stop the exports breaching the principles

of the Code of Conduct. In Sweden8, Italy, Belgium and the UK, for instance, the governments already present annual reports to their parliaments, with details of the exports carried out. In Spain this is also a commitment made by the government to Congress and the NGOs, and in the US this is the regular practice given that, apart from submitting an annual report of the exports carried out, the Administration has to prior notifícate the Senate of any exports over $ 7.5 million.

Parliamentary scrutiny: current practice

Parliamentary scrutiny over arms exports is an essential feature of a transparent and accountable arms export control system. Regular parliamentary review of arms exports can also provide for a more responsible approach to the export of all types of arms in that, if ministers know that they will have to justify dubious arms sales to parliament and the public, then they are less likely to push the boundaries in favour of an export promotion over judicious restraint.

7 Adam, B; De Vestel, P; Zacks, A. Perspectives d'harmonisation des reglamentations et politiques d'exportations d'armes au sein de la Communauté Européenne. Brussels. GRIP: May-June 1991. Dossier "Notes et documents", number 157-158, page 11. 8 Since February 1985, the Swedish government provides the Swedish Parliament with an annual report of arms exports. The report of the 1996 exports indicates that the Swedish government pursues "a more restrictive exports control policy with greater transparency" and that "this information provides the basis for a public debate" (Ministry of Foreign Affairs, Swedish Arms Exports in 1996. A government report, Stockholm, May 1997).

39

Statuary reporting9

Some governments are required, by statute, to notify Parliament (or a committee thereof) of arms exports that have been licensed.

Italy: Since 1990, the Italian government has been required, by law, to produce an Annual Report on Italian arms sales. The report is publicly available, and contains comprehensive details in a number of different formats. For example, it details the value of military equipment exported by country destination; and the value of equipment exported by specific companies juxtaposed to the types of equipment supplied by specific companies and the value of specific exports to individual countries. In general, it is possible to deduce from the figures published, the nature and value of the equipment which has been exported by certain companies to specific destinations.

Belgium: On 5th August 1991, a law was enacted in Belgium relating to the import, export and transit of arms, munitions, material with specific military application and dual-use goods. One of the provisions of this law obliges the government to submit an Annual Report to Parliament on die implementation of this law. The report specifies the value of arms under different categories of equipment. This information is confidential, however, and does not pass into the public domain.

US: Under the Foreign Military Sales Act of 1961, the US Department of State and Department of Defense are required to set before Congress a Report on Authorized U.S. Commercial Exports, Military Assistance and Foreign Military Sales and Military Imports. This Report gives comprehensive details of US arms exports including a description of each item exported, the number and the value of the items exported to each country destination. US legislation also provides for prior notification, to the Senate Foreign Relations Committee, of all Foreign Military Sales over $7.5 million planned for the following year; this takes place on or before 1st February each year and the Committee may raise objections to individual contracts which are proposed. In addition, there is a requirement on the government to provide 30 days prior notification, to the full session of Congress, of all proposed Foreign Military Sales in excess of $14 million.

Non-statutory Reporting10

Most countries have non-statutory arrangements concerning notification of arms export licenses:

Sweden. Since 1985 the Swedish government has produced, annually, a report of arms sales and transfers. This includes information on the value of exports of the various categories of military equipment,. A breakdown of exports to regions of the world is given in percentage terms, together with the total value of exports to each country. Information on licensed production arrangements, co-production arrangements and military training is also give, as well as details of major defence companies. More significantly, however, Sweden is unique amongst the Member States by providing for prior notification of arms exports to a parliamentary committee. The Foreign Affairs Committee is notified once per month by the government of a list of proposed arms exports from Sweden. The Committee can ask for the

9 i.e. regular reporting according to the requirements of law 10 i.e. regular reporting according to custom/convention.

40

details of particular exports and, when there are concerns, they can raise objections to individual exports. While these objections are not binding on the government, it has never gone ahead with the licensing of exports to which the Committee has objected.

The UK: Much of current practice of disclosure in the UK dates from 1992, when the Scott Inquiry was launched to probe allegations that Ministers of the previous administration had misled parliament over defence equipment exports to Iraq during the mid and late 1980s. Since that time the government sought to publish on an annual (latterly biannual) basis, information as to the number of licences granted for exports of arms, under the Military List classification, by country destination. Unfortunately, technical difficulties prevented the second report of 1996 being published in December of that year and, again, in June 1997. The value of these lists was called into question, moreover, when it was revealed by the new government that, where a licence was granted for exports of multiple categories of equipment, the exports had been listed under only one of the categories, leading to an under-accounting for licences granted. These problems are being addressed, however, and it is the current UK government's stated commitment to producing an Annual Report and debate on UK arms sales, including details of the value of arms exported and the country destination.

Netherlands: In late 1996, following an agreement between the Foreign Minister and Economics Minister, the Netherlands government began the practice of informing parliament of commercial military exports which have taken place in the preceding six months. A public report to the wider parliament contains information regarding the value of arms exports to NATO and to non-NATO countries. A closed letter is also sent to the Foreign Affairs Committee containing details of the value of exports to specific country destinations; all parliamentarians are, however, allowed access to this information. The Foreign Affairs Committee is also notified in advance of the granting of licences for the export of government-owned surplus defence material. The Committee has to reply, agreeing to the sale, or raising objections to the proposal. It is unlikely that any proposed sale would proceed, if it were criticized by the Committee.

Ad Hoc Reporting

In other countries, no procedural mechanism exists, but there is provision for MPs or Committee members to put questions (written or oral) to the Prime Minister, or the appropiate Minister of State.

Finland; In Finland, there is no mechanism for a regular notification to Parliament on exports which have taken place, but the idea is under active consideration. Information is only given to Parliament, MP's and the Foreign or Defence Committees upon request.

Germany; In Germany, information is generally given in response to parliamentary questions, but the information is subject to commercial confidentiality provisions with no specific details of the transaction being given. Parliament, and parliamentary committees have no right of prior notification, nor powers of objection to arms exports.

Ireland: Ireland does not have an arms industry per se and so parliament is not notified on a regular basis of arms exports which have taken place. Recently, however, a practice has developed whereby Ministers are routinely questioned about arms export policy and practice, as it relates to the export of surplus military equipment.

Luxembourg; Luxembourg does not manufacture arms, therefore Parliament is not notified on

41

a regular basis of arms exports which have taken place, or proposed, A new law on the import, export and transit of arms is in preparation. It is anticipated that this will heighten parliamentary awareness in mis area.

Spain: In 1986 the Spanish government declared information on arms exports to be confidential under the Official Secrets Act. Until 1998, only the Parliamentary Secret Matters Committee, comprising three MPs, could question the government about Spain's arms export policy on a confidential basis. Following the success of the "Killing Secrets" campaign led by the Amnesty International, Greenpeace, Intermón and Médecins Sans Frontières, in March 1997 the Spanish Parliament voted in favour of a motion to increase transparency and parliamentary control over the arms trade. The government will provide the Defence and Foreign Affairs Committees with the essential data (including the destination countries) of the authorised exports and those carried out and will also provide them with the list of countries subject to embargoes or which should be subject to restrictions due to their human rights record, being engaged in conflicts or their levels of militarization.

Differences in the destinations

Although as a rule EU Member States do not have any lists, either positive or negative, there are indeed some preferential destinations for certain exporting countries.

Thus, for instance, Germany differentiates between the shipments to NATO countries, Australia, Switzerland or Japan, the government putting few difficulties to the procurement of German arms and equipment to these countries, and those to other countries. The government only authorizes arms sales to other countries if they consider it necessary for their own security, as long as they are used in a defensive way.

Other countries, such as Italy, make their procedures much more simple when dealing with shipments to NATO or EU countries, whereas Sweden significantly facilitates the shipment of conventional arms and equipment to other Nordic countries, as well as other European countries considered to be neutral. Finally, the BENELUX is exempt from any type of licence for any transactions carried out within it.

Exceptions in the products

In general, the Member States do not make any exceptions as far as the product subject to control is concerned. Still, some Member States make it easier to export sport arms or to use them in hunting and fishing (e.g. Denmark or Portugal). Other Member States, such as Italy, make exceptions conditional on bilateral agreements between the governments.

Cancellation of licences

In some cases, the cancellation of licences can happen at any time and under any circumstances regardless of the conditions that allowed the export of the licence. This is the case, for example, in France, Denmark or Portugal.

Nevertheless, as a rule is the Member States can cancel the licences when the conditions having allowed the concession have changed.

Penalties for breaching the regulations

There is a great diversity of positions on this matter, too, among the EU Member States.

42

Some of them, such as Finland, only penalize breaches of the regulations with fines, although the general rule is that any breaches be penalized with both fines and prison sentences ranging from 1 to 6 years (the average prison sentence being 2 years). Also, some Member States such as Germany consider the possibility of imposing long-term prison sentences.

2.3 VOLUME OF LICENCES APPROVED AND CONTROL CAPACITIES

Given the secrecy surrounding the arms trade at the moment, it is difficult to know exactly the real volume of exports approved by EU governments.

In some Member States, such as Belgium, the overall volume of the approved exports is kept secret. Nevertheless, in order to give a rough idea, we can say that Germany and Austria are the countries processing the largest number of licences each year (15,000 each country every year on average), followed by France (4,500), Portugal and Sweden (2,000), The Netherlands (1,000), Spain (700), Denmark (400), Finland (170) and Ireland (8).

Still, despite the large number of licences that they have to review and monitor every year, the staff devoted to these tasks is generally very small. Germany is the country dedicating more staff to these tasks (80 people), followed by France (60), UK (50), The Netherlands (20), Spain (15), Austria (10), Sweden (8), Finland (4), Ireland (3) and Portugal (3). In Belgium this information is kept secret.

On the other hand, in addition to the lack of available staff in most cases so as to thoroughly analyse the documents presented, the existence of two other problems should be highlighted; on the one hand, the lack of coordination in customs and the central administrations; on the other, the fact that the physical contents of the transfers are hardly ever analysed in the customs, where they just study the paperwork.

3. US LEGISLATION

US Conventional arms exports are regulated under the Arms Exports Control Act and the International Traffic in Arms Regulation (ITAR).

Under these laws and regulations, the US cannot just control the exports carried out from the US but also impose controls to the re-export of the products sold.

3.1. Agencies awarding licences in the US

Depending on the products that are intended for export or re-export, as well as the country of destination and the nature of the shipment, the export or re-export is subject to the jurisdiction of one or more of the five US primary control agencies, whose functions are as follows:

the Department of Commerce, Office of the Exports Administration, which controls the export and re-export and dual-use goods and their technical data, as well as the participation of US personnel in chemical and biological weapons transactions.

the Department of State, Export and Reexport Controls on Defense Items, which controls the exports and re-exports of arms, defence products (goods and services) as well as their relevant technical data.

43

the Nuclear Regulatory Commission, which controls the export of nuclear equipment and material.

the Department of Energy, which controls the exports and re-exports of technical data concerning nuclear matters, re-exports of material and nuclear equipment and the participation of US citizens in certain nuclear activities.

the Treasury Department, Office of Foreign Assets, which controls embargoes and transaction controls, exports and re-exports to certain countries subject to embargoes as well as the participation of US citizens in activities involving countries subject to embargoes.

3.2. FEATURES OF THE LICENCES IN THE US

The US has special licences for permanent hardware exports, permanent exports of technical data, technical assistance agreements, agreements on manufacturing licences and distribution agreements. The number of people involved in the reviewing and monitoring tasks of the legislation is 64, and the overall volume of the concession of licences ranges between 50,000 and 55,000.

Under Section 126 of the ITAR, the government may revoke the concessions of licences in certain cases. On the other hand, the applicable penalties for breaching the laws and regulations of the arms exports controls may involve up to a million dollars and up to 10 years of imprisonment.

44

ANNEX I

DECLARATION BY EU MEMBER STATES ON AN EU CODE OF CONDUCT FOR ARMS EXPORTS

A. EU member states are committed to the maintenance of a strong defence industry which is a strategic part of their industrial base as well as their defence effort. They recognise that defence exports can contribute to international stability by strengthening bilateral and collective defence relationships in accordance with the inherent right of self defence recognised by the UN Charter.

B. EU member States are amongst the leading arms exporters in the world, with approximately 40% share (1996) of the world market. They therefore have a special responsibility to promote restraint and transparency in the transfer of conventional arms and of technologies for military use.

C. Wishing to reinforce their co-operation within the framework of CFSP, and on the basis of the common criteria agreed at the Luxembourg and Lisbon European Councils in June 1991 and June 1992, EU member states have agreed to strengthen the exchange of information relevant to the export of conventional arms, with the aim of setting high common standards for arms exports from all EU member States.

D. All EU member States agree to circulate through diplomatic channels details of licences refused in accordance with the following Code of Conduct for military equipment, as well as for items on the list of dual-use goods in Annex 1 of Council Decision 94/942/CFSP, as amended, when there are grounds or believing that the end user of such dual-use goods will be the armed forces or the internal security forces of the recipient country together with an explanation of why the licence has been refused. Before any member state grants a licence which has been denied by another member state for an essentially identical transaction within the last three years it will first consult the member state which issues the denial. If following consultations the member State nevertheless decides to grant a licence. It will notify the member State issuing the original denial giving a detailed explanation of its reasoning. The decision to transfer or deny the transfer to any item will remain at the national discretion of each member. A denial of a licence is understood to take place when the member State has refused to authorise the actual sale or physical export o the equipment concerned.

E. EU member States agree to keep such denials and consultations confidential and not to use them for commercial advantage.

F. In order to maximise the efficiency of this Code, EU member States agree to examine the scope for harmonising their export control procedures and to consider the adoption of an ad hoc EU list for military equipment.

G. In application of the above principles, EU member States have adopted the following code of conduct:

EU CODE OF CONDUCT

1. Respect for the international commitments of EU member States.

An export licence should be refused if approval would be inconsistent with:

45

a) the international obligations of member States and their commitments to enforce UN, OSCE and EU arms embargoes;

(b) the international obligations of member States under the Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention;

(c) their commitments to the Australia croup, the Missile Technology Control Regime, the Nuclear Suppliers Group and the Wassenaar Arrangement;

(d) their commitment not to export all forms of anti-personnel land mines

2. The respect of human rights in the country or final destination.

Member States will:

(a) take into account respect for human rights and fundamental freedoms in the recipient country;

(b) not issue an export licence if there is a clearly identifiable risk that the proposed export might be used for internal repression

For these purposes equipment which might be used for internal repression will include:

(i) Equipment where there is clear evidence of the recent use of similar equipment for internal repression by the proposed end-user, or where there is reason to believe that the equipment will be diverted from its stated end-use or end- user and used for internal repression;

(ii) Equipment which has obvious application for internal repression, in cases where the recipient country has a significant and continuing record of such repression, unless the end-use of the equipment is judged to be legitimate, such as protection of members of security forces from violence.

The nature of the equipment proposed for export will also be carefully considered. Certain goods have more obvious potential for use in internal repression than others. In other cases, mere may be prima facie reasons for believing that a particular equipment might be used in such roles in certain circumstances. Any proposed export which is to be used by the recipient country for internal security purposes should be considered particularly carefully.

Internal repression includes extra judicial killings, arbitrary arrest, torture, suppression or major violation of human rights and fundamental freedoms. In some cases, the use of force by a government within its own borders does not constitute internal repression. The use of such force by governments is legitimate in some cases, e.g. to preserve law and order against terrorists or other criminals. However force may only used in accordance with international human rights standards.

The attitude of recipient states towards relevant human rights instruments should also be taken into account although non-adherence should not preclude countries from receiving arms.

3. The internal situation in the country of final destination, as a function of the existence

46

of tensions or armed conflicts.

Member States will not allow exports which would:

(a) prolong or aggravate an existing armed conflict, taking into account the legitimate requirement for self defence;

(b) be used other than for the legitimate defence and security needs of the recipient country.

4. Preservation of regional peace, security and stability.

Member States will not issue an export licence if there is a clearly identifiable risk that the intended recipient would use the proposed export aggressively against another country, or to assert by force a territorial claim. However, a purely theoretical possibility that the items concerned might be used in the future against another state will not of itself lead to a licence being refused.

When considering the risk that the country for which arms are destined might use them for international aggression, EU member States will take into account;

(a) the existence or likelihood of armed conflict between the recipient and another country;

(b) a claim against the territory of a neighbouring country which the recipient has in the past tried or threatened to pursue by means of force;

(c} whether the equipment would be likely to be used other than for the legitimate national security and defence of the recipient;

(d) the potential for the equipment to increase the capability of one nation in such way as to lead to instability in the region;

(e) the risk of reverse engineering or technology transfer.

The need not to affect adversely regional stability in any significant way will also be considered. The balance of forces between neighbouring states, their relative expenditure on defence, and the need not to introduce into the region new capabilities which would be likely to lead to increased tension, will all be taken into account

5. The 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

Member States will take into account:

(a) the potential effect on their defence and security interest and those of allies and other member States;

(b) the potential effect on their economic, financial and commercial interests, including their long-term interests in having stable, democratic trading partners;

(c) the potential effect on their relations with the recipient country;

47

(d) the potential effect on any collaborative defence production or procurement with allies;

(e) the protection of their essential strategic industrial base;

(f) the risk of use of the goods concerned against their forces or those of their allies;

(g) the need to protect military classified information and capabilities;

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

Member States will take into account the record of compliance with regard to:

(a) support or encouragement of terrorism;

(b) international commitments, in particular on the non-use of force;

(c) non-proliferation and other areas or arms control and disarmament.

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

In assessing the impact of the proposed export on the importing country and the risk that exported goods might be diverted to an undesirable end-user, the following will be considered.

(a) the legitimate defence and domestic security interest of the recipient country, including any involvement in UN or other peace-keeping activity;

(b) the technical capability of the recipient country to use the equipment:

(c) the risk of the arms being re-exported of diverted the an undesirable end-user including terrorist organisations (anti-terrorist equipment would need particularly careful consideration

in this context)

8. The compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources.

Member States will consider whether the proposed export would seriously undermine the economy of the recipient country taking into account its: - public finances; - balance of payments, - external debt; - economic and social development; - economic reform program

48