Tuesday, October 17, 2017

Exporting military equipment from Europe – The EU Council Common Position

Assume you are a European producer of smoke grenades that you want to export to an Asian country. Can you do that? Yes, you can – but only if your home country has issued an export license.




Why do you need an export license?

You need an export license for two reasons: First, the EU has set out specific reasons for regulating the export, transit, and brokering of military technology and equipment. Second, smoke grenades are on the EU Common Military List and, thus, their export requires a specific license.

Why is a specific EU framework necessary?

The European Council mentions four reasons why he restricts the trade in military equipment:

  • Exporting military technology and equipment implies a special responsibility.
  • This makes it necessary to fix high common minimum standards for such exports and increase transparency in the field.
  • With regard to military technology and equipment, Europe wants to cooperate and converge.
  • Harmonizing Europe’s external relations requires consistent export activities, especially when it comes to defense material.

The EU Common Military List

EU member states need to assess export license applications for all items on the EU Common Military List.

When will you get your export license?

Focus on the importer

When appreciating whether or not to grant an export license, EU countries mainly focus on the importer:

  • Are human rights in the country of final destination respected? If there is internal repression or human rights violation, there should be no export license.
  • Is the internal situation in the country of final destination stable enough to allow for the export? If there is a possibility to provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination, there should be no export license.
  • Are regional peace, security, and stability preserved? If the importer country is concerned by an armed conflict with its neighbors, there should be no export of defense material.
  • Does the buyer country respect the international community and international law?
  • Is there a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions?
  • Is the importer technically and economically able to handle the bought military equipment?

Focus on the exporter

Let’s turn to the exporter now: He cannot export if this would violate international obligations and commitments of Member States. Examples include embargoes, the Nuclear Non-Proliferation Treaty, and the Wassenaar Arrangement.

Is there anything that the exporter could raise to defend his willingness to export defense material? Indeed, only his own national security interests and self-defense as well as his responsibility towards friendly and allied countries should receive appropriate consideration.

Resource:


  • EU Council Common Position 2008/944 dated December 8, 2008
  • EU Common Military List dated February 9, 2015

Tuesday, October 3, 2017

UN Arms Trade Treaty – How to restrict arms trade on 16 pages

Is it possible to regulate the arms trade in the world on 16 pages? Indeed, the length of the UN Arms Trade Treaty (ATT) is astonishingly short. Why is that? Because the ATT only contains a few general principals; a global regulation on such a topic will probably always remain wishful thinking.

On April 2, 2013, the United Nations have adopted the Arms Trade Treaty (ATT) and proposed the agreement to its member states for ratification. As of today, 130 states have signed and 92 states ratified the ATT. To enter into force, the ATT required at least 50 states to ratify it. Therefore, the ATT is, today, binding on the 92 states which have ratified it.

As always, let’s stick to the basics:

  • Which arms are concerned? (A)
  • What kind of trade? (T)
  • What is the treaty about? (T)


Which arms are concerned? (A)

The ATT targets conventional arms and lists them as follows: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, small arms and light weapons. Now we know what weapons the ATT applies to. As a general rule, the weapons shall be defined broadly. Said differently, in case of doubt, national laws shall rather be interpreted broadly than restrictively.

However, once you talk about “conventional weapons”, the obvious next question is – What about unconventional weapons? Unfortunately, the ATT has no response. It does not even say what unconventional weapons are. One thing is for sure, the right conclusion is not that any weapon other than unconventional weapons could be traded without any restriction. It’s rather the contrary.


What kind of trade? (T)

The ATT gives a self-explanatory definition: Trade includes export, import, transit, trans-shipment, and brokering.


What is the treaty about? (T)

What have the parties to the ATT agree on? Besides some general principles applicable to any arms’ trade, the ATT addresses trade related topics alongside the typical steps of an export transaction. A specific focus is put on export assessments and authorizations.


General Principles on arms trade




Trade Regulation along the entire export transaction timeline




Export Assessments & Authorizations

The cornerstone of the ATT is to set minimum standards for granting export authorizations. Some arguments argue for restriction:

  • Offence of international conventions or protocols relating to terrorism to which the exporting country is a party
  • Possible use for violations of international humanitarian law or human rights including gender-based violence or serious acts of violence against women and children
  • Threat of transnational organized crime

Other parameters are favorable to allowance:

  • Possible mitigation of the factors above (confidence-building measures or jointly developed and agreed programs by exporting and importing states)

Finally, some parameters can be both restrictive and liberal:

  • Maintain peace and security
  • Objective and non-discriminatory appreciation


The ATT is a sort of least common denominator: It’s a strict minimum on which UN member states could agree with reasonable success of the ATT being ratified by a maximum number of countries. The treaty is, therefore, pretty limited. This is not much but better than nothing. Obviously, nothing prevents states from adopting additional and more effective measures to pursue the purpose of the ATT.


Resource:


United Nations – Arms Trade Treaty dated April 2, 2013