Ineffective arms export control: a threat to world peace
In his Easter Message 2015 Pope Francis prayed for “peace for this world subjected to arms dealers”. In general, the Catechism of the Catholic Church (No.2316) is aware that “the production and the sale of arms affect the common good of nations and of the international community” and that is why “public authorities have the right and duty to regulate them”.
Arms trade is “big business” for some Member States. The Yearbook of the Stockholm International Peace Research Institute (SIPRI) published in 2015 places Germany, France, the UK, Spain and Italy fourth, fifth, sixth, seventh and eighth respectively in the top ten main exporters of major weapons 2010 – 2014 and the total value of the global arms trade as at least $76 billion in 2013.
Recently, we have been witnessing a number of cases, be it the thwarted attack in the Thalys train or the terrorist attacks in Paris, which involved the use of arms coming from illegal sources. This only underlines the need for having a common framework in place which can ensure an adequate and effective control of arms trade.
In the context of the entry into force of the major global legal framework regulating arms trade – the Arms Trade Treaty- in December 2014, the European Union has been reviewing its main instrument in this area, the so-called “Common Position” from 2008. On 20 July last the Council of the EU adopted its conclusions on the review of the Common Position and the implementation of the Arms Trade Treaty together with an updated User’s Guide.
The Common Position contains a set of eight criteria against which Member States’ Licensing Authorities make the decision whether to grant an export licence for items on the EU Military List and for dual use items. Unlike the Code of Conduct which preceded it, the Common Position is legally not merely politically binding and so was welcomed as a significant commitment to arms export controls by the EU.
Major shortcomings persist
However, concerns exist about the strength of the Common Position due to the political and legal constraints within which it operates. From its outset the European Union has only limited control powers over the production of and trade in arms to Member States and common foreign and security policy conducted through a common position does not usually come within the jurisdiction of the Court of Justice of the European Union. Thus the Common Position appears to be legally binding but not legally enforceable.
Compliance is sought through other methods, such as by promoting greater transparency through annual reporting with the resulting opportunities for monitoring and scrutiny and by spreading best practice through the User Guide. However, such “softer” methods are heavily dependent on the political will of Member States. This has been found to be lacking. The Parliamentary Committee on Foreign Affairs in its draft report on the implementation of the Common Position regretted the “very late adoption of the Sixteenth Annual Report making it the most delayed ever” and “that Germany and the UK did not submit any data on actual arms exports”. Moreover, two EU Member States – Greece and Cyprus – still have not ratified the Arms Trade Treaty.
This lack of commitment is also reflected in the realities of arms export licensing by Member States. A particular example concerns arms exports to the Middle East and North Africa both before and after the “Arab Spring”. The most recent figures show that “Member States exported arms with a total value of EUR 9.6 billion in 2013” to the Middle East and North Africa.
These exports, and others like them, cast considerable doubt on the effectiveness of Criterion Two of the Common Position. This criterion seeks to prevent licences being issued “if there is a clear risk that the military technology or equipment to be exported might be used for internal repression” and “to countries where serious violations of human rights have been established”. Some credit must be given for an important addition made to the implementation of Criterion Two as part of the recent review following the adoption of the Arms Trade Treaty in that “the issue of gender-based violence (GBV) and violence against women and children should be taken into account when examining Criterion Two”. However concerns still remain about the effective implementation of Criterion Seven which seeks to diminish the risk of diversion of arms to undesirable end-users as well as of Criterion Eight seeking to prevent arms exports undermining sustainable development.
Need for a stronger arms export control
With the initiatives undertaken so far, the EU appears to be making a somewhat ambiguous and limited response to the Church’s call for building a more peaceful world even allowing for the political and legal constraints within which it operates. At a time when it faces greater security challenges both within and outside its borders, the EU must do more to achieve effective arms export control.
Louise Miles - Marek Misak
University of Wolverhampton- Justice and Peace Europe