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14. Flaws in the EU Code and the Accession Process
From the 1 May 2004, the 10 new Member States are required to fully apply the EU Code Criteria and carry out the Operative Provisions, as well as meet the range of obligations subsequently agreed by EU members in the six years since the Code has been in operation.(408)
These new obligations will prove very difficult because the existing EU Code Criteria and Operative Provisions are inadequate and sometimes too vague to implement, and also because some of the new Member States do not have sufficient capacity to meet the existing obligations immediately. If a concerted effort is not made to improve and refine the EU Code, especially during the current review process, and to help new EU Member States implement an enhanced EU Code, there is a danger that the fundamental aims set out in the existing EU Code will not be met. The net result could considerably undermine international security and respect for human rights.
Weaknesses in the EU Code
As demonstrated in this report, the EU Code has a number of critical weaknesses, which have undermined its effectiveness. Specifically, the EU Code has:
· only a "politically binding" status and does not have the full force of a legally binding treaty – accordingly there is little scope for legal review and for enforcement by independent legal authorities;
· four Criteria (5,6,7 and 8) that are worded in such a way, using phrases like "take into account" and "consider", so as not to impose clear binding obligations on EU Member States;
· some Criteria that are not sufficiently explicit, leaving too much scope for individual "interpretation" by Member states;
· excluded violations of international humanitarian law in the receiving state as a categorical reason for refusing an arms export – under the Code Criterion 6 such violations are merely elements that the exporting state should "take into account";
· a control list that still excludes many items of security or crime control equipment and technology which can be used for "internal repression" (Criterion 2) and fails to explicitly prohibit equipment that can be used for torture, cruel, inhuman or degrading treatment or punishment, or the death penalty;
· no operative provision requiring timely and detailed public reporting of export licences granted for dual use exports and components for military and security equipment, thereby undermining public scrutiny of EU exports of such items as surveillance equipment which can be used for "internal repression";(409)
· operative provisions for consultations on possible undercutting (which take place when one Member State wishes to take up a licence previously denied by another) that are only conducted on a bilateral basis, depriving the wider group of EU States of potentially valuable information and insights into arms export control concerns;
· no operative provisions for Member States to specifically control arms brokering, arms transporting and arms financing activities by EU nationals and residents when such activities, and the related arms deliveries, take place through "third countries" - these activities are not adequately controlled in the EU Common Position on arms brokering;
· no operative provision for Member States to specifically regulate the export of licensed arms production or assembly facilities in "third countries";
· no operative provisions to close export loopholes for "repaired" arms, for "civilian" arms and for air-gun weapons;
· no specific operative provisions for Member States to regulate exports from stocks of surplus arms;
· insufficient standards regarding the reporting of arms exports by Member States, in particular a system of "prior notification" to the parliaments of Member States when arms exports are being considered to sensitive destinations;
· excluded any explicit reference to the possibility that military and security transfers might not involve "goods" or "equipment", (the words used in the text) but military and security assistance, training or personnel;
· no operative provision detailing how Member States can establish mechanisms for cooperative end use monitoring of arms transfers from the EU;
· excluded any explicit reference to apply the EU Code to transfers taking place outside the export licensing regime; for example, in a number of EU countries, gifts or donations of arms by the government do not require a licence;
· a requirement under Operative Provision 11 to promote the principles of the EU Code internationally, but without a viable method of doing this in accordance with existing principles of international law.
The above weaknesses would be significantly overcome if the EU Code was considerably strengthened and also underpinned by the adoption of a legally binding Arms Trade Treaty with the development of linking protocols and comprehensive operative provisions. Proposals for this are set out in the chapter below.
EU Review Process
In the fifth EU Annual Consolidated Report to the EU Code of Conduct, published in November 2003, EU Member States committed themselves to review the EU Code. Such a review could potentially provide Member States with an important opportunity to remove existing weaknesses in the Code elaborated above, and increase the scope of its coverage.
However, Amnesty International is concerned at recent indications suggesting that the some EU Member States are seeking a fast and superficial "review" of the EU Code that will not allow a thorough analysis of its weaknesses. Currently, there does not appear to have been any decision made about wider consultation beyond the government officials and ministers of the EU Member States. Amnesty International welcomes the fact that the Code is being reviewed, but believes that if sufficient time to deal with the weaknesses, loopholes and omissions detailed in this report is not allowed, the EU Code will continue to allow arms exports that fuel human rights violations to slip through the net, particularly now that the borders of the EU have grown, and the net result will be to undermine international security.
The review of the EU Code should really be an opportunity to carry out a thorough assessment of the first six years of the Code's operation and for appropriate amendments as detailed in this report. The review process should involve not only the national governments but also consultation with interested parties such as parliaments, companies, NGOs, professional associations and academic experts – it should not be something to be rushed through as quickly as possible for the sake of having completed it.
Dangers from the Accession Process
Given the weaknesses in the EU Code and related EU mechanisms, the large number of new states having joined the EU at the same time has increased the risk that future interpretation and implementation of relevant EU mechanisms will be watered down. A number of the new members are small-to-medium but significant arms exporters and play host to companies and individuals engaged in the international arms trade, and as shown in this report have a record of weak arms export control. The loose "interpretation" of the Code Criteria and limited application of the scope of the Operative Provisions and other EU mechanisms by certain old EU Member States encourages a purely rhetorical commitment of many of the new Member States.
On joining the EU, the ten new Member States are expected to accept the "acquis", i.e. the detailed laws and rules adopted on the basis of the EU's founding treaties, mainly the treaties of Rome, Maastricht and Amsterdam.(410) These states have been changing their national legislative and administrative arms export controls in line with existing EU policies, particularly the EU Code – which are obligations under the Common Foreign and Security Policy (CFSP) of the EU.
New Member States are now required to license the export of arms on a case-by-case basis subject to the eight criteria of the EU Code. However, there are instances where officials from some of these new EU member states have previously expressed their export licensing policy in far less restrictive terms than the EU Code.(411) The likelihood that new members may not have developed the necessary administrative capacity to implement EU arms control policies, adds to the prospect that new member states may "interpret" the Code and other EU arms control mechanisms even more loosely than their west European partners.
In the fourth Consolidated Report on the EU Code, Member States agreed to "share information on denials on an aggregate basis with Associated Countries and encourage these countries to similarly inform Member States about their denials." Member States reportedly began a process of compiling a list to be circulated to New Member States of all denials notified since the beginning of 2001. While these were welcome steps, the information provided was not as extensive as that shared among old Member States and the channel of information exchange was also different. It is clear that the new Member States will be carefully watched by the old Members to see if anyone misuses the denial notifications for competitive arms export advantage. The loose and non-binding Code Criteria and Operative Provisions, as currently drafted, do little to prevent EU Member States using the information generated through the denial notification mechanism as a trading opportunity. If states were to behave in such a way it could inhibit the whole denial notification mechanism, thereby undermining the application of the EU Code.
EU assistance to New Member States
Recognizing the potential difficulties for the new Member States and the potential dangers for weakening of the application of the EU Code, the existing member states, in the fourth EU Consolidated Report, committed themselves to provide "assistance, when requested, for the Acceding Countries, … to ensure the harmonization of [relevant] policies … and the full implementation of the Code of Conduct" [emphasis added]. Certain states have already begun to do this:
Lithuania received help from Finland, through a 2001-2 twinning project focused on how to implement EU Directives on firearms and explosives; from France, Germany, Sweden, UK, US and Finland, in the form of finances for equipment and training in best practice techniques; and from Sweden in the form of a dialogue during 2002 with the Swedish National Inspectorate of Strategic Goods about end-user certification.
Latvia received briefings and seminars from Germany, Norway and the US on international export control regimes, Latvian export controls and regulations, changes in the list of "strategic goods" and the use of databases for the identification of strategic goods.
Poland: received help in 1999 from UK and Dutch police officers in establishing contacts between the regional police, border guard and administration offices in the eastern provinces.(412)
Slovakia: was invited by the Netherlands in March 2003 to view how Dutch arms export controls worked; a delegation was shown how licensing procedures, implementation of the EU Code, coordination of different government agencies, and the role of customs functioned.
Aid to harmonize the application of the Code Criteria
The UK has recently held two seminars for new Member States on harmonizing the application of the EU Code Criteria.(413) The implications of the Code were discussed as well as the specific obligations and problems that the new Member States were anticipating.
It is expected that the process of "harmonizing the interpretation" of the EU Code will now continue within the monthly COARM(414) meetings of EU officials. Previously, new Member State officials had been observers at such meetings, but from 1 May 2004, they became full participants.
From the end of 2003, the new Member State participants at these meetings have been issued with the denial notifications received by EU Member States. Since 2001, and on the initiative of the Polish and Swedish governments, an informal COARM meeting has met five times to develop ideas and engage in dialogue on arms export controls. This informal meeting has reportedly been a useful arena for key officials of new Member States to familiarize themselves with existing EU arms export systems.
Amnesty International welcomes the efforts of those EU Member States that have taken a lead in aiding new Member States to improve their export control regimes and align themselves with the EU Code. However, the support which some Member States provided to New Member States has been patchy and in many cases uncoordinated. Member States should work together, with the EU secretariat, to identify those needs of new Member States that are most urgent, and agree a co-ordinated programme of activities to address those needs. Furthermore, unless the review of the EU Code results in an enhanced Code that is consistent with existing principles of international law, and has stronger operative provisions to close up loopholes in arms export control systems, any EU programme of support to new member states will have limited effect. If the review of the Code is successful, Member States will need to work more closely with new Member States to implement a co-ordinated programme of activities to develop greater capacity to implement the enhanced Code.
Future EU expansion:
The accession of the 10 new states into the EU on 1 May 2004 is unlikely to be the end of the extension of the EU. Bulgaria, Romania and Turkey are all in various stages of negotiation with the EU over possible accession. Such expansion of the EU presents potential opportunities and dangers to European arms control, as all three candidate countries have a record of serious human rights violations and also of poor arms control policy and practice. Amnesty International believes that in the accession negotiation process, human rights and arms control must be central. There must be tough entry criteria and adequate financial and personnel resources to ensure that the export control policies and practices of these candidate countries come into line with strengthened EU Code and related mechanisms.
The next EU President, the Netherlands, has already begun to undertake positive initiatives in this regard. For example in May 2003, a Romanian delegation visited the Netherlands to view their arms export controls programme. The delegation visited customs agencies and was informed of licensing procedures, application of legislation and how the EU Code was implemented. In principle, they have agreed a similar initiative with Ukraine, which is planned for May 2004. Dutch officials have stated their desire to begin to engage with other countries outside the new Member States, for example the Former Republic of Yugoslavia, Croatia, Bosnia and Herzegovina, Albania and Bulgaria.
Amnesty International welcomes these initiatives by the Netherlands government to engage with European governments outside of the EU. However, other Member States should join in these initiatives so that recipient EU Member States can benefit from as wide a range of experience as possible, and a coordinated and comprehensive programme of assistance must be implemented.
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