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I salute the Arms Control Association … for its keen vision of the goals ahead and for its many efforts to identify and to promote practical measures that are so vitally needed to achieve them. -

– Amb. Nobuyasu Abe
Former UN Undersecretary General for Disarmament Affairs
January 28, 2004
European Union Adopts Code of Conduct on Arms Sales
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May 1998

By Wade Boese

On May 25, European Union (EU) foreign ministers at a General Affairs Council meeting approved an arms sales code of conduct that lists eight criteria (see complete text) to guide EU members in arms exports and requires consultations between members when one pursues a weapons deal that another had previously denied. While aiming to promote "high common standards" for arms exports, the code is not legally binding and the final export decision remains one of national discretion.

According to the latest World Military Expenditures and Arms Transfers (1996) report by the Arms Control and Disarmament Agency, Western European states conducted 30 percent of world arm sales in 1995, of which Britain (54 percent), France (23 percent) and Germany (12 percent) accounted for 89 percent. Scandinavian countries and other EU members with relatively few arms exports pressed for code provisions stronger than some countries, particularly France, were willing to accept. Because the EU operates by consensus, the 15 countries adopted a weaker code than most members wanted as many of the issues considered were reportedly contested 14-1. Irish Minister for Foreign Affairs David Andrews on May 26 said he was "disappointed" in the human rights criterion, but viewed the adopted code as "preferable to no step at all."

The code, whose formal adoption is expected in early June, declares an export should not be made if it might be used for internal repression, but EU members are only to "exercise special caution and vigilance" where "serious violations" of human rights have been declared by the EU, the Council of Europe or the United Nations. Moreover, members only need to "take into account" an importing state's attitude toward terrorism or commitment to non-proliferation.

Unlike the proposed U.S. code of conduct, which has yet to be passed by Congress (see ACT, March 1998), the EU code does not call for an arms buyer to be a democracy or to have civilian control over the military. But the code does obligate members to consider a buyer's "relative levels of military and social expenditure."

If an EU state refuses to approve an arms sale, that member will circulate to all others a notification of denial and an explanation. Denials for dual-use goods only need to be circulated if the end-user is or is suspected of being the armed forces or internal security forces of a prospective buyer. Notifications are to be confidential to prevent non-EU states from using denials for commercial advantage.

Any member that seeks to conclude an "essentially identical transaction" within three years of a denial must consult with the state or states that issued the denial. If the member still opts to go forward with the sale then that member needs to notify the original state or states of the intent to undercut with a detailed reasoning.

France, an original code co-sponsor with Britain, opposed efforts to require undercuts to be notified to all members. A French official explained that for the notifications to be "meaningful and significant," they should be limited to the states involved.

Although limited, the consultation mechanism and prior notification of undercuts are significant steps considering that the 33-member Wassenaar Arrangement, which seeks to increase transparency in arms exports, requires participating states only to inform other members of an undercut within 60 days after an export license has already been issued. A U.S. government official noted that a prior consultation mechanism has yet to be "fully aired" within the United States.

The EU code lacks public transparency as annual reports on members' arms exports and implementation of the code will be kept confidential. An initiative to make a consolidated report available to national parliaments and the public failed. Members also did not agree to a common list of weapons to be controlled, so until development of such a list, the code will operate according to each member's own national control lists.