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Critique of E.U measures

Whilst the E.U is usually very enthusiastic about its policies to deal with the spread and proliferation of S.A.L.W, other authors have been less so and are quick to point out the shortcomings of each initiative.  This was the case in 1991 and 1992 after the eight criteria for arms exports were adopted. These criteria were effectively recommendations of the type of factors that should be taken into account by Member States when deciding whether or not to grant arms export licences. Due to the criteria being essentially optional, great variations continued to exist between E.U Members even after their adoption. France, for example, continued to export arms to Rwanda in the early 1990s, whereas other countries such as Germany imposed a de facto arms embargo on the region. The same happened with Indonesia when Portugal and Sweden put in place restrictions on arms deals to the country but other countries such as Britain continued to export weapons there.[1] The fact that the criteria were not applied consistently amongst Member States and on a multilateral basis reduced their effectiveness considerably. 

Similar shortfalls exist as far as more recent policies are concerned. The Programme for Preventing and Combating the Illicit Trafficking in Conventional Arms, for example, has been criticised on a number of grounds. It has been pointed out that the programme is only a statement of intent and, in order to work successfully, requires political co-operation from each Member State. This could lead to the type of inconsistency problems mentioned in the previous paragraph. Furthermore, the programme does nothing to harmonise the arms transfer policies between Member States, a discrepancy seen by Sagramoso as being one of the basic causes of arms trafficking within the E.U.[2] 

It is perhaps the Code of Conduct on Arms Exports, however, that has been the subject of most comment from critics. Similar to the Programme for Preventing and Combating the Illicit Trafficking in Conventional Arms, the Code of Conduct is only a statement of intent. It is not legally binding on Member States and they are not obliged to follow it (The Code was adopted as a Council Declaration, not a Common Position). Ultimately, any decision on arms transfers remains with national governments. Several authors point out that the Code still needs improving if it is going to achieve its stated objective of  ‘setting high common standards.’ As Lansu notes ‘On all of the four still contentious issues discussed at the 25 May meeting [when the code was adopted by the Council] the weaker option was chosen: weak human rights criteria; no multilateral consultations before undercutting; no public annual reports on arms exports and the Code's implementation; and no legally binding status … Furthermore, the Code does not provide for: public transparency or parliamentary scrutiny (by national parliaments or the European Parliament); mechanisms to tackle brokering; control of licensed production; or a common system of end-use controls.’[3] This quote is typical of much of the literature that has been written assessing the Code of Conduct, and it is evident, therefore, that the Code was less ambitious and too limited in scope than many would have liked.  

However, written into the Code is an annual reporting procedure designed to provide an institutional framework to oversee the Code’s ongoing development. The first annual report states that the experience of Member States in implementing the Code during its first year of existence has been positive.[4] Nevertheless, it is also acknowledged that there remain issues arising from the Code that need additional clarification and development. This sentiment is also expressed in a report by the UK Working Group On Arms which, drawing on the annual reports that have been released since the Code’s inception, identifies several areas which need to be improved. 

One of the key problems identified by the report concerns the published annual reports that each national government is supposed to produce and circulate in confidence (The fact that this information is not widely available has itself been the subject of criticism[5]). Standards of national reporting vary widely which makes it difficult to evaluate the implementation of the Code and the convergence of national approaches. Each state uses different data collection and reporting systems which mean they are difficult to compare. The point mentioned earlier that the Code is not legally binding on Member States is also emphasised. It is argued that this not only suggests a reluctance to commit fully to the principles of the Code but also prevents the Code from being used in a Member State as the basis of a legal challenge to a licensing decision. Other problems with the Code involve the procedure in each Member State for the denial of export licenses. There is confusion between countries as to what precisely constitutes a denial, in turn meaning that although an export license may be turned down in one state, it may be granted in another.[6] 

Finally, the report notes that the Code makes no reference to arms brokering. Arms brokering represents somewhat of a problem inasmuch as it represents a significant loophole in E.U controls over arms transfers. In the arms brokering process weapons do not necessarily even touch E.U soil, but are often transferred from third countries to some of the worst affected conflict and human rights crisis zones around the world. However, the arms brokers and shipping agents who arrange the arms deals may work within the E.U, or may be E.U citizens operating from outside Europe. Arms brokers tend to pay little attention to U.N or E.U arms embargoes, and many of the deals that they carry out would never receive an arms export license if the weapons were to come from an E.U state. Thus, legislation needs to be adopted by the E.U to tackle this particular area of the S.A.L.W trade and could include, for example, a register of arms brokers or licensing arms brokering transactions.[7] The importance of tackling arms brokering does seems to be recognized by Member States and it was expected that in the third consolidated report on the Code of Conduct on Arms Exports they would adopt some kind of legal controls on arms brokering.[8] 

While the points mentioned above may be valid to a certain extent, I would argue that even though E.U initiatives may be flawed, they still represent an important step in the right direction. All initiatives need to start somewhere and can always be developed and widened at a later date. Be that as it may, it is also the case that E.U measures do seem to be somewhat limited in their scope and could be made more effective if the necessary political will, funds and enthusiasm were present. It is essential, however, that the E.U adopts a multi-faceted approach in order to reduce the spread and proliferation of S.A.L.W within its own borders as well as around the world. This approach must include Union-wide, comprehensive legislation aimed both at increasing control over legal arms transfer, and also measures to deal with the illicit and illegal trade. It should also encompass practical action on the ground in regions of conflict and elsewhere to remove weapons from society, rehabilitate combatants, and generally educate people against the dangers of S.A.L.W. Agreement on S.A.L.W weapons issues with states outside the E.U, and also other international organisations such as the U.N, are also helpful, the most widely supported initiatives often being the most effective.