Law and the Arms Trade: Weapons, Blood and Rules 9781509922291, 9781509922321, 9781509922314

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LAW AND THE ARMS TRADE This ground-breaking book offers an extensive legal analysis – grounded in public, EU, and international law – of arms trade regulation, integrated with insights drawn from international relations. The sale of weapons and related technologies is, globally, one of the most politically controversial and ethically contentious forms of commerce. Intimately connected with sustaining repressive governments and violations of international human rights and humanitarian law, arms exports are also a central element in the economic and strategic policies of the governments of all large industrial states. They have also been the source of abundant corruption, and of serious challenges to the norms and effectiveness of constitutional accountability in democratic states. On paper, the arms trade is heavily regulated: national legislation and international treaties are in place which purport to prohibit certain transactions and limit others. Yet despite its importance, legal and international relations scholarship on the subject has been surprisingly limited. This book fills this gap in the literature by examining and comparing the export control regimes of eight leading nations – USA, Russia, UK, France, Germany, Sweden, China and India – with chapters contributed by leading experts in the field of law and international relations.

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Law and the Arms Trade Weapons, Blood and Rules

Laurence Lustgarten

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Laurence Lustgarten, 2020 Laurence Lustgarten has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Lustgarten, Laurence, author. Title: Law and the arms trade : weapons, blood and rules / Laurence Lustgarten. Description: Oxford, UK ; New York, NY : Hart Publishing, 2020.  |  Includes bibliographical references and index. Identifiers: LCCN 2020015971 (print)  |  LCCN 2020015972 (ebook)  |  ISBN 9781509922291 (hardcover)  |  ISBN 9781509922314 (ePDF)  |  ISBN 9781509922307 (EPub) Subjects: LCSH: Arms transfers—Law and legislation. Classification: LCC K3924.M8 L87 2020 (print)  |  LCC K3924.M8 (ebook)  |  DDC 343.08/756234—dc23 LC record available at https://lccn.loc.gov/2020015971 LC ebook record available at https://lccn.loc.gov/2020015972 ISBN: HB: 978-1-50992-229-1 ePDF: 978-1-50992-231-4 ePub: 978-1-50992-230-7 Typeset by Compuscript Ltd, Shannon

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PREFACE The structure of this book takes its shape from a focus on controlling arms ­transfers, controls which have a legal form and content. Yet though the arms trade has over the years attracted considerable attention from international relations and security studies scholars, it has been remarkably neglected by lawyers.1 To be comprehensive, analysis of the arms trade must cover policies, rules and institutions operating at three levels: national, regional (in Europe), and international. However, these rules do not operate in a vacuum, and indeed are a reflection of policies pursued by arms exporters--the suppliers of weaponry. Those policies are themselves the product of conceptions of economic and strategic needs but also of moral conceptions, and these are often in significant conflict. Therefore understanding the substance of the rules in force requires consideration of those conflicts, and the processes by which they are resolved within each polity. This analytical framework is the daily mill-grist of international relations and ­security studies within the broad framework of political science, and I was remarkably fortunate to engage the interest of several specialists in that discipline who agreed to participate in the project. Their contributions are absolutely essential when considering major exporting States whose restrictions, if any, are purely the result of policy decisions – China and Russia most obviously but also India, historically a major importer but one with long-term ambitions to export. My intention was to produce a study combining legal and social science analysis – in the book as a whole, and within many of the specific chapters. It is an ambitious task, all the more so because it covers States on three continents and includes contributions from scholars and analysts equally widely dispersed. This project has had an unusually long gestation. My own interest in the arms trade followed work devoted to issues of law and national security, and was piqued by a very English scandal – the so-called ‘Arms to Iraq’ affair of the mid-1990s. My specific concern – it was the subject of an Inaugural Lecture--was about constitutional norms and procedures which I believed then, and still believe, are threatened by the arms trade as currently conducted by the UK government. (This episode is discussed in Chapter Five). This single nation perspective,

1 The Arms Trade Treaty, being a formal legal instrument, did attract some attention, and relevant works are discussed or cited in chapter 14. Z Yihdego, The Arms Trade and International Law (Oxford, Hart Publishing, 2007) appears to be the one full-length study of the subject in English and as such merits specific recognition here. However, this pioneering work has largely been overtaken by several subsequent articles and these are cited at various points.

vi  Preface however t­enable then, soon became far too narrow as EU Member States, with the UK at that time taking the lead, began to adopt various rules and standards which penetrated into national practice. The required perspective further radically widened as an international legal framework, in the form of the Arms Trade Treaty, emerged in the 2010s. Thus comprehensive legal analysis must operate at three levels: national law (largely though not exclusively public law); EU law; and public international law. This breadth also makes possible comparisons of how apparently similar rules are differently implemented, an analysis which requires consideration of numerous issues, ranging from the role of interested civil society groups to the possibility and practical impact of legal challenges to government action. I hope this book will reach a wide audience: lawyers and social scientists within and outside academia; civil society actors and public officials with an interest in the subject and people throughout the world in any walk of life wanting to know more about this controversial subject (a more affordable paperback edition will be forthcoming). Trying to reach such a diverse audience creates problems in the writing. In particular, throughout the book certain legal concepts and terminology are used and analysed at some length. These are likely to be unfamiliar to non-lawyers, and therefore to require explanation. The risk in undertaking a brief, stripped-down description which attempts to avoid excessive technicality, is that a lawyer will view what is produced as a serious over-simplification. I was aware of the problem as I wrote, but may not have always escaped that peril and can only hope that any such result is never too gross. I believe the effort was worth making because it has been my experience that whilst lawyers often know very little about the issues surrounding the arms trade, this lack of knowledge is mirrored by international relations scholars, most of whom tend to relegate legal and institutional structures to a decidedly minor role. One of the goals of this project is to illustrate and emphasise the importance of the interaction of different disciplines and bodies of knowledge. Conversely, in a few instances where a subject arises that writers in other disciplines have addressed at length but is peripheral to the topic under discussion here (e.g. humanitarian intervention), I have deliberately omitted presenting an extensive list of relevant publications, and have cited only the specific sources from which I have drawn quotations. Scholars will be familiar with the broader range, whilst general readers will not benefit from a space-consuming list.

Outline of the Book When I have spoken about the arms trade to general citizen audiences, it became clear from questions and comments that many basic facts, terms, distinctions, and concepts which are stock in trade of people working professionally on arms trade issues are unfamiliar outside that relatively small circle. It was equally clear that

Preface  vii people were often concerned about one particular aspect – for example, devastation of parts of sub-Saharan Africa by non-State actors; or corruption; or the bombing and blockade of Yemen by the Saudi-led coalition – but knew very little about the others or did not see any connection between their concern and other high profile issues in which arms transfers are implicated. Chapter One therefore attempts to set out a basic factual background concerning the arms trade, and to identify and critique the wide range of controversies and criticisms that the arms trade as currently undertaken has produced. Lawyers have a tendency to believe that establishing formal public regulation and the ‘rule of law’ provide the primary answer to most political problems. By contrast, the once-dominant ‘Realist’ school of international relations tends to relegate law to an epiphenomenon, a ‘superstructure’ that merely serves as a sort of veneer coating State competition for power and wealth. More recent schools of Constructivism and Liberal Institutionalism acknowledge that law may play a bigger role either as an expression of, or along with, competition to maximise material interests. This book is already large enough without venturing into a debate peripheral to its main concerns, but it is important to observe that both empirical and normative questions are involved, and often are not properly disentangled. The question of whether the existence of a legal rule or set of rules and implementing institutions affect conduct can only be decided by weighing evidence. Even a positive answer, however, is only the necessary precondition for a normative argument that some specified rule(s) should be adopted to regulate a particular area of activity; and the actual content of those rules is an entirely distinct normative contest. It is, for example, one thing to argue that international trade should be regulated by some form of agreement among States (on the assumption that the rules agreed would have demonstrable effect), and that some such regime is preferable to no regulation. The content of those rules is another thing entirely, and disputes about substance may lead a given State to decide that whilst it would in principle prefer to participate in a rule-governed order, in light of what is on offer, it prefers no multi-lateral rules at all. These arguments are fundamental to questions surrounding specifics, process, and effectiveness of arms export controls, and are taken up in various ways throughout the book, most directly in Chapter Two and Part III. They also underpin the critique of the legal standards adopted by the EU and its Member States (Chapter Four), and perhaps less obviously in the final chapter, entitled ‘Future Directions’. This last is the most obviously prescriptive part of the book, and is implicitly underpinned by a belief that – to a significant though unquantifiable extent – law does matter. Any proposals for legal change must logically be grounded on this assumption, and perforce enrol their proponents at least part-time in the schools of Constructivism and Liberal Institutionalism, in that any regulatory reforms would entail using law as part of a process of building norm-governed behaviour in the international arena. These norms embody elements of morality or ethics, which proponents ought to set out explicitly.

viii  Preface That said, it would be reckless to ignore the sort of structural limits on legal effectiveness discussed in Chapter Two, which are tighter in the international arena than in a domestic one. Proposals for change should avoid the hubris that marred extravagant claims for the possibilities of international human rights law often heard in the 1990s and 2000s. Saying this does not mean embracing the ­world-outlook of the Putins and the Trumps, but it does require a dose of (small ‘r’) realism about what is possible. After addressing ‘fundamental considerations’, the analysis moves to consideration of the activities of major weapons exporters. National and, in Europe, regional laws and practice are of far greater practical importance than the more recent, and only precariously established, international regulation. Though the USA and Russia are individually the world’s greatest weapons exporters,2 the European Union and its members are discussed first for a number of reasons. The framework provided by EU decisions, and the implementation measures in the four States under study are extremely complex, involving the interaction of two levels of law. Arms exports have also achieved far greater salience as a source of political controversy in several European States, a striking and disturbing fact in light of the sheer volume of US exports. The differences within the European States also lead to some fascinating public law questions about the workings of diverse institutions, most clearly in relation to legislative accountability and the judicial review of actions of the executive.3 The UK is the subject of the longest chapter in this Part, though not for reasons of authorial chauvinism. Certain distinctive features of the UK experience, including its history, public oversight structure, challenges in the courts, and degree of public controversy, all require extensive analysis. The UK is grouped with other EU Member States because it has long operated under the same regime and at least until the end of 2020 will continue to do so. Brexit of course introduces the question of divergence, with no indication whatever of a definite resolution. I have therefore included a brief appendix to the UK chapter setting out the range of issues that will arise, and the possible outcomes, but with no attempt in this state of uncertainty to forecast the result.

Omissions Though ambitious, the book is deliberately and necessarily limited in scope. First, it looks only at lawful weapons transactions. Save for brief mentions in connection with diversion, nothing is said about black markets or grey markets and the sort

2 The most recent figures available, covering a five-year period, are set out below in chapter three, at p 43 (n 1) below. 3 The role of the legislature, but not of the judiciary, is also a major theme of Joanna Spear’s account of the USA in chapter nine.

Preface  ix of criminality that has featured repeatedly in thrillers which have made their way onto screen (The Dogs of War, Lord of War) or television (The Night Manager). Illegal arms sales are an important subject, but to say something original requires a different sort of expertise than I can claim. Secondly, the analysis is limited to conventional weapons. That meant exclusion of atomic weapons, which are subject to their unique international legal regime. Also outside scope are chemical and biological weapons (CBW) and other so-called ‘pariah weapons’. Not only are they not openly exported, they are subject to global controls which have very wide adherence.4 The third omission concerns much the widest category of materiel: those known as ‘dual-use goods’. CBWs in particular are made by compounding a number of chemicals or other agents which by themselves are not dangerous; indeed by themselves they may be essential in manufacturing, medicine and other legitimate fields of commerce. The sale of individual goods of this type is a significant contributor to economies throughout Europe,5 which makes controlling abuse even more difficult than in the case of weaponry. Monitoring and collating patterns of sales is required to determine whether, in combination, disparate purchases will enable the buyer to develop CBW capability.6 The difficulty is compounded because the purchasers are often companies purportedly engaging in commercial activities, but which are in fact fronts for State military agencies. Export of dual-use goods is therefore subject to regimes of regulation completely separate from that of ordinary arms sales. These require separate detailed examination, which they have received elsewhere.7 Finally, the focus on controls and legal limitations meant that only one side of arms transactions received attention. The book does not probe the motivations and circumstances that influence States to acquire weaponry. Clearly, without demand there would be no supply, and a wholly different book could be written which examined why and how a range of different States sought and obtained arms.

4 The Biological Weapons Convention, the first multi-State disarmament treaty that bans the ­development, production, and stockpiling of this category of weapons of mass destruction, has been in force since 1975. A similar Chemical Weapons Convention came into force in 1997. A UN Convention banning production and use of a miscellany of weapons considered excessively injurious or having indiscriminate effects came into effect in 1983. Landmines and cluster munitions have also been the subject of international limitation agreements – respectively, the Ottawa and Dublin Treaties – but these have had notably fewer signatories, especially among major possessors of them. 5 An EU Green Paper estimated that there were around 5,000 companies making some form of dual use product, which in total contributed possibly as much as 10% of all EU manufacturing exports. See European Commission, ‘The Dual Use Export Control System’, COM (2011) 393, para 4.1. 6 As was done clandestinely by Syria, whose development of nerve gas was explored brilliantly in a New York Times article, ‘With the World Watching, Syria Amassed Nerve Gas’, 7 September 2013 (online version). 7 See especially A Wetter, Enforcing European Union Law on Dual Use Goods (Oxford, Oxford University Press, 2011). However, to present a comprehensive view of the role of the European Union, and particularly its limits, chapter three discusses and contrasts the framework of EU arms export with that of dual use export regulation; see pp 61–62.

x  Preface That would be a worthwhile study, but is best undertaken by those with a different set of interests, knowledge, and skills than I possess. One last kind of limitation: it was not possible to include discussion of any substantial developments occurring after 30th November 2019. In one or two chapters, authors have been able to update some of their tabular data at proof stage. Laurence Lustgarten 24 February 2020

ACKNOWLEDGEMENTS Without the generous support of the Research Committee of Green Templeton College, University of Oxford, this project would have remained on the shelf. A grant from the Committee made possible a gathering of several of the contributors, most of whom were unknown to each other, for a Workshop in College in March 2017. Drafts were read, ideas were exchanged, and the project began to take shape. I should also like to thank the Fellows of the College and Denise Lievesley, Principal for the past five years, for providing friendship and a stimulating, outward-looking intellectual environment. I owe a special debt to staff of the Bodleian Law Library and Social Science Library at Oxford, who were invaluable in finding material in a wide range of locations. I should particularly like to thank Margaret Watson and Elizabeth Wells, Law librarians, who have repeatedly guided me through the maze of online EU materials. This book ranges very widely through many different areas of law, and across several academic disciplines. Writing the book made clear to me both my ignorance of certain essential subjects, and the speed at which certain areas of law change. I have persistently picked the brains of many people and in some cases benefitted from critical comments on early versions of certain chapters. For their time and trouble, I would like to thank Dapo Akande, Paul Craig, Elizabeth Fisher, Roy Isbister, Miles Jackson, Elizabeth Kirkham, Donal Nolan, Sam Perlo-Freeman, Emily Reid, Ron Smith, Anna Stavranakis and Zeray Yihdego. I have also gained a fuller understanding of specific aspects of the subject through interviews with people actively engaged with it in a variety of ways. In some places in the text, individuals are identified as the source of information. Some present and former UK officials, however, preferred to remain anonymous. But I am pleased to be able to thank several current or former MPs: Graham Jones, Julian Lewis MP, Lloyd Russell-Moyle MP, and especially John Stanley, who led the UK parliamentary oversight body between 2010 and 2015 and provided me with essential material, and also Keith Neary, Clerk to that committee in Sir John’s time. Special acknowledgement is owed to Alice Neale, who compiled the list of ­references for chapters one to five and 13 to 15. Thanks also to Sasha Jawed and Victoria Broom (a copy editor of great patience) of the editorial staff at Hart Publishing, who have facilitated the production side of the book with great efficiency.

xii  Acknowledgements The help of everyone mentioned has improved the book immeasurably, but all responsibility for errors remains mine. Earlier versions of some of the chapters were tried out at various times over several years on students or faculty in classes and seminars at several institutions. Thanks are due for invitations from the Faculty of Law, University of Aberdeen; Lauterpacht Centre for International Law, University of Cambridge; ­Department of International law, Halle –Wittenberg University, Germany; Centre for ­Socio-Legal Studies, the European Studies Centre, and a Conference on Autonomous Weapons, all at the University of Oxford; University of Southampton Law School; TU Delft (Technical University Delft), The Netherlands; and University of Warwick Law School. Laurence Lustgarten February 2020

TABLE OF CONTENTS Preface����������������������������������������������������������������������������������������������������������������������������v Acknowledgements������������������������������������������������������������������������������������������������������ xi Contributors�������������������������������������������������������������������������������������������������������������� xxi PART I FUNDAMENTAL CONSIDERATIONS 1. The Arms Trade: A Critical Introduction�������������������������������������������������������������3 I. Introduction������������������������������������������������������������������������������������������������3 II. Small Arms and Light Weapons���������������������������������������������������������������4 III. Internal Repression�������������������������������������������������������������������������������������6 IV. Endemic Corruption����������������������������������������������������������������������������������8 V. Diversion����������������������������������������������������������������������������������������������������10 VI. Contribution to Aggression and Instability������������������������������������������11 VII. Economic and Social Impact�������������������������������������������������������������������15 VIII. Violations of International Humanitarian Law������������������������������������19 IX. Domestic Blowback: The Effect on Arms Suppliers�����������������������������20 A. Secrecy and Corruption������������������������������������������������������������������20 B. Secrecy and Executive Decision-Making��������������������������������������21 C. Undermining Legality���������������������������������������������������������������������21 X. Controlling the Exporter’s Foreign Policy���������������������������������������������22 XI. Summary����������������������������������������������������������������������������������������������������23 List of References���������������������������������������������������������������������������������������������������23 2. Governing Arms Transfers: The Praxis of Law and the Evaluation of Risk��������������������������������������������������������������������������������������������������27 I. Introduction����������������������������������������������������������������������������������������������27 II. ‘Case-by-Case’ Decision-Making������������������������������������������������������������31 III. The Central Role of Risk��������������������������������������������������������������������������32 IV. Conclusion�������������������������������������������������������������������������������������������������37 List of References���������������������������������������������������������������������������������������������������38

xiv  Table of Contents PART II THE EUROPEAN EXPORTING STATES (A) European Union Legislation 3. Fragile Underpinning: The Limits of EU Rules�������������������������������������������������43 I. Introduction����������������������������������������������������������������������������������������������43 II. The Constitutional Framework of EU Arms Export Criteria�������������44 A. Effectiveness��������������������������������������������������������������������������������������50 III. Variation and Inconsistency��������������������������������������������������������������������54 IV. EU Arms Embargoes: Variations on a Theme��������������������������������������59 V. The Regulation of Dual-Use Exports�����������������������������������������������������61 VI. A Relative Success�������������������������������������������������������������������������������������62 VII. Facilitating Arms Sales within the Union����������������������������������������������63 V III. Conclusion�������������������������������������������������������������������������������������������������64 List of References���������������������������������������������������������������������������������������������������65 4. The EU Criteria: A Critical Examination�����������������������������������������������������������69 I. Introduction����������������������������������������������������������������������������������������������69 II. Point of Departure������������������������������������������������������������������������������������70 III. The Specific Criteria���������������������������������������������������������������������������������71 A. Criterion One�����������������������������������������������������������������������������������72 B. Criterion Two�����������������������������������������������������������������������������������73 C. Criterion Three���������������������������������������������������������������������������������88 D. Criterion Four����������������������������������������������������������������������������������90 E. Criterion Five������������������������������������������������������������������������������������91 F. Criterion Six��������������������������������������������������������������������������������������92 G. Criterion Seven���������������������������������������������������������������������������������93 H. Criterion Eight���������������������������������������������������������������������������������96 IV. Conclusion�������������������������������������������������������������������������������������������������97 Appendix: On the Complexities of Arms Export Data�������������������������������������97 List of References���������������������������������������������������������������������������������������������������99 (B) Four Exporters: Harmonisation and Divergence 5. The UK: Institutional and Legal Innovation, Dangerous Dependency��������103 I. Introduction��������������������������������������������������������������������������������������������103 II. The Role of Arms Exports in the UK Economy���������������������������������105 III. History of UK Arms Exports����������������������������������������������������������������106 IV. The UK Licensing System����������������������������������������������������������������������114 A. The Administrative Structure�������������������������������������������������������114 B. The Legal Structure������������������������������������������������������������������������116 V. Parliament and Arms Sales��������������������������������������������������������������������118

Table of Contents  xv VI. Arms Sales and Judicial Review������������������������������������������������������������123 A. Judicial Review of Export Licence Approvals����������������������������123 B. Judicial Review, Corruption and the Constitution��������������������131 VII. Conclusion�����������������������������������������������������������������������������������������������136 Appendix One: The Place of Arms Exports in the UK Economy������������������136 Dr Sam Perlo-Freeman 1. Existing Information on Arms and Defence-related Jobs�����������������137 2. Approach to Estimating Jobs Related to Arms Exports���������������������139 2.1. Size of the UK Arms Trade�����������������������������������������������������������140 2.2. Breaking Down Arms Exports by Industrial Groupings����������141 2.3. Estimating the Jobs Created���������������������������������������������������������142 3. Discussion������������������������������������������������������������������������������������������������143 4. Summary and Conclusion���������������������������������������������������������������������143 Appendix Two: The (Likely) Impact of Brexit��������������������������������������������������144 List of References�������������������������������������������������������������������������������������������������147 6. The German Control Regime on Arms Exports ���������������������������������������������149 I. Introduction��������������������������������������������������������������������������������������������149 II. The Politics and Economics of Arms Export from Germany�����������150 III. The Legal Framework of Arms Export Control����������������������������������152 A. The Multitude of Relevant Standards of International Law�����152 B. The Influence of European Law���������������������������������������������������155 C. The Constitutional Level: Art 26, para 2 of the Basic Law�������158 D. The Statutory Export Licensing System��������������������������������������161 IV. The Policy Level��������������������������������������������������������������������������������������167 A. Guiding Principles�������������������������������������������������������������������������167 B. Political Practice�����������������������������������������������������������������������������168 V. Conclusion�����������������������������������������������������������������������������������������������173 List of References�������������������������������������������������������������������������������������������������176 7. Arms Exports in France��������������������������������������������������������������������������������������179 I. Legal Provisions and Institutional Structures�������������������������������������179 A. Legal Provisions�����������������������������������������������������������������������������179 B. Licensing Process���������������������������������������������������������������������������183 II. Political and Economic Factors Influencing Arms Export����������������186 III. The Importance of Arms Export to the Economy������������������������������187 IV. Arms Exports’ Alteration�����������������������������������������������������������������������190 V. The Executive, Legislative and Judicial Powers�����������������������������������193 VI. Public Debate and Media Attention�����������������������������������������������������197 VII. Arms Exports Scandals��������������������������������������������������������������������������199 VIII. Position vis-à-vis International Regulations���������������������������������������202 IX. EU System of Criteria Implementation�����������������������������������������������203 List of References�������������������������������������������������������������������������������������������������204

xvi  Table of Contents 8. Sweden’s Arms Export Controls: Balancing Support and Restraint��������������207 I. Introduction�����������������������������������������������������������������������������������������������207 II. Swedish Arms Exports: A Key Aspect of Foreign and Security Policy��������������������������������������������������������������������������������������������209 A. Arms Exports and Sweden’s Foreign and Security Policy������������209 B. The Size and Composition of Sweden’s Arms Industry and Exports����������������������������������������������������������������������������������������213 III. Swedish Arms Exports: A Focus of Political and Public Opposition��������������������������������������������������������������������������������������������������217 A. Political and Public Opposition to Sweden’s Arms Exports��������217 B. The Review of Sweden’s Controls and the 2018 Legislation���������220 IV. Sweden’s Arms Export Controls: Between Facilitation and Restraint����������������������������������������������������������������������������������������������223 A. The ‘Framework’ of Sweden’s Arms Export Controls�������������������223 B. The ‘Process’ of Sweden’s Arms Export Controls��������������������������226 C. The ‘Criteria’ of Sweden’s Arms Export Controls��������������������������229 V. Conclusion��������������������������������������������������������������������������������������������������233 List of References�������������������������������������������������������������������������������������������������234 PART III THE MAJOR STATES OUTSIDE EUROPE 9. The United States and Arms Exports����������������������������������������������������������������239 I. Legislation Covering Arms Exports��������������������������������������������������������240 A. A Brief Historical Background��������������������������������������������������������240 B. The 1976 Arms Export Control Act������������������������������������������������243 C. Subsequent Laws and Amendments to Existing Law�������������������246 II. The Arms Transfer Decision-Making Process���������������������������������������248 A. Presidential Arms Transfer Policies������������������������������������������������248 B. The Role of the Executive Branch����������������������������������������������������250 C. The Obama Administration’s Export Control Reform Programme�����������������������������������������������������������������������������������������255 D. The Role of the Legislative Branch��������������������������������������������������257 E. New Legislative Activism�����������������������������������������������������������������259 III. End-Use Monitoring���������������������������������������������������������������������������������261 A. The Golden Sentry Program������������������������������������������������������������262 B. The Blue Lantern Program���������������������������������������������������������������266 IV. Considerations Shaping US Arms Export Policies��������������������������������268 V. Economic Importance of Sales�����������������������������������������������������������������269 VI. Patterns of US Arms Exports�������������������������������������������������������������������271 A. Volume������������������������������������������������������������������������������������������������271 B. Content�����������������������������������������������������������������������������������������������271

Table of Contents  xvii C. Recipients����������������������������������������������������������������������������������������271 D. Routing��������������������������������������������������������������������������������������������273 VII. Judicial Review����������������������������������������������������������������������������������������274 VIII. Arms Trade Treaty����������������������������������������������������������������������������������275 IX. Public Debate on Arms Transfers���������������������������������������������������������275 X. Scandals and the Evolution of Export Controls����������������������������������276 XI. Conclusion�����������������������������������������������������������������������������������������������276 Appendices������������������������������������������������������������������������������������������������������������277 List of References�������������������������������������������������������������������������������������������������287 10. Russian Arms Exports�����������������������������������������������������������������������������������������293 I. A Brief Historical Introduction�������������������������������������������������������������293 A. The Soviet Arms Export System���������������������������������������������������293 B. Developments after 1991���������������������������������������������������������������295 II. The Institutional Framework Today�����������������������������������������������������296 A. The Federal Service for Technical and Export Control�������������298 B. The Role of the Foreign Ministry in Controlling the Arms Trade�������������������������������������������������������������������������������������301 C. The Role of the Security Council of Russia��������������������������������302 III. The Role of Parliament, Independent Expertise and Public Opinion����������������������������������������������������������������������������������������������������302 IV. The Scale and Structure of Russian Arms Exports�����������������������������304 V. Russian Arms Imports���������������������������������������������������������������������������311 A. Some Features of Russian Arms Exports������������������������������������312 B. Russia and the UN and the Arms Trade Treaty of 2013�����������313 VI. A New Challenge for Russian Arms Exports��������������������������������������314 VII. Conclusion�����������������������������������������������������������������������������������������������316 List of References�������������������������������������������������������������������������������������������������317 11. China as an Arms Exporter: The Strategic Contours of China’s Arms Transfers�����������������������������������������������������������������������������������������������������323 I. China’s Defence Industrial Strategy������������������������������������������������������325 II. Four Waves of Chinese Arms Exports�������������������������������������������������327 III. China as an Arms Supplier in the 21st Century���������������������������������331 A. Recent Chinese Arms Export Activities�������������������������������������332 B. Chinese Armed Drones: A Special Case Study��������������������������334 IV. The Impact of Chinese Arms Transfers�����������������������������������������������335 V. Conclusion�����������������������������������������������������������������������������������������������338 List of References�������������������������������������������������������������������������������������������������340 12. India and Arms Exports��������������������������������������������������������������������������������������343 I. Introduction�����������������������������������������������������������������������������������������������343 II. Indian Arms Exports���������������������������������������������������������������������������������344

xviii  Table of Contents A. Indian Arms Exports: Summary�����������������������������������������������������344 B. The Evolution of Indian Arms Exports������������������������������������������346 C. India’s Arms Export Ambitions�������������������������������������������������������351 D. India’s Arms Export Obstacles���������������������������������������������������������354 E. India’s Arms Export Motivations�����������������������������������������������������357 III. India’s Export Controls�����������������������������������������������������������������������������362 A. Evolution and Legal Basis�����������������������������������������������������������������362 B. Military Stores������������������������������������������������������������������������������������365 C. Dual-Use Items����������������������������������������������������������������������������������367 D. Indigenous Sensitive Systems�����������������������������������������������������������371 E. Export Control Monitoring and Enforcement������������������������������372 IV. India and International Regimes�������������������������������������������������������������373 A. India and Strategic Export Control Regimes���������������������������������373 B. India and the Arms Trade Treaty����������������������������������������������������375 C. India and Autonomous Weapons����������������������������������������������������379 V. Conclusion��������������������������������������������������������������������������������������������������380 List of References ������������������������������������������������������������������������������������������������381 PART IV INTERNATIONAL LAW 13. Arms Transfer Regulation beyond National Borders��������������������������������������387 I. The International Law Background: Individual and Corporate Liability�������������������������������������������������������������������������������������������������������388 A. Criminal Law�������������������������������������������������������������������������������������388 B. Civil Liability��������������������������������������������������������������������������������������390 II. The International Law Background: State Responsibility?�������������������391 A. European Human Rights Law����������������������������������������������������������393 List of References�������������������������������������������������������������������������������������������������395 14. The Arms Trade Treaty: A Measure of Global Governance���������������������������397 I. The Historical Background�����������������������������������������������������������������������398 II. General Treaty Provisions�������������������������������������������������������������������������400 A. What is the Arms ‘Trade’?����������������������������������������������������������������400 B. Scope���������������������������������������������������������������������������������������������������402 III. The Substantive Obligations Imposed on States������������������������������������409 A. Prohibitions����������������������������������������������������������������������������������������409 B. Export Assessment under Article 7�������������������������������������������������413 C. The ‘Balancing’ Process���������������������������������������������������������������������416 D. The Special Case��������������������������������������������������������������������������������418 E. Diversion��������������������������������������������������������������������������������������������419 F. Enforcement of the Treaty����������������������������������������������������������������424

Table of Contents  xix G. Evaluation of Enforcement���������������������������������������������������������������426 H. The Objectors’ Tale����������������������������������������������������������������������������426 IV. Conclusion��������������������������������������������������������������������������������������������������433 List of References�������������������������������������������������������������������������������������������������437 PART V CONCLUSION 15. Future Directions�������������������������������������������������������������������������������������������������441 I. Introduction�����������������������������������������������������������������������������������������������441 II. Towards an Ethically-Grounded Arms Trade Policy����������������������������442 III. Some Fundamental Changes��������������������������������������������������������������������444 A. Eliminating Selective Application of the Criteria��������������������������445 B. Barring Sales Achieved by Corrupt Means������������������������������������445 C. Strengthen the Provisions on Misuse of Resources����������������������447 D. Violence against Vulnerable Groups�����������������������������������������������448 E. Adding ‘Facilitation’��������������������������������������������������������������������������449 IV. Enhancing Existing Criteria���������������������������������������������������������������������449 A. Criterion Two�������������������������������������������������������������������������������������449 B. The Importance of History���������������������������������������������������������������451 C. Criterion Three����������������������������������������������������������������������������������452 D. Criterion Four������������������������������������������������������������������������������������452 E. Criterion Five�������������������������������������������������������������������������������������453 F. Criterion Six���������������������������������������������������������������������������������������453 G. Summary��������������������������������������������������������������������������������������������453 V. Institutional Change����������������������������������������������������������������������������������454 A. Domestic Accountability: Ending Undue Executive Influence���������������������������������������������������������������������������454 B. International Oversight: A First Step����������������������������������������������457 List of References�������������������������������������������������������������������������������������������������457 Index������������������������������������������������������������������������������������������������������������������������������459

xx

CONTRIBUTORS Basak Acar, MD, is a PhD Candidate at Lille University, EA 4487 – CRD&P (ERDP) –Centre de Recherches Droits et perspectives du droit. Richard A Bitzinger is a Visiting Senior Fellow at the S Rajaratnam School of International Studies in Singapore. Mark Bromley is the Director of the Dual-Use and Arms Trade Control Programme at Stockholm International Peace Research Institute. Julian Cooper, OBE, is Emeritus Professor, Centre of Russian, European and Eurasian Studies, Department of Politics and International Studies at the University of Birmingham. Jean-Philippe Derosier is a Full Professor of Public and Constitutional Law, Member of the Institut Universitaire de France, Lille University, EA 4487 – CRD&P (ERDP) – Centre de Recherches Droits et perspectives du droit. Dirk Hanschel is Professor for German, European and International Public Law, University of Halle-Wittenberg, Germany. Shashank Joshi is Defence Editor at The Economist, formerly Senior Research Fellow, Royal United Services Institute. Laurence Lustgarten is a Visiting Senior Research Fellow, Green Templeton College at the University of Oxford. Michael Raska is an Assistant Professor at the S Rajaratnam School of International Studies in Singapore. Joanna Spear is a Research Professor in the Elliott School of International Affairs at George Washington University.

xxii

part i Fundamental Considerations

2

1 The Arms Trade: A Critical Introduction I. Introduction Ours is a world of competing, often hostile, independent States. Each also requires some capability of internal order maintenance. What would be the result if all transfers of weapons and related technology across national boundaries were absolutely and effectively prohibited? Although several UN Member States do not currently possess standing armies,1 all have some form of specialised force equipped with military hardware. How is this to be obtained, maintained and kept up-to-date? Putting the question another way, how in practice could these States exercise their fundamental international law right to self-defence,2 if externally threatened, and maintain order domestically? In theory, each could supply its own needs through home manufacture. To say this is to expose its unreality, indeed its economic absurdity. Small nations ­especially would lack the technical knowledge and skilled workforce, and for poorer ones, to establish an independent arms industry would, given their more vital needs, be a gross distortion of limited resources. Although ‘a traditional dictum of security policy, at least since Machiavelli, is that no state should rely on others to furnish the means of its own defence’,3 in an age of advanced technology, that is a luxury few can actually maintain. It is in fact to the advantage of many, perhaps most, States that they are able to acquire their means of defence from external sources; and although the concept of ‘comparative advantage’ drawn from classical economic theory too often serves to justify under-development of the economies of the Global South, this is one instance in which it does make good sense. Indeed, the term ‘arms trade’ does not fully describe what may occur, because the transfer need not involve economic exchange: a producing State may, for 1 A recent count, citing the CIA World Factbook, put the number at 22. See www.theatlantic.com/ international/archive/2014/11/countries-without-militaries/382606/. 2 The United Nations Charter, in Article 51, recognises that States possess the ‘inherent right of individual and collective self-defense’ … ‘Inherent’ signals that this right is a matter of customary international law, which long antedates the founding of the UN. 3 M Trebilcock et al, The Regulation of International Trade, 4th edn (Abingdon, Routledge, 2012) 575, citing Machiavelli’s The Prince (written in 1513) chs 6–7.

4  The Arms Trade: A Critical Introduction various political reasons, choose to supply the weapons without cost, as was in fact the practice of the Superpowers during the first two decades of the Cold War.4 For this reason, if international regulation in particular is to be effective, it must apply to all ‘arms transfers’ – the language used in the Arms Trade Treaty.5 Nor can it be limited to ‘weapons’ or ‘arms’, but must encompass surveillance equipment and technology such as the software used to guide missiles and planes, and any type of equipment with the capacity to coerce or injure. If this is correct, then some sort of system of international arms transfers is both inevitable and, to some extent, even desirable. To say this does not at all mean accepting that the present levels of armament throughout most of the world, or the uses to which those weapons are most often put, are either necessary or desirable. There is no contradiction between the following two ideas: 1) acceptance that in a world of competing, sometimes hostile States, all will require armaments and most will rationally choose to import them; and 2) a passionate belief that most States possess arsenals grossly in excess of what a rational assessment of self-defence requires, and that in varying degrees national self-aggrandisement, corruption, the determination of elites to control their populations by violent means, and shortterm economic calculations, have all variously led to bloated accumulations of weapons at the expense of greater societal needs. In light of the inevitability of international arms transfers, why then is the arms trade so much, and often justly, reviled? If most transactions were between two democratic states of reasonably similar levels of economic development when the recipient was not engaged in armed conflict – a sale of aircraft from the UK to, say, Australia – objections would likely be few and muted. But most transfers do not fit this pattern, and the political, humanitarian and economic objections to them are numerous and powerful. I shall identify and examine eight. Some, particularly the harmful effects on the exporting State, have not attracted the attention they merit. Most though have in various ways concerned the character of the importer, which determines how the equipment is likely to be used. However, before these are explored, it is necessary to highlight one particular type of weaponry which for many years was the primary focus of concern.

II.  Small Arms and Light Weapons Certain types of weapons, known collectively as small arms and light weapons (SALW), have been the cause of death of literally millions of people over the last 4 In this period, approximately three-quarters of all US arms exports were in the form of grants, mostly from large stocks of surplus (and lower quality) equipment. Russian exports followed the same pattern, though to a lesser degree. See J Husbands and A Hessing Cahn, ‘The Conventional Arms Transfer Talks: An Experiment in Mutual Arms Trade Restraint’ in T Ohlson (ed), Arms Transfer ­Limitations and Third World Security (Oxford, Oxford University Press, 1988) 111–113. 5 See chapter 14 of this volume.

Small Arms and Light Weapons  5 two decades. The vast majority of the victims have been civilians, predominantly women and children, largely in Africa. In countries like Angola, the Congo (DRC), Liberia, Sierra Leone, Mali and Somalia, these have been the weapons of choice of both official armies and diverse unofficial forces – the latter variously described as insurgents, militias, private armies or resistance fighters, and generically described as non-State actors (NSAs). SALW are technologically simple, easily transportable, readily concealable, and their unit cost is relatively cheap. The iconic example is the Kalashnikov (the American M-16 is similar); but grenades and the so-called MANPAD (man-portable air defence system) which a small crew can transport and use to take down aircraft, are other much-used deadly items.6 Kofi Annan, when UN Secretary General, rightly described SALW as ‘the real weapons of mass destruction’.7 Trade in them is often illegal under various national laws, but ease of concealment amongst ships’ legitimate cargoes, and of transport by light aircraft landing in remote airstrips, makes these laws very hard to enforce. So too does the use of brokers, front companies and other intermediaries. In resource-rich areas, payment by the armed groups controlling a particular area may take the form of access to the raw materials: hence the term ‘conflict diamonds’ in places like Angola, Sierra Leone and the DRC. SALW as instruments of carnage are not limited to areas of overt political instability. Latin America and several West Indian States have been subject to organised gun violence, a by-product of the lucrative market created by the drug prohibition policies of the USA, as rival criminal gangs fight murderously for control of the contraband and the supply routes. Mexico has been the most famously afflicted, but several Central American and West Indian States have suffered equally.8 Worst affected of all is Brazil, which endures the world’s h ­ ighest rate of gun deaths, mostly arising out of drug trade-related criminality.9 With the partial exception of Brazil, which produces some of its own guns, virtually all the weapons and ammunition used in these killings are imported; their purveyors truly are ‘merchants of death’.10 The need for controlling the flow (and flood) of 6 The widely used definition of SALW comes from the Report of the Panel of Governmental Experts on Small Arms, A/52/298, presented to the UN General Assembly on 27 August 1997. Other weapons in this category are revolvers and self-loading pistols, assault rifles, sub-machine and light and heavy machine guns, various portable anti-tank guns, launchers for these and MANPADS. For more details, see further R Stohl, M Schroder and D Smith, The Small Arms Trade (Oxford, One World, 2007). 7 In a speech delivered to the UN Millennium Summit in 2000, quoted in M Bourne, Arming Conflict: The Proliferation of Small Arms (Basingstoke, Palgrave Macmillan, 2007) 3. 8 For a careful attempt to measure the contribution of gun violence, and particularly that related to the organised gangs, in Jamaica and Trinidad and Tobago, see Geneva Declaration Secretariat, Global Burden of Armed Violence 2011 – Lethal Encounters (Cambridge, Cambridge University Press, 2011) 95–102 (hereafter ‘Geneva Declaration Secretariat Report’). 9 In 2017, Brazil’s murder rate of 30.8 per 100,000 people was 50% higher than Mexico’s. It was ­approximately three times the firearms death rate of the USA, itself astonishingly high by European standards. See the Reuters’ report of 10 August 2018, https://uk.reuters.com/article/uk-brazil-violencemurder/brazil-suffers-record-murder-tally-in-2017-ahead-of-election-idUKKBN1KU2R3. 10 This phrase originated in a wildly popular book published in the 1930s which blamed arms manufacturers and sellers for the horrors of the First World War: C Engelbrecht and F Hanigan, Merchants of Death (New York, Dodd, Mead & Co, 1934).

6  The Arms Trade: A Critical Introduction SALW is thus not restricted to situations of civil war or external war. Organised domestic criminal violence can be devastating too.11 It should be noted however, that in certain States, civilian possession of firearms may be protected by domestic law, most notoriously in the USA by the Second Amendment of the Constitution, which establishes ‘the right to bear arms’.12 The overwhelming importance of SALW in delivering death and destruction, and maintaining repressive regimes, in countries in the South led to the heavy concentration of attention, political campaigning and diplomatic activity on them. For this reason they merit the particular attention of the preceding pages. However, recent developments, particularly the Saudi-led bombing campaign in Yemen, have brought more traditional means of warfare back into the limelight. It is therefore necessary to discuss the arms trade’s contribution to State violations of international law in a way that would not have been so apparent a decade ago. However, the discussion of the effects of the arms trade is best approached by beginning with the issues that historically have had most influence on political debate.

III.  Internal Repression Without becoming ensnared in controversy about precise numbers, it is fair to say that numerous States are either openly undemocratic; or deny significant human – civic or personal – rights to some or all of those under their control; or occupy territory whose inhabitants do not wish to be governed by them and regard them as an alien force; or treat significant ethnic or religious groups in oppressive or discriminatory ways. In many situations more than one of these abuses occurs, and they may all be grouped under the general heading of ‘internal repression’.13 A day seldom passes when examples are not found in the news, drawn from everywhere around the globe.14 The material means used by secret police and military forces against their own people, or to subject people under their direct control,

11 The problem is of such magnitude that it has engendered a growing literature viewing gun violence as a matter of public health. In August 2018, the Journal of the American Medical A ­ ssociation published an ‘original investigation’ which detailed the mortality rates in the manner of a major global disease: Global Burden of Disease 2016 Injury Collaborators, ‘Global Mortality From Firearms’ (2018) 320 Journal of the American Medical Association 792, doi:10.1001/jama.2018.10060. doi:10.1001/jama.2018.10060. Several other articles, mostly emanating from Canada, have taken the same approach. See especially N Arya and W Cukier, ‘The International Small Arms Situation: A Public Health Approach’ in P Mahoney et al (eds), Ballistic Trauma, (London, Springer, 2005) 3–30. 12 As interpreted in controversial 5–4 decisions of the US Supreme Court in District of Columbia v Heller, 554 US 570 (2008) and McDonald v City of Chicago, 561 US 742 (2010). 13 The phrase used in the EU export control Criteria: below, p 7. 14 The past 40 years have produced examples in numerous States in Latin America, sub-Saharan Africa, North Africa and the Middle East, including Israeli actions in the Occupied Territories, Indonesia, Sri Lanka, Tibet and Chechnya.

Internal Repression  7 is almost always imported weaponry, supplemented increasingly by surveillance technology. Many citizens of Northern supplier countries15 object to their nation’s industry being used to deny people overseas freedoms they themselves enjoy, though that is not a unanimous view. In this instance, a sense of fellow-feeling about the value of democracy or human rights combines with revulsion at the violence committed. This position links with the impact of human rights on international political and legal agendas in the last two decades: greater salience, increased official rhetoric and sporadic practical action. The link, however, is often not made as tightly as it might be: restriction of arms sales on human rights grounds should be more central to the missions of official human rights agencies than it is now. This is beginning to be recognised with respect to Responsibility to Protect (R2P), as the UN has attempted to establish that concept as an international norm.16 The Secretary General’s Report of 2009 on its implementation stated that ‘Particular attention should be paid to restricting the flow of arms or police equipment, which could be misused by repressive regimes that are manifestly failing’ to meet their R2P obligations.17 It is important that future R2P initiatives go beyond this bare mention, but there is little sign that they have. The role of imported arms in assisting violent suppression of opposition and human rights violations has probably been the leading argument put forward by critics of the arms trade, so that serious debate about repression as a reason for banning arms sales no longer takes place openly, at least in Europe. It is one of the primary grounds identified in the guidelines long operated by the European Union and now known formally as Criteria, to which approval of arms sales by national governments is supposed to conform.18 Legally binding since 2008, the so-called Common Position mandates denial of an export licence ‘if there is a clear risk that the military technology or equipment … might be used for internal repression’.19 Reluctance to sell arms to an internationally recognised government due to its dealings with its own people intrudes on concepts of sovereignty accepted for centuries as being fundamental to relations between independent States.

15 There seems to be no organised civil society opposition in Russia, and one would not expect public opposition in China, which in any case only recently became a significant exporter of weaponry. 16 The key document here is the UN World Summit Outcome of 2005, A/RES/60/1. The late 1990s and 2000s saw the growth of a large scholarly literature on the subject, for, against and clarificatory. For a comprehensive bibliography, see A Hehir, The Responsibility to Protect (Basingstoke, Palgrave Macmillan, 2012) 269–94. 17 ‘Implementing the Responsibility to Protect’, Report of the UN Secretary General, A/63/677, 12 January 2009, para 58. 18 These are the subject matter of chapter four. 19 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99, Art 2, Criterion 2 (hereafter ‘EU Common Position’). This goes well beyond anything currently found in US arms export control legislation, which requires licensors to consider only whether the equipment would have certain undesirable international effects. See 22 USC s 2778 (a)(2).

8  The Arms Trade: A Critical Introduction When the would-be purchaser is a former colonial territory, allegations of neo-colonialism are sure to be heard. So too are allegations of hypocrisy, not only about human rights violations within the producer State itself, but more tellingly about ‘discrimination’ – inconsistent application of human rights standards depending on ulterior factors such as trade relations or wish for political favours or military assistance from particular would-be purchasers.20 This important issue is taken up in chapter 14, in the context of international regulation under the Arms Trade Treaty.

IV.  Endemic Corruption Of all the products of international commerce, the trade in weapons is ­undoubtedly the one most deeply immersed in corruption. Indeed, it has been persuasively argued that corruption is actually the purpose of many transactions: the argument being that most purchasers do not need the volume or the kind of weapons to protect themselves from any reasonable possibility of attack. Hence the price is inflated, and/or the equipment purchased goes well beyond the State’s reasonable defence needs, and/or is bought in excessive amounts. All these abuses enable ­officials and influential people in the purchasing State to receive bribes, commissions, or other benefits (eg funds for political campaigning to retain power).21 Corruption may or may not be the lifeblood of the arms trade, but it has been central to numerous, highly-publicised scandals over decades. Indeed, Roeber contended that corruption dominates the global arms trade to an extent that has no parallel in any other field, so great that ‘it may account for almost half of all corruption in legal trade’.22 Whatever the precise proportions, it clearly has been responsible over recent decades for billions of dollars being diverted to the covert enrichment of officials. Public funds have been drained,

20 Evidence of the reality of discrimination by exporter States is compelling. Two good examples come from the study by R Perkins and E Neumayer, ‘The Organised Hypocrisy of Ethical Foreign Policy: Human Rights, Democracy, and Western Arms Sales’ (2010) 41 Geoforum 247, who found (at 254) that ‘developing countries which are more important trading partners exhibit a greater probability of qualifying for arms, as generally do countries which fulfil the domestic interests of the supplying state extra-territorially as military allies’. From a different perspective, ST Hansen et al, ‘Who Coddles Dictators?: Comparing Chinese versus Western Exports of Small Arms and Light Weapons to Repressive Regimes, 1992–2009’ (2012) 56 International Studies Quarterly 843 concluded that, with respect to Africa, Western States gave priority to strategic and economic interests where these conflicted with purported attachment to ethical norms, even when expressed in legal rules; but when strategic interests were not present, the norms tended to prevail. (They also found that Chinese SALW exports were shaped entirely by economic considerations, which paradoxically meant they were less likely to reach poorer authoritarian countries than were Western exports.) 21 This argument was put forward persuasively by the late Joe Roeber (J Roeber, ‘Special Report: Hard-Wired for Corruption’ Prospect (28 August 2005). Roeber, a UK-based journalist, was prevented from publishing his detailed book-length research due to fear of the libel laws then in force in England. 22 Ibid, 53.

Endemic Corruption  9 often in ­developing ­countries most of whose ­citizens have desperate subsistence, health and educational needs. It is equally clear that though the impact may be particularly devastating for those countries, the phenomenon is not peculiar to them. Sales between EU Member States have not been exempt.23 Indeed the sums involved, and therefore the rewards to be gained, are far greater where expensive high tech weapons and systems are involved. Sales to Saudi Arabia and the Middle East oil economy States, collectively the world’s biggest market, have proven to be the most lucrative field of operation. A notable and angry literature, produced largely by journalists and non-governmental organisations (NGOs), documents such abuses in specific cases in forensic detail.24 The sums involved are enormous. Orders may be worth billions of dollars over extended periods of time; and the ‘commissions’ are proportionate.25 This is far removed from the world of SALW and atrocities in remote poverty-stricken areas. The total value of those sales is far smaller, so inevitably corruption in relation to them involves relatively small bribes of airport or customs officials, or of those who issue import licences without asking questions. The big money attaches to wholly different forms of weaponry: high tech aircraft, control systems, defence systems, carriers, battleships and submarines. The purchasers are governments, not NSAs; those complicit are high civil servants and military officers, prominent business executives and, often in the most suspect cases, politicians. And for decades, the weapons were never fired in anger; it was as if companies were cynically gaining profits and providing employment whilst their home governments gained tax revenues, by selling material to Saudi Arabia and the Gulf States in particular, that

23 Two former Greek Defence Ministers were convicted in the past decade of accepting bribes and/or money laundering in connection with sale of weapons sold by German companies. 24 It is unfortunate that the subject has been seriously neglected by scholars, perhaps because it falls uneasily between disciplines like criminology, political economy, international relations and criminal law. Distinguished exceptions include the Canadian economist/criminologist Tom Naylor, who has produced several books on corruption and international political economy containing material related to the arms trade. See, eg RT Naylor, Patriots and Profiteers, 2nd edn (Montreal, McGill-Queen’s University Press, 2008). An excellent article, M Phythian, ‘The Illicit Arms Trade: Cold War and Post-Cold War’ (2000) 33 Crime, Law, and Social Change 1, argues persuasively that the arms trade altered significantly with the ending of the Cold War, which gave much freer scope for private enterprise and proliferating corruption; many specific examples are discussed on pp 16–45. A more academically-structured version of the work cited in the next paragraph is A Feinstein and P Holden, ‘Arms Trafficking’ in L Paoli (ed), The Oxford Handbook of Organised Crime (Oxford, Oxford University Press, 2014) Ch 22. The best of the non-academic accounts are A Feinstein, The Shadow World: Inside the Global Arms Trade (London, Penguin, 2012), in which accounts of corruption are interwoven with other political aspects of the subject. M Glenny, McMafia (London, Vintage Books, 2008), ranges very widely but pp 108–14 and 229–36 provide some useful information about the role of politicians in former Communist States and the connection with arms shipments to Africa. N Gilby, Deception in High Places: A History of Bribery in Britain’s Arms Trade (London, Pluto Press, 2014), covers the 1960s and 1970s in great detail but has two useful chapters on more recent scandals in the UK, referred to in chapter five of this volume. 25 The details of one famous example, the UK-Saudi arms sales agreements, are explored in chapter five of this volume.

10  The Arms Trade: A Critical Introduction they expected to sit idle and disturb no one.26 This complacency remained long undisturbed until it was shattered by the war in Yemen from 2015.27 Thus paradoxically the most expensive and corruption-embedded weapons are those which have seldom been used directly to commit atrocities or human rights violations. They may have other damaging internal effects, notably by elevating the status of military and police organisations within government and enriching civilian and military elites that maintain effective dictatorship. But they are unnecessary for the suppression of civilians, which can be done far more simply and cheaply with machine guns, rifles, crowd control and torture equipment, and surveillance technology.

V. Diversion Embargoes have become an increasingly invoked measure of international politics. Though used by North Atlantic Treaty Organisation (NATO) States against those in the Soviet bloc throughout the Cold War,28 they were and are increasingly employed by the United Nations as a form of sanction short of armed response.29 The USA, EU, and its individual Member States have also frequently imposed them against both governments and NSAs in recent decades.30 All carry with them the risk that the target entity will seek other sources. The latter may look to other States which refuse to join the embargo, but this is difficult when it is backed by a global consensus represented by the UN. A more promising avenue than illegal shipments and perhaps the most effective–certainly for heavier equipment – is manipulation of an apparently legitimate sale to one recipient country so that the weapons reach the target State by a devious route. This is known as ‘diversion’. It is also a means by which shipments of SALW may be made to NSAs, making use of false end user certificates, assisted by corrupted or politically-sympathetic officials and politicians in the purported recipient State. Diversion thus links inseparably with both large-scale suffering and corruption. Equally, States may employ similar means to arm themselves either when at war or engaged in internal brutality. The example best known in the UK was the

26 It sometimes became almost comically apparent that the purchasers were incapable of using what they had so expensively bought. During the Gulf War of 1991 it emerged that the Saudi Air Force was incapable of maintaining its planes so as to prevent the engines from being immobilised by sand grit (another form of desert storm) … 27 See further below, chapter four at pp 77–79 of this volume. 28 Via a mechanism called COCOM, (Coordinating Committee for Multi-lateral Export Controls). This was abolished in 1994, and replaced by the so-called Wassenaar Arrangement, an organisation of exporting States which now includes most of the former Soviet bloc nations. 29 The Stockholm International Peace Research Institute (SIPRI) arms embargo database listed 13 mandatory UN arms embargoes in force as of 10 March 2019: www.sipri.org/databases/embargoes. 30 SIPRI database, ibid, listed 20 EU embargoes in force as of 10 March 2019.

Contribution to Aggression and Instability  11 process by which Saddam Hussein managed to acquire British weaponry via shipments supposedly purchased by Jordan. This was central to the so-called Arms to Iraq scandal, which produced a massive report by a senior judge whose investigative hearings occupied even more space in the media for more than a year, exposed some of the more unsavoury aspects of the UK arms industry, and eventually led to a modernised statutory structure of export controls.31 Diversion is not limited to circumstances where a formal embargo exists, and it is one of the key concerns of major exporting States; indeed in EU States it is the most commonly-invoked reason for denial of export approval.32 The role of arms brokers, who often serve to conceal the identity of the purchasers; the need for a weapons ‘fingerprint’, marking which enables enforcement officials to trace the movement of contraband weapons, and regulation of their transit and transhipment33 (t & t), are all vital to combating diversion. Their great importance was recognised in the Arms Trade Treaty which, in addition to a complex Article covering diversion, also specifically included provisions on brokering and t & t.34 Also critical to preventing diversion is so-called ‘capacity building’ – assisting customs and other enforcement officials in both exporting and importing States to gain expertise in recognising suspicious transactions and investigating both physical shipments and paper trails. Cultivating higher standards of integrity among officials and politicians is part of this process, though if the poor pay of lower-level enforcement officials is not remedied, this is likely to have limited effect. However, such efforts will always be permeated with a strong smell of hypocrisy unless powerful measures are taken simultaneously against companies prepared to offer various forms of inducements to gain sales, which enjoy a powerful political presence in States of the North.35

VI.  Contribution to Aggression and Instability Part of the process of approving a sale of weapons is consideration of their likely external uses. It may be judged that the purchaser is not likely to use the weapons 31 See chapter five below at pp 108–109. 32 See chapter four at pp 93–95. 33 ‘Transit’ means the carrying of goods from Country A through one or more States (Countries B–N) to their eventual destination in Country X. ‘Transhipment’ refers to the physical process of unloading the goods which arrive, say, by ship in Country A, and re-loading them into lorries for transport to the eventual destination. 34 Arms Trade Treaty, Art 11 (diversion); Art 10 (brokering); Art 9 (t & t). Tracing is not specifically addressed, though there are several articles relating to recordkeeping and information exchange among State Parties which could be helpful. See further chapter 14. 35 The Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention of 1997 is aimed at preventing these acts. It has been given statutory force in the great majority of EU countries; in the UK this takes the form of the Bribery Act 2010. For the full text, commentaries and recommendations, see www.oecd.org/daf/anti-bribery/ConvCombatBribery_ENG.pdf (OECD, Paris, 2011).

12  The Arms Trade: A Critical Introduction for aggressive purposes, but with delivery comes loss of control. In unexpected circumstances, or in those whose likelihood has been discounted, a misjudgement may prove deadly to third parties, or even to allies. The classic instance is the use by Argentina of French Exocet missiles against UK ships during the Falklands/ Malvinas War. Presumably the French thought that the intended use, or deterrent effect, would be limited to other South American States.36 Of the purposes the United Nations set forth in its Charter, the very first is ‘to maintain international peace and security’; collective action under its auspices to prevent threats to peace and to suppress acts of aggression is supposed to provide the means.37 Thus curbing availability of the means of aggression should be a primary element of arms trade policy of exporting States. On paper, this is so. The EU Common Position contains a provision requiring denial of sale if it appears the equipment would be used aggressively.38 This raises two difficulties. The first is that, to adapt a well-known phrase, one State’s aggression is another’s self-defence.39 Perhaps even more importantly, it may at the least be arguable that, in the context of particular national rivalries, balance of armaments can serve as a deterrent to aggression. Yet clearly that argument can readily be distorted to justify shipments to one’s friends in almost all circumstances. Given the importance of the deterrence or balance justifications, it is not surprising that there have been several attempts to determine the impact of arms transfers on aggressiveness of States. Unfortunately they shed little useful light. For one thing, they all looked at data from the period of the Cold War, which means that both the transfers and the responses of the recipient occurred within the particular context of bi-polar international relations which collapsed 30 years ago. The absence of any more recent studies leaves a major gap in our understanding. Secondly, even those studies were remarkably ambiguous in their results.40

36 Twenty people aboard HMS Sheffield were killed, and even more were wounded. An Exocet was also fired by the Iraqis in 1987 at an American warship, killing nearly 40 people. 37 Charter of the United Nations, Art 1. 38 Council Common Position 2008/944 (n 19) Art 2, Criterion 4. See below, chapter four at pp 90–91. 39 A controversial related issue is the question of justification. To a State which is what Bismarck, after he unified Germany by two successful wars, called a ‘satiated State’ – one content with the status quo and seeking only to maintain it – attempts by other States or those deprived of territory to alter a result they believe to be unjust will be seen as aggression. Yet if the entrenched State is militarily strong and refuses to budge, are the aggrieved parties required passively to accept the present state of affairs? This is anything but a theoretical question: India’s role in Kashmir and that of Israel in the Palestinian Occupied Territories are both examples, and are among the most dangerous sources of conflict in the contemporary world. 40 A very interesting and relatively recent study, which showed unusual awareness of the difficulties and ambiguities surrounding conceptual structure and data selection and availability, covered an enormous sweep of European history (1816–1992). However, the study unfortunately detached its conclusions from the necessary sensitivity to specific political contexts. See D Gibler et al, ‘Taking Arms Against a Sea of Troubles: Conventional Arms Races During Periods of Rivalry’ (2005) 42 J­ ournal of Peace Research 131.

Contribution to Aggression and Instability  13 Some purported to show that particular transfers stimulated ‘co-operative behaviour’ between rivals, whereas others concluded precisely the opposite – that ‘conflictual behaviour’ was stimulated. At least one concluded that the transfers had no impact at all in this respect.41 Yet another researcher has argued that whilst both US and Soviet transfers to three selected sets of rivals were ‘profoundly destabilising’, sales by China to Pakistan ensured military balance between that country and India, and thus contributed to regional stability.42 This last finding gives a clue to a fundamental point: a given transfer may have very different effects, depending on whether it confers a military advantage on the recipient or whether it equalises the position of the recipient vis-à-vis its rival and hence restores a pre-existing balance of armaments. And this itself is a different question from the impact of transfers on aggression: imbalances of armament do not by themselves cause or produce aggression – they may tend towards that direction but other factors, including the pressure of dominant powers, especially the supplier State, may push in the opposite direction.43 In other words, a destabilising transfer does not directly produce aggression, and the extent to which it may have that effect cannot be determined a priori or abstracted from specific circumstances. No clear conclusion is supportable, and the simple thesis that ‘arms sales cause war between States’ is unsustainable. However, the italicised phrase is critical, because the impact on inter-State rivalries is likely to be entirely different from the effect of receiving arms on those NSAs which, as is true in almost all cases, are already engaged in armed conflict with a State.44 It is important also to separate the question of aggression, which relates to initiation of war, and the effect of arms transfers on the continuation or intensification of an existing one – pouring fuel on the flames as opposed to starting the fire. A study of African wars during the 1980s found that arms supplies increased

41 For a summary of the diverse conclusions reached by various researchers, see D Kinsella, ‘Conflict in Context: Arms Transfers and Third World Rivalries during the Cold War’ (1994) 38 American Journal of Political Science 557, 558. Kinsella’s conclusion in this article was that US and Russian transfers had different impacts in terms of aggravating or dampening conflict, which seems to be dependent on sequence and timing. See his more recent overview of the empirical research on transfers, ‘The Arms Trade’ in C Coyne and R Mathers (eds), The Handbook on the Political Economy of War ­(Cheltenham, Edward Elgar, 2011) 217–42. 42 G Sanjian, ‘Promoting Stability or Instability? Arms Transfers and Regional Rivalries, 1950–1991’ (1999) International Studies Quarterly 621. The author pointed out that his finding upset the traditional picture of China as an agent of ‘irresponsible’ arms transfer. 43 The question of influence is itself problematic. One study found, quite counter-intuitively, that ‘increasing levels of US military aid significantly reduce cooperative foreign policy behavior with the United States’: P Sullivan et al, ‘US Military Aid and Recipient State Cooperation’ (2011) 7 Foreign Policy Analysis 275, 275. 44 To say this in no way implies that all NSAs are engaged in morally unjustified armed violence. They may have no other means of effective resistance to a brutal dictatorship and to call this ‘aggression’ is politically loaded and tendentious. Obviously, though, their ability to resist does depend on their ability to acquire arms.

14  The Arms Trade: A Critical Introduction in volume after wars had begun, and were more often received by defending States. This enabled war – and therefore casualties – to continue longer than it likely would have, but also meant that aggression, or at least initiation of armed conflict, was not rewarded.45 In general, there is substantial support for the view that ‘arms transfers are partly to blame for the frequency, duration and severity of armed conflict in the developing world’,46 but the geographic limitation of that conclusion is important, as is the fact that the great majority of those conflicts have not occurred between States, but within a single one. From an Olympian overview of any particular regional or inter-State rivalry, it would appear clearly that an embargo of transfers to all sides would be the most rational policy to inhibit conflict. At best, transfers would merely stimulate further transfers in an attempt at equalisation, with no gain to anyone – except those far away in the supplier States – and at worst would enhance the likelihood of pugnacious diplomacy and military aggression. With the capacity to supply arms no longer restricted to very few States,47 it is difficult to imagine any such policy operating effectively today, unless imposed by the UN with the unanimous and continuing support of the five Permanent Members of the Security C ­ ouncil. Yet again there is a problem. Although nothing in the Charter prevents the UN from imposing an embargo for the purpose of preventing armed conflict,48 in practice Security Council embargoes have almost invariably been adopted after the outbreak of inter-State violence, very seldom as an attempt to create a sort of cordon sanitaire of demilitarisation before violence breaks out.49 Few clear-cut conclusions about the relationship between arms transfers and aggression can be presented with confidence. Timing is critical, particularly in respect of whether a transfer is a response to a rival or potential enemy’s acquisition of weapons, or is an attempt to gain a military advantage by upsetting an existing equipoise. So too is the political context in which the transfer takes place, including the relationship between the selling and purchasing governments.

45 F Pearson et al, ‘Arms Transfers: Effects on African Interstate Wars and Interventions’ (1989) 9 Conflict Quarterly 51. 46 Kinsella, ‘Conflict in Context’ (n 41) 227 (emphasis added). 47 SIPRI identified 67 countries as exporters of major arms in the period between 2014–18. See P Wezeman et al, ‘Trends in International Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019) 2 (hereafter ‘SIPRI Factsheet’). It is true however that most of them export a narrow range and relatively small amount of equipment. 48 Indeed Article 41 specifically empowers the Security Council once it determines under Article 39 that a threat to peace (or of aggression) exists, to impose a range of ‘measures’ not involving force. These include severing means of communication and transport and ‘complete or partial interruption of economic relations’ with the offender; the latter clearly would encompass arms embargoes and interdiction of deliveries of arms. 49 It is of course true that most contemporary armed conflicts occur within State borders, not between States. But when sanctions have been imposed against both sides of an inter-State war, they have occurred after the outbreak of violence, eg between Eritrea and Ethiopia in 1999. There remain major situations of ongoing intermittent inter-State violence, notably between India and Pakistan, where embargoes don’t even seem to have been mooted. The barrier in instances like these are political, not legal.

Economic and Social Impact  15 A co-ordinated freeze on transfers to particular States in situations of impending conflict, whether informally or by UN embargo, would potentially be an effective means of using arms transfer regulation to maintain international peace and security, but for political reasons is seldom attempted and has become increasingly difficult to envisage as more States become significant arms e­xporters. In its absence, even where transfers simply maintain equipoise – at the cost of billions – the only gainers are the executives and shareholders of the manufacturing companies, their employees and those who arrange the deals. What may be called a sub-issue straddling both aggression and diversion is known as ‘blowback’ – a term which also has a much wider use to describe former allies turning against their erstwhile sponsors (eg, the Taliban and their A ­ merican paymasters after 1989).50 In this case the seller may find the weapons turned on its own troops, as happened in the first Gulf War, when Iraq used weapons bought from the UK. Blowback or merely unanticipated use may also be the result of diversion, because the ultimate recipient is very likely to use the weapons for different purposes and against different targets than the nominal purchaser. Unlike the case of SALW and NSAs, diversion in this context involves heavier weapons in the hands of States.

VII.  Economic and Social Impact Perhaps the primary reason Northern aid NGOs became so passionately involved in the campaign for an international treaty to control the arms trade was their experience of the devastating effects of political violence on the quality of life and living standards of people trapped in so-called ‘conflict zones’. Endemic violence produces obvious costs in destroyed infrastructure (housing, schools, roads) and the health and rehabilitation care of victims;51 added to these are the loss of population (particularly the young and educated), and the impossibility of establishing the secure and relatively settled environment essential to encourage domestic or foreign investment in productive industry and development of human capital. The simple result is a population tightly gripped by poverty.52 Violence

50 A far-seeing and incisive study of this in relation to the USA was written by the late Chalmers Johnson, Blowback: The Cost and Consequences of American Empire, 2nd edn (New York, Henry Holt, 2004). 51 These costs may extend for decades, for example in the case of crippled child victims of landmines. 52 An important publication by a consortium of NGOs estimated that, ‘conservatively’, armed conflict cost African economies US$284 between 1990 and 2007, and reduced the ‘average’ African economy by 15% during its duration. The weapons used in this violence are almost all manufactured elsewhere. It is quite likely that in several countries, armed conflict has reduced in real terms already precarious living standards in affected areas. See International Action Network on Small Arms (ANSA), Oxfam and Saferworld, ‘Africa’s Missing Billions’, Briefing Paper 107, 11 October 2007.

16  The Arms Trade: A Critical Introduction stultifies development.53 And the use of scarce foreign exchange to buy weapons by governments that are either dictatorial, aggressive in relations with other States, or both, has been and remains a great drain on resources that could be used for education, health care, transport and other forms of public investment. The main exporting States, apart from Russia, have purportedly addressed this problem. American legislation enacted in the 1970s bars sales of military equipment to ‘economically less developed countries’ found to be diverting American development assistance funds, or their own resources, to ‘unnecessary military expenditures’.54 Criterion Eight of the EU Common Position requires assessment of compatibility of the sale with the ‘technical and economic capacity of the recipient country’ so as to make possible ‘the least diversion of human and economic resources for armaments’ to meet ‘legitimate’ security needs. Exporters are instructed to consider information from various international bodies when assessing whether the proposed export ‘would seriously hamper the sustainable development of the recipient country’, in light particularly of its ‘relative levels of military and social expenditure, taking into account also any EU or bilateral aid’.55 There is a vast gap between statute book and reality. The European Council produces an Annual Report on the work of Member States implementing the Common Position. It includes a breakdown of the number of times each Criterion has been invoked by each Member State to deny a licence request.56 The use of Criterion Eight has been infinitesimal: five times in 2018 (out of a total of 492), and precisely once in 2017 (out of a total of 549).57 Nor is there any evidence that the USA has taken its legislation any more seriously. This neglect is not accidental. The importance of arms purchases for the economies of producing states was highlighted by an authoritative report prepared by the US Congressional Research Service in December 2016.58 It demonstrated that ‘developing nations’ are the primary market for arms exports; it is no exaggeration to say that the South is the primary source of support for key industries of the North. This is particularly true of European exporters, whose domestic demand is too small to keep their arms manufacturers viable; hence the repeated, almost frantic efforts of UK Prime Ministers and French Presidents to push for arms sales as they visit foreign capitals. Furthermore, the importance of the Southern

53 The Geneva Declaration Secretariat Report (n 8) 168, concluded after analysis a broad range of indicators, that ‘lethal violence in particular is associated with low achieved of human development … a large cluster of countries is effectively trapped in cycles of armed violence and underdevelopment’. ‘Armed violence’ in this context includes both conflict between armed groups, and gang and related forms of criminal violence. 54 22 USC s 2775, part of the Arms Export Control Act of 1976. 55 EU Common Position (n 19) Criterion 8 [author’s italics]. 56 Not all States fulfil their reporting obligations every year, but most do. 57 See chapters four and five of this volume for further discussion. 58 C Theohary, Conventional Arms Transfers to Developing Nations, 2008–2015 (Washington, Congressional Research Service (CRS), 2016).

Economic and Social Impact  17 markets is ever-increasing. As the Report concluded, ‘Developing nations continue to be the primary focus of foreign arms sales activity by weapons suppliers.’59 The proportions have been remarkably high and constant: in terms of value, just over 80  per  cent of arms transfer agreements in 2008–2011 were with developing nations, a number almost exactly replicated in 2012–2015. In 2015 itself the figure rose slightly, along with a significant rise in dollar value.60 It is true that not all agreements result eventually in actual deliveries: there is always a substantial time lag as the weapons are constructed, and changing political constellations and economic circumstances (fluctuating exchange rates, oil prices) ensure that some agreements are either never fulfilled or are re-negotiated. However, the overwhelming importance of sales outside the developed world is striking. ‘Developing nations’ is a term that must be used cautiously, however. It notably includes Saudi Arabia, which was alone responsible for just over 20 per cent of all agreements in this period, and in years of high oil prices is very wealthy indeed. It also includes at least some of the oil-rich Emirates – as well as India, which has the largest number of people living in poverty on the planet. However, India also sustains a growing minority, equivalent in absolute terms to the combined population of several of the largest EU States, whose living standards equal those of the Northern middle classes. There presently exists no data set showing only sales to, say, the poorest 50 countries. What we do know is that the cost of arms imports by certain poor states relative to official development assistance can be enormous. Two examples, taken from 2006, are Myanmar and Yemen, where the value of arms imports was almost three-quarters of all assistance received.61 These may perhaps be extreme cases, but in any State suffering widespread poverty, significant diversion of resources to unnecessary arms purchases can have severe effects. This has been most thoroughly documented in South Africa, where a substantial majority of the population lives without basic amenities, and where millions have desperate medical needs due to widespread AIDS. It is also a country which faces minimal external threat. Unlike most states of the South, its population contains a significant minority of well-informed critical voices. Several books have been written on what has been called the ‘poisoned well of South African politics’ – the 1999 purchase of corvettes, submarines and more than 80 aircraft, which was infused with such corruption from the outset that it remains the subject of litigation and formal

59 Ibid, 2. 60 The precise figures were 80.39% in 2008–2011, 80.92% in 2012–2015 and 81.7% in 2015 alone; for that year the total value was US$65.2 billion. This represents a significant increase over earlier periods: the preceding CRS study gave the corresponding figure for 2004–2011 as 68.6%: R ­Grimmett and P Kerr, ‘Conventional Arms Transfers to Developing Nations, 2004–2011’ (Washington, CRS, 24 August 2012). 61 Oxfam Briefing, Armed Robbery (June 2012) 5. The exact proportions were 72% for Myanmar and 71% for Yemen.

18  The Arms Trade: A Critical Introduction investigation even now, despite the criminal conviction of several prominent persons a­ ssociated with the African National Congress.62 Estimates of the total costs have varied greatly but always in an upward direction, as the rand’s exchange value reduces and the true cost of interest payments and servicing the complex machinery has become clearer.63 Uniquely, critics have attempted to quantify with some precision how even the much lower sum the Government claimed at the time the deal would entail might have been used to the immediate benefit of those in great need. At 1999 prices, that sum might have cleared over 80 per cent of the country’s housing backlog, or more than doubled the number of public educators, or increased by more than eight-fold the number of nurses.64 Restricting a proposed sale on the ground that it would be harmful to the development of the would-be purchaser, or the more urgent needs of many if not most of its people, is however highly controversial. It is sometimes stridently criticised as ‘neo-colonialism’, in that a Western state is in effect telling the government of a sovereign state – which in almost all cases was until fairly recently under the rule of a Western power – that it understands the economic and social needs of its people better than their own government. Understandably this may grate. But the charge of neo-colonialism is specious – plausibly attractive but essentially false. Colonialism, though at times it cloaked itself as a ‘civilising mission’, was in reality about economic or strategic gains for the imperial powers. Refusal to approve arms sales would be of no economic benefit whatever to the producer State – generally the reverse – and might also jeopardise the achievement of certain political goals of that State. And the claim is even less credible in relation to the many dictatorships, present and past, whose rulers enrich themselves at the expense of their population and whose arms purchases have nothing to do with general welfare but rather are intended to maintain the regime in power and further enrich themselves. The sensibilities, genuine or conveniently self-serving, of many Southern States have been important in blocking the emergence of development concerns onto the agenda of international arms trade control. Their influence may have provided convenient cover for the indifference of the governments of many manufacturing states, more concerned about keeping open potentially lucrative markets than about the well-being of distant unknown Africans and Asians, but who have to contend with the campaigning and lobbying of some of their own citizens. The result was that even the very tentative mention of development considerations in the first draft of the Arms Trade Treaty in July 2012 was removed from the final version approved by the UN General Assembly in April 2013. 62 See especially P Holden, The Arms Deal in Your Pocket (Jeppestown, South Africa, Jonathan Ball Publishers, 2008); Feinstein (n 24) 175–188. See also T Crawford-Browne, Eye on the Diamonds (Penguin, Johannesburg, 2012) chs 1, 7, 10. 63 Feinstein (n 24) 187, claims that by 2011 the total had reached 71 billion rand. 64 Holden (n 62) 26–31. Obviously such alternate expenditure would have been balanced and spread among the several competing priorities, but looking at single alternative foci makes the point about the loss involved particularly graphic.

Violations of International Humanitarian Law  19 I have given such emphasis to the arms trade’s impact on poverty and ­ evelopment for two reasons. First, because it tends to be overshadowed in media d images and public debate by other things: the arms trade’s connection with visible destruction and death, and the tropically lush corruption which surrounds it. But second, what requires particular stress is that a policy which takes the criterion of development impact seriously is a direct challenge to the idea, which has for ­centuries underpinned international law, that the decisions of effective (but by no means necessarily elected) governments of other States are entitled to the same respect as our own. This notion has already been rejected in relation to the protection of human rights, where international norms are held to be superior to the acts of State authorities. Their violation in extreme cases has often led to UN-authorised sanctions and on occasion, armed response. The emergence, however tentative, of the R2P principle is a further example. Limiting arms sales takes this approach one step further, and as it would involve a short-time sacrifice of material interests, adoption and consistent implementation of the policy would require strong and consistent political pressure upon the governments of Northern States by civil society groups.

VIII.  Violations of International Humanitarian Law When the EU began formalising criteria to restrict arms exports, very little attention was paid to the conduct of inter-State wars. This reflected the changed political environment after 1989, in which it has become a truism that most wars, and the vast majority of deaths, occur within the boundaries of a single, often fragile State. The conduct of inter-State war, regulated by international humanitarian law (IHL),65 was not addressed in the Code of Conduct, the initial form of the EU rules that were issued in 1998; it was only added a decade later. Although IHL violations were included in all the Arms Trade Treaty drafts, it is fair to say that at the time the primary concern and attention was directed at curbing the abuses of SALW by authoritarian regimes and various armed non-State actors within a given State. The war in Yemen has seen a radical shift, thrusting the issue of IHL violations to the forefront of arms exports controls. The bombs and missiles used to kill and wound thousands of people and destroy facilities like hospitals and schools have

65 IHL make up the rules governing the conduct of warfare. IHL’s most relevant important current provisions are the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, and several additional Conventions and Protocols banning the use of particular weapons. It is a concept that encompasses, but also goes very much wider, than war crimes. A valuable and succinct summary of the main documents and key principles of IHL may be found in the judgment of the English Court of Appeal in Campaign Against the Arms Trade v SoS for International Trade [2019] EWCA Civ 1020, paras 23–25. This judgment – cited hereafter as the ‘CAAT Case’ – concerning the legality of UK approval of exports to Saudi Arabia, is discussed in detail in chapter five.

20  The Arms Trade: A Critical Introduction all been manufactured in the North, and the sale of these weapons to Saudi Arabia and its coalition allies is currently the most politically-charged aspect of arms sales in European exporting countries and the USA. The Yemen issue is discussed in detail in chapter four, in the context of the relevant EU Criterion, but it is certainly possible that as our world of rising tensions produces more inter-State conflicts, IHL violations and the means of their commission will come under greater scrutiny. The international Arms Trade Treaty, discussed in chapter 15, also contains a provision restricting transfers of weaponry to States committing ‘serious violations’ of IHL.

IX.  Domestic Blowback: The Effect on Arms Suppliers All the preceding issues relate to the impact of arms sales on recipients. The effect on exporting States has gone largely unnoticed. That impact has been insidious, its hidden character masking its destructive impact on constitutional accountability and democratic governance. Examples can most readily be drawn from the UK, and are only briefly cited here,66 but the UK is by no means alone in this respect. The ways in which legal and constitutional accountability have been subverted may be shortly summarised:

A.  Secrecy and Corruption Partly due to the insistence of purchasers, but also because exports are often encouraged and assisted by governments for economic and security reasons, their details are clouded in secrecy. Secrecy has allowed corruption to flourish more than any other single factor. It is impossible to determine whether the widespread adoption of the Anti-Bribery Convention and domestic legislation implementing it67 has as yet made any significant difference, but for decades the practice of securing contracts through bribes was acknowledged and approved at high levels of government, as seen by the scandals which all exporting countries have experienced. In many States the companies engaged in bribery are at least in part publicly owned and most also receive various forms of state subsidy, so public funds were and probably still are being used to commit financial crime. The normal mechanisms of ensuring probity in the use of public funds – investigation by financial accounting officers of the civil service and publication of their reports – have either



66 See

the detailed discussion in chapter five at pp 131–135. n 35.

67 Above

Domestic Blowback: The Effect on Arms Suppliers   21 been excluded or severely curtailed, or their results, very unusually, have been withheld from the public.

B.  Secrecy and Executive Decision-Making The secrecy is not limited to hiding dishonesty. Freedom of information (FoI) legislation, sometimes an effective tool for uncovering government concealment, almost invariably contains general exclusions which fit arms deals very well indeed.68 This enables exclusion from public discussion and parliamentary scrutiny evidence of discussions and decisions among civil servants, ministers and industry executives about how arms deals were achieved and in particular whether any commitments were made to alter government policies or take a soft approach to issues like human rights violations. This secrecy has been pierced only when a scandal erupts, and a high profile investigation becomes unavoidable – the Scott Inquiry in the UK was one instance69 – or when dedicated journalists or campaigners engage in lengthy FoI litigation.70 Even then the documents which are grudgingly released are often heavily redacted, ie censored by officials in the department involved.71

C.  Undermining Legality Perhaps the gravest damage to constitutional integrity was the subversion of the rule of law in the UK. Under heavy pressure from then Prime Minister Tony Blair, a long investigation into BAe (the largest UK weapons manufacturer) concerning corruption amounting to billions of dollars’ worth of sales to Saudi Arabia was terminated. This story is examined at length in chapter five; all that need be said at this point is that the Divisional (first instance) Court fully understood the gravity of what was at stake, stating that the actions of the Prime Minister and Attorney General represented a severe threat to the principles of separation of powers and

68 The UK Freedom of Information Act 2000 excludes from its scope matters of defence (s 26), international relations (s 27), formulation of government policy (s 36) and anything prejudicial to commercial interests (s 43). Even if all these were somehow exhausted, economic interests (s 29) and, though perhaps more tenuous, national security (s 24) remain in the background. The nine exemptions in the US FOIA, 5 USC s 552, cover much the same ground, though not so widely or elaborately. 69 Below, chapter five at pp 108–109 and the extensive commentary cited there. 70 For one example, see Gilby v Information Commissioner and FCO [2008] UKIT EA_2007_0071 (22 October 2008); for the applicant’s use of one particular document, see Gilby (n 24) 43–45. 71 The experience of early attempts to use the FoI Act in this context, which met with very limited success, was reviewed by Z Yihdego, ‘Arms Trade and Public Controls: The Right to Information Perspective’ (2009) 59 Northern Ireland Legal Quarterly 379.

22  The Arms Trade: A Critical Introduction the rule of law.72 The House of Lords opted for pragmatic submission to the threat to the UK legal system from a foreign State, and reversed that judgment.73 The result was that the investigation was terminated and no one was ever charged. There had not been a remotely equivalent case of political interference in a criminal prosecution in the UK for many decades74 and as the Administrative Court noted, it left the UK legal process more vulnerable to foreign interference in future.75 Analogous episodes have occurred in other States. They illustrate what may be called constitutional blowback: the perceived need to promote weapons exports overrides the principles of government on which those States are supposedly based. Practices of accountable government are thrust aside. The result is also effective impunity for certain kinds of criminal conduct. There is a fundamental unresolved question whether a State purportedly committed to constitutional values can export weaponry on a large scale to autocratic customers and continue in reality to uphold those values.

X.  Controlling the Exporter’s Foreign Policy It is generally assumed that arms sales may serve as a tool for advancing the exporter’s strategic-political interests, that provision of weaponry will give it influence over the recipient.76 In many instances this may be true, but the phenomenon of ‘reverse influence’ was noted long ago.77 The seller may discover that the apparent economic value of the deal makes it vulnerable to threats of refusal of future business, or even to withdraw existing orders which are not contractually guaranteed.78 The seller who puts too many of its eggs in one proverbial basket is particularly vulnerable; none more so than the UK which in 2014–2018 sent 44 per cent of all its exports to one country – Saudi Arabia.79 Yet the prospect of losing even one

72 R (on the Application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin). The most pertinent paragraphs are 56–80 but the entire judgment rewards reading. 73 [2008] UKHL 60. 74 The nearest parallel was the discontinuance of the Campbell prosecution, which helped bring down the minority Labour Government in 1924. 75 See especially [2008] EWHC 714, paras 77–80, 90–92. 76 See, eg, the various politicians and commentators quoted in C Catrina, Arms Transfer and Dependence (London, Taylor & Francis for UNIDIR, 1988) 14–17. For a rather abstract exploration of the dimension of influence in this context, see J Sislin, ‘Arms as Influence: The Determinants of Successful Influence’ (1994) 38 Journal of Conflict Resolution 665. 77 C Carr, ‘Reverse Influence, Interdependence and the Relation between Supplier and Recipient in Arms Transfers’ in J Simpson (ed), Control of Arms Transfers (London, Foreign and Commonwealth Office, 1977) 1–15; also W Lewis, Political Influence: The Diminished Capacity’ in S Neuman and R Harkavy (eds), Arms Transfers in the Modern World (New York, Praeger, 1979) 184–99. 78 This is common practice in arms sales; orders are placed, but they are subject to reduction or cancellation as circumstances change. 79 SIPRI Factsheet 2019 (n 47), Table 1.

Summary  23 substantial order may force a shift in policy. In September 2018 the new Socialist Government of Spain announced that it would halt the export of bombs of a type that had been used to kill civilians in Yemen. The Saudis retaliated by threatening to cancel an order for warships worth 1.8 billion euros. The shipyard is owned by the State, and the employees organised a blockade of roads in the south of the country. The Government quickly reversed its position.80 The warship order was entirely independent of the bombs, which were made by a different company, but the Saudis had identified a political vulnerability and used the economic power of the purchaser to ensure continuance of supply and stifle criticism of the bombing by the Spanish Government. They can hardly be criticised for protecting their interests, but the episode illustrates graphically that the sellers may mortgage their foreign policy to arms sales if they do not carefully choose their customers.

XI. Summary This opening chapter has explored the range of objections it attracts. The issues raised will recur throughout the book. The discussion is intended to set the stage for the examination of how the arms trade is regulated by all the major exporting States, and the beginning of international regulation by means of a recent Treaty. Evaluation of current practices in later chapters will draw upon the information and arguments presented in this one. The discussion assumes continuance of arms transfers between States, and that in some circumstances such transactions do not raise ethical objections, and make economic sense. However, the objections are shown to be compelling, and the task of this work is to move towards a set of ­principles and structures that would reduce the abuses to the bare minimum.

List of References Arya, N and Cukier, W, ‘The International Small Arms Situation: A Public Health Approach’ in P Mahoney et al (eds), Ballistic Trauma (London, Springer, 2005) 3–30. Bourne, M, Arming Conflict: The Proliferation of Small Arms (Basingstoke, Palgrave Macmillan, 2007). Carr, C, ‘Reverse Influence, Interdependence and the Relation between Supplier and Recipient in Arms Transfers’ in J Simpson (ed), Control of Arms Transfers (London, Foreign and Commonwealth Office, 1977) 15–30.

80 The SIPRI Factsheet 2019 (n 47) reports that Saudi Arabia accounted for less than 10% of Spain’s total arms exports, but for a country with high unemployment and a rising number of poor people since the financial crisis of 2008, the loss of any substantial source of jobs and income is politically unpalatable, and a State enterprise is particularly vulnerable economically.

24  The Arms Trade: A Critical Introduction Catrina, C, Arms Transfer and Dependence (London, Taylor & Francis for UNIDIR, 1988). Crawford-Browne, T, Eye on the Diamonds (Penguin, Johannesburg, 2012). Engelbrecht, C and Hanighen, F, Merchants of Death (New York, Dodd, Mead & Co, 1934). Feinstein, A, The Shadow World: Inside the Global Arms Trade (London, Penguin, 2012). Feinstein, A and Holden, P, ‘Arms Trafficking’ in L Paoli (ed), The Oxford Handbook of Organised Crime (Oxford, Oxford University Press, 2014) 444–59. Gibler, D, et al, ‘Taking Arms Against a Sea of Troubles: Conventional Arms Races During Periods of Rivalry’ (2005) 42 Journal of Peace Research 131. Gilby, N, Deception in High Places: A History of Bribery in Britain’s Arms Trade (London, Pluto Press, 2014). Glenny, M, McMafia (London, Vintage Books, 2008). Hansen, ST, et al, ‘Who Coddles Dictators?: Comparing Chinese versus Western Exports of Small Arms and Light Weapons to Repressive Regimes, 1992–2009’ (2012) 56 International Studies Quarterly 843. Hehir, A, The Responsibility to Protect (Basingstoke, Palgrave Macmillan, 2012). Holden, P, The Arms Deal in Your Pocket (Jeppestown, South Africa, Jonathan Ball Publishers 2008). Husbands, J and Hessing Cahn, A, ‘The Conventional Arms Transfer Talks: An Experiment in Mutual Arms Trade Restraint’ in T Ohlson (ed), Arms Transfer Limitations and Third World Security (Oxford, Oxford University Press, 1988). Johnson, C, Blowback: The Cost and Consequences of American Empire, 2nd edn (New York, Henry Holt, 2004). Kinsella, D, ‘Conflict in Context: Arms Transfers and Third World Rivalries during the Cold War’ (1994) 38 American Journal of Political Science 557. —— ‘The Arms Trade’ in C Coyne and R Mathers (eds), The Handbook on the Political Economy of War (Cheltenham, Edward Elgar, 2011) 217–42. Lewis, W, Political Influence: The Diminished Capacity’ in S Neuman and R Harkavy (eds), Arms Transfers in the Modern World (New York, Praeger, 1979). Naylor, RT, Patriots and Profiteers, 2nd edn (Montreal, McGill-Queen’s University Press, 2008). Pearson, F, et al, ‘Arms Transfers: Effects on African Interstate Wars and Interventions’ (1989) 9 Conflict Quarterly 51. Perkins, R and Neumayer, E, ‘The Organised Hypocrisy of Ethical Foreign Policy: Human Rights, Democracy, and Western Arms Sales’ (2010) 41 Geoforum 247. Phythian, M, ‘The Illicit Arms Trade: Cold War and Post-Cold War’ (2000) 33 Crime, Law, and Social Change 1. Roeber, J, ‘Special Report: Hard-Wired for Corruption’ Prospect (28 August 2005). Sanjian, G, ‘Promoting Stability or Instability? Arms Transfers and Regional Rivalries, 1950–1991’ (1999) International Studies Quarterly 621. Sislin, J, ‘Arms as Influence: The Determinants of Successful Influence’ (1994) 38 Journal of Conflict Resolution 665. Stohl, R, Schroder, M and Smith, D, The Small Arms Trade (Oxford, One World, 2007). Sullivan, P, et al, ‘US Military Aid and Recipient State Cooperation’ (2011) 7 Foreign Policy Analysis 275. Trebilcock, M, et al, The Regulation of International Trade, 4th edn (Abingdon, Routledge, 2012). Yihdego, Z, ‘Arms Trade and Public Controls: The Right to Information Perspective’ (2009) 59 Northern Ireland Legal Quarterly 379.

Summary  25

Other Publications Geneva Declaration Secretariat, Global Burden of Armed Violence 2011 – Lethal Encounters (Cambridge, Cambridge University Press, 2011). Grimmett, R and Kerr, P, Conventional Arms Transfers to Developing Nations, 2004–2011 (Washington, CRS, 24 August 2012). IANSA, Oxfam and Saferworld, ‘Africa’s Missing Billions’, Briefing Paper 107 (11 October 2007). Oxfam Briefing, Armed Robbery (June 2012) 5. Theohary, C, Conventional Arms Transfers to Developing Nations, 2008–2015 (Washington, Congressional Research Service, 2016). Wezeman, P, et al, ‘Trends in International Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019).

26

2 Governing Arms Transfers: The Praxis of Law and the Evaluation of Risk I. Introduction Government promotion of arms sales – a constant aspect of public policy in all the States discussed in this book, long outlasting transient changes of the governing political party – is driven by several considerations: economics; and the quest for strategic and/or political advantage.1 The relative importance of the three will vary at different times and in different States, but whatever the balance of motives, sales of weapons are seen as having a dual public importance that differentiates them from sales of any other industrial good.2 Furthermore, because they involve interaction with foreign governments and may have a significant impact on international politics, including the conduct of war, governments since the Second World War have exercised a degree of control not imposed on other exports. For much of the post-War period, and most notably in France, the UK (and of course the former USSR), this control was facilitated by the fact that the largest producers were state-owned enterprises. However, as privatisation, amalgamations and cross-national ownerships became the norm in the defence industry from the

1 Characterisation of these policy aims resembles, though it does not exactly correspond to, the reasons for arms exports identified nearly half a century ago in a groundbreaking study: The Stockholm International Peace Research Institute (SIPRI), The Arms Trade and the Third World (London, Paul Elek, 1971). This identified the motivations as ‘industrial’, ‘restrictive’ and ‘hegemonic’. The latter two are better captured by the ideas of politics and strategic interest, which are simultaneously broader and more concrete. Similarly, ‘industrial’ has become too narrow to describe the material basis of modern weaponry which depends on sophisticated computer technology. 2 Many have argued that governments have, deliberately or not, miscalculated or misstated the actual importance of arms sales, especially their contribution to the economy. This view particularly emphasises the extent of government subsidy of the arms industry, and has been particularly prominent in debates in the UK. See especially S Perlo-Freeman, ‘Special Treatment – UK Government Support for the Arms Industry and Trade’ (Stockholm, SIPRI, November 2016) which lists (p14) six previous economic studies addressing this question, and proceeds to offer its own conclusions. This opens up a debate on two levels: empirical – the precise amount of the subsidy involved, and normative – whether, whatever the accurate figure, it is worth it. Governments have almost failed to separate the two as one and, implicitly, answered the second affirmatively.

28  Governing Arms Transfers 1990s onwards3 (slightly earlier in the UK) it became necessary, if considerations other than company profits were to have any force, for formal legislation governing exports to be enacted. Consequently decisions formerly considered as matters purely of public policy, with no limits on the exercise of official discretion – which was largely exercised in secrecy and hence with restricted public debate – have now to be taken in at least purported compliance with publicly-enunciated criteria enjoying the status of law.4 The existence of legal constraints provides those who criticise any particular sale or transfer with at least an anchor for their objections. It also requires the civil servants who administer the process on a daily basis to take decisions within the framework of the law; and that Minsters be prepared, when either defending or overruling their decisions, to claim legal compliance. This in turn opens up the possibility that at least in some legal systems, those decisions may be subject to judicial review, as happened in the UK.5 For policymakers, this structure creates unusual, and generally unwanted, difficulties. The UK may be taken as an illustrative example. Historically the conduct of foreign relations was a matter of virtually uncontrolled executive discretion, and therefore almost purely a matter of policy. It still remains the least law-governed function of the State even though in recent years there has been some movement towards greater parliamentary involvement6 unimaginable 30 years ago. Historically, foreign relations have been the province of calculations of advantage both short- and long-term, with the constant possibility of subtle but also sometimes sharp shifts in policy. Flexibility is the hallmark, its preservation thought essential. Describing diplomacy as an ‘art’ is a hallowed if overused phrase, which no one has ever applied to the conduct of, eg, education policy or administration. From this perspective, governing arms transfers by rule is a major irritant, which some traditionalists may even see as being wrong in principle. Its advent 3 For a comprehensive discussion of these developments, see the essays by Bitzinger, Dunne, Neuman and Hayward in R Bitzinger (ed), The Modern Defense Industry (Westport, Praeger, 2009). See also H Wulf, Internationalising and Privatizing War and Peace (Basingstoke, Palgrave Macmillan, 2005) and A Krishnan, War as Business (Farnham, Ashgate, 2005) chs 1,2 and 7. 4 The UK enacted legislation giving the Government power to control exports at the beginning of the Second World War, but it was so open-ended that it barely affected policy at all. See further chapter five of this volume at pp 116–117. 5 See further, chapter five. Whether judicial review of arms export approvals is a practical possibility is discussed in the various national chapters. Suffice it to say here that both distinctive national principles of public law, along with various political factors, combine to yield notably different answers. 6 Prime examples – other chapters in this book may tell a different story – relate to the role of various Select Committees probing into aspects of foreign and defence matters. One highlight was the establishment in 1994 of the parliamentary Intelligence and Security Committee to exercise some (limited) oversight over a widening range of security institutions. Another was the establishment of a special Committee to review arms exports, discussed in detail in chapter five. Yet another was the greater role given to Parliament in the ratification of treaties by Part 2 of the Constitutional Reform and Governance Act 2010. In the longer view this may be seen as Parliament reasserting a role that had long been lost, for in the 19th century the conduct and progress of war was debated in the House of Commons and governments fell in response to incompetence, most spectacularly during the Crimean War. For a general view of Parliament’s role in relation to UK involvement in armed conflict, see V Fikfak and H Hooper, Parliament’s Secret War (Oxford, Hart Publishing, 2018).

Introduction  29 has also produced what several writers have convincingly argued is ‘organised hypocrisy’ – where the unresolvable tension between ethical considerations and those of material and strategic advantage, produces ‘inconsistent talk and action, arising from contradictory interests, obligations and incentives’.7 As Hansen argues, this ‘configuration of underlying heterogeneity and resistance’ inevitably produces ‘ambiguity’ in the substantive legal rules and therefore enables governments to allow ‘dubious deals to slip through’ whilst enjoying the ‘moral shelter’ of public adherence to purportedly restrictive principles.8 To rephrase somewhat, and drawing upon her subsequent detailed study of the formulation of the EU export control regime,9 because arms export control regimes are subject to sharply conflicting political, economic and moral pressures from diverse actors on the domestic political stages, they embody compromises that are inevitably ‘fudges’ and often seek to favour one set of values or interests over its competitors without making that resolution clear. The inevitable result is an ambiguity of language which can – whilst remaining within the range of legality – produce a range of incompatible decisions, varying with the balance of political forces at a given time (in particular, which government is in office and which individuals take the decision). Another perspective on this phenomenon is to distinguish between ‘commitment’ on paper and in public statements to certain norms of control, whilst in practice these are often slighted or even ignored because they are not backed by effective enforcement. This pattern occurs because States are said to be motivated by a concern for their international social reputation, which is satisfied by formally acceding to certain norms that are never internalised in their practice.10 However, it is equally important to emphasise a point perhaps more apparent to a lawyer than a social scientist. There is an inherent limitation in any form of legal regulation: the inevitable ambiguity of language, quite apart from the substance and values expressed in the law itself. It is quite impossible to craft a legal rule that permits one and only one meaning.11 Much of the work of the legal profession, not to mention its income, is based on exploring/exploiting the plasticity of language; and the Law Reports are full of the disputes that emerge. That said, the best test

7 R Perkins and E Neumayer, ‘The Organized Hypocrisy of Ethical Foreign Policy: Human Rights, Democracy and Western Arms Sales’ (2010) 41 Geoforum 247, 248. See also S Hansen and N Marsh, ‘Normative Power and Organized Hypocrisy: European Union Member States’ Arms Exports to Libya’ (2015) 24 European Security 264. 8 S Hansen, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the European Union Conventional Arms Export Control Regime’ (2016) 22 European Journal of International Relations 192, 192–94. 9 The latter is discussed in detail in chapters three and four. 10 This is a key theme that appears repeatedly in J Erickson, Dangerous Trade (New York, Columbia University Press, 2015); p 64 summarises the argument. 11 These jurisprudential issues are explored much more deeply by T Endicott, Vagueness in Law (Oxford, Oxford University Press, 2000); see also his brief summary, ‘Law is Necessarily Vague’ (2001) 7 Legal Theory 379.

30  Governing Arms Transfers of the genuineness of a government’s commitment to effective legal regulation is the degree to which its rules are drafted to minimise that inevitable ambiguity, and thus restrict its freedom of action. The more flexible the language of the rules and, even more, the underlying concepts which permit diverse applications to suit whatever policy aims a government decides to adopt, the less credible is any claim of that government to have bound itself to apply restrictive criteria.12 Finally, it is vital to emphasise that regulation does not take place in a policy vacuum. That is to say, exporting governments have not created the rules within a framework of neutrality. Public policy is to encourage arms exports: the question is what reasons shall be regarded as sufficient to overcome what may be called the presumption of approval. As a joint statement in 2004 from the four UK government departments involved in arms exports made clear, ‘decisions to refuse licences are not taken lightly. Only in those cases where refusal is clearly justified is a final decision taken to refuse’.13 Ambiguity serves to reinforce approval.14 The foregoing analysis provides the context needed for understanding the controversies surrounding the legal standards, known as Criteria, adopted by the European Union [EU], which is supposed to be applied uniformly by all Member States.15 However, before engaging in a critique of the substance and structure of these instruments – the subject of the following chapter – it is essential to understand the process through which they are applied, taking the UK as a case study.

12 Governments are very well aware of this. For example, soon after Margaret Thatcher took office and initiated a more assertive approach to promoting arms sales, an official of the Foreign and Commonwealth Office (FCO), whose emphasis on possible misuse had put it under (metaphorical) fire from other Departments involved in exports, assured his colleagues that his Department had, in response to the new policy, altered the criterion it applied when considering possible use of the equipment to commit human rights abuses from ‘could’ to ‘is likely to be’ so used. The purpose of the substitution was to introduce ‘a more flexible approach’, thus bringing the FCO into line. This quotation from the minutes of a meeting of the Defence Sales Working Group, 20 July 1981, is taken from R Moraes, Our weapons, our Problem: Arms Exports, Democracy and Civil Society in Brazil and the UK (unpublished DPhil Thesis, University of Oxford, Department of Politics and International Relations, Hilary Term 2019) 127. 13 Quoted in A Stavrianakis, ‘Licensed to Kill: The United Kingdom’s Arms Export Licencing Process’ (2008) 3 Economics of Peace and Security Journal 32, 32. See also chapter four of this volume at pp 70–71. 14 Compare Anna Stavriankis’s argument that the legal regulation is an attempt to ‘depoliticise what is inherently and unavoidably political’: ‘Legitimating Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) 37 Third World Quarterly 840, 853. Although her argument is a forceful critique of the undue optimism of some proponents of legal regulation, it actually proves too much: virtually all legislation, regardless of subject and substance, is the product of political choices, but it is implemented through specifically legal procedures, including an administrative structure, that are qualitatively different from the political process. 15 The EU Criteria are found in what is known as the Common Position, or CP [Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99]. In the UK this has taken the form of what are known as Common Criteria (CC) presented in the Ministerial Statement cited in n 31 below. The analysis of the conflicts between political discretion and the restraints of legality presented here applies even more forcefully where international law is involved, as with the Arms Trade Treaty [ATT], discussed in chapter 14.

‘Case-by-Case’ Decision-Making  31

II.  ‘Case-by-Case’ Decision-Making Both the EU and the UK instruments require that the decision on export approval be made on a ‘case-by-case’ basis.16 Thus, each export licence application is considered separately in light of the Criteria. This does permit a government to respond to changes of circumstance and alter its approach to a particular purchaser. There is a clear alternative which would eliminate this indeterminacy: an embargo or blacklist. These restrictions exist in considerable numbers, imposed by the UN and/or the EU acting under its Common Foreign and Security Policy.17 There is no ‘wiggle room’ if a ban on exporting an item found on a Military List is imposed against a named State, such as North Korea. However, this is what may be termed the ‘nuclear option’: no, or virtually no, dealings at all. It is considered a drastic measure, to be imposed in very limited circumstances and usually in response to some action meeting widespread opposition, eg the EU’s ban on export of all military goods to Russia after its involvement in the Ukraine conflict,18 or to North Korea after it tested atomic weapons. Even in such an instance, the ban may not be total: the initial UN embargo on exports to North Korea originally excluded small arms and light weapons (SALW), which were only added after further nuclear tests in 2016.19 In such cases, and despite the limited exceptions, the prohibition is a response to specific actions of the offending State. The case-by-case approach, by contrast, allows exports to countries whose conduct the exporting State regards as unacceptable, but whose use of that particular weapon or technology will not contribute to that conduct. To many this will sound unworkable in practice20 as well as morally repugnant, but those who take that critical view would seem to have two choices: either to advocate a total ban on sales to that State, or to develop workable criteria that would broaden the range of prohibitions but fall short of totality. This line of thought will be followed through in subsequent chapters, a pursuit attempted in full recognition that the more

16 CP, Art 1; the UK CC (n 31 below) includes the statement that the Criteria ‘will not be applied mechanistically but on a case-by-case basis ….’ 17 The website of the UK Department of International Trade, responsible for export licensing approval, lists 19 embargoes in force as of 27 March 2019: www.gov.uk/guidance/current-arms-embargoesand-other-restrictions. They are a mixture of UN, Organization for Security and Co-operation in Europe (OSCE) and EU-imposed sanctions. 18 Council Decision 2014/512/CFSP of 8 September 2014 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L271/54 and Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L229/1. 19 UN Security Council Res 2270 of 2 March 2016, S/RES/2270, expanding S/RES/1718 of June 2006. 20 With certain equipment, notably aircraft, the purchase of new planes may allow the recipient to refit existing ones to carry out atrocities such as bombing civilians, whilst the new planes may replace them for other functions such as training. Indeed, planes initially sold as ‘training aircraft’ may subsequently be fitted for combat purposes and used against civilians. The fundamentally important problems of evidence, proof and monitoring are discussed at pp 35–36 below.

32  Governing Arms Transfers rigorous the controls, the greater the possibility that certain other interests may be jeopardised. Most obviously these include short-term economic gain, but may also entail the possibility of retaliation by the affected State by imposing its own export controls (eg, on oil or other raw materials), and greater difficulty in achieving agreement on other important international matters, eg the hope, which once seemed credible, of gaining Russian participation in efforts to end the conflict in Syria. These are not considerations that can peremptorily be brushed aside.

III.  The Central Role of Risk The core concept used to guide export approval decisions is ‘risk’. It is the term used explicitly in four of the EU and UK Criteria,21 and in the all-important ‘risk assessment’ to be applied under Article 7 of the Arms Trade Treaty; it also underpins repeatedly used words such as ‘would’, which require those considering licence approval to the likelihood of certain possible future consequences. Indeed, apart from the relatively few provisions requiring an outright ban on transfers,22 determination of risk is the fundamental question to be decided under both the CP and the ATT. In the past 30 years, the concept of risk has received enormous public and scholarly discussion.23 It has achieved popular urgency thanks to various environmental crises, but the concerns underlying it have long animated the work of diplomats, soldiers and security officials. They are concerned primarily with avoiding danger and preventing loss of various kinds, and to do so requires identifying possible threats to existing interests and values – their source, severity and likelihood. Practices such as ‘war games’ and ‘threat assessments’ – risk analysis under another name – have evolved to assist the analysis. These identify the main sources of danger so as to formulate countermeasures, whilst deliberately discounting others, even though the capability or capacity exists.24 An assessment of risk thus involves judgements about a given actor’s intentions, its capabilities and the likelihood of their exercise, and the degree of

21 Criteria two, four, five and seven all refer to risk. 22 In particular Criteria one and three of the CP, and Art 6 of the ATT. 23 U Beck, The Risk Society (London, Sage Publications, 1992; originally published in German in 1986) is the seminal work; for lawyers, Elizabeth Fisher’s article ‘The Rise of the Risk Commonwealth and the Challenge for Administrative Law’ (2003) Public Law 455 is perhaps the single most useful overview. See also her more theoretical paper, E Fisher, ‘Risk Regulatory Concepts and the Law’ in OECD, Risk and Regulatory Policy: Improving the Governance of Risk (Paris, OECD, 2010), https://doi. org/10.1787/9789264082939-en, Ch 2. 24 A classic instance is the UK’s adoption in the late 19th century of the famous Two Power Standard, which sought to maintain naval supremacy by requiring the British Navy to possess a quantity of battleships equal to those of the next two largest navies. However, in practice this excluded States judged to be friendly and likely to remain so, such as Italy and the USA, so their battleships were always excluded from the calculation.

The Central Role of Risk  33 damage such exercise might inflict.25 Critically, with the exception of capabilities, all require a judgement or prediction about the future.26 It is thus inherently uncertain and, ultimately, an assessment of probability. There is also the question of the weight to be given to past conduct in providing guidance, which may vary depending on the extent to which strategic context and the policies and identities of key decision-makers have altered. In the context of arms transfers, a critical element in the assessment is information, gleaned from open sources or secretly, which is then processed into intelligence in order to fit it into a context that makes it useable as the basis for decision. This requires a government apparatus capable of information acquisition and intelligence analysis, which many States possess in only rudimentary form. Even those with sizeable agencies have in recent years diverted resources into prioritised areas such as counter-terrorism, leaving export control assessment exposed to sharp cuts along with the rest of public services. Furthermore, many smaller States – whose total export volume may not be great but whose products, especially SALW, may be particularly lethal – lack knowledge relating to parts of the world, notably Africa, where a detailed understanding of the actors and of fluid and chaotic political situations is essential to gauge the potential for devastating consequences.27 Intelligence is used for prediction of future behaviour. This essential prerequisite for export approvals has two elements: immediacy and duration. Some equipment, notably bombs and ammunition, may be available for immediate delivery and use, but others – advanced planes and ships most obviously – may take years to build.28 A request for an export licence for a fighter plane requires assessment of the likely use to which the first delivery might be put within a year, but the last in a package of 20 may not be in the air for a decade. Licences may be, and are, revoked,29 so it would be unnecessary to speculate what use the prospective recipient might make of a newly-delivered plane in 2030. There is however no escape from attempting that judgement about 2021 or 2022. That requires c­ onsideration

25 The UK Cabinet Office Strategy Unit has defined risk as ‘uncertainty of outcome (positive or negative). It is the combination of likelihood and impact, including perceived importance’ [quoted by Fisher, Risk Commonwealth (n 23) at fn 99.] It seems odd to ignore the relevance of intention, but otherwise the definition resembles that offered in the text. 26 Even assessment of capabilities cannot be limited to those presently obtaining; an informed judgement of what capabilities are likely to be acquired or developed at various points in the future must be integral to any evaluation. 27 The EU is aware of this problem, and requires annual reports from Member States of all licencing decisions, notably refusals. It has also set up a Council Working Party on Conventional Arms Exports, known as COARM, which holds monthly meetings of officials involved in national decisions on export approvals, during which advice can be sought and purportedly hypothetical cases raised. There are also regular informal exchanges of information between intelligence officials of major exporting States. 28 Once the initial version has proven acceptable, a fighter plane is likely to take about six months to build (information received from Mr Brinley Salzmann, Director, Overseas and Exports, ADS Group Ltd). A submarine or aircraft carrier will take much longer on the production line. 29 This important point is discussed below at pp 36–37.

34  Governing Arms Transfers of matters ranging from long-term territorial grievances or ambitions, present or likely future alliances of the recipient, ethnic tensions, and the general prospects for peace and stability in the region or regions in which the recipient is politically active. However, if approval is sought for export of surveillance or riot control equipment for use by police, the focus should be on both immediate and longer-term uses – their likelihood, purpose and prospective targets. This would involve reasonably detailed knowledge of the character of the regime, its record of respect for human rights, the nature, tactics and aims of the opposition, along with recent protests and their handling by the Government – all questions of national governance rather than foreign relations. Moreover, even if the current situation is completely quiet, a detailed analysis should still be undertaken of the likelihood of rising opposition and response in the forthcoming year or two. A lull in activity should not be the occasion for a government to be able to gear up for repression in circumstances which are likely to arise: a dormant viper remains a viper. The Common Position itself is silent on how the case-by-case approach is to be applied. It is supplemented by a ‘User’s Guide’, issued by the Council of the EU as guidance for implementation by national officials, and is updated periodically.30 It summarises ‘agreed guidance’ for use by national export officials, who however are left to develop their own methods of application, and it is instructive to ­examine how the UK interprets this critical element of time. The most contentious problems are how long a history should be taken into account as a knowledge base when attempting prediction; how much weight to give to what is or is not happening at the moment of decision; and how far into the future that prediction should seek to encompass. The UK Government statement that ‘we will not refuse a licence on the grounds of a purely theoretical risk’,31 though reasonable enough in the abstract, does not really engage with any of these questions. The historical evidence suggests that the UK gives very little – and arguably quite inadequate – attention to past conduct; does not seek to project forward very far; and bases its decision very largely on immediate circumstances. In other words, it gives inadequate weighting to past conduct,32 and does not seriously consider the likelihood of misconduct beyond a very small future time frame. This conclusion is reinforced by a comment offered in discussion with a then senior official in the Foreign and Commonwealth Office involved with arms export policy, who emphasised that decisions are taken ‘against the circumstances at the time’, and ‘what we know now’ – a focus on the immediate which means that even

30 The current version may be found at www.consilium.europa.eu//media/40659/st12189-en19. pdf?utm, issued 16 September 2019. 31 HC Hansard Written Answers 25 March 2014, col 10WS. The announcement was made by Vince Cable MP, Secretary of State for Business Innovation and Skills in the Coalition Government. No change has been made to the Criteria since the formation of a Conservative Government the following year. 32 This failing was the fundamental legal ground on which UK approvals of exports to Saudi Arabia was held to be unlawful. See below, chapter 5 at p 129.

The Central Role of Risk  35 though there may be background tension, if things are quiet just then, the risk will be regarded as acceptable.33 The most widely recognised unacceptable consequence of this approach came after the repression that met the democratic agitations loosely described as the ‘Arab Spring’. The UK had been arming States like Egypt, Libya, Tunisia and Bahrain for several years, and in a sharply critical Report, the parliamentary oversight committee described the Government as ‘vigorously backpedalling on a number of arms export licensing approvals to authoritarian regimes in the region’, concluding that over an extended period it had ‘misjudged the risks’ that the arms would be used for repression.34 Although the UK response to requests from Middle East and North African (MENA) States was purportedly tightened up afterwards, the episode highlighted the weaknesses of a narrowly present-centred approach. It also illustrated that whilst response to changed conditions is possible, it is not mandatory: as will be seen in chapter three, no mechanism exists to ensure or enforce consistency of policy within the EU, and other States were not compelled to change their approach. The Ministerial statement rejecting ‘purely theoretical risk’ went on to say that application of the Criteria will ‘tak[e] into account all relevant information available at the time the licence application is assessed’.35 This skates over a number of important and separate points. What information is ‘relevant’ should be relatively uncontroversial, but no answer was offered to the key question of what weight to give any particular piece of information. For example, if five months previously peaceful demonstrators had been beaten by the police and gaoled, how should that affect approval of export of surveillance equipment to the Interior Ministry? What if the brutality had been more severe; or conversely had occurred a year previously? Secondly, what is ‘available’ depends entirely upon how hard one looks. This is an issue of great importance, but rarely adequately discussed. Does the exporting State use its intelligence services and their sources to verify that its equipment is not employed for repression or illegal forms of warfare? If not, does it rely upon unchecked ‘assurances’ from recipient States which, as Sam Goldwyn said of oral contracts, are not worth the paper they are written on?36 Does information sharing in the COARM meetings37 or unofficial intelligence sharing between national intelligence agencies, assist governments in informing themselves in this matter? How is the actual use of weapons monitored? The UK and France, for example, have refused to send officials to examine shells and other remnants

33 Interview 9 November 2015. 34 UK House of Commons, Committee on Arms Export Controls, Scrutiny of Arms Export Controls, First Joint Report of Session 2010-2011, HC Paper No 686, 3. 35 See n 31 above. 36 The importance of recipient ‘assurances’ and UK reliance on them became an important element in the litigation challenging the issuance of licences to Saudi Arabia: see chapter five. 37 See n 27 above.

36  Governing Arms Transfers of lethal Saudi bombardment of civilian targets in Yemen; only the courage of non-governmental organisation (NGO) workers has provided the evidence.38 Indeed, the UK withdrew its Embassy from Yemen entirely when the bombing worsened, leaving no personnel capable of monitoring any aspect of the situation; it thus became entirely reliant on high resolution but distant imaging and ‘assurances’ from Saudi officials. What use is made of independent journalistic or NGO sources? If a newly-sold plane is genuinely used for training, does it merely replace a similar plane which is then used in illegal warfare, and is anyone ‘on the ground’ monitoring substitution of this kind? Does the recipient, after a cosmetically-chosen period of time, fit that aircraft with offensive capability? ‘Available’ information must be actively sought, and even assuming conscientious effort, resource constraints are serious and increasing, constricting effective searching. Finally, the Ministerial statement suggests that approval is a one-time or one-off decision. In cases involving a single shipment, that inevitably must be so but, as we have seen,39 many (and generally the most lucrative) contracts cover multiple deliveries over an extended period. The exporting State thus has the opportunity to reassess the application of the Criteria as the political situation changes, internally or externally. This implies an obligation to keep an ongoing watch over the ‘relevant’ conduct by the importer, and also to look further if the original information base was relatively weak. Yet except where there is a spectacular turn of events, as when the Arab Spring movements produced bloody crackdowns which appeared on television world-wide, this obligation is generally dishonoured. In the past, UK governments often took refuge behind the argument that contractual agreements must be honoured,40 thus circumventing the ethical debate over whether fulfilling contracts is more or less compelling than preventing avoidable deaths. However, more than a decade ago the UK Government changed its approach and took precautions. The Export Control Order 2008, the delegated legislation governing this area in detail, specifically grants the Minister the power to revoke, suspend or amend any existing licence at any time, subject only to reasonable notice to those affected.41 Whilst the interests of the companies and their employees require that this power not be exercised lightly, its persistence expresses the judgement that these important economic 38 The writer was present at a particularly harrowing presentation in Brussels in June 2016 by Ms Rasha Mohammed of Amnesty, who literally risked her life to compile photographic and other visual evidence of shell casings made in the UK found at civilian sites. It emerged from an interview with a senior FCO official that the UK Government believes it has a ‘duty of care’ to civilian staff which precludes sending them to conflict zones where they might be in physical danger: a commendable attitude for an employer but one which undermines its ability to acquire reliable information essential to making a proper evaluation of the use of UK-made weapons. 39 Above, p 33. 40 See, eg, M Phythian, The Politics of British Arms Sales Since 1964 (Manchester, Manchester ­University Press, 2000), recounting several examples, ranging from South Africa to Indonesia, of governments resisting calls for termination of sales after internal atrocities. 41 Export Control Order 2008 (SI 2008/3231) Art 32. This power was used with unprecedented frequency in relation to several MENA countries during the Arab Spring.

Conclusion  37 considerations cannot always be paramount. Its existence also protects the Exchequer from having to pay compensation for the losses incurred, and puts exporters on notice that it would be advisable to include clauses in their sales contracts protecting them from liability if a government edict prevents delivery,42 or to purchase insurance if the buyer will not accept such a provision. However, the position may be less clear in other States with different legal traditions. What is sharply clear is that in the absence of such a power, governments ought to be even more hesitant in granting licences for shipments to countries whose treatment of their own citizens, or conduct of external warfare, gives off more than the slightest unsavoury odour.

IV. Conclusion Domestic regulation has attracted an enormous body of academic literature in administrative law and political science, and there are a growing number of studies of specific areas of international law, but those works seldom discuss legal regulation of domestic policy in the areas of high politics and the conduct of foreign relations.43 It is in these areas of policy that governments seek to retain the tightest control and the ability to exercise the widest political discretion.44 Subjecting arms exports to a legal regime runs against the grain of politicians and senior civil servants. And it must be accepted that rigorously restrictive policies on sales to a particular State might have significant impact on relations with that State which may hamper the ability to work together on other issues, a consequence those in office prefer to avoid. Nonetheless, rules with legal force are the only mechanisms available to constrain political choices made by those who would prefer a different result. Moreover once they are enacted, they carry with them the public law principles that govern the exercise of official discretion generally; and in some legal systems these principles impose procedural restrictions on how that discretion may lawfully be exercised. The effectiveness of legal criteria is limited by the plasticity of language, but the degree of precision expressed in the rules will be fundamental to determining their force. It is also the fullest measure of the ­seriousness of their authors’ intent. Equally important is whether the interpretation and application of those rules remains entirely a matter for the Executive, or may be subject to some sort of independent oversight – either by an organ of the legislature; or a ­specially-created

42 So-called ‘force majeure’ clauses are often found in international commercial contracts. 43 As distinct from analyses of treaties or similar instruments that regulate either specific disputes between States, eg over boundaries, or inter-State relations as they relate to particular areas such as the law of the sea or international aviation. 44 The best example of this tendency is the unwavering insistence of EU Member States on excluding EU institutions from any direct control over national policy in connection with the arms trade, a matter taken up in the following chapter.

38  Governing Arms Transfers body neither formally legislative or executive; or by judicial review. These essential constitutional questions will be considered at various points throughout this book.

List of References Beck, U, The Risk Society (London, Sage Publications, 1992). Bitzinger, Dunne, Neuman and Hayward in R Bitzinger (ed), The Modern Defense Industry (Westport, Praeger, 2009). Endicott, T, ‘Law is Necessarily Vague’ (2001) 7 Legal Theory 379. —— Vagueness in Law (Oxford, Oxford University Press, 2000). Erickson, J, Dangerous Trade (New York, Columbia University Press, 2015). Fikfak, V and Hooper, H, Parliament’s Secret War (Oxford, Hart Publishing, 2018). Fisher, E, ‘Risk Regulatory Concepts and the Law’ in OECD, Risk and Regulatory Policy: Improving the Governance of Risk (Paris, OECD, 2010). —— ‘The Rise of the Risk Commonwealth and the Challenge for Administrative Law’ (2003) Public Law 455. Hansen, S, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the European Union Conventional Arms Export Control Regime’ (2016) 22 European Journal of International Relations 192. —— and Marsh, N, ‘Normative Power and Organized Hypocrisy: European Union Member States’ Arms Exports to Libya’ (2015) 24 European Security 264. Krishnan, A, War as Business (Farnham, Ashgate, 2005). Moraes, R, Our Weapons, our Problem: Arms Exports, Democracy and Civil Society in Brazil and the UK (unpublished DPhil Thesis, University of Oxford, Department of Politics and International Relations, Hilary Term 2019). Perkins, R and Neumayer, E, ‘The Organized Hypocrisy of Ethical Foreign Policy: Human Rights, Democracy and Western Arms Sales’ (2010) 41 Geoforum 247. Phythian, M, The Politics of British Arms Sales Since 1964 (Manchester, Manchester University Press, 2000). Stavriankis, A, ‘Legitimating Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) 37 Third World Quarterly 840. Stavrianakis, A, ‘Licensed to Kill: The United Kingdom’s Arms Export Licencing Process’ (2008) 3 Economics of Peace and Security Journal 32. Wulf, H, Internationalising and Privatizing War and Peace (Basingstoke, Palgrave Macmillan, 2005).

Other Publications Committee on Arms Export Controls (CAEC), Scrutiny Report, First Joint Report of Session 2010–2011, HC Paper 686. Perlo-Freeman, S, ‘Special Treatment – UK Government Support for the Arms Industry and Trade’ (Stockholm, SIPRI, November 2016). SIPRI, The Arms Trade and the Third World (London, Paul Elek, 1971).

part ii The European Exporting States

40

(A) European Union Legislation

42

3 Fragile Underpinning: The Limits of EU Rules I. Introduction As this is written, EU Member States are collectively the world’s second largest exporter of weapons, totalling just over 26 per cent – well behind the USA but somewhat exceeding Russia.1 Yet the EU itself neither manufactures nor sells equipment, nor does it directly administer the rules that it promulgates to govern exports. Understanding its precise role requires an understanding of the unique architecture of EU governance. But before venturing into those daunting waters, it is necessary to set out the structure of this part of the book. The EU has agreed rules that are supposed to govern decisions on weapons exports taken by all Member States.2 Implementation, however, remains entirely with the latter – raising a range of issues, including divergences of policy and practice as well as variations in compliance frequency – failure of ‘harmonisation’ in EU-speak. The substance of those rules, known as Criteria, are described and critiqued in the following chapter. The national regimes of four of the Member States – the UK, Germany, France (the three largest exporters) and Sweden, which has created an unusual structure of decision-making and accountability are then each given critical examination. The six chapters in Part II treat the Union States – which will, for present purposes, include the UK at least until the beginning of 2021 – as a unit, and comparison may then proceed to single-nation exporters: USA, Russia, China, and (with an eye to the future) India. Through its various institutions, the EU undertakes numerous activities relating to weapons exports: 1. It determines the overall substantive standards that govern arms exports for all Member States. As part of that process it carries out ancillary tasks relating 1 This total is calculated from the Stockholm International Peace Research Institute (SIPRI) Factsheet ‘Trends in International Arms Transfer, 2018’ (Stockholm, SIPRI, March 2019). It covers the five years 2014–2018. Individually, six of the ten largest exporters in this period were EU Member States. (The USA share was 36%, the Russian 21%.) The UK is included in this figure, of which it comprises 4.2%. The likely impact of Brexit on UK arms export policy is considered in chapter five. 2 The weapons are specified in the Common Military List of the European Union, OJ C95/1, 18  February 2019. The list is long, highly technical and extremely comprehensive.

44  Fragile Underpinning: The Limits of EU Rules to the gathering and dissemination of information, to the Member States and (sometimes) the public. 2. It formulates and adopts arms embargoes. 3. It tries to facilitate intra-EU trade in defence-related products and relatedly, the integration of defence industries based in various Member States. In the same vein, it is increasingly developing a research capacity for the defence industry. 4. It issues regulations governing the export of dual-use goods. As explained in the Preface, this important topic remains largely outside the scope of this book, but there are certain points of overlap or similarity which require mention in some detail. 5. It directly prohibits the export of certain material whose primary use is in carrying out torture or capital punishment. By far the greatest part of this chapter will be devoted to [1]. The others are discussed only for the light they may shed on the competences (and their limits) and policies of the Union as they concern exports.

II.  The Constitutional Framework of EU Arms Export Criteria At the inception in 1957 of what was then the European Economic Community, the original six founding members were particularly determined to exclude entirely any matter to do with arms exports from the purview of Community institutions. As if to symbolise the paramount importance of retaining national control over this area of operations, that provision has – amidst the turmoil of the numerous treaty creations, amendments, alterations and re-numberings – remained utterly unchanged. Its current incarnation, Article 346 TFEU (Treaty on the Functioning of the European Union) reads in relevant part as follows: 1.

The provisions of the Treaties shall not preclude the application of the following rules: (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security; (b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes.

Three preliminary observations may be made. The first is that this language is drawn almost without alteration from Article XXI of the GATT [General Agreement on Tariffs and Trade] Treaty of 1946 which whilst directed towards reducing national barriers to trade among non-Communist States, was limited in

The Constitutional Framework of EU Arms Export Criteria  45 its ambitions in relation to incursions on national sovereignty.3 This source reflects the limited nature of the original Economic Community. The retained provision is rooted in this earlier conception, which does not reflect the vastly expanded scope of the competences and functions of the contemporary Union: most notably, the EC had no foreign policy competence. Moreover, the organisation had no commitment to the set of humanistic values now enshrined not only in the Charter of Fundamental Rights, but even more deeply in the opening Articles on Fundamental and Democratic Principles in Titles I and II of the Treaty on European Union (TEU). Secondly, although no travaux preparatoires exist of the policy debates and concerns among the Treaty drafters, the text of Article 346 itself, and its ­supporting provisions Articles 347 and 348, suggests that its overarching preoccupation was with obstruction (‘distortion’ in EU terminology) of competition within the ‘internal market’ which was the primary goal of the new Community. This would arise, not from exports, but from ‘buy national’ policies that supported domestic production by excluding foreign competition. As most if not all the defence industries at the time were State-owned,4 the intertwining of the military establishment and production apparatus made the exclusion a matter of defence and foreign policies even more than of economics. The final sub-clause of Article 346 (1)(b) demonstrates an awareness that national preference policies could readily be abused, a point that is reinforced by Article 348.5 Finally, Article 346 is placed in Part VII of the TFEU, ‘Final and General Provisions’, and as such applies to the entire range of functions of the Union established by the preceding Treaty provisions. Its breadth has therefore been regarded with some suspicion by the judicial branch; as long ago as 1986, the then European Court of Justice (now Court of Justice of the European Union (CJEU)) described this provision (which was not before it) as applying to ‘an exceptional and clearly defined case’, and was to be construed strictly.6 Though it subsequently invalidated a few clear instances of overreach of claims of ‘essential security interests’,7 the 3 Art 346 (1)(a) is taken verbatim from the GATT provision. 4 As seen below p 45, the economic basis of arms industries throughout the EU and USA changed radically from the 1990s, but no corresponding legal change followed. 5 This provision sets out a special procedure, restricted to cases of possible distortion of competition in the internal market, for the Commission and a Member State to examine together how measures taken under Art 346 might be made to accord with internal market rules. In no other instance, eg where a Member State is supplying weapons used to commit grave international crimes, is the Commission allowed to become involved when a State invokes Art 346. 6 Case C 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651, para 26. 7 eg Case 337/05 Commn v Italy [2008] ECR I-2173, noted by Trybus (2009) 46 CMLR 973; Case 157/06 Commn v Italy [2008] ECR I-7313; Case C414/97 Commn v Spain [1999] ECR I-05585, and the seven separate cases involving refusal to pay customs duties which were used to finance the operation of the Commission, of which Case C461/05 Commn v Denmark [2009] ECR I-11887 is representative. See also the more recent Commn v Austria (C187-16) ECLI:EU:C:2018:194. These cases either involved attempts to invoke ‘essential security interests’ to restrict procurement to national sources, or to avoid payments to the Commission as part of its ‘own resources’. No issues genuinely involving security or high politics were present in any of them.

46  Fragile Underpinning: The Limits of EU Rules Court has never had before it any case under Article 346 concerning arms exports, nor indeed any case in which the security claim was even remotely plausible. Moreover, in the few related matters in which the Commission has competence, it has tended to defer to national sovereignty in this area, even as it has claimed a sort of long-stop role to prevent its overuse.8 Within the Article 346 framework, Member States for decades framed their own export policies solely according to their views of national interest. However, things began to change in the 1990s. The history of the growing involvement of Community/Union institutions in this area has been well chronicled,9 so only a brief summary is required here. The ending of the Cold War was swiftly followed by a reduction in the size of States’ military arsenals, thus making their traditional State-owned manufacturing companies economically unprofitable. There followed waves of State-sponsored consolidations and privatisations, designed to avoid financial drain. Arms companies came increasingly to resemble other contemporary commercial enterprises: privately owned and run for profit, characterised by mergers, outsourcing, privatisation and multi-national production.10 They thus now look much more like the sort of commercial activity normally subject to controls as a matter of Union-wide common commercial policy. The resulting dualism, which attempts to recognise and respect the elements of Member State and Union foreign policy interests whilst balancing them with the fundamental Union principles of free trade and competition and the derivative need for harmonised regulation, has been the hallmark of policies in this area. It creates notable dilemmas and perhaps fundamental contradictions.

Note that the ECJ did not regard the claims as non-justiciable even though the wording of Art 346 allows the Member State to take measures it considers necessary; the wide discretion remains subject to a (limited) judicial control. 8 See the analysis in P Koutrakos, The European Union Common Security and Defence Policy (Oxford, Oxford University Press, 2013) 264–68. 9 Particularly valuable are I Davis, The Regulation of Arms and Dual-Use Exports: Germany, Sweden and the UK (Oxford, Oxford University Press, 2002) 45–110; ST Hansen, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the EU Conventional Arms Export Control Regime’ (2015) 22 ­European Journal of International Relations 192; and the two articles by M Bromley cited in nn 11 and 12 below. The specific legal dimension however has received comparatively little attention. Perhaps the first significant analysis appeared in P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford, Hart Publishing, 2001) especially chs 8 and 9, and see now his European Union International Relations Law (Oxford, Hart Publishing, 2015) Ch 10. M Trybus, EU Law and Defence Integration (Oxford, Hart Publishing, 2005) 140–60 was the other major legal analysis relevant to the present topic. It should be noted that these studies included arms exports but ranged much more widely. For a more institutional focus, see Z Yihdego, ‘The EU’s Role in Restraining the Unrestrained Trade in Conventional Weapons’ (2009) 10 (3) German Law Journal 281. This is an online publication only: www.germanlawjournal.com/index.php?pageID=11&artID=1092. 10 A convenient introduction to these developments may be found in the essays by Bitzinger, Dunne, Neuman and Hayward in R Bitzinger (ed), The Modern Defense Industry (Westport, Praeger, 2009). See also H Wulf, Internationalising and Privatizing War and Peace (Basingstoke, Palgrave Macmillan, 2005) and A Krishnan, War as Business (Farnham, Ashgate, 2005) chs 1,2 and 7.

The Constitutional Framework of EU Arms Export Criteria  47 Throughout the 1990s, the then European Community began seeking to achieve a harmonised approach to the standards used by Member States when determining whether to grant export licences. Bromley has identified three policies driving this effort: the need for co-ordinated export policies as consolidation of European defence industries proceeded; the growing post-Cold War emphasis on conflict prevention leading to greater demands for an ethical dimension to foreign policies; and a reaction to Iraqi use of Western arms during the Gulf War.11 (To this, one may add the force of reactions to numerous scandals in the 1980s and 1990s in several countries, notably the UK.) Bromley has further argued that States which began to include moral or wider political considerations in their arms export policies then pressured other Member States to adopt similar standards, so as to avoid disadvantage in export competition.12 This effort was undertaken as part of European Political Co-operation, and had no more than hortatory influence. More formally, in May 1998 the European Union – under what was then known as the Third Pillar – adopted a Code of Conduct which all Member States were supposed to abide by in making decisions on arms exports licences. It contained eight Criteria, and additionally required sharing of information among exporting States on denials of licences, as well as reporting cumulative activity to the Council Secretariat annually. Adoption of the Code was again a purely political exercise – the document was described as ‘politically binding’ – presumably imposing a feeling of moral obligation in the minds of some Member States, but without any backing in law at any level. Evaluations of its operation showed some impact, particularly on some minor exporters, and an increase in public reporting (‘transparency’), which however subsequently levelled out.13 In 2008, the Code was strengthened in substance somewhat and slightly textually reorganised. Most importantly, at the same time it became legally binding on Member States. How this was accomplished requires some explanation of the evolving European Union constitutional structures. Under the Lisbon Treaty, the Union no longer formally consists of three ‘pillars’, and its functions as they relate to matters outside it – external relations – are divided between two heads of power. Some, most central to its original mission,14 are conducted under ­competences 11 M Bromley, ‘The EU Common Position on Arms Exports and National Export Control Policies’ in A Bailes and S Depauw (eds), The EU Defence Market: Balancing Effectiveness With Responsibility (Brussels, Flemish Peace Institute, 2011) 39. 12 M Bromley, ‘The Impact on Domestic Policy of the EU Code of Conduct on Arms Exports’ (Stockholm, SIPRI Policy Paper No 21, May 2008) 11–16. The competing but, at the same time, coalescing influences of moral and economic influence on the political process of drafting and adopting the Code are explored very well by Hansen (n 9). 13 Bromley (n 12) and see the same author’s ‘The Review of the EU Common Position on Arms Exports’, EU Non-Proliferation Consortium, Non-Proliferation Papers No 7 (Jan 2012) 6–9; available at www.sipri.org/publications/2012/eu-non-proliferation-papers/review-eu-commonposition-arms-exports-prospects-strengthened-controls. Hansen (n 9) explores very well the competing but at the same time coalescing influence of moral and economic in the political process of drafting and adopting the Code. 14 A vast range of activities such as commerce, environment, fisheries, energy and many others which have an international dimension.

48  Fragile Underpinning: The Limits of EU Rules established in the TFEU. The remainder, including policies relating to arms exports, is conducted under the Common Foreign and Security Policy (CFSP), governed by a different Treaty, the TEU.15 From this division flow several critically important differences. First, whilst matters coming under the TFEU are decided by Qualified Majority voting (QMV) in the Council,16 matters require decision by ‘consensus’ – unanimity. The obvious implication is that the latter are subject to vetoes by, in the extreme case, a minority of one, which in turn inevitably leads to compromise and standards that may be described as the lowest common denominator. This is a normal aspect of international treaty negotiations, which generally require consensus – an important principle protecting the ability of smaller States to resist the domination of more powerful ones. It also clearly makes subsequent revision of a significant character more difficult to achieve. It was under the CFSP that the Decision of 2008, known as the Common Position (CP),17 was taken to transform the Criteria into a legally binding instrument.18 Second, and of paramount importance, the CP stands outside the legal enforcement machinery of the Union. The Commission has no power to bring enforcement actions for non-compliance; and the judicial branch, headed by the Court of Justice, has no jurisdiction in CFSP-related matters.19 The result is what to a lay person may seem a very peculiar kind of law – one lacking either administrative or judicial means of enforcement. This is familiar enough to international lawyers, but is unusual – in effect an enclave of international law – within the framework of the characteristically law-driven EU. Indeed the exclusion of judicial review has been criticised as contrary to the principle that the EU is based on the rule of law,20 but can be defended on the grounds that CFSP decisions are 15 For a detailed exposition of the ‘architecture’ and substance of the EU’s external activities, see P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform, revised edn (Oxford, Oxford University Press, 2012) Ch 10. 16 QMV is a procedure designed to give disproportionate voting weight to small Member States. Decisions taken by this method require approval both by a majority of States and further require that majority to be comprised of States representing 65% of the total population of the EU. 17 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99, subsequently amended by Council Decision (CFSP) 2019/1560 of 16 September 2019 [2019] OJ L239/16. Under the changes made by the Lisbon Treaty, ‘common positions’ have been renamed ‘positions taken by the Union’ and are one means by which the EU may conduct the CFSP under Art 25 TEU. 18 The precise mechanism by which this has been achieved is somewhat convoluted. Art 25 (b)(ii) TEU (ex-Art 12) states that the Union shall conduct the CFSP by, among other means, ‘adopting decisions defining positions taken by the Union’. By Art 29 (ex-Art 15), ‘The Council shall adopt decisions that define the approach of the Union to matters of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions’ (emphasis added). This latter command imposes a clear legal obligation on the Member States. 19 Art 24 (1) TEU. There is an important exception in Art 275 (3) TEU, granting the CJEU ­jurisdiction to review ‘the legality of decisions providing for restrictive measures against natural or legal persons’. As the Kadi cases [Cases C402-05 and 415-05 P Kadi [2008] ECR I-6351] and those which followed graphically demonstrated, this last provision may be of enormous importance to individuals, but is not germane to the present discussion. 20 P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 479–81.

The Constitutional Framework of EU Arms Export Criteria  49 inherently political, inappropriate for legal control because they are ‘not designed to establish a permanent framework of mutual legal obligations … but to condition a collective approach to a specific overseas crisis, a catastrophe or a change of regime’ …21 It is unnecessary to attempt to resolve this debate at a theoretical level, but the latter argument takes no account of the essential characteristic of the CP: it is a long-term settled guide for policy, in force in various forms for more than 20 years, which does not relate to any specific incident. It also, as has been seen, imposes a legal obligation of conformity on Member States.22 The CP is thus radically different from decisions or response normally taken under the CFSP. The unfortunate result is a legal vacuum of non-enforceable norms. It is simply impossible to sanction a State which ignores the CP Criteria. The remaining EU institutional player, the European Parliament (EP) – a political organ – does attempt to exert some influence. It has been quite active: its Foreign Affairs Committee, initially through its Sub-Committee on Security and Defence, has produced several critical Reports on Member States’ export practices, most notably in relation to arms sales to Saudi Arabia.23 It has also offered a thorough critique of the existing Criteria, with suggestions for strengthening them.24 Indeed, even before its general role was strengthened by Treaty revisions, it had passed several non-binding Resolutions urging the narrowing of Article 346, which would have given EU institutions greater power over arms exports.25 The latter were simply ignored; the former have as yet had no direct influence, however they may have contributed to changes in public opinion on the issue. This largely ineffectual role is again grounded in the structure of the CFSP. Although the Lisbon Treaty greatly enlarged the range of areas in relation to which the Parliament enjoys legislative power along with the Council, that did not extend to CFSP actions. Here the EP has only the right to be consulted on ‘the main aspects and the basic choices’ concerning CFSP matters by the High Representative (the EU equivalent of a Foreign Secretary), who is supposed to take its views into account, and to ask questions of the Council. Although the EP has leveraged its increased

21 E Denza, The Intergovernmental Pillars of the European Union (Oxford, Oxford University Press, 2002) 312. Numerically, as a brief survey on the EU website of Decisions under the CFSP confirms, it is true that most Decisions are short, specific, and often time-bound. 22 See above nn 17–18. 23 eg European Parliament Resolution of 13 September 2017 on Arms Exports, www.europarl.europa. eu/doceo/document/TA-8-2017-0344_EN.html. On 25 October 2018, it overwhelmingly passed a non-binding Resolution urging all Member States to cease selling weapons to Saudi Arabia in light on the killing of the journalist Jamal Khashoggi: 2018/2885(RSP). 24 See especially the Draft Report of the Foreign Affairs Committee, Rapporteur Sabine Losing, 2018/2157(INI), 29 June 2018. This was approved in a Plenary Session of 14 November 2018, www. europarl.europa.eu/doceo/document/TA-8-2018-0451_EN.html?redirect. 25 See Trybus (n 9) 343–46. Its involvement has been sporadic, but can be traced back to the 1970s when it adopted a Report urging abolition of what is now Art 346; see Hansen (n 9) 202. Because of its restricted role in relation to CFSP matters, all EP Resolutions can only be non-binding.

50  Fragile Underpinning: The Limits of EU Rules budgetary powers to exert considerable influence on the many CFSP matters requiring expenditure, that hardly applies to arms export policy, where the CP remains a statement of standards and is not enforced directly by any administrative apparatus.26 The absence of any effective legal or political accountability of Member States to any institution within the Union produces two interconnected results: levels of State compliance are variable, patchy and – in critical cases – poor;27 and there is very limited harmonisation of application of the Criteria. Some evidence of this conclusion will emerge in the next chapter, examining each specific Criterion, but it is also based on the evidence of several empirical studies undertaken over several years.

A. Effectiveness In light of the weaknesses in the enforceability of the Criteria, it is hardly surprising that studies of their impact have revealed two key defects: widespread non-application; and significant variation in national implementation.28 These issues achieved even higher salience in the first half of this decade, when the overthrow of the Libyan regime, the violent repression of peaceful protest in Bahrain, and the other regime changes that were part of the Arab Spring, made clear the role of European weaponry in maintaining repressive regimes in power.

i.  Ignoring the Criteria In 2011, a British researcher, Dan O’Huiggan, carefully combed EU data to compile a table of armaments sold to the Gaddafi regime in Libya in the five years after sanctions against the regime had been abandoned. The total value of export licences granted between 2005–2009 was Euro 834.5 million, of which

26 For a general account of the legal basis and institutional structure governing EU foreign policy, see generally Eeckhout (n 20) chs 5 and 11; P Craig and G De Burca, EU Law – Text, Cases, and Materials, 6th edn (Oxford, Oxford University Press, 2011) 53–54 and especially 344–49; and Koutrakos (n 8) Ch 10. 27 By far the most contentious contemporary illustration of the weak effect of the Criteria is the arming of Saudi Arabia as it leads the coalition which has inflicted devastation on Yemen. Due to its importance, it is discussed in the context of the particular Criterion that is supposed to govern such weapons exports, in the following chapter. 28 The most useful and comprehensive study, prepared by a distinguished international team as a Report to the EU Presidency and delivered in November 2010, was published by A.Vranckx (ed), ­Rhetoric or Restraint? Trade in military equipment under the EU transfer control system (Gent, Academia Press, 2010). A valuable, though less extensive and earlier, study is M Bromley and M Brzoska, ‘Towards a Common, Restrictive EU Arms Export Policy? …’[sub-title omitted] (2008) 13 European Foreign Affairs Review 333.

The Constitutional Framework of EU Arms Export Criteria  51 approximately one-third related to Italian companies, one-quarter to French and one-seventh to British.29 These deals occurred after the Libyan Government had genuinely renounced any attempt to develop nuclear weapons, and had adopted an increasingly friendly stance towards European States (and the USA). Arms sales were only one dimension of increasing trade relations. Yet unlike, say, contracts for oil exploration, they were supposed to be judged according to the Criteria: the thaw in diplomatic and commercial relations should not have affected that judgement. The CP expressly addresses this point. The eight Criteria are laid down in Article 2. After a series of subsequent provisions concerning administration and co-ordination, Article 10 states ‘While Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, these factors shall not affect the application of the above criteria.’30 Although the Gaddafi regime may well have become less intrusive and aggressive towards its neighbours, thus satisfying Criteria 3 and 4, it continued to be violently repressive towards any internal dissenters.31 A conscientious application of Criterion 2 – which among other things bans exports of material that ‘might’ be used for ‘internal repression’ – would have required denial of at least all licences for equipment that might be used against regime opponents. Yet O’Huiggin’s data showed that small arms, ammunition, crowd control equipment and surveillance equipment amounted to a considerable proportion of the licences issued. The Libyan case presented a number of difficult issues. One was that it exposed a major incoherence in the CP. For what, concretely, does it mean to ‘take account’ of the various advantages that a prospective arms export agreement might bring, if such consideration ‘shall not affect the application’ of any Criterion? That command seems to emphasise that avoidance of risk of various abuses is the prime consideration. What then is left in the account? Either the Article 10 prohibition does not mean what it says, or the permissive first half – ‘take into account’ – is redundant. Second, the resumption of normal relations with Libya left Western governments in a very delicate and difficult position. A former pariah State had to be welcomed back into the international fold, and rewarded for renouncing what had been regarded as a very serious potential threat of nuclear armament. To have refused a significant number of requested purchases would have offended the

29 D O’Higguan, ‘EU Arms Exports to Libya: Who Armed Gaddafi?’ The Guardian London, 2 March 2011. These figures refer to the value of licences, not deliveries, so it is uncertain how much of the material actually was exported and received. See also Vranckx (n 28) 41–42. Another analysis of exports to Libya is found in Bromley, ‘The Review of the EU Common Position on Arms Exports’ (n 13) 9–12. 30 Common Position (n 17), Art 10 (emphasis added). 31 There was admittedly much optimism that this would change. This hope was never grounded in evidence, however, though it was very influential wishful thinking. For a more severe critique of the judgements of various European suppliers, see ST Hansen and N Marsh, ‘Normative Power and Organised Hypocrisy: European Union Member States’ Arms Exports to Libya’ (2015) 24 European Security 264, 272–74. Criteria Three and Four are discussed in the following chapter.

52  Fragile Underpinning: The Limits of EU Rules Libyans at just the wrong time.32 Such political considerations would inevitably weigh heavily in the thinking of any Minister. Yet to allow those considerations to control the decision could open the door so wide that not only any genuinely defensible political judgement could be invoked to override the Criteria, but sales to almost any purchaser would be permitted on the spurious grounds of the ‘need to encourage liberalisation’ or ‘recognition of progress’. The dilemma is real, and the CP does little to resolve it. Along with Libya, sales to the Gulf States, Egypt and Tunisia proved a huge embarrassment to Member State governments, and the UK story is highly instructive. Its parliamentary Committee on Arms Export Controls (CAEC)33 produced an unusually sharply critical Report in which it described the Government as ‘vigorously backpedalling on a number of arms export licensing approvals to authoritarian regimes in the region’ and concluded that for several years it had ‘misjudged the risks’ of use of these arms for purposes of internal repression. It then followed with a key recommendation, that ‘the Government sets out how it intends to reconcile the potential conflict of interest between increased emphasis on promoting arms exports with the staunch upholding of human rights’.34 The CAEC’s recommendation identified the vital pressure point. The governments of all major arms-producing States have actively sought to promote exports, using visits of their political leaders, and day-to-day activities by specialist officials, to try to gain contracts.35 With an ethos of export expansion generated at the very top of government, it is hard for officials taking the licensing decisions, who often are of relatively junior rank, to resist the pressure and insist on strict compliance with the Criteria, in which economic advantage is decidedly secondary.36 Governments have sent out decidedly mixed signals, with the result that concern

32 This analysis deliberately ignores the possibility of the Libyans obtaining the equipment elsewhere and retaliating by denying contracts in other areas such as oil exploration. It looks at the problem solely through the eyes of a hypothetical European government conscientiously seeking to apply the Criteria. 33 This body is discussed at length in chapter five. 34 House of Commons, HC 686, ‘Scrutiny of Arms Export Controls (2011)’, First Joint Report of Session 2010–2011. The quotations are taken from the Executive Summary, p 3. Full discussion appears on pp 52–56. The UK Government argued that the episode demonstrated the effectiveness of its system in adapting to changed circumstances – an argument that missed the point, which was that given the history of suppression of opposition, it should have foreseen these circumstances at the time licence approvals were requested. 35 For examples of the former, see Vranckx (n 28) 11–12. Even during the turmoil of the ‘Arab Spring’, in November 2012, UK Prime Minister David Cameron journeyed to the Gulf States, with arms sales at the top of the agenda. His French counterpart, President Francois Hollande, preceded him on an identical mission a month earlier. These sorties were merely the apex: the UK has long had a specialist arm within the Ministry of Defence dedicated to arms sales and often part-staffed by personnel seconded from arms export companies; other States have broadly similar organisations. 36 This is doubly true when the officials work in a department whose main orientation is fostering growth and exports, as is true in the UK. It is an important, and unresearched, empirical question whether placing the decision within a department whose responsibilities are more balanced, would produce different results. (The USA places most licensing decisions within the State Department; see chapter nine.)

The Constitutional Framework of EU Arms Export Criteria  53 for human rights in particular has taken a far back seat to economic (and possibly political) benefits. The empirical evidence suggests that it is money which talks loudest. Vrancx’s Rhetoric or Restraint? discovered a disturbing pattern: ‘exceptional and large deals appeared to have been pushed through while permission to export to those same destinations have been withheld for smaller transfers’.37 This suggests either outright political interference or, more subtly, officials picking up cues as to what their masters valued most. Either way, the result was that the Criteria were overborne by other considerations. And what seems most discreditable is the selective way this was done, enabling governments to continue to present themselves as complying with the CP, since it would be a rare member of the general public who would be alert to the subtleties of distinctions between those licences denied and those granted. Another set of circumstances in which the Criteria appear to have been ignored relates to ‘terrorism’, or more precisely, aid to governments fighting against opponents they label ‘terrorists’. A prime example is Sri Lanka, where there was some objective justification for that label – the LTTE, (the Tamil Tigers) had been designated by the UN as a terrorist organisation. The Government heavily restocked its arsenal after the breakdown of a ceasefire, and arms purchased from the Czech Republic and UK were used in a brutal campaign including indiscriminate bombing early in 2009, which ended the insurrection at the cost of an estimated 20,000–40,000 civilian deaths, massive displacement of civilian populations, summary executions of captive fighters, all of which were protected from world scrutiny by the exclusion of any journalistic presence in the affected areas. The Report by the Panel of Experts to the UN Secretary General produced strong evidence of what amounted to war crimes,38 and the EU removed, and continues to exclude, Sri Lanka from its trade preferences scheme (the so-called GSP Plus) as a partial sanction. It is not that the Member States were unaware of the dangers of misuse of weapons in Sri Lanka. There was a steady rise in denial of licences, from just under 10 per cent of applications in 2005, to just over 25 per cent in 2008.39 These simple figures however conceal national variations: Germany, Italy, the Netherlands and Austria approved virtually no sales to Sri Lanka, particularly in 2007 and 2008, when ceasefire negotiations were taking place. The UK, Czech Republic and Slovakia, joined latterly by Spain, however, were increasing their approvals.40 37 Vranckx (n 28) (emphasis added) 3. 38 Its full title is the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, and was published 25 April 2011. It is accessible online at www.un.org/News/dh/infocus/ Sri_Lanka/POE_Report_Full.pdf (last accessed 5 April 2013). The overall assessment of the Panel has been confirmed by numerous media accounts in the European Press, all of which confirm that major atrocities were committed by the LTTE as well, though on a lesser scale – but they were not armed with weapons purchased openly with approval from foreign States. 39 Vranckx (n 28) 50, Table 6. 40 Vranckx, (n 28) 47, Table 4.

54  Fragile Underpinning: The Limits of EU Rules Notably, the justifications offered by a Slovakian official, whose country’s rockets were ideal for use in the offensive, were that no UN embargo was in place, and the LTTE was on the UN’s list of terrorist organisations.41 These national differentials suggest that the Criteria were interpreted in sharply divergent fashion, but the Slovak justification was revealing, because it so clearly illustrated that, if not simply ignored, the Criteria were deeply misunderstood. They are not concerned with the character of the enemy, nor is their application dependent on UN or other designation. The licensing decision is directed at the use that ‘might’ be made of the weapons by the recipient State. Human rights violations, and contribution to internal armed conflict (Criterion 3), can and often do occur in dealing with groups which themselves commit violations. The misdeeds of others do not authorise abandonment of the Criteria.

III.  Variation and Inconsistency It should be observed at the outset that the CP deliberately allows variation – but only at a higher level, ie ‘more restrictive national policies’ are specifically permitted by Art 3.42 It is designed to prevent lowering of standards, not interference or disallowance of more rigorous ones. This issue has a number of dimensions, but its core is straightforward: if different States interpret the Criteria differently, or adopt – openly or tacitly – a different set of policies or priorities to guide their licensing decisions, some exports will be approved by some States that others would forbid. At one level this can become a question of unethical competitive advantage for manufacturers based in the permissive State. However, there is equally a reverse problem: components can readily be shipped within the Union, particularly as recent legislation has sought to facilitate intra-Union trade in defence products,43 and an increasingly multinational industry can now more readily choose its point of export of the final product on the basis of ease of procuring an export licence. Just as ‘forum-shopping’ is a notorious practice among lawyers seeking the most favourable venue to bring a legal action – hence the status of London as the world’s libel capital – it is easy to envisage how analogous choices for arms purchases could be made within the Union. A ‘weak’ interpretation of the Criteria can be a defence against domestic disadvantage when Member State competitors are known to be lax. A further possibility, about which there appears to be no empirical investigation, is that of obtaining a licence through corruption. The large literature



41 Vranckx,

(n 28) 50. Position (n 17), Art 3. 43 See further below, pp 53–54. 42 Common

Variation and Inconsistency  55 on corruption in the arms trade44 concentrates almost exclusively on payments by exporters to officials in purchasing States and/or ‘commission agents’ – ie brokers45 – to gain contracts overseas. Little is known about payments to officials in the manufacturers’ home States to facilitate export approval. Given the radical variations in the prevalence of corruption in Member States,46 this must be a matter of some concern, although it is fair to say that no scandal has yet emerged. Variation in national applications may not necessarily be basely-motivated however. Some States, particularly the larger and wealthier ones like France or the UK, have large diplomatic missions throughout the world which include intelligence and defence specialists. They are thus able to gather and assess substantial information about use and misuse of weapons by States seeking purchases.47 They also have larger units in their home administration to evaluate this information and circulate it within the various departments of government to guide future licensing decisions. Smaller States may lack these resources, and of course those which joined the Union relatively recently (Bulgaria, Romania and Croatia) will have less experience in administering the Criteria.48 This problem is specifically addressed in the CP, which requires Member States to circulate details of denied applications under the Criteria, including explanations for the denial; to ‘exchange experiences’ of dealing with third countries; and to circulate confidential annual reports among each other on their exports and implementation of the CP.49 A problem closely linked with variable practice is the risk of diversion. As will be seen, this danger is regarded as being of such importance that a specific Criterion is devoted to it.50 Yet the practicalities may be complicated. Again, this is partly a question of expertise, but may also be one of the extent of resources that a particular government may choose to devote to detection and monitoring. Vrancx’s Rhetoric or Reality? revealed a fascinating paradox. On the one hand, risk

44 C Courtney, Corruption in the Official Arms Trade (London, Transparency International, 2002) remains an excellent short introduction to the subject. In addition to J Roeber, ‘Special Report: HardWired for Corruption’ Prospect (28 August 2005) and A Feinstein and P Holden, ‘Arms Trafficking’ in L Paoli (ed), The Oxford Handbook of Organised Crime (Oxford, Oxford University Press, 2014) see the valuable piece by A Feinstein, P Holder and B Pace, ‘Corruption and the Arms Trade: Sins of Commission’ (SIPRI Yearbook 2011, Oxford, Oxford University Press 2011) 13–35. 45 Whose activities were addressed in an earlier Common Position 2003/468/CFSP on the control of arms brokering, OJ L 156/79. The 2008 Common Position explicitly applies to brokering licence applications: Art 1(2). 46 Transparency International annually publishes a Corruption Perception Index. Its last publication, in 2018, rated Finland the third least corrupt globally; Sweden was joint sixth (highest among significant arms exporters). Bulgaria, a significant exporter of automatic rifles, one of the deadliest small arms and light weapons, ranked joint 74th, along with South Africa. See https://www.transparency.org/ news/feature/corruption_perceptions_index_2018. 47 A point made by Vrancx (n 28) 68. 48 The Council has attempted to address this problem by publishing a detailed User’s Guide, E ­ uropean Council (COARM) 153, User’s Guide to Council Common Position 2008/944/CFSP (16 September 2019) and also discussed below at pp 57–58. 49 Common Position (n 17), Arts 4, 11 and 8, respectively. 50 See chapter four at pp 93–95.

56  Fragile Underpinning: The Limits of EU Rules of diversion was by far the most common ground for denial of licence for exports of small arms by all EU States in the year studied (2008).51 On the other, of the five States whose exports totalled nearly all of the value of shipments, those denials were concentrated among three – Germany, Austria and the UK – whereas Belgium, whose exports were of the highest monetary value, denied only two and Bulgaria none at all.52 Further, the study found that a significant number of EU-produced arms appear to have made their way via the USA into Mexico, where they undoubtedly contributed to the carnage that has made Mexican drug gangs notorious world-wide. The precise route remains uncertain, but one aspect of the problem seems clear. Small arms exports to the USA do not go to the armed forces or even to police. They are sold to private dealers, who are able to market them with an absence of regulation that is astounding by European standards. Whilst the US Constitution protects its citizens’ ‘right to bear arms’,53 a spillover effect is that weapons imported into the USA readily find their way across the porous border into Mexico. Tracing this hidden, highly decentralised traffic is very difficult for a European ministry and it is no doubt awkward to be seen publicly to deny permission to export material formally destined for the USA. It is clear that the absence of a single centralised well-resourced agency, backed by the political influence of the Union as a whole, hobbles the effective implementation of the Criteria in a major way. This review, published in 2010, showing partial implementation and lack of consistent and uniform national application of the Criteria, accords with the conclusions of Bromley and Brozska some years earlier.54 They found little indication that the then Code of Conduct had improved harmonisation of export practice. They did note an improvement in reduction of approvals where risks of human rights violations or exacerbation of conflict were involved, but none with respect to any of the other Criteria. Subsequently-published research has reinforced this picture. Hansen and Marsh also examined post-embargo sales to Libya, and reached the acerbic conclusion that the EU’s attempts to project itself as a ‘normative power’55 were in reality a form of organised hypocrisy. In their words, ‘although aware of the risks of exporting, in a competitive market for military goods, member states sought 51 Vranckx (n 28) 65–74 contains an extensive study of diversion on which the present discussion is based. An analysis based on more recent data is present in the following chapter. ‘Small arms’ corresponds to ML 1 in the EU Common Military List (above n 2). 52 Vranckx (n 28) Table 8. The national data can never be wholly comprehensive, because some EU States do not issue denials, preferring to consult informally with applicant companies prior to decision, advising them not to submit an application. 53 US Constitution, Second Amendment. See District of Columbia v Heller, 554 US 570 (2008); McDonald v City of Chicago, 561 US 3025 (2010). 54 Bromley and Brzoska (n 28). 55 This effort attracted considerable debate, with many critical assessments. See especially I Manners, ‘Normative Power Europe: A Contradiction in Terms?’ (2002) 40 Journal of Common Market Studies 235, and A Hyde-Price, ‘A “Tragic Actor”?: A Realist Perspective on “Ethical Power Europe”’ (2008) 84 International Affairs 29.

Variation and Inconsistency  57 commercial advantage over restraint, and comprehensively violated export control principles’. They argue that the driving force was governments’ desire to m ­ aintain the competitive position of their arms industries, which readily overwhelmed moral and even strategic considerations.56 In the same vein, and using sophisticated statistical methods, Erickson demonstrated that, in the years governed by the (non-legally binding) Code of Conduct, human rights considerations were ‘largely insignificant’ in restraining transfers of major conventional weapons, and even with respect to small arms and light weapons, ‘where policy discussions had been most concentrated … the disconnect with practice is evident’.57 Her overall argument is that European States adopted the Code (and subsequently the CP) for reputational reasons – to show themselves to be good international citizens (in part due to domestic pressures in response to various scandals) – but not out of genuine normative conviction. The inevitable consequence is ‘commitment without compliance’.58 They talked the talk, but rarely walked the walk. And there is no way to compel them to do so.59 It would however be mistaken to conclude that the EU’s work in relation to arms exports has been valueless. Perhaps the most visible impact has been on the later accession States of eastern Europe and the Balkans. Many if not most of these had at best rudimentary standards of assessment and administrative controls of exports, and since joining the Union have been required to adopt the CP and create some form of machinery of implementation.60 Practice is undoubtedly variable, but a void has been filled – though how effective requires investigation. For all Member States, perhaps the greatest contribution has been in the ancillary machinery the EU has established. The predominant element in the CP is the substantive Criteria, but additionally that document also establishes certain obligations on Member States, and principles to guide their decisions. The Union is required to produce a User’s Guide, which ‘shall serve as guidance for the implementation’ of the CP.61 This is a compendious document, running to nearly 160 pages, providing both a list of questions that those taking licensing decisions in a Member State should ask themselves when applying each particular Criterion, and referring them to a range of relevant international instruments.62 For a State with a small civil service unfamiliar with the range of issues, the Guide should greatly improve their capacity to carry out their responsibilities. However, it has no legally-binding effect. Updated periodically to take account of new

56 Hansen and Marsh (n 31) 264 and 285. 57 J Erickson, Dangerous Trade (New York, Columbia University Press, 2015) 71. 58 Ibid 5–19 and generally. The latter phrase appears on p 142. 59 M Bromley, ‘Arms Transfers and Export Control Policies’ in H Meijer and M Wyss (eds), The Handbook of European Defence Policies and Armed Forces (Oxford, Oxford University Press, 2018) 718, cites several other examples along the same lines. 60 Common Position (n 17), Art 12. 61 Common Position (n 17), Art 13. 62 The latest edition may be found at www.consilium.europa.eu//media/40659/st12189-en19. pdf?utm (COARM 153), issued 16 September 2019.

58  Fragile Underpinning: The Limits of EU Rules developments, such as the Arms Trade Treaty, it is drafted by the Working Party on Conventional Arms Exports (COARM), a Council Working Group consisting of national civil servants which carries out several functions. It meets monthly to share their experiences of export applications which have raised problems. This forum also helps Member States fulfil their obligations under Article 4 of the CP, which requires them to circulate details of denials of any application: a State which wishes to grant a licence for an ‘essentially identical transaction within the last three years’ is also required to consult the refusing State, and if it nonetheless gives its approval, to notify the latter and provide ‘detailed explanation’ for its contrary decision.63 Member States are supposed to publish yearly reports of their exports, and provide information to COARM, which on behalf on the Council produces an Annual Report.64 This document is a relatively brief description of the main actions and policies of the EU in relation to exports, but is primarily an enormous statistical compilation of export approvals and denials of each Member State, broken down by individual country exporter and recipient.65 In addition, each State is required to circulate confidential annual reports on their exports and implementation of the CP. The justification of the secrecy requirement is unclear, but presumably is designed to protect commercial information from interested competitors. It may also serve to shield particular governments from questions from civil society groups. The limitation on these reporting provisions is practical, not legal: not all governments produce the required information, or do so in a form that makes direct national comparison possible. Though most (but not all) States produce reports at least some of the time, no more than 21 States have ever supplied full submissions, and the Annual Reports have started to appear only after significant delays.66 Indeed in national impact terms, some of the EU’s most significant impact may have come at an earlier stage, soon after the Code of Conduct was first adopted in 1998. In a study completed nearly ten years later, Bromley concluded that ‘perhaps [its] strongest impact was in the fields of public and parliamentary transparency’, some national parliaments having been moved to establish oversight or accountability arrangements where none had existed. There was also an effect harder to pin down but nonetheless real, which was that the existence of the Code strengthened the position of non-governmental organisations lobbying their governments, and of sympathetic officials in negotiations with less sympathetic colleagues, to

63 Common Position (n 17), Art 4.1. 64 Common Position (n 17), Art 8. 65 See the following chapter for use of this material to analyse current practices. The Report is brief but the data indices run to nearly 500 pages. 66 Bromley (n 59) 717. The most recently available is the Twentieth Annual Report [2018] OJ C453/1, covering the year 2017.

EU Arms Embargoes: Variations on a Theme  59 adopt a more vigorous policy of restraint.67 This may have had the further indirect influence of awakening interest in arms export issues among citizens of various Member States who had previously been uninformed or unaware.

IV.  EU Arms Embargoes: Variations on a Theme In addition to formulating harmonised Criteria for individual Member States’ exports, the EU may also, and more directly, impose ‘restrictive measures’ on the export of arms. These are adopted in combination with wider measures, most notably freezing of assets and other economic resources, but are less frequent: though a package of economic sanctions may not necessary include a weapons embargo, the latter is never adopted as the sole restriction. The Union has always followed the UN when the Security Council has imposed a mandatory arms embargo, but on several occasions it has imposed its own.68 These are usually adopted in response to human rights abuses69 or unacceptable international behaviour,70 and may reach non-State actors as well as sovereign States.71 ‘Restrictive measures’ are CFSP instruments, and hence require unanimity. Once that is achieved, paths diverge. Weapons embargoes are left to each Member State to implement. This is in marked contrast with economic sanctions, which are then formulated in a Regulation requiring only qualified majority approval which is issued by the Commission72 and becomes directly effective in the law of each Member State – and thus potentially enforceable by the Commission if violated. Thus to prevent a national veto, arms embargoes may be watered down or limited in time, and there is no supervision of their implementation. The results can be seen in the story of the short-lived embargo against ­Uzbekistan, adopted in 2005 after a massacre of several hundred regime opponents assembled in the city of Andijon, and terminated four years later. Two case studies of the politics and competing interests involved in the adoption and ending of the embargo reached roughly the same conclusions: that the proclaimed attachment to and concern for human rights was readily eroded by the emergence of strategic interests (Uzbekistan provided bases for German troops in Afghanistan); concerns expressed by the European Parliament were readily disregarded; and that

67 Bromley (n 12) 43–44. The latter point was offered in interview by officials themselves. 68 Bromley (n 59) 721, reports that mid-2016, half the EU embargoes in force either had no source in a UN embargo or were modifications of those originating with the UN. 69 eg the embargo against Belarus, 2011/357 CFSP. 70 eg the embargo against Russia after the invasion of Crimea, 2014/512 CFSP. 71 eg al-Qaeda and the Taliban, 2002/402 CFSP. SIPRI publishes and updates a list of these instruments; www.sipri.org/databases/embargoes. Twenty were in force as of 1 November 2018. 72 Under Art 215 TFEU.

60  Fragile Underpinning: The Limits of EU Rules the unanimity requirement of CFSP decision-making was central in producing this outcome.73 However, a study of German compliance with embargoes produced some intriguing findings which round out the picture.74 First, German exports of weaponry were dramatically reduced if EU, and still more, UN arms embargoes were in effect. This was due, the authors argue, to the fact of multiple participation in the embargo: ‘multilateralism’ meant there was no loss of competitive advantage as other major exporters were equally involved. Thus, although Germany’s earlier record supports the argument that moral norms are readily overcome by the prospect of economic advantage, if the possibility of the latter is precluded, the norms may have effect. Secondly, the authors contrast what they find to be Germany’s repeated non-compliance with domestic legal norms governing arms exports with its adherence to EU embargoes. They locate the difference in the linguistic ambiguity of the domestic norms, which give wide scope for discretion in interpretation. Their thesis is strengthened when one looks at the way in which embargoes are framed: in categorical terms of prohibition, and even the (limited) exceptions tend to be expressed in more strictly-defined language.75 Their analysis supports the argument presented in the preceding chapter, and is reinforced by comparison with the wording of the Criteria in the CP, the subject of the next one. Moreover – a point the study does not explore – the embargoes are subject to the oversight of the Commission and, theoretically at least, of the Court of Justice, keeping national governments on a tighter rein. The arms embargo case studies reinforce the overall conclusion: individual States, left to their own devices, are in all but marginal cases unwilling to forego material advantage unless: 1) a structure exists to ensure that their competitors are no less disadvantaged; and 2) there exists an effective enforcement mechanism to back up the rules.

73 K Kranz, ‘European Union Arms Embargoes: The Relationship between Institutional Design and Norms’ (2016) 29 Cambridge Review of International Affairs 970, which is particularly good on the interaction of constitutional structures and policy outcomes; and G Bosse, ‘EU Normative Performance: A Critical Theory Perspective on the EU’s Response to the Massacre in Andijon, Uzbekistan’ (2017) 33 East European Politics 56. 74 C Schulze, O Pamp and P Thurmer, ‘Economic Incentives and the Effectiveness of Nonproliferation Norms: German Major Conventional Arms Transfers 1953–2013’ (2017) 61 International Studies Quarterly 529. 75 To offer just one pertinent example: Article 1 of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine [2014] OJ L66/26, begins as follows: 1. All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen. 2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex. The peremptory character of this language is to be contrasted with that of the eight Criteria of the CP.

The Regulation of Dual-Use Exports  61

V.  The Regulation of Dual-Use Exports A window onto the intractable difficulties of achieving harmonisation when States believe their core sovereignty interests are at stake is the ongoing story of­ regulation of the export of dual-use goods. For reasons explained in the Preface,76 full treatment of this subject is outside the scope of this book, but there are pertinent parallels. Most importantly, the confluence of strategic and economic ­considerations – the one pulling in the direction of restriction, the other towards promotion of exports – meet with particular force in this sphere. The result of the collision is a sharing of competences that seems to satisfy Member States and larger companies but has been under fire by the Commission. Since a landmark ECJ decision of 1995,77 the Commission has had exclusive competence in framing rules under the Common Commercial Policy. Although it proceeded by means of a Regulation rather than a Directive,78 in deference to strong Member State pressure it left the choice of implementation measures and process to each State. The consequence was widespread divergence of practice. As the Commission put in a Green Paper issued in 2011: The development of the EU export control system over the last decade has witnessed an entanglement of these trade and security considerations. Instead of having a harmonized EU approach to export controls where security considerations are brought to bear on a case-by-case basis to protect essential security interests and prevent highrisk transactions, we have different approaches being applied to export controls across the EU. These range from extremely tough export restrictions put on exporters established in some Member States, to the use of broad national facilitation measures to allow certain exporters in particular Member States to export dual-use items with minimum difficulty.79

There followed an extended consultation period, which in 2016 resulted in a ‘Recast’ proposal from the Commission.80 Broadly summarised, the Commission’s proposal contains several changes that would give human rights, international humanitarian law (IHL), and terrorism-related concerns a more central role in the Dual-use Regulation, whilst also expanding controls on cybersurveillance technology. Because export of dual-use goods is within Commission

76 Above, p ix. To recall, dual-use goods have both civilian and military uses (the latter sometimes requiring conversion from the original product). The CP only applies to military goods, as itemised in the EU Common Military List. 77 Case C-70/94 Werner v Germany [1995] ECR I-3189; Case C-83/94 Leifer and Others v Germany [1995] ECR I-3231, decided together. 78 Council Regulation 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2009] OJ L134/1. 79 Commission Green Paper, The dual-use export control system of the European Union: ensuring security and competitiveness in a changing world COM/2011/0393 final, Introduction. 80 European Commission, Proposal for a Regulation of the European Parliament and of the Council setting up a Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast) COM (2016) 616 final, 28 September 2016.

62  Fragile Underpinning: The Limits of EU Rules competence – unlike arms exports – States would be required to address these concerns, as they would be bound to adopt the range of proposed changes in procedures for decision-making and enforcement.81 The controversial nature of the proposals, involving significant incursions of previous practice by many Member States, and the participation of the European Parliament – a requirement in all matters of ordinary legislative procedure – has meant that the process of amendment has taken an inordinate length of time: as this is written, discussions and negotiations are still ongoing.82 Any eventual changes will have taken at least eight years to emerge, even if opposition is overridden by a Qualified Majority vote. The Union’s role, even in areas in which it formally enjoys exclusive competence, is in practice severely curtailed.

VI.  A Relative Success Exercising its exclusive competence under the Common Commercial Policy, the Commission has prohibited export of any material which would assist in the commission of torture or severe ill-treatment.83 Although there remain some weaknesses in the instrument,84 its location in a binding Regulation meant that failure to exercise powers under it could be challenged in national courts. This occurred in the UK in 2010, in a case in which the Government’s failure to ban export of sodium thiopenthal to US States which used it for executions, was challenged in the High Court. Although some of the preliminary legal objections were rejected,85 material placed before the Court led the Government to reverse its position (it had claimed the drug could not legally be placed on the prohibited list) and banned the proposed export.86 It should be noted, however, that it was the judicial process, leading to the production of new evidence, and not a judicial ruling, that led to the revised decision by the Government. In this instance the

81 For a comprehensive overview of the issues, going well beyond the scope of this book, see M  ­Bromley, ‘Export Controls, Human Security and Cyber-technology: Examining the Proposed Changes to the EU’s Dual-Use Regulation’ (Stockholm, SIPRI, December 2017). 82 The only concrete legislative proposal produced thus far has been for a consolidating Regulation containing no substantive changes: COM (2018) 316 final, Brussels 24 May 2018. 83 Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment [2005] OJ L200/1. 84 Highlighted by Amnesty International in its Report, ‘Grasping the Nettle: Ending Europe’s Trade in Execution and Torture Technology’ (2015), available at www.amnesty.org/download/Documents/ EUR0116322015ENGLISH.PDF. The Regulation was strengthened by amendment in 2014, as the Report acknowledges. 85 R (on the application of Zagorski) v SoS for Business, Innovation and Skills, (Admin Court) [2010] EWHC 3110. 86 D Casciani, ‘US Injection Drug Faces Legal Restrictions’ (BBC News, 29 November 2010), available at www.bbc.co.uk/news/uk-11865881.

Facilitating Arms Sales within the Union  63 fact of EU exclusive competence produced greater openness, and allowed for the emergence of new material – presented at first to the Court – that changed the result.

VII.  Facilitating Arms Sales within the Union Since arms (or ‘defence-related products’) sales which meet the Criteria of the CP are a lucrative form of trade, one activity of the Commission has been to attempt to minimise national barriers to commerce in weapons among Member States.87 It has long been concerned both with licensing procedures and substantive limitations – ie, lists of particular products requiring export approval even to a destination within the EU. To this end it produced the so-called ICT Directive in 2009,88 for implementation in each Member State within three years. The complex and important procedural issues may be passed over for present purposes, but the relevant point is that the question of ‘exempted items’ – those which a given State wishes to retain control over export approval – remains one of widespread divergence and absence of agreement. Several studies prepared by or for the Commission have noted limited movement towards frictionless trade in arms, not least due to the leisurely implementation of the Directive.89 Administrative issues have contributed, but particularly with respect to exempt items, strategic or political factors have been proven to outweigh the Commission’s economistic approach. The reluctance of States to achieve total free trade within the Union may reflect both general concerns and highly specific opposition. The problem of ‘forum shopping’ re-emerges, as States which, correctly or not, believe in the robustness of their controls, may be reluctant to trust that some other State will properly apply the CP. They thus resist approving export of components made in their territory to a State whose laxer approach may encourage manufacturers to locate final assembly sites there. Alternately, particular conflicts may dictate a State’s attitude. A clear example in an analogous context was the reported refusal of the UK to approve sale of Swedish aircraft containing UK-manufactured components to Argentina.90

87 This competitiveness agenda neatly dovetails with its efforts to assist creation of a European-wide defence industry. 88 Directive 2009/43/EC, simplifying terms and conditions of transfers of defence-related products within the Community, common position [2009] OJ L146/1. ‘ICT’ is the acronym for ‘intra-Community transfer’. 89 Most notably by the Policy Department of the Directorate General of External Policies on ‘The Impact of the “Defence Package” Directives on European Defence’, EP/EXPO/B/SEDE/FWC/2013-08/ Lot6/01, presented to the EP in June 2015, and a Report for the Commission prepared by the Group for Research and Information on Peace and Security (GRIP) (Brussels, GRIP, 22 August 2014), Ref. Ares(2014)2758238–22/08/2014. 90 A Chuter, ‘Argentina Buying Gripens? Brits Say “No Way”’ Defence News, 8 November 2014.

64  Fragile Underpinning: The Limits of EU Rules The weighing of the relative importance of the strategic and the political, as opposed to the economic, is a judgement that major exporters among Member States seem determined to retain. The result is that whilst Member States have theoretically reached agreement on the goals of the Directive, and approved its promulgation, their interests often remain both opposed and controlling.

VIII. Conclusion The European Union, by means of the Common Position, provides the policy and legal framework within which Member States take decisions to approve or deny licences for arms exports. It does this within a Treaty structure which specifically reserves matters relating to the trade in arms to the individual Member States. However, as those States have unanimously agreed (or accepted as part of the Union acquis when joining91) to accord binding legal effect to the CP, the result is a set of legal obligations unsupported by any administrative or judicial mechanisms within the Union. The consequences, demonstrated by numerous studies reviewed in this chapter, are that compliance with the Criteria is at best partial; and there is widespread and significant variation in practice among the Member States, in terms of the circumstances under which they will refuse export permission. Most starkly, it is clear than humanitarian considerations run a distant third behind those of economic gain and pursuit of strategic or political advantage. An additional factor underpinning the subordination of EU decision-making is the reluctance of several States, almost as a matter of instinct rather than articulated principle, to cede the power of final decision in an area of traditional core sovereign power. This is observable even in relation to the export of dual-use goods, over which the Union technically has exclusive competence, and in the general trend, noted recently by Bromley, towards reversion to inter-governmental decisionmaking in matters of arms control.92 However, the EU plays a valuable role in some respects. It has created a User’s Guide for national officials which should educate them in the complexities of the decisions to be taken; it provides a forum for those officials to discuss diffic­ ult cases; and its requirements for annual reporting and consultation where one State has already denied a licence request should serve to advance some harmonisation of policy and practice. Perhaps most important, it provides a b ­ aseline or floor – though not a very high one – below which Member States may have some ­difficulties publicly tunnelling beneath. A race to the bottom is more difficult to engage in when a State has publicly endorsed a set of standards. The existence of

91 The acquis is the accumulation of EU law which all new members of the Union are required to accept on accession. 92 Bromley (n 59) 718–23.

Conclusion  65 such rules both permits other States, adversely affected by the competition, to bring political pressure on the deviant State, and provide a foundation for opposition and critique by civil society groups within domestic politics. They may also – possibly – provide the basis for domestic legal challenge when the rules are flouted.93 Finally, the very existence of a collective entity facilitates deliberation and possibly even agreement on a joint approach when a crisis arises. In October 2018, when the furore over the murder of Jamal Khashoggi was at high pitch, a number of Member States had decided, or were publicly contemplating, a suspension of arms sales to Saudi Arabia. After Germany had done so, its economics minister, Herr Peter Altmaier, cogently identified the need for collaboration. He called for a common European position on arms exports to Saudi because Germany’s action alone ‘will have no positive consequences … if at the same time other countries fill this gap … only if all European countries agree would this make an impression on the government in Riyadh’.94 Only the European Union provides an institutional framework within which such agreement could even be conceivable.

List of References Bitzinger, R, (ed) The Modern Defense Industry (Westport, Praeger, 2009). Bosse, G, ‘EU Normative Performance: A Critical Theory Perspective on the EU’s Response to the Massacre in Andijon, Uzbekistan’ (2017) 33 East European Politics 56. Bromley, M, ‘Arms Transfers and Export Control Policies’ in H Meijer and M Wyss (eds), The Handbook of European Defence Policies and Armed Forces (Oxford, Oxford University Press, 2018) (online, Ch 41). —— ‘Export Controls, Human Security and Cyber-technology: Examining the Proposed Changes to the EU’s Dual-Use Regulation’ (Stockholm, SIPRI, December 2017). —— ‘The Review of the EU Common Position on Arms Exports: Prospects for Strengthened Controls’ (SIPRI, January 2012). —— ‘The EU Common Position on Arms Exports and National Export Control Policies’ in A Bailes and S Depauw (eds), The EU Defence Market: Balancing Effectiveness With Responsibility (Brussels, Flemish Peace Institute, 2011) 39–46. —— and Brzoska, M, ‘Towards a Common, Restrictive EU Arms Export Policy?’ (2008) 13 European Foreign Affairs Review 333. Casciani, D, ‘US Injection Drug Faces Legal Restrictions’ (BBC News, 29 November 2010). CBS News, ‘European Parliament Urges Ban on Saudi Arabia Weapons Sales, but Europe Takes No Action Yet’ (25 October 2018).

93 Spoiler: the chances have proven in practice to be very limited. The only State in which such a challenge has met with even partial success is the UK; the cases are discussed in chapter five. 94 Reported by CBS News, ‘European Parliament Urges Ban on Saudi Arabia Weapons Sales, but Europe Takes No Action Yet’ (25 October 2018), www.cbsnews.com/news/jamal-khashoggikilling-european-parliament-weapons-surveillance-sales-saudi-arabia.

66  Fragile Underpinning: The Limits of EU Rules Chuter, A, ‘Argentina Buying Gripens? Brits Say “No Way”’ Defence News (8 November 2014). Courtney, C, Corruption in the Official Arms Trade (London, Transparency International, 2002). Craig, P, The Lisbon Treaty: Law, Politics, and Treaty Reform, revised edn (Oxford, Oxford University Press, 2012). —— and De Burca, G, EU Law – Text, Cases, and Materials, 6th edn (Oxford, Oxford, University Press, 2011). D O’Higguan, ‘EU Arms Exports to Libya: Who Armed Gaddafi?’ The Guardian, London, 2nd March 2011. Davis, I, The Regulation of Arms and Dual-Use Exports: Germany, Sweden and the UK (Oxford, Oxford University Press, 2002). Denza, E, The Intergovernmental Pillars of the European Union (Oxford, Oxford University Press, 2002). Eeckhout, P, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011). Erickson, J, Dangerous Trade (New York, Columbia University Press, 2015). Feinstein, A, Holder, P and Pace, B, ‘Corruption and the Arms Trade: Sins of Commission’ (SIPRI Yearbook 2011, Oxford, Oxford University Press, 2011). Hansen, ST, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the EU Conventional Arms Export Control Regime’ (2015) 22 European Journal of International Relations 192. —— and Marsh, N, ‘Normative Power and Organised Hypocrisy: European Union Member States’ Arms Exports to Libya’ (2015) 24 European Security 264. Hyde-Price, A, ‘A “Tragic Actor”?: A Realist Perspective on “Ethical Power Europe”’ (2008) 84 International Affairs 29. Koutrkos, P, European Union International Relations Law (Oxford, Hart Publishing 2015) —— The European Union Common Security and Defence Policy (Oxford, Oxford University Press, 2013). —— Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford, Hart Publishing, 2001). Kranz, K, ‘European Union Arms Embargoes: The Relationship between Institutional Design and Norms’ (2016) 29 Cambridge Review of International Affairs 970. Krishnan, A, War as Business (Farnham, Ashgate, 2005). Manners, I, ‘Normative Power Europe: A contradiction in Terms?’ (2002) 40 Journal of Common Market Studies 235. Schulze, C, Pamp, O and Thurmer, P, ‘Economic Incentives and the Effectiveness of Nonproliferation Norms: German Major Conventional Arms Transfers 1953–2013’ (2017) 61 International Studies Quarterly 529. Trybus, M, EU Law and Defence Integration (Oxford, Hart Publishing, 2005). Vrancx, A, ‘Rhetoric or Restraint? Trade in Military Equipment under the EU Transfer Control System’ (Ghent, Academia Press, 2010). Wulf, H, Internationalising and Privatizing War and Peace (Basingstoke, Palgrave Macmillan, 2005). Yihdego, Z, ‘The EU’s Role in Restraining the Unrestrained Trade in Conventional Weapons’ (2009) 10 (3) German Law Journal 281.

Conclusion  67

Other Publications Amnest International, ‘Grasping the Nettle: Ending Europe’s Trade in Execution and Torture Technology’ (2015). Bromley, M, ‘The Review of the EU Common Position on Arms Exports’, EU Non-Proliferation Consortium, Non-Proliferation Papers No 7 (January 2012). —— ‘The Impact on Domestic Policy of the EU Code of Conduct on Arms Exports’ (Stockholm, SIPRI Policy Paper No 21, May 2008). Committee on Arms Export Controls (CAEC), Scrutiny Report, First Joint Report of Session 2010–2011, HC Paper 686. European Council (COARM) 153, User’s Guide to Council Common Position 2008/ 944/CFSP (16 September 2019). Stockholm International Peace Research Institute (SIPRI), ‘Trends in International Arms Transfer, 2017’ (Stockholm, SIPRI, March 2018). United Nations, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (25 April 2011).

68

4 The EU Criteria: A Critical Examination I. Introduction As described in the preceding chapter, the EU acted under the Common Foreign and Security Policy (CFSP) in 2008 to adopt a Common Position (CP) which is supposed to govern proposed arms exports in all Member States.1 That chapter discussed several procedural and ancillary matters relating to the working of the CP. The latter’s substantive core is the eight Criteria found in its Article 2. Apart from minor amendments they have remained unaltered in substance. The UK has enacted the Criteria into its domestic law, under the name of ‘Common Criteria’ (CC).2 A deep examination of these Criteria is important because they are the most structured, comprehensive and explicit legal rules governing arms exports operating anywhere in the world. They are also at present legally binding on the four nations covered in this Part.3 This chapter presents a critique of the Criteria which combines wider policy concerns with analysis of their precise legal language. Analysis of the text as an expression of policy is essential, but ideally would be supplemented by an understanding of the reality of implementation. That does form one element of the analyses of institutions and politics presented in the national chapters. Also valuable would be the availability of reliable and consistent quantitative material on the application of the Criteria, by particular States and over time. The former would permit cross-national comparisons; the latter would enable one to track changes in a States’ practice which may reflect important policy changes that have not been publicly announced or acknowledged.

1 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99, subsequently amended by Council Decision (CFSP) 2019/1560 of 16 September 2019 [2019] OJ L239/16. This Decision amended Art 1 to ensure that the CP Criteria applied equally to government to government transfers as well as commercial sales. 2 These were announced in a Ministerial Statement to Parliament on 25 March 2014, Official Report, Col 9 WS. 3 Their place in the regimes of France, Germany and Sweden is discussed in each national chapter within this volume. The special circumstances of the UK post-Brexit are discussed in chapter five.

70  The EU Criteria: A Critical Examination The latter is undertaken in relation to the UK in chapter five. It is relatively straightforward because the UK Government issues an Annual Report with comprehensive data presented clearly. Cross-national comparison is another story altogether. The difficulties are numerous and daunting, and there are strong grounds for arguing that it is impossible to offer meaningful comparisons on the basis of the data presently available. Rather than clog the text with extensive supporting discussion, the difficulties are explored in a brief ­Appendix to this chapter. Quantitative material is presented in the main text only when it documents what appears to be a very clear, unambiguous pattern of State practice.

II.  Point of Departure The policy underpinning both the CP and CC might be termed ‘structured ­ambivalence’. Both contain prefatory material, which take the traditional international law form of a Chapeau – unnumbered introductory statements of principles and objectives of the document – in the CP but are simple introductory paragraphs in the CC. The CP recognises ‘a right to transfer the means of self-defence, ­consistent with the right of self-defence recognised by the UN Charter’,4 as well as the wish of Member States to maintain a domestic defence industrial base, and identifies ‘the strengthening of a European defence technological and industrial base’ as central to the implementation of EU common foreign and defence policies.5 The UK Statement begins by an assertion that ‘the UK’s defence industry can make an important contribution to international security, as well as provide economic benefit to the UK’. And after setting out the eight Criteria, it concludes that in taking licensing decisions, ‘full weight’ will be given to the ‘UK’s national interest’, both strategic and economic, including ‘protection of the UK’s essential strategic industrial base’.6 Thus both the EU and the UK Government emphasise the importance of supporting domestic defence industries, and assume without discussion that continuing arms exports are essential to that. They do not give it absolute primacy, but it is clear that attempts to restrict exports on humanitarian or ethical grounds will always face formidable countervailing influence. This is so notwithstanding Article 10 of the CP, which states explicitly that ‘economic, social, commercial and industrial interests … shall not affect the application of the above Criteria’ (ie those laid down in Article 2).



4 Chapeau

to CP (n 1), para 12. paras 13 and 14. 6 Above n 2. 5 Ibid,

The Specific Criteria  71 Moreover, both documents emphasise the ‘case-by-case’ nature of the decision.7 Some of the difficulties surrounding this approach have already been discussed,8 but it bears repeating that in practical terms the emphasis on these economic and strategic interests means that when a decision comes to be taken in a specific case, the scales are already weighted in favour of approval. Putting the point another way, denial would require especially powerful reasons in any particular case to deviate from a predisposition to approve.

III.  The Specific Criteria Three important general points should be made at the outset. The first is that, with the exception of Criterion One which seeks to ensure compliance with the exporter’s international obligations, the Criteria are predictive and preventative. That is, they seek to avoid various forms of misuse and abuse of the equipment sought. This can only be achieved by making a judgement about the likely future behaviour of the purchaser, in the political circumstances – national and ­international – in which that State exists. There is thus always an element of indeterminacy involved; recognition of that fact implies the necessity of an approach geared to the avoidance of harm. Second, Criteria One to Four collectively differ in a fundamental way from Criteria Five to Eight. With the former, if certain conditions are met, or facts established, the export application must be refused: the precise language is ‘shall deny’. In that sense they are strong and straightforward. The latter, however, merely requires that certain factors or behaviour of the proposed purchaser be ‘take[n] into account’. This clearly has less effective force, and, with the important except of diversion (Criterion Seven), the other three unsurprisingly are invoked only infrequently to deny export permission. Third, different States may adopt different processes when applying the Criteria. The UK, for example, has developed an elaborate ‘methodology’ specific to each Criterion to guide its officials. These were explained more than a decade ago9 and in all but one respect10 have remained unchanged. In other States the process may be less formalised, and none seems to have been made publicly available. Whether the existence of an expressed ‘methodology’ makes a significant difference in the outcome of licencing is impossible to establish.

7 This is stated explicitly in Art 1 of the CP, which precedes the listing of the Criteria, and is repeated in the UK Ministerial Statement. 8 See above chapter two at pp 31–32. 9 UK Strategic Export Controls, Annual Report 2007, Annex B, Cm 7451 (July 2008). This Annex is 30 pages long. The Report is available online at www.gov.uk/government/uploads/system/uploads/ attachment_data/file/243375/7451.pdf. 10 See below, p 96.

72  The EU Criteria: A Critical Examination

A.  Criterion One Respect for the international obligations and commitments of Member States, in particular the sanctions adopted by the UN Security Council or the European Union, agreements on non-proliferation and other subjects, as well as other international ­obligations. An export licence shall be denied if approval would be inconsistent with, inter alia: [There follows an extensive list of international arms control regimes relating especially to nuclear and pariah weapons].

This Criterion leaves little room for ambiguity: a licence should not be granted if doing so would conflict with any of the numerous specified international obligations, including arms embargoes, various non-proliferation regimes ­ governing nuclear and pariah weapons, and the Arms Trade Treaty (ATT).11 These obligations are so fundamental that a control system which failed to reinforce them could simply not be taken seriously. Given their importance, it is of great interest that, in frequency of application UK practice diverges sharply from all other EU States: Criterion One is invoked in more than half of all UK denials, whereas for the rest of the EU Member States, the figure has not exceeded 15 per cent. A ­possible explanation for this remarkable difference is presented in chapter five. Since embargoes are inseparably linked with diversion,12 an application may be rejected by joint application of both Criterion One and Seven13 in appropriate cases. This has important implications for understanding the practical impact of the Criteria, which are explored in the Appendix. It has recently been argued that the inclusion of the ‘international obligations’ under the ATT in the Common Criteria, the User’s Guide, and now Criterion One, requires that the exporting State must consider potential violations of international human rights that might be perpetrated using the equipment, because the ATT requires an assessment of the risk of such violations.14 This contention has emerged in the context of efforts to curb exports to Saudi Arabia of equipment to be used in Yemen.15 The rights most obviously affected would be the right not to be arbitrarily deprived of life, an appropriate description of the fate of people

11 The UK included the ATT in its Common Criteria in 2014, but the Common Position was not similarly updated until September 2019: (above n 1) Article 2, Criterion 1 (bb). However, the EU User’s Guide (European Council (COARM) 153, User’s Guide to Council Common Position 2008/944/CFSP (16 September 2019), available at www.consilium.europa.eu//media/40659/st12189-en19.pdf?utm_ (also see chapter three above at pp 57–58) was amended earlier, in 2015, to incorporate references to the ATT, and thus should have been used by Member States from that time. 12 Recall the discussion in chapter one at pp 10–11. 13 The result may distort the data on invocation of the Criteria: see below at p 98. 14 ATT, Art 7.1, discussed at length in chapter 15. The argument discussed here was presented by counsel for Oxfam, Intervenor in the CAAT case in the English Court of Appeal discussed in ­chapter five. The Court did not address it. I am extremely grateful to Blinne Ni Ghralaigh, one of the counsel who prepared the argument, for explaining its complexities. 15 See further below, pp 75–80 and the discussion of the CAAT case, in chapter five.

The Specific Criteria  73 bombed in their homes, hospitals or schools.16 A radical but appropriately purposive extension of the argument would invoke violation of certain social and economic rights. Notably this would include the right to food, a casualty of the long-term naval blockade of Yemeni ports, which has led to mass malnutrition and starvation in a country that imports 90 per cent of its food.17 The fact that Saudi Arabia, along with the UAE – deeply involved in the fighting on the ground – are among the very few States which are not Parties to either ­Convention – is ­irrelevant, because the obligation under Criterion One lies on the exporter to assess the possible international humanitarian law (IHL) violations that might be committed by those using its product. This potential application of Criterion One is a recent and creatively purposive suggestion. It has never been examined by any judicial body, and its reception remains uncertain. However it is important to emphasise its precise implication: the obligation under the ATT as incorporated into Criterion One is to examine and consider the possible uses of the equipment. As such it is a procedural obligation on the exporting State, which would not dictate the final decision, but would insist upon evidence that the relevant facts had been adequately gathered and assessed. This would be in line with the obligation under Criterion Two recognised by the English Court of Appeal in the significant judgment discussed in chapter five.

B.  Criterion Two Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law. Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, Member States shall: (a) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used for internal repression; (b) exercise special caution and vigilance in issuing licences, on a case-by-case basis and taking account of the nature of the military technology or equipment, to countries where serious violations of human rights have been established by the competent bodies of the United Nations, by the European Union or by the Council of Europe; For these purposes, technology or equipment which might be used for internal repression will include, inter alia, technology or equipment where there is evidence of the use of this or similar technology or equipment for internal repression by the proposed end-user, or where there is reason to believe that the technology or equipment will be

16 International Covenant on Civil and Political Rights 1966, Art 6. An extension of the argument is that persons who in those circumstances have been badly wounded but not killed could be said to have suffered cruel, inhuman or degrading treatment, prohibited by Art 7 of the Covenant. 17 International Covenant on Economic, Social and Cultural Rights 1966, Art 11.

74  The EU Criteria: A Critical Examination diverted from its stated end-use or end-user and used for ­internal repression. In line with Article 1 of this Common Position, the nature of the technology or equipment will be considered carefully, particularly if it is intended for internal security purposes. Internal repression includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment, summary or arbitrary executions, disappearances, arbitrary detentions and other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights. Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall: (c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.

This Criterion is in practice the most controversial, because it covers use of equipment for both ‘internal repression’ and ‘serious violations of international humanitarian law’ (IHL). Although over the past two decades internal repression had been the primary concern of parliamentarians and non-governmental organisations (NGOs) and received the most public attention, the controversy over weapons sales to Saudi Arabia as it conducted a heavy bombing campaign in Yemen beginning in 2015 and continuing with varying intensity thereafter, thrust the IHL dimension of Criterion Two into unprecedented and urgent prominence. It will therefore be discussed first. Two preliminary points should be emphasised. The first is that concern with IHL violations came very late to the table. They were absent from the original Code of Conduct, and were only added when that was transformed into the CP in 2008. It is fair to say that collective minds were never focussed on IHL issues to anything like the same extent as human rights violations by arms purchasers.18 Concretely, this is manifest in the less detailed treatment of IHL issues – most notably, there is no equivalent of the very detailed instructions about matters to be considered in relation to internal repression, found in paragraph 2(b), in relation to IHL violations. Second, the language prohibiting licence approval is identical, whether the reason is ‘clear risk’ that the items ‘might’ be used for internal repression, or for ‘serious violation of IHL’. There is no basis at all for applying different tests

18 As was seen in chapter three at p 47, the Criteria made their first appearance in agreements forged at EU Council Summits in 1991 and 1992. The Cold War had just ended and attention was focussed almost exclusively on human rights issues; the conduct of war by States had fallen off the radar of public attention and debate. See, eg, J Erickson, Dangerous Trade (New York, Columbia University Press, 2015) 60–63, detailing the rise of the movement for a ‘responsible arms trade’ in the 1990s, and attributing that to several factors, none of which involved concerns about State violations of IHL.

The Specific Criteria  75 ­ epending upon which prospect arises. Nor is there any basis for importing a d further requirement of ‘intention’ in relation to either or both potential evils. The sole question is, as discussed earlier,19 that of assessing the likelihood of either form of future conduct.

i.  ‘Serious Violation of IHL’ What constitutes a ‘serious’ violation remains undefined in detail, but the English Court of Appeal, when ruling on a challenge to export licence approval for equipment sent to Saudi Arabia,20 approved the lower court’s view that ‘the concept [of “serious violations of IHL”] was broader than, and not synonymous with, the concept of war crimes or grave breaches of IHL’. ‘Serious violations’ is thus wider, though it includes the other two.21 The most relevant international authority is the judgment on jurisdiction of the ICTY Appeals Tribunal in the case of P ­ rosecutor v Tadic, which held that for purposes of the Tribunal’s criminal jurisdiction, ­‘violation of the laws or customs of war’ constitute ‘serious violations’ of IHL.22 The corpus of the ‘laws and customs of war’ is enormous23 but its contemporary core is the four Geneva Conventions of 1949, whose scope was significantly extended by two Additional Protocols (AP) agreed in 1977.24 These substantially strengthen the protection accorded to civilians under IHL: attacks on civilians and ‘civilian objects’25 are violations of the laws of war. Whilst this extension remains somewhat controversial because several major States are not Parties to the Protocols,26 there is an emerging consensus that over 40 years the vast majority of their provisions have become part of customary international law and are therefore binding on all States.27 Most important for the present discussion, the UK and all EU Member States have ratified the Protocols.28 Thus there should be no question that

19 See the discussion of risk analysis and prediction in chapter two at pp 32–35. 20 See further chapter five at pp 127–130. 21 R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA 1020, para 158. 22 Prosecutor v Tadic, Decision of 2 October 1995, para 90, of the International Criminal Tribunal for the Former Yugoslavia: www.icty.org./x/cases/tadic/acdec/en/51002.htm. 23 The definitive compilation, though it now requires some supplementation, is A Roberts and R Guelff (eds), Documents on the Laws of War, 3rd edn (Oxford, Oxford University Press, 2000). 24 The four Geneva Conventions of 1949 and the APs may most easily be found at www.icrc.org/ applic/ihl/ihl.nsf/vwTreaties1949.xsp. 25 Defined in Arts 50–52 of AP I; see also AP II, Part IV. 26 Notably India and Israel, which have refused to sign, and the USA and Pakistan, which signed but have not ratified them. 27 J-M Henckaerts, ‘Study on Customary International Law’ (2005) 87 International Review of the Red Cross (Number 857) 175, 187–88. This article summarises the conclusions of the lengthy two volume study, J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005). 28 As have China, India and Russia.

76  The EU Criteria: A Critical Examination would-be purchasers whose conduct of warfare has involved attacks on civilians and civilian objects, or medical units,29 should definitely be denied materiel when the predicate conditions of Criterion Two are satisfied. These conditions are: 1) there is ‘a clear risk’ that the equipment 2) ‘might’ be used in the commission of serious IHL violations. These terms require further analysis. Taking the latter first, ‘might’ is not a demanding test; notably, it is less demanding than ‘would’, the term used in Criteria Three and Four. Anything more than a slight probability ought to suffice. This is an important point, as discussion of those Criteria will illustrate.30 How ‘clear’ the risk need be is less apparent; and a great deal turns on the outcome, for the greater the clarity demanded, the more readily will exports be approved. Certainly the language excludes a risk that is merely fanciful or tenuous. However, it cannot even plausibly be interpreted as requiring some predominant probability; it differs significantly from terms such as overwhelming or ‘overriding’ – the word controversially introduced into the ATT31 – which import a much more demanding test. The most reasonable interpretation, as a matter both of ordinary language and of furtherance of policy, would be ‘genuine’; ‘realistic’ would express the same idea. Genuine (or realistic) possibility creates a standard of reasonableness: what the average person would dispassionately perceive as a credibly possible outcome. This is a lower threshold than that of ‘balance of probability’ which governs civil law,32 and falls well below ‘likely’, which implies something significantly more probable than not. Certainly current or relatively recent use of similar equipment resulting in serious IHL violations should satisfy the requirement.33 It seems apparent from their approvals of sales to Saudi Arabia that European governments have not been applying this test but – wrongly – were requiring almost definitive proof of imminent intention of illegal use.34 This is wrong as a matter of language, and even more as a matter of policy. The purpose of this Criterion is to bar sale of weapons where there is a reasonable chance that they will be used to commit atrocities. The degree of evil is of the gravest: even admitted IHL 29 Defined in Art 12 of AP I. 30 See below, pp 88–91. 31 See chapter 14 at pp 407–408 below. 32 As opposed to criminal law, where the test for conviction is the much more demanding ‘beyond a reasonable doubt’. Balance of probability is sometimes described as ‘50% + 1’. 33 Nor should it be relevant whose equipment has been used; that is, if the importer had used Country X’s missiles to bomb civilians and seeks similar missiles from Country Y, the latter should not hide behind the fact that none of its missiles had ever been used in this way. It is the capability of the weapon, and the history of use of weapons of that kind, that should govern the decision. 34 They seem also to have been applying an excessively stringent evidentiary test, a matter considered below.

The Specific Criteria  77 violations are not covered unless they are ‘serious’. In these circumstances, requiring an excessively high level of likelihood is no less than a deliberate undermining of the regime of control. The same test of ‘clear risk’ – genuine possibility – applies to internal repression, and the Criterion states explicitly that evidence of prior use by the purchaser of that ‘item’ for that purpose means the item should be regarded as having that use.35 An identical approach should be applied to ‘items’ which the would-be purchaser has been shown to have used to commit serious IHL violations. The evidence with respect to missiles, bombs and planes employed by Saudi Arabia is overwhelming, and has been established for several years. That country has been the military leader of the coalition seeking to remove Shia Houthi forces which had earlier overthrown the Sunni-based Government of Yemen. The UN Humanitarian Relief Co-ordinator, Mr Stephen O’Brien, reported to the Security Council in February 2016 that the bombing had caused 3,000 deaths of civilians, hundreds of them children, with double the number of severe injuries. Millions had been made homeless and nearly eight million people had been brought to near-starvation.36 These were the results of Saudi bombing of targets like markets, hospitals, and other civilian facilities, as well as the imposition of a blockade on an already impoverished country, which prevented delivery of humanitarian aid. The bombings in particular may well constitute war crimes,37 but even if they do not, they clearly amount to repeated serious violations of IHL. This was the conclusion reached by the UK House of Commons International Development Select Committee, whose membership at that time had a Conservative majority. In a public letter to the International Development Secretary, its Chair cited a leaked UN Report which documented more than 100 bombing raids which violated IHL, and called on the UK Government to suspend sales to Saudi Arabia.38 Shortly thereafter the European Parliament, which has no direct power in the matter, nonetheless approved a vote urging all Member States to cease weapons sales to Saudi Arabia,39 which was soon followed by a vote in the Dutch Parliament to suspend sales. However, the bombings continued over the next two years,

35 This may sound confusing at first, but should not be. Weapons and technology have many possible uses, some legitimate; but the use of a particular ‘item’ for repressive purposes means that all requests for purchase of it should thereby become suspect. 36 UN Security Council, Meeting 7622 of 16 February 2016, S/PV. 7622. See www.securitycouncil report.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_pv_7622.pdf. 37 As defined in the Rome Statute of the International Criminal Court, Art 8, which among other things identifies intentionally attacking civilians and civilian objects as war crimes, either intentionally or ‘as part of a large-scale commission of such crimes’. The legal issues will not be explored here because Saudi Arabia is not a Party to the Statute. 38 The letter of 2 February 2016 from Stephen Twigg MP, the Chair, may be found at www.parliament. uk/documents/commons-committees/international-development/ChairtoSoSregardingYemen.pdf. 39 The vote took place on 24 February 2016.

78  The EU Criteria: A Critical Examination ­ unctuated by intermittent ceasefires,40 and its effects were made very much worse p by the Saudi blockade of Hodeidah, the only port through which humanitarian aid could enter the country. The result has been a humanitarian catastrophe, in which estimates of the number of deaths vary from 10,000 to 70,000, two million people have lost their homes and the threat of famine is ever-present.41 Within Europe, the UK is the largest supplier to Saudi Arabia – of both planes and missiles – but it is not alone: France has also been a major provider, and as the Dutch vote showed, other States had important supporting roles: Spain42 and Italy43 played notable parts. It had taken months of organised opposition in response to thousands of deaths and physical devastation of the country before efforts to stop arms supplies began to bear fruit. During that time officials in all European countries were supposed to be following the CP, specifically Criterion Two. None produced a remotely credible justification for continuing approval of sales. Indeed, it took the particularly brutal murder of exiled Saudi journalist Jamal Khashoggi in October 2018 to spur several European States, which had previously shrugged off criticism of continuing weapons deliveries, to at least suspend export approvals temporarily.44 It was not as though the issue had emerged suddenly. In the winter of 2009–2010 Saudi Arabia, acting alone, bombed Houthi-controlled areas in north Yemen, killing hundreds of civilians. However, because the attacks ceased after a few weeks, awareness of them did not achieve high public salience. The episode was addressed in a Report of the UK parliamentary body overseeing arms sales,45 40 In December 2018, the Stockholm Agreement was accepted by representatives of various Yemeni groups. This included a ceasefire, which has proven exceedingly fragile, though as of writing (November 2019), the scale of violence and destruction remains less than that at the height of the conflict. 41 A remarkably comprehensive Report by Control Arms, a coalition of NGOs, presented information about the extent of the bombing and the damage to identified targets it has produced. It was submitted on 31 January 2019 as evidence to the UK parliamentary oversight committee on arms exports (CAEC – of which more in chapter five). See http://data.parliament.uk/writtenevidence/committeeevidence. svc/evidencedocument/committees-on-arms-export-controls/2017-arms-exports-annual-report/­ written/95348.html. The extreme variation in the report of deaths is the result of what is counted: direct casualties from bombing and fighting alone, or whether disease and malnutrition resulting from the violence is also included. 42 Spain is now the world’s seventh largest arms exporter. Since the Saudi offensive in Yemen began in 2015, sales of Spanish-made ammunition had nearly trebled by 2017. Its total exports to Saudi Arabia more than doubled between 2016 and 2017. See M Gonzalez, ‘Spain Beats its Own Record with €4.3 billion in Weapons Exports’ El Pais, 15 May 2018, available at https://elpais.com/ elpais/2018/05/15/inenglish/1526369634_710320.html. This article appeared in the English language version of the Madrid newspaper. 43 See the work on an investigative journalist, G Beretta, ‘Italy’s Dirty War in Yemen’ il manifesto, 16 October 2016, available at http://ilmanifesto.global/italys-dirty-war-in-yemen/ (accessed 14 December 2016). 44 The UK and France remained unmoved throughout. Germany did respond, and the Yemen ­situation did influence its reaction (see chapter six). Several smaller exporters, notably the Netherlands, and also Switzerland, Austria, Denmark and Finland, imposed suspensions at this time. For details, see Control Arms Report (n 41), paras 33–45. For the US reaction, see chapter nine. 45 See Committee on Arms Export Control (CAEC), HC 686 (5 April 2011), which covered the preceding 18 months. See paras 126–30.

The Specific Criteria  79 which recommended that the Government keep export approvals to Saudi ‘under review’ in light of these ‘specific allegations’. Yet cessation of the bombing meant that under the ‘case-by-case’ approach, it would not literally be true that weapons delivered during a period of quiet would immediately and definitely be used to commit further IHL violations, and thus a one-eyed application of the Criteria purportedly justified further approvals. But the history of these events, of which major European ministries would have been well aware, should have been grounds for continuing vigilance of the political conflict in Yemen. That history provided a strong factual basis for denial of applications and revocation of existing licences the instant a reasonable possibility of violence re-emerged; it established, more firmly than might normally be possible, a ‘clear risk’ – in this case, of civilian deaths.46 This is indeed what happened: after a temporary ceasefire agreed in March 2016 yielded no agreement, the Saudis renewed their Code of Conduct, killing children in a school and patients in a hospital.47 The history of repeated IHL violations is so well established that there should be a strong presumption against resuming sales, unless convincing evidence – grounded in a detailed political assessment of the military situation and the character and strategic goals of those commanding the Saudi forces – can establish that there is little likelihood of future improper use. Profit was clearly the driving force behind many States’ attitude but some, notably the UK, would also have been influenced by strategic or political factors – notably dependence on Saudi oil, but also the ‘intelligence’ relationship between the two States.48 And even the profit consideration went beyond the immediate. The long-term question is whether a denial of approval which involves, in effect, branding the purchaser as a violator of fundamental norms of international law would lead that State to take its business elsewhere to less scrupulous suppliers. That may not be technically possible with some advanced weaponry and

46 It was not until 2014 that the UK updated its CC, which were issued in 2000 and did not refer specifically to IHL, to bring the wording in line with the CP of 2008 (which does). Thus in 2010 its Criterion Two did not then apply explicitly to IHL. However, as an EU Member State it was legally obliged to apply the CP, and claimed consistently to be doing so. Any gap in its CC did not absolve it of that duty. 47 The later atrocities were widely reported, eg in S Almosawa and R Nordland, ‘Saudi Air Strikes in Yemen Kill 19, Mostly Children’ New York Times, 13 August 2016, www.nytimes.com/2016/08/14/ world/middleeast/saudi-airstrikes-yemen.html; and SK Dehghan, ‘At Least 11 Dead after Saudi-led Coalition Bombs Yemen Hospital’ The Guardian, 15 August 2016, www.theguardian.com/world/2016/ aug/15/saudi-led-air-strike-yemen-hospital-kills-at-least-seven. The discussion here concentrates on the impact of air strikes, which mirrors the emphasis of public concern. However, the malnutrition, starvation and spread of disease caused by the Saudi-led naval blockade, in which the Egyptian navy has also been heavily implicated, has also been exhaustively documented (see, eg. the Control Arms Report (n 41)). Hence proposed exports to either State of ships and ancillary equipment capable of enforcing the blockade should be denied for the same reasons. 48 This justification reappears in several contexts. See below chapter five on the Corner House Case [ie R (on the Application of Corner House Research and others) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin)].

80  The EU Criteria: A Critical Examination in so far as the competitive suppliers are EU States, the existence of a Common Position is intended precisely to prevent unethical competition by means of disregarding international legal and moral principles. EU ‘harmonisation’ or uniformity – if it works in practice – should minimise the risk of future loss, but it would require co-ordinated European pressure on the United States, the most obvious alternate supplier, to take the same decision.49 It would be easy to conclude from this sorry episode that the Criteria are a paper exercise, and that it is impossible for legal rules to overcome political determination to achieve other goals. To this there are two possible responses. The first is that the rules merely reflect a political outcome reached at a particular time, have proven to be too weak, and now require strengthening amendment. The critique presented in this chapter to some extent embodies this view. But the story supports an additional conclusion: that legal rules without effective enforcement will readily be disregarded when set against self-interest, and an essential response is to ensure those rules are made effective. This is a fundamental problem of institutional design, especially relating to enforcement, and will be addressed in the concluding chapter.

ii.  ‘Internal Repression’ and the Problem of Sovereignty Over the past three decades, this element received the most consistent public attention of all issues surrounding arms trade controls.50 It gives a central place to moral or ethical51 considerations in an area of policy where strategic, diplomatic and economic interests normally rule, and for that reason alone is inherently controversial. Denial of weapons to those engaged in internal repression has an intuitive moral appeal: nations which proclaim attachment to values of ‘freedom’, ­‘democracy’ and the ‘rule of law’ should not assist dictators in brutally maintaining themselves in power. In several other contexts these proclamations are not mere verbiage, but are given a hard practical edge,52 and the moral imperative is all 49 Even the Trump Administration was driven to make some response, ceasing in November 2018 to refuel in-flight Saudi aircraft used to bomb Yemen. For political reasons, Russia would not be a realistic alternative supplier. 50 For example, over several years CAEC produced a stream of critical reports on UK sales to countries with bad human rights records. It drew heavily on evidence submitted by numerous NGOs, which concentrated on this issue. See further chapter five. 51 These words are used interchangeably throughout this book. 52 The EU imposed compliance and verification measures on candidate countries from Eastern Europe, notably relating to adherence to the so-called Copenhagen Criteria on issues concerning democracy, security and the rule of law. These covered a range of matters including freedom, and security and justice, with particular emphasis on reform in the security sector. See, eg, D Spence and P Fluri (eds), The European Union and Security Sector Reform (London, John Harper Publishing, 2008). This monitoring continues after admission, as is seen in the annual reports on progress of the most recent (2007) entrants. Most recently, a ‘strict’ conditionality has been a key element in the Association Agreement between the EU and Moldova (http://data.consilium.europa.eu/doc/document/ ST-6280-2018-INIT/en/pdf) and is subject to annual scrutiny. Further, as a precondition for ­providing

The Specific Criteria  81 the stronger when death or widespread destruction is a foreseeable consequence. These moral arguments engage a significant strand of public opinion, which feels a direct responsibility for such humanitarian disasters carried out with ‘their’ weapons. However, as a matter of realpolitik three traditional answers have individually or collectively been regarded as conclusive refutation. The first, of ancient pedigree, began to lose its force after the Second World War but has only lost its dominance in the North since the end of the Cold War. It is simply that what happens inside the borders of a self-governing State is no business of ours. This is sometimes called the ‘Westphalian’ view, from the Treaty of Westphalia of 1648, which is invoked as recognising the equal sovereignty of independent States. An implication of that recognition was the principle of nonintervention in internal affairs of each State. This principle was firmly accepted in the UN Charter, which forbade the Organisation from ‘interven[ing] in matters which are essentially within the domestic jurisdiction of any State’ …53 The principle of non-intervention came under increasing fire after the end of the Cold War as promotion of human rights became part of the declared aims of important Northern States, and Northern NGOs enthusiastically promoted the ideal. In extreme cases like Kosovo and Libya, actual or threatened internal brutality provoked military intervention, as memory of the failure to prevent the genocide in Rwanda haunted public debate. This is not the place to discuss the manifold moral and political issues involved, including whether the promotion of these norms by Northern States was or is selective and self-serving.54 Its relevance here is that debates over arms transfers are caught up in this moral and political maelstrom. The connection is not necessarily tight: there is a fundamental difference between invading a country to topple its violently oppressive regime and refusing to sell weapons to its ‘security’ apparatus. A bystander who sees someone about to assault a third person becomes far more directly involved if he physically restrains the assailant than if he merely refuses to offer him a weapon. Yet many important international actors have firmly insisted that the two are indeed connected, or at least sit closely together on a continuum. China, for instance, has rejected calls to refuse arms to military dictatorships like

favourable trade status and technical assistance to numerous less developed countries, the EU has also insisted upon compliance with certain international human rights standards. See, eg, L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005), especially 32–40, 45–73. 53 Charter of the United Nations, Art 2.7. The International Court of Justice’s (ICJ’s) famous N ­ icaragua judgment [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits, Judgment, ICJ Reports 1986, 14], accepted that non-intervention is also a principle of customary international law. 54 The literature on so-called ‘humanitarian intervention’ is enormous. A pithy and valuable ­introduction to the issues involved, which has notably passed the test of time, may be found in Stanley Hoffmann’s essay, ‘The Problem of Intervention’ in H Bull (ed), Intervention in World Politics (Oxford, Clarendon Press, 1984) 7–28.

82  The EU Criteria: A Critical Examination Myanmar55 and various one-party African States on grounds of respect for equal sovereignty and the principle of non-intervention in internal affairs. Its refusal to sign the ATT is based at least partly on this ground.56 And in the controversies surrounding the ATT, many Southern States, led most vociferously by India, insisted that proposals to restrict transfers which would excessively burden purchasers’ economic resources were a form of ‘neo-colonialism’57 – and thus a violation of the sovereign equality of States. The conflict between accepting internal repression as the price of respecting equal sovereignty of States – an unwillingness to prise open the Westphalian black box – and refusal to facilitate internal repression, is fundamentally a dispute about the importance of ethics in politics. Its outcome reflects how citizens of the exporting society view themselves: do they identify as members of an international society in which their moral self-understanding may be conveyed through their State? Or conversely, do the actions of that State in some way embody or represent their own moral principles?58 To those who believe as a normative principle that States should act only to further their strategic and material interests, these questions are simply irrelevant and an annoying distraction. Adherents of this view tend to draw sharp distinction between domestic politics, in which the importance of morality is acknowledged, and foreign relations. However, the thrust of foreign policy among successive US and European governments has been to emphasise moral elements – selectively and often more rhetorically than in reality to be sure, but it would take a radical shift, particularly in Europe, to return to cold-blooded Bismarckian realism.59 Moreover, there is a wide gap between taking a strong position against arms sales to repressive regimes and militarily assisting or even actively supporting their overthrow: the first in no way commits one to advocate the second.60

55 Which has been subject to an embargo by the EU since 1990; this remains in place despite the formation of a civilian government in 2016. 56 See chapter 11. 57 See above, chapter one and chapter 14. Whilst some former colonies or protectorates, most obviously the Gulf States, are not poor, virtually all prospective buyers with large populations in poverty are States which were formerly colonies of European powers. 58 A view expressed most succinctly in the UK by those who marched against the invasion of Iraq in 2003 under the slogan ‘Not In My Name’. 59 Whether Donald Trump will permanently draw the USA back in this direction is impossible to judge at this point. 60 This is not the place to explore the complexities and paradoxes of the uses and abuses of moral considerations as a guide to foreign policy. The dangers of ethics degenerating into moralism have been only too visible in the conduct of American foreign policy since the end of the Second World War, beginning with its ‘crusade’ against Communism and manifested more recently in its attempt to export/impose ‘democracy’ in Iraq. The long history of ‘realist’ critiques of that tendency – a notable example being Hans Morgenthau’s opposition to the Vietnam War – is an important strand in this critique. Whether sympathy with that view entails accepting total, or only contextually-dependent, exclusion of what UK Foreign Secretary Robin Cook called ‘an ethical foreign policy’, deserves a book in itself.

The Specific Criteria  83 The dispute over ethical limitations on arms transfers may also be understood as a partial though significant attempt to redress an imbalance in international law. As will be seen, international law – with the significant exception of the ATT – permits States to equip existing governments with arms notwithstanding severe ill-treatment of their citizens, but is generally hostile to assistance to insurgents fighting dictatorships.61 There are credible historical and pragmatic reasons underlying this stance, but in many particular circumstances it results in tolerating atrocities and therefore may become morally indefensible.62 Refusal of a State to assist in repression goes some way towards restoring the ethical imbalance. If the idea of human rights has any force at all, concern over the ill-treatment of people cannot stop at one’s borders.63 Refusal to provide material assistance for repression is a practical expression of that concern, limited but important. The second realpolitik answer – if we don’t do it, someone else will – is simply unresponsive to that moral argument. That someone else will commit evil in one’s stead can hardly justify committing the evil oneself. However, it is a useful reminder that national policy choices are not taken in a political vacuum. If the underlying reason for banning weapons sales to a particular regime is to prevent ill-treatment, one nation’s refusal may well have little impact. It becomes ­essential to enlist alternative suppliers of the same items – competitors in the market – to adhere to the same policy. Hence the importance, in Europe, of the EU’s CP. As the previous chapter demonstrated, there is a long way to go before faithful and uniform adherence to the CP is achieved, but the principle of co-ordinated policy is long established. Efforts at achieving international minimum standards are further from realisation, but the ATT was intended by its supporters to be an important first step. A next step would be the imposition of sanctions against sellers who flout those standards. The realpolitik critique, ironically, highlights the need for a firmer, more active collective response. The third objection is of an entirely different order. It claims that various­ benefits – economic and/or strategic – achieved from arms sales are so important that they must override all other considerations except in extreme cases. The nature and extent of these benefits will differ significantly among the major exporters, as will be seen in the individual State chapters of this book. However, one issue must be recognised at the outset, and merits a clear response. Any decision to forbid exports for ethical reasons may cause some potential purchasers in future to hesitate to consider that producer; some may simply 61 See p 87 below and the discussion of Art 6.3 in chapter 14 at pp 400–403. 62 For a discussion by a philosopher of some of the moral issues involved, see M Gross, The Ethics of Insurgency (Cambridge, Cambridge University Press, 2015). 63 This stark statement is offered with full awareness of the great number of issues concerning the extent and limits of the responsibilities or duties of individuals and States to prevent human rights violations beyond their borders. The massive literature on humanitarian intervention and ‘responsibility to protect’ produced over the past quarter century testifies to its complexity and importance. For present purposes it is enough to assert that such responsibility exists under certain circumstances, and restriction on transfers of weapons and equipment is one important means of exercising it.

84  The EU Criteria: A Critical Examination turn away permanently. If the result is a substantial loss of sales, another result at the least would be reduced employment and profits (and hence, presumably, tax revenues); at worst, significant numbers of workers might permanently lose their jobs. It would be entirely wrong to adopt a national policy on ethical grounds whilst allowing the main burden of its cost to fall on a relatively small number of people. Such a policy represents a sacrifice, and this should be borne fairly throughout the whole society. Those whose livelihoods would be severely affected deserve fi ­ nancial compensation over and above normal redundancy entitlements, along with a package of publicly-funded retraining and relocation assistance. Some smaller companies, eg those whose entire business is in supplying specialist components to larger firms, would have a strong claim for assistance as well. The reality that an ethically-grounded decision imposes costs must be acknowledged by spreading those costs across the whole society.

iii.  The Complexities of Internal Repression Internal repression is comprehensively defined in the Criterion. All forms of torture, physical cruelty and arbitrary detention are included, as are ‘major’ violations of the human rights set out in international human rights instruments ‘including’ the classic ‘first generation’ rights documents. ‘Including’ is critical: it means the definition of rights is not restricted to those found in documents negotiated 50 years ago or more – the so-called ‘first generation rights’64 – and should encompass instruments such as the Conventions on the Elimination of All Forms of Racial Discrimination (1965) and Against Women (1979). ‘Major’ violations are undefined, but any reasonable interpretation in light of the purpose of the rules would require that regimes which regularly suppress speech or media criticism, or peaceful demonstrations, and systematically fail to hold free and fair elections65 should be regarded as falling within the Criterion. The final paragraph of the UK CC also mandates that the risk of ‘gender-based violence’ or ‘serious violence against women or children’ be taken into account. This was added to bring the UK into line with its obligations under the ATT, although the phrase ‘women or children’ is wider, and clearer, than the ATT’s ‘women and children’.66 The reason for the UK’s choice of phrase was never stated, but the plain meaning is that violence against children by itself would be covered.67 The phrase covers not

64 The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in 1948, whilst the International Covenant on Civil and Political Rights (ICCPR) was agreed in 1966 and only came into force in 1976. 65 A detailed statement of this right is set out in ICCRP Art 25, probably the most consistently ignored provision when internal repression is considered. Proper consideration of it would forbid arming military dictatorships and hereditary monarchies which simply refuse to hold general elections at all, Saudi Arabia and Qatar being among the most prominent. 66 ATT Art 7.4. 67 One possible application: if use of child soldiers in combat be considered violence against­ children, at least eight States and more than 50 armed Non-State Actors have been identified as guilty

The Specific Criteria  85 only sexual violence against women but also against boys, a practice that too often is ignored. There are two major holes at the heart of this Criterion. The first is what may be called the paradox of lockdown. A regime which has been so effective in curtailing dissent by terror and exile that there is no even medium-term prospect of organised opposition, but wishes to stockpile equipment to prevent its future emergence, would not be blocked by the Criteria from doing so. The more effective the repression, the less likely its immediate use, and therefore any sale would be permissible. The abstract logic is unassailable, but the moral and practical consequences – supporting the most repressive regimes which also have the most foresight – are perverse. Second, the ‘case-by-case’ approach, even if applied with a full evaluation of the proposed recipient’s past and likely future conduct, is still limited to the use of the particular item. It does not extend to items that a regime actively engaged in internal repression would use for other purposes. A regime that gaols critics without trial or in whose custody dissidents go ‘missing’, needs only simple weaponry and perhaps some advanced surveillance and hacking equipment. Advanced fighter jets or submarines are not required. The Criterion, interpreted literally, does not apply to such high tech items – which are also the most expensive and therefore of the greatest value to producer States. Northern governments can, and repeatedly have, approved sales of advanced weaponry to various Arab States which in recent times have engaged in mass public beheadings (Saudi Arabia) and widespread torture of supporters of the ousted civilian government (Egypt after the coup in 2013), whilst claiming to be in compliance with the rules – and strictly speaking, they are correct. The argument favouring this approach is that it permits the exporting State to differentiate between both end uses and end users. Thus, sales to a State’s army of armoured personnel carriers (APCs) for border control – universally recognised as a legitimate function – may be approved, whilst sales of any kind to its police, who have a record of brutality with protestors, may be denied. Another, real-life, example was the attitude of the UK Government towards arms sales to Chile under Pinochet. Even when Margaret Thatcher was Prime Minister, sales to the Chilean navy were readily approved, whilst its army, with a notorious record of torture and killing, received very little.68 This approach is open to two practical objections. First, it is virtually impossible to control the uses to which many types of equipment are put once they

of this practice. See Report of the UN Secretary General, ‘Children and Armed Conflict’ A/72/865, S/2018/465 (16 May 2018). Often the children have been abducted and forced to act as soldiers – a separate, additional form of violence. 68 R Graham, ‘British Policy Towards Latin America’ in V Bulmer-Thomas (ed), British Policy Toward Latin America: A Changing Relationship (London, Royal Institute of International Affairs, 1989) 63.

86  The EU Criteria: A Critical Examination are sold.69 Thus whilst a State’s army not previously have been deployed against domestic dissidents, this might change if the regime felt increasingly insecure; or after an interval the regime could transfer the APCs to the police for domestic use upon arrival. Second, it would be almost impossible to track the use of specific items, which may well be intermingled with similar ones already deployed.70 It is very unlikely that this narrow interpretation of the Criterion is what the interested public understands the ban on assisting internal repression to mean. It also flies in the face of the moral impetus that led to the inclusion of internal repression as a primary ground of denial of sales.71 Yet the policy choice is not limited to a total ban on sales to morally repugnant regimes – in effect a blacklist – and a flaccid application of ambiguous or porous standards. There are at least three alternatives, which might work separately or in combination. One would be a form of human rights conditionality: sales to a particular end user would only be permitted if it demonstrated compliance with human rights standards. This would require active monitoring by the selling government, and acquiescence in that by the purchasing State. The latter would initially resist, and this proposal is certainly a greater intrusion into ‘sovereignty’ than an outright ban, not least because it would require accepting the presence of foreign observers as, literally, over-seers. However, as experience under the US Blue Lantern programme demonstrates, purchasers will accept such a condition if they want the equipment badly enough.72 And although this proposal might be effective if that obstacle were overcome, it would be futile if a sale were completed in one operation, as opposed to a series of deliveries which would allow for suspension part-way through. Thus, whilst it would not be effective in all circumstances, it could surely have a role in a more effective enforcement structure.73 Two other possibilities address the problem at, so to speak, the front end. One would be to adopt what might be called a strong reverse burden of proof – in effect a presumption of denial in appropriate cases. The UK Foreign and Commonwealth Office (FCO) annually publishes a ‘Human Rights and Democracy’ Report, whose most recent version (October 2018) highlighted 29 States as ‘human rights priority countries’.74 Successive UK governments have adopted the policy of aggressively 69 This might seem to be less problematic in relation to fighter jets and naval vessels, but even the latter may be used as a platform for planes bombing civilian targets, as is true with many of the Saudi attacks on Yemen. 70 Tracking the use also requires resources on the ground to undertake the effort, which very few States have been or are willing to dedicate to this purpose. The issue of monitoring was discussed in chapter two at pp 35–36, and will be addressed further in the concluding chapter. 71 The emergence of campaigning on this issue in the UK is discussed in chapter five. 72 See further Professor Spear’s discussion in chapter nine below. 73 Indeed even in the case of a one-off sale, the monitoring condition could still be effective if the purchaser intends to acquire other weaponry from the same exporting State. 74 See FCO, UK Government Report, ‘Human Rights and Democracy: The 2017 Foreign and Commonwealth Office Report’ (5 October 2018), available at www.gov.uk/government/publications/ human-rights-and-democracy-report-2017/human-rights-and-democracy-the-2017-foreign-andcommonwealth-office-report (5 October 2018). Among the most important States on the FCO list are Russia, China, Saudi Arabia and Israel and the Occupied Territories, Egypt, and Bahrain, Egypt.

The Specific Criteria  87 trying to sell equipment to many of them, whilst simultaneously criticising their human rights violations. CAEC has described this as a ‘fundamental contradiction’, which is truly an understatement; it is a prime, institutionalised, example of organised hypocrisy.75 CAEC’s suggestion, repeated in several Reports, that the Government take a ‘more cautious approach’ to granting approval under Criterion Two, is in line with the interpretation of ‘might’ and ‘clear risk’ suggested earlier.76 This could be put into practice by in all cases involving requests for approval of sales to any public body77 of a listed country, placing the onus upon the prospective purchaser to demonstrate convincingly that safeguards were in place to ensure that the materiel would not be used for any of the prohibited purposes. This might serve to differentiate, for example, naval from land-based equipment, but the purchaser would have to offer credible evidence that measures were in place to prevent ‘slippage’ of the equipment from one acceptable user to a more suspect institution. This approach would put more bite into paragraph (b) of the Criterion, which specifically cites as grounds for rejection ‘reason to believe’ that the items ‘will be diverted from their stated end-use or end-user and used for internal repression’. The result would be to place a heavy but not impossible burden on countries with bad human rights records, and might even provide some incentive for improvement.78 A third, more radical, approach would be to jettison the elaborate exercise in interpretation and simply remove the ‘clear risk’ element, so that any equipment that ‘might’ be used for prohibited purposes could not be exported. This has been done twice in the recent past, as EU governments combined to suspend deliveries to Egypt in August 2013 and to Ukraine in February 2014, when government forces were openly killing protesters. The UK Government described the Egyptian decision as a ‘special case’ – which soon ceased to be special, since the same prohibition was applied to Ukraine six months later.79 It further argued that the Egypt example demonstrated that the Criteria permit it to act ‘quickly, proportionately, and flexibly’ to respond to specific incidents.80 Yet that example surely demonstrates the weakness of the current approach: it took extreme violence which received global exposure to move EU States to a response, whereas the aim of export controls should be to prevent perpetration of repressive violence by those buying the weapons. The coup in Egypt should have triggered a ban on exports

75 See above, chapter two at p 29. 76 Above, pp 76–77, discussing the proper interpretation of ‘might’ in this Criterion. 77 Care would have to be taken to ensure that no ostensibly private company was accepted as a legitimate purchaser when it is in fact a front for a state agency. Often this would not be too difficult; the sheer size of an order would in most cases be a warning signal. 78 A number of NGOs have advocated this approach and attempted to persuade the CAEC to support it. The Committee took a carefully non-committal view. See CAEC, ‘UK Arms Exports 2016’, available at https://publications.parliament.uk/pa/cm201719/cmselect/cmquad/666/66608.htm#_idTextAnchor 039, paras 95–106 (18 July 2018). 79 Cm 8935, para 122–126 (2014) discusses the two episodes. 80 Ibid, para 124.

88  The EU Criteria: A Critical Examination until the military government proved its respect for human rights when faced with eminently predictable public demonstrations by opponents. Refusing export permission where the equipment ‘might’ be misused gives due weight to legitimate defence and security needs whilst preventing abuses in circumstances where there is legitimate doubt about consequences. It would function in effect as a sort of precautionary principle, treating liberty and democratic practice as higher goods than short term strategic interest or profit. In practice this may produce the same result as the previous suggestion, but would be applied across the board – to all potential sales to all potential purchasers. It would mean that Northern governments would be giving real effect to the principles they so often proclaim. As the foregoing discussion suggests, procedure and evidence are critical to what is ultimately the application of a set of rules or standards which take a legal form. One matter specific to the human rights violation element of Criterion Two is that, when determining whether serious violations have occurred, decision-makers are directed to findings of named ‘competent bodies’.81 This is quite unnecessarily restrictive. There are at least two other credible sources; one is reports from the State’s own diplomatic or intelligence sources, which may remain confidential but could certainly be relied upon to guide its own decisions. The second are NGO investigations; their use is discussed in the concluding chapter.82

C.  Criterion Three Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts. Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination.

Of all the Criteria, this one is expressed in the simplest terms – it is only necessary that the item ‘would’ provoke or prolong conflicts. The focus is on immediate effect. It is limited explicitly to the ‘internal’, ie domestic, situation in the purchasing State. ‘Country of final destination’ is a somewhat ambiguous phrase, which the User’s Guide says means ‘recipient country’.83

81 Para 2 (b) specifies the EU, the UN and the Council of Europe. The first two are political actors which in some circumstances feel they must balance other considerations with human rights concerns, and the Council has judicial and educational functions which severely limit its capacity for fact-finding exercises. 82 See Conclusion at p 441. 83 COARM EU User’s Guide (n 11). The potential ambiguity arises because if a purchaser in Country A is likely to sell on or otherwise deliberately transfer the weaponry to Country B, the latter should be the country of ‘final destination’. However, that possibility is better dealt with directly under Criterion Seven, concerning diversion, discussed at pp 93–94 below.

The Specific Criteria  89 Criterion Three links with Criterion Two and enters into the complex and much-disputed territory of international law. There are two interrelated questions.84 The first is whether and when a government may invite outside military assistance to support suppression of rebellion. The answer is by no means clear, but the prevailing view is that such assistance is permitted until the conflict reaches the level of full-scale ‘civil war’, itself a contested concept. The second is whether that principle is relaxed where the assistance is provision of weaponry, but not of actual participation. That question was discussed in the ICJ’s Nicaragua v USA judgment,85 but only in its converse application, ie provision of weapons to rebels, so there is no judicial authority on the matter. Criterion Three, in applying a ban on supply of equipment which would ‘provoke’ as well as ‘prolong’ armed conflicts, or even ‘aggravate existing tensions’ short of conflict, thereby takes a stronger position of abstention from even indirect involvement in violence than international law may require. It would apply where State repression has not succeeded in stamping out all resistance, and overthrow of the regime has become a realistic possibility. EU States collectively have invoked Criterion Three far more frequently than the UK – consistently, nearly 20 per cent of total denials in 2016–2017 and also 2012–2014 were under this head, a rate more than four times that of the UK. The reasons for this variance are unknown, though it suggests that other European States have been more sensitive to the possibilities of throwing fuel on potential or smouldering fires. Criterion Three stands squarely opposed to the reality that governments, and especially those which seek to have great international influence, seldom hesitate to assist their allies or favoured regimes when threatened. Most clearly is this true of the USA and Russia, which of course are not bound by the Criteria, but the agreement of EU States in May 2016 to seek removal of the UN arms embargo against Libya, so as to enable them to supply weapons to the Government of National Accord, demonstrated that they are not alone. The weapons were intended to be used against ISIS in what was expected to be a bloody and perhaps prolonged conflict.86 A stringent application of this Criterion would hobble exporters’ ­ability to support existing governments whose repressive violence has produced resistance, but would have that same effect where ISIS or a similar force threatened a tolerably functioning democracy. In order to preserve, indeed enhance,

84 This paragraph draws heavily on C Gray, International Law and the Use of Force, 4th edn (Oxford, Oxford University Press, 2018) 84–95, and chapter three more generally. O Corten, The Law Against War (Oxford, Hart Publishing, 2010) 289–307, argues that military intervention on the side of an ­existing government during a civil war violates Art 2(4) of the UN Charter, but does not consider the question of supplying arms. 85 Nicaragua judgment (n 53) 14. 86 See ‘Libya to be military equipped in fight against ISIL’ (Al Jazeera, 17 May 2016, available at www. aljazeera.com/news/2016/05/libya-world-powers-ready-arm-unity-government-160516145308214. html.

90  The EU Criteria: A Critical Examination the ­effectiveness of the first usage, the Criterion requires refinement to avoid the second. This is taken up in the concluding chapter.87

D.  Criterion Four Preservation of regional peace, security and stability. Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. When considering these risks, Member States shall take into account inter alia: (a) the existence or likelihood of armed conflict between the recipient and another country; (b) a claim against the territory of a neighbouring country which the recipient has in the past tried or threatened to pursue by means of force; (c) the likelihood of the military technology or equipment being used other than for the legitimate national security and defence of the recipient; (d) the need not to affect adversely regional stability in any significant way.

Unusually, the UK’s Common Criteria has supplemented paragraph (d): taking into account the relative balance of forces between the states of the region concerned, their relative expenditure on defence, the potential for the equipment significantly to enhance the effectiveness of existing capabilities or to improve force projection, and the need not to introduce into the region new capabilities which would be likely to lead to increased tension.88

This Criterion has become virtually redundant in UK practice.89 Again, there is a strong contrast with EU States, where it was invoked in 12–15 per cent of all denials yearly in 2012–2017. The sub-title makes clear the underlying policy: ‘preservation of regional peace, security and stability’. Yet the way it is drafted hampers its ability to produce that result. There needs to be a ‘clear risk’ that the purchaser would use the equipment ‘aggressively’, or use force to support a claim to territory. It is the former that is problematic. Four paragraphs specify matters to be taken into account, and the UK Government’s addition to paragraph (d) provides a useful comprehensive list of relevant factors. These all relate to the balance of military capabilities. In particular the last consideration, ‘the need not to introduce into the region new capabilities which would be likely to lead to increased tension’, valuably highlights the need to avoid contributing to a regional arms race as rival States (eg India-Pakistan,

87 Below at p 442. 88 Common Criteria (n 2). This is the only instance in which the UK has added significantly to the CP for purposes of its domestic practice. 89 In 2016 and 2017 it was invoked in less than 2% of all refusals; its use has never exceeded 6% (in 2014).

The Specific Criteria  91 Saudi Arabia-Iran) seek the most advanced weaponry to steal a march on their opponent. However, this remains subsidiary to the actual focus of the Criterion, which is the risk of aggressive use. There is a significant difference between that danger and an arms build-up whose driving force is fear of the rival’s gaining advantage, yet on both humanitarian and financial grounds the prevention of regional arms races is equally important – and certainly easier to achieve. It could be of great value, but its application has fallen far short of its promise. The massive build-up of arsenals by various Middle East States in recent years might have been at least somewhat diminished if this Criterion had been taken more seriously.90

E.  Criterion Five National security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of friendly and allied countries. Member States shall take into account: (a) the potential effect of the military technology or equipment to be exported on their defence and security interests as well as those of Member State and those of friendly and allied countries, while recognising that this factor cannot affect consideration of the criteria on respect for human rights and on regional peace, security and stability; (b) the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries.

This is the first of the four ‘take into account’ Criteria, as distinguished from those imposing prohibition. With one exception, treated below, they are not much used. Criterion Five has barely been invoked by the other 27 EU States, but has figured in 10–14 per cent of UK denials over a decade. It is confusingly written, and begins by stating what hardly needs saying, that States should not permit the export of materiel that would endanger their own defence and security interests. It adds to this the interests of other EU States and third country friends and allies, presumably to remind Member States of their wider political commitments.91 However, both considerations are specifically made subject to the caveat that even if those considerations are satisfied, they must pass the further test of satisfying the criteria relating to human rights and regional peace and stability. This may suggest that even if the proposed recipient is a friendly State, the exporter should not adopt a policy of blanket approval of proposed transfers, but must examine the possible use by that State of the particular item. For no apparent reason, though consideration of possible IHL violations was added in 2008 to both Criterion Two and Criterion Six, it was not included here. However, the comparatively greater use by

90 Recall the discussion of aggression, instability and balance in chapter one at pp 11–15. 91 ‘The objective of Criterion Five is to prevent an export of military technology or equipment from affecting the national security of Member States, allied or friendly countries’, COARM EU User’s Guide (n 11) 90.

92  The EU Criteria: A Critical Examination the UK suggests that for it at any rate the key point relates to the ‘territories’ for which the State has external relations responsibility. In reality this applies largely to the UK and France,92 with the significant issue concerning the Falklands/Malvinas and supplies to Argentina – paradoxically a UK customer even as diplomatic tensions predictably if sporadically rise between the two States.93 There is no information available about which countries are regarded as ‘friendly’ and under what circumstances that factor, as opposed to security interests of the UK or its Dependencies, has featured. Clearly, to recall the discussion in chapter one, this Criterion also seeks to address the problem of ‘blowback’ – a repetition of the experience of the first Gulf War when Iraq used weapons supplied by the UK against British troops.

F.  Criterion Six Behaviour of the buyer country with regard to the international community, as regards in particular its attitude to terrorism, the nature of its alliances and respect for international law. Member States shall take into account, inter alia, the record of the buyer country with regard to: (a) its support for or encouragement of terrorism and international organised crime; (b) its compliance with its international commitments, in particular on the non-use of force, and with international humanitarian law; (c) its commitment to non-proliferation and other areas of arms control and disarmament, in particular the signature, ratification and implementation of relevant arms control and disarmament conventions referred to in point (b) of Criterion One.

This Criterion was invoked only once by the UK in the years reviewed here. It was almost equally redundant among all Member States, invoked in only one per cent of all denials. It sits at least partly in the shadow of the earlier Criteria, in that respect for international humanitarian law is addressed by Criterion Two.94 Nonetheless, it was thought fit to repeat the importance of compliance with IHL, which only highlights the failure of EU States to comply with the policies underpinning the CP in relation to Saudi Arabia. Moreover, there is one element that seems to have been largely ignored by all the EU exporting States. The final listed matter to be taken into account emphasises commitment to arms control and ‘in particular the signature, ratification

92 The Netherlands has such responsibility for Aruba and the Netherlands Antilles. 93 It was noted in the previous chapter (above at p 63) that the UK refused approval for re-export to Argentina of a Swedish-made plane containing UK-made components. Total UK sales to Argentina are very small, although CAEC was very critical of the Government in its 2013 Report for failing to lobby allied States not to sell equipment to them. (One might have expected greater use of Criterion Five by other EU States to block certain exports to Argentina.) For details, see CAEC, ­Scrutiny Report HC 205 (1 July 2013) paras 30, 115–16. 94 It is unclear what the reference to ‘the nature of [the recipient’s] alliances’ is directed to.

The Specific Criteria  93 and implementation of relevant arms control and disarmament instruments’ mentioned in Criterion One. One particularly important ‘instrument’ is the Nuclear Non-Proliferation Treaty of 1968. If this was seriously ‘taken into account’, sales to India, Pakistan and Israel – none of which has signed that Treaty, although 190 other States have done so – should be in jeopardy. Yet both the UK and France have been sedulously courting India as a potential customer for many years. However, Russia, the USA and China are the major suppliers to the two countries;95 it may be that there have been few occasions on which this Criterion could have been called into play.96 Whether its existence has served to deter potential sales remains an unknown. Nor has the failure of Israel to agree to nuclear non-proliferation deterred Germany and Italy from becoming two of its major suppliers.97 Criterion Six must be accounted a failure.

G.  Criterion Seven Existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions. In assessing the impact of the military technology or equipment to be exported on the recipient country and the risk that such technology or equipment might be diverted to an undesirable end-user or for an undesirable end use, the following shall be considered: (a) the legitimate defence and domestic security interests of the recipient country, including any participation in United Nations or other peace-keeping activity; (b) the technical capability of the recipient country to use such technology or equipment; (c) the capability of the recipient country to apply effective export controls; (d) the risk of such technology or equipment being re-exported to undesirable destinations, and the record of the recipient country in respecting any re-export provision or consent prior to re-export which the exporting Member State considers appropriate to impose; (e) the risk of such technology or equipment being diverted to terrorist organisations or to individual terrorists; (f) the risk of reverse engineering or unintended technology transfer.

95 Russia to India, China to Pakistan, the USA to both. For the precise figures, see Stockholm International Peace Research Institute (SIPRI), ‘Trends in International Arms Transfers, 2018’ ­ (­Stockholm, SIPRI, March 2019) 2 (Table 1). 96 France, however, has recently emerged as a major supplier to India. See J Irish and L Thomas, ‘Australia, India deals boost French arms sales to record 20 billion euros in 2016’ (Reuters, 20 January 2017), available at www.reuters.com/article/us-france-arms-sales/australia-india-deals-boost-frencharms-sales-to-record-20-bill. 97 After the USA, Germany provided the second (30%) and Italy the third (10%) of Israel’s imports in 2013–17. SIPRI (n 95) 6 (Table 2).

94  The EU Criteria: A Critical Examination Diversion has three dimensions. The first concerns ultimate or end use: what is done with the equipment, which may be very different from what was declared by the purchaser, or even originally intended. There is an important overlap here with Criterion Two, which requires in paragraph 2 that the possibility of end use for internal repression be considered ‘with extra caution and vigilance’, with any doubts resulting in refusal.98 This is a problem of what might be termed ‘­internal diversion’, involving use of internal security equipment sought for apparently legitimate purposes being used for internal repression either by the government agency which purchased it, or by another agency to which it is transferred with government approval. Second is the problem of the end user: where the actual user is other than the initial purchaser. This has additional aspects: the purchaser may only be a front, a participant in deliberate falsification, as happened with the Iraqi use of Jordan as ostensible purchaser when Saddam Hussein was acquiring British weaponry. However, in some regions an even more important factor is inability to restrict ‘leakage’: through carelessness or corruption, weapons held in the recipient State end up elsewhere. For this reason ‘effective export controls’ or ‘re-export ­provisions’ occupy a prominent place in the considerations listed in this Criterion (paragraphs (c) and (d)). An additional problem, not specifically mentioned, is the stock security: the ability of the recipient to hold on to its weaponry in the face of attack: for example, Boko Haram was widely reported to have acquired much of its weaponry when Nigerian troops fled at the earliest possibility of combat.99 The final dimension of diversion is that of weapons finding their way onto illicit markets, as when soldiers or police (often unpaid by their governments) sell them to dealers who then offer them on to the highest bidders.100 The result is that diversion has long been a paramount concern for both political-strategic and humanitarian reasons. The first relates particularly to enforcing arms embargoes: States attempting to evade them may use front companies or even public institutions in other States to act as purchasers. The indifferent success of UN embargoes101 is partly the story of the success of diversion schemes. The additional danger of blowback heightens the importance of ensuring that embargoes are effective. The second concern, which was of paramount importance to African and many Caribbean and Latin American States and underlay their support for the ATT, is that diverted weapons have too often ended up in the hands of paramilitary or 98 See above, p 73. 99 This consideration might possibly fall within paragraph (e) of this Criterion, ‘risk of diversion to terrorist organisations’. 100 Illicit markets were a paramount concern to the States negotiating the ATT, which mentions them twice in the Preamble. 101 Experts appointed by the UN Security Council Sanctions Committee have issued various Reports documenting the failures and frustrations. Good examples are the Final Reports, S2016/70 on South Sudan, and S2016/254 on Cote d’Ivoire, both issued in 2016.

The Specific Criteria  95 powerful criminal groups, resulting in human catastrophe, political instability and economic devastation.102 The multi-faceted importance of diversion is highlighted by the fact that, among EU States, it has always been the reason most frequently invoked for refusing export licences. For the UK, its use has notably been growing: as a proportion of refusals, it almost doubled from approximately 15 per cent in 2009 and 2010 to just under 30 per cent in the current decade – second only to ­Criterion One. Its language expresses, and facilitates, its importance: unlike Criterion Two, which as we have seen plunges officials into a near-metaphysical swamp about the degree of risk required, Criterion Seven requires simply that ‘a risk’ exists.103 The final notable feature of this Criterion is the extensive and well-crafted list of considerations that should influence the risk assessment. By including the technical capacity of the purchaser to use the equipment, they require a technically sophisticated analysis of both the materiel and the organisational capabilities of various foreign institutions. To be effective, that judgement must be informed by up-to-date intelligence and require an unsparing assessment of the capabilities and honesty of State structures and individual officials. The re-export risks require a similar clear-eyed judgement. The final consideration, relating to technical issues like reverse engineering, necessitates a detailed understanding of the materiel and its possible (mis)uses. All these assessments require sophisticated input from the government departments dealing with diplomatic and military affairs. Whether those departments are up to the task depends on resources and accumulated knowledge – difficult enough to achieve and acquire in any circumstances but, in the UK at least, under serious threat by the dramatic reduction in the size of all civil service departments. Research by An Vranckx, of the Belgian NGO GRIP and the University of Gent, has shown that taking all EU States together, Criterion Seven was by a considerable margin the one most frequently invoked. In 2005–14, its use averaged 42–43 per cent, and was applied predominantly to proposed exports of small arms and light weapons (SALW).104 As emphasised in chapter one, SALW have for decades been the prime means of devastation, and in several EU Member States they are the primary type of weapons produced. This Criterion therefore has a particular importance, and it is of grave concern, to say the least, that Vranckx’s data show the percentage of denials relative to approval of SALW exports has declined.105 102 Recall the discussion of this point in chapter one at pp 4–5. 103 Above, pp 76–77. Moreover, when the question of diversion is raised under Criterion Two, all that is required for refusal is ‘a reason to believe’ the item will be diverted for internal repression. This is subordinate to the need for ‘clear risk’ of repressive use to start with, but it is notable that where the possibility of diversion exists, the risk is unqualified. 104 A Vranckx, Containing Diversion, GRIP Reports 2016/4 (Brussels, 2016) 9–17. The statistics are most usefully presented on 10–11. 105 Ibid, 12.

96  The EU Criteria: A Critical Examination

H.  Criterion Eight Compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country, taking into account the desirability that states should meet their legitimate security and defence needs with the least diversion of human and economic resources for armaments. Member States shall take into account, in the light of information from relevant sources such as United Nations Development Programme, World Bank, International Monetary Fund and Organisation for Economic Cooperation and Development reports, whether the proposed export would seriously hamper the sustainable development of the recipient country. They shall consider in this context the recipient country’s relative levels of military and social expenditure, taking into account also any EU or bilateral aid.

This final Criterion could be of great importance: applied rigorously it would block the sale of weapons to impoverished States whose leaders raid a bare exchequer to pay for vanity purchases, which are often accompanied by various forms of corruption. To apply it, the UK has developed an extraordinary technical ‘methodology’ – by far the most elaborate and complex of the eight used to govern Criterion decisions.106 It involves more than a dozen ‘indicators’ and various pseudo-quantifiable weightings generally beloved of Whitehall. The exercise is definitely not undertaken haphazardly: after several years’ experience, it was altered in certain ways, including adding an indicator designed to take account of corruption.107 But the proof of the pudding is, as is said, in the eating, and despite all the conceptual energy expended, the harsh reality is the ‘methodology’ has essentially scuppered Criterion Eight: between 2007 and 2012 – six years  – it was used to deny precisely one licence. The alterations made no difference whatsoever: Criterion Eight was not invoked at all between 2013 and 2017. The picture for the entire EU as a whole is only slightly different: again, only one application was rejected in 2014 and 2016, a number which rose to five in 2017. It remains the Criterion invoked least frequently every year. One could argue that the entire exercise was formulated purely for show – or as a particularly crass expression of organised hypocrisy. But there is no evidence for this, and the effort that has gone into its creation and revision refutes it. Yet equally there has not been a serious rethink of the necessary questions of whether the Criterion has adequately defined the evil it is supposed to address, and whether the way it is applied is adequate to the task. How this Criterion may be strengthened in discussed in the concluding chapter.

106 Set out in Annex C of the 2007 Annual Report (n 9). 107 The changes are described in an Annex to the CAEC Scrutiny Report of 2014, HC 186-II, 14 July 2014, at Ev 80–83.

Appendix  97

IV. Conclusion This chapter has described and critiqued the policies and precise language of the legal standards that are supposed to guide EU Member States when deciding whether to approve applications for export of arms. The analysis presented will form the basis of the proposals for strengthening both substance and process to be offered in the concluding chapter. Some of these suggestions have been discussed piecemeal here; the Conclusion will present them more fully and systematically.

APPENDIX On the Complexities of Arms Export Data The EU Common Position mandates that each Member State shall submit annual reports on their exports of military technology, to each other and to the Council. The latter is required to submit a public report, based on these contributions.108 These COARM-produced Reports are a relatively short account of developments in the preceding year and on the horizon, but are primarily an enormous statistical compendium – in some years exceeding 500 pages – of national export licensing decisions. These are broken down by country, and list grants and refusals under each Criterion category. The methodological and analytical issues concern whether and how this material may be used to compare the decisions taken by each State, and in particular, the frequency that any particular Criterion is invoked to deny an export licence application. With some difficulty, one can calculate the Union-wide totals of denials under each Criterion.109 However, the national reports differ in that whilst some restrict themselves to reporting only export decisions relating to items on the Military List, a compendium of 22 categories of armament, software and technology,110 others also what they regard as items with military use which are not on the List. Similarly, some States – their identity is not known – also include dual-use goods whose intended military use has been identified.

108 Common Position (n 1), Art 8. The amendment to this Article in September 2019 removes the previous protection of confidentiality and requires an additional public report by each Member State. However, there is still no power available to compel Member States to produce reports regularly and on time. Not all do, and in some years there may be gaps in relation to a particular State. 109 However, the EU Report only covers denials, not revocations or suspensions. This exclusion leads to an underestimation of the frequency of the use of the various Criteria, but the extent is unknown. 110 Common Military List of the European Union [2019] OJ C95/1.

98  The EU Criteria: A Critical Examination Moreover, dual-use goods are not covered in the Report, because Member States are not required to submit information relating to them. This exclusion has two important consequences. The first is that the total impact of the Criteria is understated in the EU Report, because the Common Position applies equally to dual-use exports. That shortfall will vary nationally in importance and frequency, depending on the industrial strengths and expertise of each State. Second, since national reports, if they appear publicly at all, are published separately in each State’s official language, literally no one person alive is capable of comparing the data found in these documents with those appearing in the EU Report. It is not even clear whether every EU State includes dual-use statistics in any public document. Linguistic limitations aside, comparison remains extremely difficult because each Member State has its own licensing system, whose categories are not necessarily aligned. Nor are the requirements for licensing identical; in particular, individual States may vary in whether they require licences for exports of certain equipment, or to certain favoured countries like other EU, North Atlantic Treaty Organisation (NATO), or European Free Trade Association (EFTA) members. Some States, like the UK, operate licensing categories which permit repeated deliveries of a specified quantity of certain items over an extended period to a particular recipient – with limits imposed on each of these variables, whilst also limiting approval through other kinds of licence more restrictive in relation to recipient, quantity and duration. Other States may be more or less permissive in relation to any of the relevant variables. Moreover, simple numbers tell only a small part of the story. One denial may be for one delivery of a small quantity of equipment; another may relate to an order worth billions of pounds over several years – but each appears as ‘one’ in the statistics of denials. Another difficulty is how denials are calculated. There is no common reporting standard, so it is impossible to know how often a particular application has been denied under more than one Criterion, which combination of Criteria have been applied in particular cases, and what sort of equipment occasioned these multiple invocations. One can see clearly the impact of what may be called ‘double counting’ by looking at the UK Annual Reports, which present a clear picture in two or three tables of denials in each year. The figure given for ‘total refusals or revocation’ of licences is always less than the total one reaches by adding all the times individual Criteria are listed as having been invoked.111 Thus a proposed export may be denied under Criterion One’s provision on observing embargoes, coupled with concerns about possible diversion (Criterion Seven); this will count as two separate invocations though only one application was refused. The result is that the

111 For example, in 2016, there were 366 refusals or revocations but the total number of times all Criteria were used was 420. See UK Strategic Export Controls Annual Report 2016, HC 287 (20 July 2017) 18, Table 4.4. Other years show comparable disparity.

Appendix  99 UK’s Annual Report may overstate the actual impact of any particular Criterion; and it is simply unknown whether this effect exists in the reporting systems of the other 27 EU Member States. Finally, and extremely important, there is no way to measure the deterrent effect of the presence of the Criteria. This may take a number of forms. Some States, notably France, operate a formal process whereby exporters are informed of a likely denial, and thus never present an application. The Netherlands has a more informal practice with the same purpose and result. Secondly, the existence of the Criteria may – and should, if credible – steer manufacturers away from entering at all into any transaction likely to end in a denial of export approval. Thus the practical effects of the Criteria are very likely to be wider and more important than can be measured, or deduced from national or EU statistics and reports. Given the intractable reality of these limitations, there is only limited utility in researching and analysing the statistical data. However, they may be useful in three ways: 1) Where the data are consistent over time, as is generally true of any particular State’s reporting, changes in practice by that State can be documented ­reliably, and spur public debate about the reasons, declared or undeclared. The particular change may have strong political overtones, as may be seen in both Germany112 and the UK.113 2) Even in relation to Member States collectively, if consistent data are striking, some policy conclusions may be drawn. An example is the almost total nonuse of Criterion Eight throughout the EU 27,114 which should spark a debate over whether it should be strengthened or abolished. 3) Finally, if one State’s frequency of use of a particular Criterion varies significantly from that of Member States as a whole, attempts to explain the difference may shed light on different values or policies exhibited by that State. This has been true of the UK, which as noted earlier, apparently makes much greater proportionate use of Criterion One than is true of other States.

List of References Al Jazeera, ‘Libya to be Military Equipped in Fight against ISIL’ (Al Jazeera, 17 May 2016). Bartels, L, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005). Beretta, G, ‘Italy’s Dirty War in Yemen’ il manifesto (Global Edition), 16 October 2016.



112 See

chapter six. chapter five below at pp 112–114. 114 Above, p 96. 113 See

100  The EU Criteria: A Critical Examination Corten, O, The Law Against War (Oxford, Hart Publishing, 2010). Erickson, J, Dangerous Trade (New York, Columbia University Press, 2015). Gonzalez, M, ‘Spain Beats its Own Record with €4.3 billion in Weapons Exports’ El Pais, 15 May 2018. Graham, R, ‘British Policy Towards Latin America’ in V Bulmer Thomas (ed), British Policy Toward Latin America: A Changing Relationship (London, Royal Institute of International Affairs, 1989) 52–65. Gray, C, International Law and the Use of Force, 4th edn (Oxford, Oxford University Press, 2018). Gross, M, The Ethics of Insurgency (Cambridge, Cambridge University Press, 2015). Henckaerts, J-M, ‘Study on Customary International Law’ (2005) 87 International Review of the Red Cross (Number 857) 175. Henckaerts, J-M, and Doswald-Beck, L, Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005). Hoffmann, S, ‘The Problem of Intervention’ in H Bull (ed), Intervention in World Politics (Oxford, Clarendon Press, 1984) 7–28. Irish, J and Thomas, L, ‘Australia, India Deals Boost French Arms Sales to Record 20 billion euros in 2016’ (Reuters, 20 January 2017). Roberts, A, and Guelff, R, (eds), Documents on the Laws of War, 3rd edn (Oxford, Oxford University Press, 2000). Spence, D, and Fluri, P, (eds), The European Union and Security Sector Reform (London, John Harper Publishing, 2008).

Other Publications Committee on Arms Export Control (CAEC) ‘UK Arms Exports 2016’ (18 August 2018). —— Scrutiny Report, HC 186-II (14 July 2014). —— Scrutiny Report, HC 205 (1 July 2013). —— HC 686 (5 April 2011). European Council (COARM) 153, User’s Guide to Council Common Position 2008/944/ CFSP (16 September 2019). Foreign and Commonwealth Office, UK Government Report, ‘Human Rights and Democracy: The 2017 Foreign and Commonwealth Office Report’ (5 October 2018). Stockholm International Peace Research Institute (SIPRI), ‘Trends in International Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019). UK Strategic Export Controls, Annual Report 2016, HC 287 (20 July 2017). —— Annual Report 2007, Annex B, Cm 7451 (July 2008). UN Secretary General, ‘Children and Armed Conflict’ A/72/865, S/2018/465 (Report, 16 May 2018). Vranckx, A, Containing Diversion, GRIP Reports 2016/4 (Brussels 2016).

(B) Four Exporters: Harmonisation and Divergence

102

5 The UK: Institutional and Legal Innovation, Dangerous Dependency I. Introduction The UK is an important but not dominant actor in the global arms export market. In the years 2014–18 it ranked sixth among exporting States in terms of dollar value, and only third within the EU, behind France and Germany. This represents a long-term decline.1 Nonetheless, arms exports occupy a disproportionately large role in the economy and politics of the country, if only because of the radical shrinkage of industrial production which began in the 1980s. Moreover, whilst all three increased their share of total world arms export, the rate of the UK increase was substantially less than that of the other two, especially France.2 This was despite an increasingly active and high-profile effort to expand its market share, despatching high profile delegations led by the various Prime Ministers, to promote arms sales in the Middle East and India. Despite this relative decline, from an international perspective the UK’s role as arms exporter presents several noteworthy and distinctive features. Among these are: 1) A unique reliance on one particular customer. Saudi Arabia accounted for a remarkable 44 per cent of all UK exports in the period 2014–18; no other major exporter comes close to that degree of dependency.3 This has several critical implications for the policy of the UK Government in relation to issues ranging from corruption to its wider relations with Saudi Arabia, resulting

1 For much of the 1990s, especially after the break-up of the USSR, the UK was second only to the USA in global market share, reaching 25% in 1996. See M Phythian, The Politics of British Arms Sales Since 1964 (Manchester, Manchester University Press, 2000) 21–22. It received an increase in orders of over 50% in 2018, but that was entirely due to the Yemen war and is unlikely to represent a trend. 2 P Wezeman et al, ‘Trends in International Arms Transfers 2018’ (Stockholm, Stockholm International Peace Research Institute (SIPRI) Fact Sheet March 2019), Table 1 at 2. This Table lists ‘The 25 largest arms exporters of major weapons and their main clients, 2014-18’. The UK increase in this period was 5.9%, for Germany, it was 13%, but for France it was 43%. See www.sipri.org/sites/default/ files/2019-03/fs_1903_at_2018.pdf. 3 Ibid. The nearest comparable figure for the export of advanced weapons was France’s channelling 28% of its sales to Egypt; the USA sold 27% of its exports to Saudi Arabia.

104  The UK: Innovation and Dependency

2)

3) 4) 5)

in its unwillingness to act in the face of clear evidence of humanitarian law violations by the Saudi-led forces in Yemen.4 Significant dominance of one company within the arms industry. This is BAE Systems (hereafter BAE), which in 2015 was responsible for approximately 60 per cent of UK military exports.5 The product of amalgamation over decades of major producers of planes, naval vessels, tanks, munitions and electronics, it has enormous political influence regardless of which party is in office, and its personnel move in and out of official positions easily and frequently.6 A well-developed and, at least until recently, widely admired and, at times, influential institution of parliamentary accountability devoted to arms sales. After a few failed legal challenges more than a decade ago, the UK experienced the first successful legal challenge at the appellate level anywhere in Europe or North America to the grant of export licences.7 The remnants, both psychological and material, of the days of Empire and world power have led to UK involvement in certain parts of the world which has had a number of important effects. Armed intervention in 1998 in Sierra Leone, a former colony, led to an awareness of the destruction and chaos caused by small arms and light weapons (SALW). This helped influence the UK towards taking a prominent role as an initial sponsor of the Arms Trade Treaty (ATT).8 As a permanent member of the UN Security Council and a nuclear power, convinced – one might say obsessed – of the need to ‘punch above its weight’ in world politics, political discourse in the UK is underpinned by an assumption, shared across the entire political spectrum, that what the country does is truly important. This assumption has animated controversies about arms sales, both on the part of those who assume that the UK occupying a higher moral ground would have widespread influence, and of those who see UK arms shipments as a necessary tool to exert political influence. The presence in London of the headquarters of several internationally-prominent non-government organisations (NGOs) which have devoted some or all of their attention to the arms trade – Saferworld, Amnesty International, Campaign Against the Arms Trade (CAAT) and

4 As discussed in chapter four, the UK is not alone in this respect. But as numerous, though not all, EU States began to restrict deliveries in response to accumulating evidence of international humanitarian law (IHL) violations, the UK continued to dig in its heels and continue shipments. The result of legal challenge to this policy is considered at pp 127–130 below. 5 R Kift and R Page, ‘Arms Industry Statistics’, House of Commons Briefing Paper CBP 7842 (21 December 2016) 5. 6 See further below, pp 106 and 131–135. 7 Events move quickly in this field, and there are legal actions pending in the courts of several European countries, but this statement is true as it is written. 8 Of the major European States, the UK took by far the most prominent role in promoting the ATT, co-sponsoring UNGA Res A/Res/6/89 which was approved by the General Assembly (GA) in December 20016, launching the drafting process that culminated in the document approved by the GA in 2013. See further below, chapter 14.

The Role of Arms Exports in the UK Economy  105 Oxfam, as well as several more whose concern with particular regions or countries (such as Indonesia or Yemen) has led them to campaign against particular sales – has been particularly influential in keeping the issue in the public eye. They have also had a demonstrable influence on the evolution of UK policy in related areas.9 6) The experience of a major political-legal scandal, leading to a long official Inquiry in the 1990s, not only raised public awareness of arms trade issues but gave them higher political salience and led to identifiable changes in the governing law. These features will be discussed throughout the present chapter. However, it is best to begin with an understanding of the dynamics of UK arms exports.

II.  The Role of Arms Exports in the UK Economy The importance of the arms trade to the UK economy, in terms of income generated and employment provided, has long been extremely controversial. Estimates of both income and employment effects have varied wildly.10 There are also major methodological problems, which start with disparities in what is counted. For example: is the proper measure of value the orders received (which can be cancelled or renegotiated in future) or actual deliveries? How does one accurately measure the secondary employment and income effects of arms production, eg how many persons and companies are engaged in supplying services or ancillary products to the main producers? The complex data and methodological issues are addressed in the Appendix to this chapter.11 One aspect of the conclusion therein should be highlighted: the total contribution of arms exports to the UK gross domestic product (GDP), and to overall employment, is very much less than is generally claimed by governments. However, it should be emphasised that this statement applies only to exports, not to the defence manufacturing sector as a whole. Less factually controversial is the nature and destination of UK arms exports – what is sold to whom. The needs of the UK’s military establishment,

9 See, eg, M Petrova, ‘Rhetorical Entrapment and Normative Enticement: How the United Kingdom Turned From Spoiler Into Champion of the Cluster Munitions Ban’ (2016) 60 International Studies Quarterly 387. 10 One statistical expert who shall remain nameless, a student of the problems of assessing the economic effects of both the defence industry and arms exports for more than three decades, has said that the best that can be done, given the limitations of available data, is to distinguish between ROMs (rough orders of magnitude) and WAGs (wild arse guesses). 11 This has been written by Dr Sam Perlo-Freeman, formerly of SIPRI and now of CAAT, who has produced numerous analyses on these issues published by SIPRI over the past decade. His expertise in these matters far exceeds my own.

106  The UK: Innovation and Dependency as determined by government policy, are not mirrored by the pattern of exports. Partly due to the decision to replace the Trident missile system, planned expenditure by the Ministry of Defence (MOD) over the decade beginning 2015 is weighted most heavily towards submarines and ships.12 However, reflecting but also magnifying the general pattern of arms exports, in the decade 2006–15, no less than 85 per cent of the orders received/contracts signed by UK manufacturers were in the aerospace sector, much greater than the overall percentage of UK arms production of 63 per cent.13 (In addition to planes, this ‘sector’ includes bombs, missiles, engines and sensors.) Bestriding this framework like a colossus is BAE. This was best expressed by Michael Portillo, a former Secretary of State for Defence, who, for some years after leaving office though remaining in Parliament, had occupied a place on the Board of BAE as a non-executive Director. Challenged on the propriety of taking that appointment in view of his political connections, he responded that, in addition to the time lapse since leaving office, The one thing BAE don’t have to do is buy political influence because the Chairman and Chief Exec can go into Downing St. whenever they wish and see the PM and that has always applied. I was never asked to do anything political, or lobbying, because I was inconsequential.14

The effect of this political power on the UK legal system is explored below.15

III.  History of UK Arms Exports There has been a pronounced shift in the purposes of UK arms sales, mirroring the change in its position in world politics. Having emerged from the Second World War economically battered but a member of the UN Security Council P5 and soon thereafter one of only three nuclear powers, it sought to maintain a position of world leadership second in the West only to the USA. It began selling arms in the 1950s, and a White Paper of 1955 gave primary place to the political and strategic aims of arms sales. At that time it faced very little competition, and indeed in the preceding decade had exported more ships than even the USA.16 However that comfortable position was soon eroded as both the USSR and France entered

12 S Perlo-Freeman, ‘Special Treatment: UK Government Support for the Arms Industry and Trade’ (Stockholm, SIPRI, 2016) 11. 13 These figures appear in a slide produced by the UKTI Defence and Security Organisation, ‘Defence Exports for 2015’, released 26 July 2016, Slide No 12. 14 Interview screened on a Channel 4 Dispatches programme, ‘How the MOD Wastes Our Billions’, 8 October 2013. The self-description of a former Defence Secretary as ‘inconsequential’ is extraordinary. 15 See below, pp 131–135. 16 Phythian (n 1) 3–4.

History of UK Arms Exports  107 the market.17 This coincided in the 1960s and 1970s with a perceived sense of relative economic decline, leading most obviously to Britain’s twice rejected but eventually successful attempts to join the then European Economic Community, and led to a notably different view of the importance of arms exports. By 1980, economic considerations, including improving the balance of payments and providing employment, had explicitly been given clear priority.18 Even before then, UK foreign policy and arms sales had for economic reasons become intertwined. This inescapably drew the country into support for despotism and profiting from political instability in the Middle East. In the 1970s, this meant unwavering support for the eroding regime of the Shah of Iran, whose army purchased over 1,000 tanks in the mid-1970s, keeping ‘the British defence industry afloat almost singlehanded’ as the economy struggled in the wake of the trebling of oil prices after 1973.19 The primacy of economics has remained, as various Prime Ministers, beginning with Margaret Thatcher’s self-described ‘batting for Britain’, have led delegations to various nations in search of arms deals. So too has its distorting impact on foreign policy: although Saudi Arabia has now replaced Iran, profitably exploiting instability and perceived vulnerabilities among Middle East despotisms has remained a constant in UK arms exports and foreign policy for more than 40 years.20 Yet throughout this period there have been counter-pressures, concentrated within sections of the Labour Party which were closely connected to civil society organisations. These drew on a long and, by European standards, unusually strong strain of pacifism on the British Left. This can be traced back to the nineteenth century, reached its height of influence between the Wars,21 and continued through the anti-nuclear movements typified by the mass demonstrations organised by the Committee for Nuclear Disarmament in the 1960s and the Greenham Common protest encampments of the 1980s. The history of the relations between these organisations and their influence on the Labour Party in Opposition and in Government has recently been told comprehensively by Dr Rodrigo Moraes,

17 R Moraes, Our Weapons, Our Problem: Arms Exports, Democracy and Civil Society in Brazil and the UK, unpublished D Phil Thesis (University of Oxford, Hilary Term 2019) 118–120 reports that in the early 1950s, UK arms exports comprised about 25% of the global total, but had declined to between 5–8% during the 1960s. By the latter period, French exports had gone from virtually nil to an equivalent level. 18 This was stated most clearly within government (it was not publicly admitted) in the directive from the MOD to the civil servant in charge of its exports section, quoted ibid, 29. 19 R Aldrich and R Cormac, The Black Door: Spies, Secret Intelligence and British Prime Ministers (London, William Collins, 2016) 345. Iran was also a primary source of oil imports in this period, before North Sea oil became available in sufficient quantity. 20 Saudi Arabia is also seen as an important strategic ally within the UK security apparatus, and it is sometimes hard to disentangle economic from political/strategic motivations in analysing successive governments’ pursuit of arms sales to the Kingdom. 21 See the studies by M Caedel, Semi-Detached Idealists: The British Peace Movement and Inter­ national Relations, 1854-1945 (Oxford, Oxford University Press, 2000) and Pacifism in Britain, 1914–45 (Oxford, Oxford University Press, 1980).

108  The UK: Innovation and Dependency who documents the influence of civil society organisations on Labour policy.22 This was especially true of sales to South Africa in the 1960s and Chile in the 1970s: many Labour activists and MPs were involved in the anti-apartheid movement, and the overthrow of a Socialist government and murder of its leader by the ­Chilean military in 1973 caused particular anger. An important corollary, however, was that where civil society organisations did not raise particularly strong objections to sales to a given country, the default position of Labour governments, no less than Conservative ones, was to pursue arms sales. A prime example is the greater opposition to sales to Chile as opposed to Argentina – an equally brutal regime – in the 1970s, which rebounded badly when the Falklands/Malvinas dispute led to war. Of more immediate relevance is that Saudi Arabia, which until the Yemen war had seldom used the billions of pounds of weapons it bought,23 remained below the radar of major civil society concern, with the result that sales proceeded without strong organised opposition.24 The South African embargo controversy led to a major development: for the first time, humanitarian considerations were incorporated into official policy concerning exports. Moraes argues that continuities have characterised UK policy, regardless of the Party in government. Though there were differences in tone and public presentation, the Wilson Government’s embargo on arms sales to South Africa was maintained by its Conservative successor; and even though the embargo on sales to Chile was partially lifted, the Thatcher Government continued to deny sales of equipment which could be used for internal repression.25 This may unduly discount the importance of the flexibility of interpretation, even of what constituted an ‘embargo’, so that in practice sales that a Labour G ­ overnment might have blocked were approved under the Conservatives. This difference became increasingly clear as Mrs Thatcher’s influence became more pervasive, and erupted into scandal with the so-called ‘Arms to Iraq’ affair and the Matrix Churchill trial. This episode has been chronicled in depth and at length, not least in the multivolume Inquiry by a distinguished Appeal Court Judge, Sir Richard Scott, that it stimulated.26 A very brief summary is therefore all that is required here. The Managing Director and two assistants of a machine tool manufacturing company were prosecuted for violations of export control regulations when selling their

22 Moraes (n 17) chs 4–6. 23 An exception was its role in the violent suppression of opposition in Bahrain in 2011. Its apparatus of controlling internal dissent has not been challenged seriously enough to occasion repressive use of imported equipment. 24 Corruption in relation to sales to Saudi Arabia has long been a prominent issue – see pp 131–135 below – but until recently atrocities were not, which made opposition much less widespread. 25 Moraes (n 17) 121–22; also see above chapter four at p 85. 26 Sir Richard Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, HC 115 (1995–1996). He was subsequently promoted to the House of Lords, finishing his judicial career as Lord Scott of Foscote.

History of UK Arms Exports  109 products to Iraq.27 The trial was aborted by the presiding Judge after it emerged from the testimony of Alan Clark MP, a Minister who had been involved in making more ‘flexible’ the so-called ‘Guidelines’ under which exports were conducted, that he had also encouraged the Defendants to emphasise the civilian application of the equipment whilst concealing its possible military use. It also emerged that the Managing Director’s activities had been encouraged by SIS, the overseas intelligence service, because his visits to Iraq enabled him to gather and supply intelligence. The Inquiry ranged widely over all aspects of government export policy in relation to Iraq and Iran. It lasted nearly two years, considered more than 200,000 pages of documents, heard testimony from senior politicians and officials and featured in daily television and newspaper reports literally for weeks on end.28 It also galvanised the Labour Party, its sights trained on a weakened Government which had been in office for 15 years, to raise the issue repeatedly in Parliament.29 The whole affair led not only to changes in the statutory framework of export controls,30 but propelled arms exports to achieve a higher salience in the public arena than they had ever previously enjoyed. Robin Cook, the MP who led the Labour critique, became Foreign Secretary in the Government it formed in May 1997. His presence produced substantial changes in rhetoric, attitudes among officials, institutional structures – and arguably some in policy – immediate and strong enough to last well beyond his term in that office.31 However, before examining the impact of New Labour, it is essential to step back to the mid-1980s and highlight the most important single arms sales agreements in UK history: the ‘al-Yamamah’ contract with Saudi Arabia. This deal, lasting for two decades, involved selling more than 100 aircraft – fighters, fighterbombers and training planes – which in 2007 was accurately if pungently described as ‘keeping BAE afloat for the last 20 years’.32 Successor agreements followed, and thousands of BAE-employed technicians and trainers continue to work in the country servicing the aircraft and training the crews. (In this they are joined by numerous, though officially uncounted, UK military personnel, some of whom

27 Ironically, although the trial and the scandal of misuse of prosecutorial power were almost universally described as the ‘Arms to Iraq Affair’, the exports in the case were dual-use goods. 28 It even gave rise to a play, ‘Truth is a Difficult Concept’, written by Richard Norton-Taylor, who covered the Inquiry for The Guardian newspaper. For contemporary commentary by participants and academics, see the eight contributions to the Autumn 1996 edition of Public Law and I Leigh and L Lustgarten, ‘Five Volumes In Search of Accountability: The Scott Report’ (1996) 59 Modern Law Review 695. 29 The Conservative Government survived a vote of no-confidence in the only Minister remaining in office in February 1996, by a majority of one. 30 See below, pp 116–117. 31 Cook was moved from the Foreign and Commonwealth Office (FCO) in 2001, and resigned from the Cabinet in 2003 in opposition to the UK’s participation in the invasion of Iraq. He died suddenly in 2005. 32 See D Leigh and R Evans, ‘The BAE Files: The al-Yamamah Deal’ The Guardian, 22 December 2007, www.theguardian.com/baefiles/story/0,2231496,00.html, which offers links to the ten-part investigation over many years of investigative work by these journalists; see also Phythian (n 1) 198–226.

110  The UK: Innovation and Dependency have at least indirectly assisted Saudi bombing missions in Yemen, not least by servicing the planes.) The circumstances of these employees, often well-paid but without any UK employment rights and subject to harsh Saudi employment law, had largely escaped notice until the publication of a well-researched investigative Report.33 Negotiated directly by UK and Saudi Ministers, Al-Yamamah was the first government-to-government agreement, and set the political framework for continued UK exports. Although the USA is by far the Saudi’s leading supplier,34 for the UK the Saudi connection is far more central. In the years immediately after the al-Yamamah agreement, nearly three-quarters of all UK arms exports went to this one country.35 As seen earlier, the pattern has persisted over decades, if in diluted form.36 The political implications of this dependency have become increasingly visible, as the UK Government has firmly rebuffed all pressure to suspend deliveries even as deaths and humanitarian disaster in Yemen became increasingly hard to ignore. There have also been profound constitutional implications for the UK itself, manifest a series of episodes ranging from political interference with the independence of criminal investigations and judicial process to undermining of parliamentary oversight of public funds.37 The former Great Power has become a client-state. Robin Cook brought a new vocabulary to the conduct of UK diplomacy – an ‘ethical foreign policy’. In doing so he raised to prominence a longstanding dilemma confronting any use of ethical standards in this area: unless they are to be all-governing, there is inevitably a tension between the relative importance of values and interests. This ‘uncertain merger’ inevitably produces organised hypocrisy when the ethics rhetoric fails to match its promise (in this case, of protection of human rights of people overseas).38 UK practice under Cook and thereafter39 therefore came under intense critical scrutiny.40 The results were mixed, and a 33 M Lewis and K Templar, ‘UK Personnel Supporting the Saudi Armed Force – Risk, Knowledge and Accountability’ (2018) www.mikelewisresearch.com/RSAFfinal.pdf. 34 It accounted for 68% of all its arms imports in 2014–18, with the UK second at 16%: Wezeman et al (n 2) Table 2, at 6. 35 N Cooper, The Business of Death (London, IB Taurus, 1997) 135 at Table 6.2. 36 Wezeman et al (n 2) Table 1, at 2. This figure, limited to weaponry, probably underestimates UK economic dependence, because it excludes contracts for human services (see pp 109–110 above). 37 One fundamental example, concerning the investigation into bribery by BAE, is discussed below at pp 131–135. Others, including a refusal of a Saudi dissident’s asylum described by the Chief Immigration Officer as ‘an attempt … to circumvent the [Refugee] Convention for diplomatic and trade reasons’, and the suppression of a report by Parliament’s Public Accounts Committee into corrupt payments, are recounted in L Lustgarten, ‘The Arms Trade and the Constitution: Beyond the Scott Report’ (1998) 61 Modern Law Review 499, 501–505. 38 J Gilmore, ‘The Uncertain Merger of Values and Interests in UK Foreign Policy’ in T Edmunds et al (eds), British Foreign Policy and the National Interest (Basingstoke, Palgrave Macmillan, 2014) 36–41. On ‘organised hypocrisy’, see chapter two at p 29 above. 39 As will be seen below, licensing decisions are not taken by the FCO, but that Department has great influence if it objects to any application. Moreover, Cook’s high profile in the early New Labour Government gave his approach unusually great influence. 40 For an early critique, see N Cooper, ‘Arms Exports, New Labour, and the Pariah Agenda’ (2000) 21 Contemporary Security Policy 54.

History of UK Arms Exports  111 disappointment to those in his Party who had expected radical change. Almost immediately, he had to decide whether to revoke licences for export of Hawk jets and crowd control equipment to Indonesia, where its potential for use by a regime with a history of violence against those seeking independence for what East Timor (now Timor-Leste) was obvious. He refused to do so, though he soon rejected a licence application to export much lower value equipment. One highly controversial reason for the difference was the existence of a contract tied to the existing licence; but although the matter remained untested, there was a strong argument that the courts would not entertain any challenge.41 The precedent of cancellation of an order for armoured cars by the Salvadorean military regime two decades earlier, by David Owen when Foreign Secretary, was ignored. There were a number of other instances of licence approval for export to countries with suspect human rights records.42 Nonetheless Cook’s ‘ethical dimension’ did produce a number of concrete results. One important innovation, not further discussed here, was that the Foreign and Commonwealth Office (FCO) began to publish an annual review of the human rights situation in States it identified as ‘countries of concern’. This practice continues. Another, as Moraes has shown through statistical analysis, was that the number of licence approvals for sales to autocratic governments declined during his tenure and for some years afterwards. However, it began to rise by 2008, presumably as his influence wore off and economic considerations reasserted themselves.43 His tenure also led to a greater emphasis on human rights ranging more broadly within the FCO, which also lasted beyond his time but has not been maintained.44 In relation to arms exports, Cook did produce permanent institutional change. At the European level, under his leadership the UK joined with France to influence the EU to adopt its first Code of Conduct to govern arms exports; this later evolved into the Common Position.45 He advocated greater transparency, in part to increase involvement of NGOs and therefore public pressure on the Government – a most unusual approach for a politician.46 This led to the introduction of an annual joint Report from the four relevant Departments which details broad policies, licence approvals and rejections, enforcement practices and other valuable information. Publication is a legal requirement.47 At the time this was very 41 Lustgarten (n 37) 511. This matter was put to rest by delegated legislation some years later. See Export Control Order 2008 (SI 2008/3231), Article 32; above, chapter two, pp 36–37. 42 J Gaskarth, British Foreign Policy (Cambridge, Polity Press, 2013) 103. 43 Moraes (n 17) 135–36. His analysis takes account of the time lag between orders and deliveries, and takes care to define ‘autocracies’. 44 See pp 112–113 below. 45 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99. See also above, chapter three, p 48. 46 He actually stated this publicly: Moraes (n 17) 135. 47 Export Control Act 2002, s 10(1)(b). Since 2004 the Annual Report has been supplemented by quarterly statistical reports on exports.

112  The UK: Innovation and Dependency unusual in Europe.48 He also – perhaps his greatest legacy – ensured the creation of an unusually-structured parliamentary committee to oversee arms exports, the first such body in Europe. As will be seen, this committee has been very active over nearly two decades.49 The Labour Government lost office in 2010, to be succeeded by a Conservativedominated Coalition lasting until 2015. However, the Minister in charge of the department taking export decisions was a Liberal Democrat, Sir Vince Cable, and the Conservative Foreign Secretary affirmed that UK foreign policy ‘will always have support for human rights and poverty reduction at its irreducible core’.50 The result was a broad continuity of policy and practice in a number of respects. Licences were granted to dubious regimes, particularly in Arab States, but were suspended when the Arab Spring provoked violent repression. This can be seen as an initial failure to apply the Criteria correctly, but it can also be viewed as a responsive application to changed circumstances.51 As well as continuing active support for its predecessor’s efforts to achieve the ATT, the Coalition Government did not disturb the UK’s position on curbing anti-personnel landmines and use and transfer of cluster munitions. Yet the tension between economic gain and human rights persisted, and economics continued to have pride of place. The Prime Minister, David Cameron, personally led delegations promoting arms sales to India and some Gulf States. A Conservative junior Minister in the MOD stated shortly after the Election, ‘There is a sense that in the past we were rather embarrassed about exporting defence products. There is no such embarrassment in this government’.52 The normal divergence of views between departments seems to have been heightened by political differences within the Coalition. Nonetheless the ethical agenda continued to remain ‘embedded in UK foreign policy’53 – in discourse and to some extent in policy. This internal contradiction, or organised hypocrisy, became less incoherent when the Conservatives began governing alone after the May 2015 Election. They resolved it quite openly by devaluing human rights goals and prioritising the ‘prosperity agenda’. This was made quite clear soon afterwards in evidence given by the Permanent Under-Secretary of the FCO to the Foreign Affairs Committee, who stated with unusual candour that ‘although it [human rights] is one of the things we follow, it is not one of our top priorities …’ before sugaring the pill by adding ‘it may not have had the profile it had in the past [but] it is still an integral part of our work’.54 48 Though France did begin to produce a less detailed one at approximately the same time: see chapter seven. 49 Its work is discussed below in this chapter, pp 118–123. 50 This is a quotation from a speech by the Foreign Secretary, William Hague, on 31 March 2011, quoted in House of Commons Foreign Affairs Committee, ‘The FCO’s Administration and Funding of its Human Rights Work Overseas’, Fourth Report of Session 2015-2016, HC 860, 5 April 2016, para 5. 51 Recall the discussion above in chapter two, pp 35–36. 52 Quoted in Moraes (n 17) 137. These remarks were made in a speech at an Air Show, so perhaps some allowance should be made for a politician playing to the gallery. 53 Gilmore (n 38) 39. 54 Foreign Affairs Committee (n 50) para 5, Evidence of Sir Simon Macdonald.

History of UK Arms Exports  113 In relation to arms exports, this shift of policy took concrete form in the quinquennial Strategic Defence and Security Review (SDSR) published soon afterwards.55 This document, intended to set the Government’s priorities for the next five years, assigned greater responsibility than previously to the MOD to lead major export campaigns relating to various combat aircraft, complex weapons and training programmes. Export support should become a ‘core task’ for the MOD, whose own procurement decisions should take into account future export potential of the weaponry56 – a case of the export tail wagging the operational dog. Whilst the Department of International Trade remains in overall control of exports, calls for a ‘Team UK’ approach, including closer liaison and assistance to industry, make clear that the ‘Prosperity Agenda’ has little room for humanitarian values.57 This emerges starkly when one looks at the relative frequency of invoking the various Criteria. Table 1  Invocations of Criterion Two, 2008–18 Year

Gov

Total

Crit 2 Invocations

Crit 2 % Innovations

2008

Lab

251

24

9.6%

2009

Lab

277

61

22.0%

2010

Lab/Con-Lib Dem Coalition

327

26

8.0%

2011

Coal

423

82

19.4%

2012

Coal

277

44

15.9%

2013

Coal

184

34

18.5%

2014

Coal

323

55

17.0%

2015

Coal/Con after May 2015

426

31

7.3%

2016

Con

420

15

3.6%

2017

Con

405

15

3.7%

2018

Con

356

18

5.0%

Source: Strategic Export Controls Annual Reports, UK Government, 2009–2019. Notes: 1. Figures rounded up to the nearest tenth of a percentage. 2. Totals include dual-use goods as well as military equipment. The data do not permit separation according to the nature of the materiel. 3. The Annual Reports do not differentiate by months or quarters. This for 2010 and 2015, it is impossible to determine if or when the change of government made any immediate difference in licence denials, suspensions or revocations under Criterion Two (or indeed under any Criterion). 55 ‘UK National Security and Strategic Defence and Security Review 2015, Cm 9161 (November 2015). 56 Ibid, para 6.62. 57 See also the Dunne Report, prepared by a former Defence Procurement Minister who was, as the title proclaimed, devoted to ‘Growing the Contribution of Defence to UK Prosperity’. Report prepared for the Secretary of State for Defence by Philip Dunne MP, 9 July 2018 (on the Gov.uk website).

114  The UK: Innovation and Dependency This Table shows the total number of times each Criterion was invoked to deny, suspend or revoke an export licence each year, and I have calculated the percentage of times that involved Criterion Two. The period 2008–18 saw three different parties, or party arrangements, in office. Clearly the total number of rejections is in part responsive to external events, and the yearly variations are not always readily explicable.58 Nonetheless, what is particularly striking is the sharp fall once the Conservatives became the sole governing party in mid-2015. The precipitous drop in that year compared to 2014 – more than 50 per cent – was followed by yet another 50 per cent reduction in 2016, maintained at that level the following year (and only slightly raised the year after). It was precisely during that period that the Saudi bombing of Yemen intensified, and the UN and other investigations found evidence of major and repeated international humanitarian law (IHL) violations.59 The relevance of Criterion Two was thus particularly great. For want of any credible alternative explanations, it appears that the Conservatives in office give significantly less weight to humanitarian and human rights values in determining arms export approval than do other UK parties. Ideology does matter, though the rules remain unchanged. ‘Ideology’ need not mean an abstract set of political principles, but rather giving priority to business opportunities over humanitarian concerns. This preference is by no means found exclusively among Conservative Ministers but, overall, carries more weight with them than with other parties when in office. And though a future Labour Government might well treat certain high profile contentious applications differently, past performance suggests that a root-and-branch upheaval of export policy generally is most unlikely.

IV.  The UK Licensing System A.  The Administrative Structure The administrative structure and procedures of UK export licensing are set out clearly and succinctly in each Annual Report, so only a brief description is necessary here.60 Since July 2016, the system has been run through the Export Control Joint Unit (ECJU), ‘hosted’ – ie, led – by the Department for International Trade (DIT), and including the FCO and MOD. In about one per cent of cases, the Department for International Development is contacted to assess issues relating

58 The causes of the sharp upsurge of Criterion Two invocations in 2009 are particularly obscure. 59 See chapter four at pp 77–79. 60 The following account is taken from the two most recent United Kingdom Strategic Export Controls Annual Reports–for 2017, HC 1394, 23 July 2018, 3–6, and for 2018 (the most recent), HC 2462, 18 July 2019, 3–7.

The UK Licensing System  115 to ‘sustainable development’.61 Other Government bodies supplement the Unit on particular matters, eg HM Revenue & Customs with respect to enforcement of controls. However, as a matter of law the responsibility for decision rests with the DIT Secretary. Very few of the numerous licence applications received every year are controversial.62 They are directed initially to the DIT, which maintains an extensive website to guide companies, and are considered by a small team called the Export Control Office within it. Between 80–90 per cent of applications are forwarded for advice to the FCO, which has a special Arms Control Unit responsible for considering them, and undertakes human rights and IHL assessments. The FCO’s concern has historically been primarily entirely focussed on the ‘internal repression’ element of Criterion Two, but its lawyers are also the main advisors concerning potential IHL violations.63 The MOD has historically been particularly concerned about weapons proliferation issues and the possibility of use that might rebound on the UK or its allies.64 Three factors receive primary consideration: the destination, the equipment and the likely end use. Differentiating among them permitted, for example, denial of exports intended for the Turkish Army after the President purged most of its leadership, whilst approving equipment for police forces, which UK officials within the country were advising on improving their human rights compliance.65 Formally, the role of these departments remains advisory: decisions rest with the DIT. However, as is typical of UK government practice, a premium is placed on achieving consensus, and if, for example, the DIT does not accept a negative view from the FCO, the matter is sent for decision to a higher level. It is seldom necessary for the matter to reach ministerial level, because a good civil servant is one who in the hallowed phrase ‘knows the Minister’s mind’ – ie takes their steer from the general orientation the Minister, or the Government as a whole, has expressed. Only matters which raise highly contentious issues of policy, or are perceived to have potential for political embarrassment, reach higher levels.66 In relation to arms sales, the proportion of these ‘red flag’ cases was estimated at one to two per cent, but certain countries, including Saudi Arabia and Israel, automatically attract this treatment.

61 These may arise under Criterion Eight; see above, chapter three. 62 The account of practice which follows is based upon interviews with the then Head of the FCO Arms Export Policy Department, and Mr Chris Chew, Head of Policy within the ECJU. 63 As noted earlier (see above chapter four at p 75), IHL violations were not included in the initial 1998 Code of Conduct, and only found their way into the UK’s Common Criteria in 2014. However, the Government has always insisted that in practice it considered risk of IHL violations once they were included in the Common Position in 2008. 64 This ‘blowback’ issue may also arise even more acutely in relation to dual-use goods. 65 Recall the analogous approach with respect to Chile, discussed on p 64 above. 66 This observation described the working of the Civil Service generally; it is not at all limited to arms export decisions.

116  The UK: Innovation and Dependency There are two main types of licence: Standard Individual Export Licences (SIELs) and Open Individual Export Licences (OIELs).67 Applications are submitted online to the Export Control Office of the DIT and in each of the past three years, they have totalled nearly 18,000 for SIELs; by contrast, the number of OIEL applications is miniscule: 560 in March 2017–March 2018.68 However, the numbers do not reflect relative importance. SIELs are required for a specified number of a specified item to a specified recipient. The requirement in no way reflects the monetary value or lethal potential of the equipment. Something as small as a short-term trial loan of a dozen night vision rifle sights to a foreign army would require a SIEL, but equally, the shipment of a thousand of such sights over a period of two years (the maximum allowed) would only require a single SIEL. Moreover, some of the most significant sales come under OIELs which may approve multiple shipments of specified items to any approved destination over a period of up to five years, with no limit on the number of items. The result is that most licence applications requiring civil servants’ decision are uncontentious and can be dealt with quickly.69 This structure is the result of a conscious decision, driven by a cost-reduction determination to reduce the number of civil servants to encourage use of OIELs rather than SIELs. The effect is significantly to reduce transparency since once an OIEL has been approved, no further consideration is required during its normal five-year duration. Consequently the volume and overall value of the particular equipment exported under a single OIEL remains unrecorded, or at any rate ­unreported in any official document.70

B.  The Legal Structure There is no free trade in weaponry: no State allows unrestricted export of arms and military technology by private manufacturers. Within the UK there has been great evolution in the structure of control. For decades the legal basis of export controls remained a 1939 statute enacted as emergency legislation when Britain entered

67 There are also different types of ‘Open General’ licences, which are ‘pre-published’ approvals for equipment ‘carefully chosen to include only items and destinations’ judged to be compliant with the Criteria; see 2017 Annual Report (n 60) 7. This avoids the need for specific application for such exports. 68 Ibid, at 8–9. The figure for SIELs in the text also includes 534 brokerage licences (for 2017), which are required for UK persons who may be organising or assisting the transfer of weapons which are never physically within the UK at all. There was a slight reduction in the number of SIELs and OIELs handled in 2018. 69 The median processing time for SIELs in 2016 and 2017 were 13 and 11 days, respectively: ibid, at 10. 70 See the discussion and disagreement on this point between the then Government and CAEC some years ago: Cm 9089, 31 July 2015, paras 106–107.

The UK Licensing System  117 the Second World War.71 This legislation was so open-ended and permissive that Sir Richard Scott, in his aforementioned Report, said that ‘the “law” where export controls are concerned has the appearance, and perhaps the reality, of being no more than government policy for the time being’.72 One of his central recommendations was that legislation be introduced to impose more explicit procedural limitations on the administrative discretion involved in decisions calling for approval of export licence applications. This was eventually done by the Export Control Act 2002. Administrative regulations limiting or prohibiting exports of particular weapons or technology, or imposing embargoes on specific country destinations, are made as Orders under this Act.73 In relation to weapons export controls, the critical provisions are found in s 9(3) and (8). The former requires the Secretary of State in charge of export licensing to give ‘guidance’ about the ‘general principles’ to be followed when decisions are taken under the Act. The latter specifies that the ‘Consolidated Criteria’ previously announced in Parliament be treated as the required Guidance.74 These Criteria are, and have always been, a transposition of the Common Position75 (CP) adopted by the European Union. They exert their legal force with the UK by virtue of enactment through a specific Act of Parliament; hence that force does not rest on EU law.76 It is important to emphasise that decisions on export licences remain entirely ones for the Executive branch – the government of the day. As such, although the Criteria remain unaltered and the civil servants taking the daily decisions may and do remain in post under different governments, specific decisions will inevitably reflect changes in policies and priorities of succeeding governments – or even of particular Ministers. This is not explicable in purely legal terms, but is the political reality. The accountability or oversight exercised by Parliament, considered below, is inevitably retrospective: accountability literally means giving an account – and to be meaningful, a justification – for decisions or actions already taken. This has major disadvantages in relation to arms exports because at a minimum it takes months, and may take much longer, for the damage done by the weaponry to become widely known, and yet more time for public concern to be raised to so high a pitch as to attract significant parliamentary attention. Particularly in cases where the equipment is exported in one major delivery or has immediately lethal or widely destructive effects77 there is a strong case for creation 71 Import, Export and Customs (Defence) Powers Act 1939. This was slightly modified 50 years later but was essentially unchanged at the time of the Scott Inquiry. 72 Scott (n 26) para C3.5. 73 Much the most important is the Export Control Order 2008 (SI 2008/3231) (see above, p 111 and below, p 125). It should be emphasised that the Act covers export controls generally; it is not limited to weaponry and covers all technology and ‘technological assistance’ for which export permission is sought. 74 These are the Criteria, slightly amended and reissued in 2014, discussed at length in chapter four. 75 Previously the Code of Conduct, given greater legal force and renamed the Common Position in 2008: See chapter three above at p 47. 76 The possible impact of Brexit is discussed in Appendix two to this chapter. 77 eg ammunition or missiles for immediate use as opposed to a long-term contract for delivery of ships.

118  The UK: Innovation and Dependency of a delay or pre-delivery review mechanism. The US system of congressional notification was designed to achieve this objective.78 An alternative, or supplementary, procedure involving pre-approval consideration by an independent or parliamentary body, is proposed and discussed later in the concluding chapter. An essential constitutional point is that adopting any such new mechanism would involve recognising that the issues involved are too important to be left solely to the Executive, notwithstanding that historically it has enjoyed nearoverwhelming dominance in matters relating to foreign policy and international relations. It may be said: not before time. Moreover, such a move would be broadly in line with parallel developments, such as the establishment of a parliamentary committee to oversee the various intelligence services,79 the statutory recognition of Parliament’s role in the ratification of treaties80 and perhaps most striking, the acceptance of a convention that no government will send UK troops to participate in an armed conflict without parliamentary approval.81 At present, however, the legislature has a purely reactive role of retrospective scrutiny. For many years, the UK system of parliamentary accountability was regarded, especially within Europe, as an excellent model to follow, but the picture has clouded, and it is now unclear whether the history of parliamentary oversight of UK arms exports stands as a beacon of light or a cautionary tale.

V.  Parliament and Arms Sales In keeping with its generally residual role in international matters, Parliament had long lacked any recognised role in relation to arms sales. Particular controversial matters intermittently arose and individual MPs would raise questions, but Ministers normally were evasive and there was no permanent, institutional machinery by which parliamentarians could inquire about and debate controversial exports. One of the most fundamental of the Cook-influenced changes was the establishment in 1999 of a unique Committee of the House of Commons. Two decades earlier, the House had established permanent so-called Select Committees to review the work of specific government departments, which they ‘shadow’ directly. This followed a recognition that the whole House, given its size and range of other functions, plus its debating format which inevitably highlights partisan divisions,

78 See chapter nine. 79 Inaugurated by the Intelligence Service Act 1994, the role of the Intelligence Service Committee, comprising members of both Houses, has widened over the decades. Its reports are still heavily redacted by the Prime Minister, however. 80 Constitutional Reform and Governance Act 2010, Part 2 (ss 20–25). 81 This was accepted by Prime Minister David Cameron in 2011, and had practical application in August 2013 when Parliament rejected his proposal to send UK troops to Syria. See further: researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7166#fullreport.

Parliament and Arms Sales   119 cannot possibly probe particular issues calmly and with the attention to detail required to produce an effective evaluation of government policy in any particular area. Since arms sales involve the work of several departments, an almost unprecedented appreciation of the value of joined-up government led to the creation of the so-called ‘Quadripartite Committee’, renamed the Committees on Arms Export Controls (CAEC) in 2008. Its membership is drawn equally from four constituent Select Committees: those covering trade, foreign affairs, defence and international development. The underlying idea was that some members of each of the main committees who had interest in the subject could usefully contribute different perspectives and emphases, drawing on a wider range of knowledge as they questioned Ministers and representatives of civil society organisations. The latter, often critical of government policy, are nonetheless widely recognised to possess expertise in the subject. Members of the constituent committees would choose to join if interested, and it is fair to say that the degree of individual commitment to what was an additional responsibility varied greatly.82 The key figure is the Chair, who is selected by the others at least in part due to willingness to devote major attention to the subject. The Chair is more important in the context of CAEC than with any other parliamentary committee, precisely because of its peculiar status.83 As well as devoting time and developing deep knowledge, he must be a diplomat and a consensus-builder. CAEC Reports, unlike those of select committees,84 must be unanimous; they otherwise must be remanded for approval to the committee on which the objector sits. What was not sufficiently appreciated were the disadvantages of its unique status within the arcane world of Parliamentary machinery. The most important is that CAEC had to be formally reconstituted after the election of a new Parliament, not merely – as with all select committees – because of the turnover of MPs, but because its very existence was not automatically provided for. This was not a problem until after the 2015 General Election, when it took months for CAEC to begin operations, partly because of difficulties in finding sufficient members from each ‘feeder’ committee, and partly due to an inability to agree a new Chair. Secondly, unlike the departmental committees, CAEC was not guaranteed the workable level of staff support. Most committees have several staff members and a Clerk, but after 2015 CAEC’s support was reduced to less than one part-time Clerk, severely hampering its effectiveness in view of the key role of that official in assisting the assembling of evidence and the writing of reports. All of these defects fed into the shambolic saga of the consideration of approval of licences for exports to Saudi Arabia in the autumn of 2016, described below. 82 This apparently minor observation is actually of great importance, because unless two members from each of the constituent committees are present at a meeting of CAEC, it is not quorate under the Standing Orders of the House and proceedings must be suspended. 83 Unusual dedication is required for the person filling the post, because unless Chairs of denominated Select Committees, the CAEC Chair is not paid. 84 Due to the fact that it is constituted from the members of the four ‘feeder’ committees, CAEC itself does not enjoy full select committee status.

120  The UK: Innovation and Dependency CAEC’s formal mandate is to produce a report scrutinising the required Annual Report published by the four relevant departments.85 The Committee’s reports during the first decade of the 2000s, with a Labour Government in office, produced a number of gains in relation to speed of response to questions and availability of some kinds of information.86 Its activities entered a new, more active phase after the 2010 General Election and the coming of the new Chair, ­Conservative MP Sir John Stanley.87 Stanley brought with him a highly unusual degree of long-term interest and expertise in arms exports (as did some members of the feeder committees). In his 20s, he had co-authored a book on the subject which still repays reading.88 He soon thereafter entered Parliament, and held two ministerial portfolios in the MOD in the 1980s. He took over the chairmanship at the end of a long parliamentary career with no further political ambitions, enabling him to enjoy a degree of independence from party and government positions shared by the most effective Select Committee Chairs. Under Stanley’s prodding, the Government began delivering to CAEC country-by-country data relating to SIELs and OIELs approved for exports to countries on the FCO’s ‘Countries of Human Rights concern’ list. This information covered the number of ‘extant’ licences – those in force – and the total value of all SIELs.89 After CAEC added another seven countries to that list, the same information relating to them was provided. As part of its reporting obligation, the Government produces Quarterly Reports which includes each individual licence refused or revoked, and the Criteria under which the decision was taken. All this information was published, along with a series of personal recommendations by the Chair, in a supplementary volume to the main Report.90 Each quarter, Stanley – assisted by a single Clerk – drilled down into the licensing data and repeatedly asked further questions and requested more detail. This involved an ‘amazing’ amount of extra work for civil servants, but the FCO Unit found the process of

85 See above, p 111. 86 For an overview of those years, see Z Yihdego, ‘Arms Sales and Parliamentary Accountability: The Role of the Quadripartite Committee’ (2008) 61 Parliamentary Affairs 661. 87 The account of CAEC’s activities since 2010 presented here draws upon information gained from interviews with Sir John Stanley (who left the Commons in 2015); Graham Jones MP (Lab), who became Chair of CAEC in 2017; Lloyd Russell-Moyle MP (Lab), who became a member in 2017, Dr Julian Lewis MP (Con), Chair of the Defence Committee and Mr Keith Neary, Clerk to the CAEC in the 2010–2015 Parliament. 88 J Stanley and M Pearton, The International Trade in Arms (London, Chatto & Windus, 1972). 89 It refused to disclose the value of individual SIELs, despite repeated requests, claiming that commercial confidentiality prevented such disclosure. 90 See, eg, the CAEC Second Joint Report of Session 2014–15, HC 608, vol II, ‘Memorandum from the Chair of the Committees’, 52–58, 197–212 respectively. This was the final Report appearing under Sir John Stanley’s chairmanship. These memoranda were generally longer and more detailed than the full CAEC Report they accompanied. As they were put forward in the Chair’s name, they did not require unanimous approval of his colleagues, nor were they submitted to the constituent Committees for consideration and approval.

Parliament and Arms Sales   121 responding to be ‘good discipline’ which made them more ‘coherent’ in their decision-making and thus better able to defend the result. The degree of detail was indeed ‘amazing’: Stanley’s final Chair’s Memorandum, containing all the ­licensing information, and communications between CAEC and the Government, ran to 640 pages. The result was that a more comprehensive picture of government practice emerged that had ever been publicly available, or is available in any other country. Coupled with the substantive Reports themselves, which often contained significant criticism of particular policies,91 CAEC generated a high profile for arms trade issues. It also attracted considerable attention elsewhere, leading to educational visits by parliamentary delegations from several European States. Sir John Stanley stood down at the Election of 2015, and as noted earlier, it took several months after the new Session began to reconstitute CAEC. Having got off on an unfortunate footing, matters got much worse, as it turned its attention to arms exports to Saudi Arabia and their use in Yemen. Here the problems of dissent on the substantive issue, intertwined with the Committees’ peculiar structure to produce a shambles. A draft report was produced92 and approved by one component Committee, International Development, but it was rejected by the Foreign Affairs Committee, which produced its own. Because the accepted conventions of how reports are to be drafted and agreed were not followed, Dr Julian Lewis, Chair of the Defence Committee, refused to consider it at all, or to produce a separate report; in this he had the support of his committee’s members. Consequently the most important issue concerning arms exports Parliament faced at that time was never addressed by CAEC. It further dwindled into i­naction, ­producing no Scrutiny Reports for two years. Nor did it probe any of the ­Quarterly Report data. Following the 2017 General Election, CAEC was reconstituted, this time under a Labour Chair, Graham Jones MP, who succeeded in gaining increased support staff. His approach is very different from Stanley’s, in part due to the situation he inherited. CAEC is playing ‘catch-up’: its first Report, delivered in July 2018 and devoted to scrutiny of the Government’s annual report covering 2016, also had briefly to look back at the two preceding years, which otherwise would have passed with no scrutiny at all.93 But the approach and emphasis of the Report is very different from the Stanley years. It offers some sharp criticism on matters of efficiency, transparency and failure to provide certain types of 91 An example of particularly trenchant criticism was offered in chapter three at p 52 above. However, governments are not bound to accept the criticisms, and on many occasions did not. 92 The identity of its author remains unknown. 93 See publications.parliament.uk/pa/cm201719/cmselect/cmquad/666/66606.htm, HC 666, 18 July 2018. It should be emphasised that there is always an extensive time delay in relation to CAEC Scrutiny Reports. The Government normally publishes its Annual Reports in July, relating to the previous year; CAEC reconvenes in the autumn, takes evidence and produces the results of its scrutiny the following year. Thus the Annual Report covering 2016 appeared mid-2017 and elicited the CAEC response in 2018.

122  The UK: Innovation and Dependency relevant information. It took a strongly critical line concerning the absence of any end-use monitoring, or indeed any form of audit of companies operating under Open licences.94 More contentiously, it radically reduced the attention given to human rights issues, and managed, extraordinarily, to say almost nothing about Yemen. It is unclear whether this reflects unbridgeable divisions within the CAEC and a perceived need to re-establish an approach based on consensus – ­something Mr Jones stressed – or his own view of the Yemen war, which is greatly at odds with the majority of his Party. Equally uncertain is whether CAEC will resume the practice of interrogating Quarterly Reports, particularly in relation to exports to countries with human rights concerns. What is clear is that CAEC is now f­ unctioning once again, but in a different way and with a lower profile than its 2010–15 predecessor. This has left a large gap in Parliament’s ability to hold the Government to account on human rights and IHL violations, and arms exports. An evaluation of the UK’s experience with parliamentary oversight should begin with clarity about what that is meant to achieve. With decisions resting with the Executive, and (as will be seen) the courts limiting themselves to review based on process – Parliament is the only body that can seek to exert influence over the substance of policy and practice on behalf of civil society. It can offer reasoned critical views on particular issues, focussing on those that are particularly controversial because of the conflict of a range of interests and rights. To mould and present those views, which may include recommendations for changes in policy – it needs to ensure that the Government supplies accurate and comprehensive information.95 It should ensure that such information becomes publicly available, so as to stimulate public interest and debate.96 But in the UK – and in contrast to experience elsewhere,97 it has never attempted to secure power to disapprove, or even delay, granting of specific export licences. Over nearly two decades, CAEC has had success when it was strongly led, had a core of members willing to take on the additional duties, and was persistent in highlighting issues and demanding more information. It was able to raise public awareness of the importance of UK arms exports in certain crises, such as the Arab Spring. Given the limitations owing to its peculiar status within the Select Committee structure, it is particularly dependent on the ability of the Chair to successfully manage relations with the feeder committees, as well as among

94 Ibid, paras 56–61. 95 CAEC receives expert evidence, oral and written, in the ordinary manner. As it is not technically a Select Committee, its power to compel evidence from civil servants has never been tested. 96 As with other committees in relevant areas, such as the Defence Committee, CAEC does not receive information classified confidential. This has not been regarded as an obstacle to fulfilment of its work. More contentious have been a few episodes where information said to be commercially confidential has been withheld until CAEC agreed to receive it in private, which it did. 97 See chapters eight (Sweden) and nine (USA) in relation to this. Sweden, a parliamentary system like the UK, offers more applicable learning than the USA, where the constitutional division of powers between the President and Congress does not allow easy transference.

Arms Sales and Judicial Review  123 its own diverse membership. Where these elements were weak or absent, CAEC suffered badly. Looking to the future, some reforms, easy to implement, would greatly augment CAEC’s effectiveness. Whilst one cannot legislate for the qualities of individuals, putting CAEC on a more secure basis within Parliament would give it greater institutional strength. Most importantly, it should enjoy full Select Committee status. This would guarantee its existence in each new Parliament. Its members would be chosen in the manner of all Select Committees, and its Chair would be elected by the House – and be paid. It would possess the same powers and, most importantly, reports would not require approval of four other constituent committees: its reports would be its own. Nor would its ability to hold meetings be dependent on satisfying cumbersome quorate requirements. It is unusual for a Select Committee not to mirror a particular department of government; however when the Intelligence and Security Committee (ISC) was established in 1994, it was given oversight of MI5 and MI6 (GCHQ was added later). Though the intelligence agencies may work together far more seamlessly than was true a quarter century ago and now have a closer parallel to a single department, that was not the case when parliamentary oversight began, and the ISC managed to overcome any difficulties caused by fragmentation. There is no reason to suppose a Select Committee on Arms Exports could not do the same.

VI.  Arms Sales and Judicial Review A.  Judicial Review of Export Licence Approvals Under English administrative law, any challenge to a decision by a government department to either deny or grant an export licence must be considered under the general principles governing judicial review of administrative action. In the absence of a claimed violation of one of the rights included in the Human Rights Act 1998, administrative action can only be successfully challenged on limited grounds. These may be either procedural – eg the decision was reached by a flawed process such as denial of a fair hearing,98 or substantive. It is the latter that is most relevant in the present connection. To oversimplify an extremely complex topic99 – it may include matters such as an error of law by acting beyond the powers granted by a statute, acting for improper purposes, and

98 This is just one example of the broader principle of fairness or natural justice. 99 For detailed review of case law, see H Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014) 295–318. P Craig, Administrative Law, 8th edn (London, Sweet & Maxwell, 2016) paras 21-006–21-006, presents a succinct analytically sophisticated analysis.

124  The UK: Innovation and Dependency taking account of ­irrelevant considerations or failing to take account of relevant ones. Most controversially, because it takes the courts closest to substituting their views on public policy for those of the elected government, administrative decisions can be declared illegal on grounds of unreasonableness or irrationality. Precisely because of those political overtones, this is a very restricted ground, although it has often been controversial when the courts have been accused of overstepping the mark and invalidating an administrative decision by interpreting legislation in a politically biased way.100 One avenue of review that might be available in some legal systems is entirely outside the scope of judicial consideration. The UK has a dualist legal system, in which treaties which bind it as a matter of international law only become part of the domestic legal order in the sense of permitting litigants to assert rights arising under them when they have been enacted by Parliament as statute law. Thus, even assuming the terms of the Arms Trade Treaty might give rise to individual rights or enforceable duties, it has never been enacted as a UK statute, and no claim for judicial review for non-compliance with it can be considered by a UK court. This is the context within which any challenge to an export licence decision must be heard. One marked feature of the UK system is that no challenge to denial of a licence has ever appeared in any law report. Explanation remains a matter of conjecture, though one obvious factor is that the number of denials is tiny in proportion to overall applications.101 When interviewed, Mr Chris Chew, Head of Policy at the Export Control Office, rejected the suggestion that fear of judicial review keeps the number so small, though officials are certainly aware that any decision would be open to challenge if outside the law. He noted that a number of the denials were based on fairly minor technical grounds – eg failure to produce all the required material in the right form – and after reworking, a second application was approved.102 The far more contentious question of suspension or revocation of an existing licence has a very long history, extending as far back as the debates about continuing deliveries of arms to South Africa after the Sharpesville massacre in 1960.103 As we have seen, it became particularly acute when Labour returned to office in 1997, proclaiming an ‘ethical foreign policy’ and faced with the need to decide whether several hundred millions of pounds worth of existing orders placed by

100 This line of attack had historically come from the political Left. A classic exponent of this view was the late Professor John Griffiths, who expressed it in successive editions, of which the last was J Griffiths, The Politics of the Judiciary, 5th edn (London, Fontana, 1997). It is remarkable to see how it has been adopted by the political Right, in the two contexts of litigation involving human rights ­challenges to government action, and of Brexit. 101 Using figures found in the Annual Report for 2017 (above, p 101), the sum of the various forms of Individual and General licences granted was almost exactly 19,000; by contrast, there were 405 ­refusals and revocations. 102 Interview, 15 November 2016. 103 Phythian (n 1) 5–9.

Arms Sales and Judicial Review  125 Indonesia should be filled. It chose to fulfil existing contracts.104 Subsequently reinforced by administrative regulations providing for licence suspension or revocation,105 it has thus far entirely avoided judicial review of the exercise of this power. This may at least in part be due to the wish of exporting companies not to antagonise those whose consent they would need when seeking licence approval for future deals. No one has sought to argue, for example, that their property rights under the Human Rights Act were infringed by a licence suspension without adequate compensation.106 And more concretely, exporters with significant contracts have learned to include a force majeure (higher power) clause, protecting themselves from claims by the purchaser for compensation or specific performance, in the event of a government ban.107 The practical importance of this legal framework was illustrated when the UK Government revoked more than 100 licences in response to repression of the Arab Spring in 2011–12, none of which led to compensation claims. The converse of this relationship was at one time far more controversial. The exporter has a direct personal financial interest in approval of a licence, and therefore would unquestionably have right of access to a court to challenge the legality of a denial. But those who believe that under the Common Criteria the proposed export of particular equipment to a specific recipient would be illegal because of its potential use for repression or atrocities in war, are seeking to vindicate the public interest in preventing illegal conduct by the Government.108 Such litigants generally have no direct personal stake and indeed may not be a human person at all: NGOs are often best equipped in terms of expertise and finance to bring public interest cases. It took many years before the English courts accepted that such ‘private’ parties109 should be recognised as having a legitimate role in ensuring that Government complied with the law: in technical terms, to grant them standing, or locus standi, to raise such issues before the courts.110 104 See above, chapter two at pp 36–37. Beyond fear of legal actions for compensation, other considerations factored into that decision, including a fear that the UK would be seen by other nations as an unreliable supplier and lose substantial business. 105 Export Control Order 2008, Article 32 (1); see above n 41. 106 It is highly unlikely that an export licence would be regarded as a form of ‘property’, particularly because of the presence of the suspension power within it. Also, it is important to note that under English administrative law, no damages are available for an ultra vires (beyond powers) act, so that even if a suspension were ruled unreasonable, no compensation could be received. It is possible that ­different administrative law systems might produce a different result. See Professor Hanschel’s d ­ iscussion in chapter six. 107 Interview with Brinley Salzmann, Director – Overseas and Exports, ADS, 14 January 2016. Force majeure clauses are frequently found in large, especially international contracts. They exempt a party from liability for non-performance where they are prevented from doing so by interventions such as war or political intervention. 108 It is perhaps worth stressing that whilst the mainspring of their opposition may be grounded in morality, any argument put before a court must be cast in terms of legality. 109 The quaint and rather misleading label given entities that are not public bodies, ie branches of any level of government. 110 Before the landmark House of Lords judgment in R v IRC ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, the accepted view was that the Attorney-General (AG) should

126  The UK: Innovation and Dependency However, as some of the other chapters in this book indicate, other States with different legal traditions take the view formerly dominant in England. It may therefore be impossible in those jurisdictions to bring a challenge to the legality of an export licence approval to the courts.111 Making it successfully through the courthouse door by no means guarantees success in the courtroom. One obstacle is the secrecy surrounding individual licencing decisions, which in the past has proven a great barrier. The application is a confidential business matter between the DIT and the applicant, and individual approvals and rejections are never published. Indeed, general data about licences to specific destinations have also been withheld by the Government, which regularly invokes the broad exemption in the Freedom of Information Act 2000 covering any information, the disclosure of which ‘would, or would be likely to, prejudice the relations between the UK and any other State’ or ‘the interests of the UK abroad’, or is information that has been obtained in confidence from another State.112 Attempts to challenge this use of the law have mostly been unsuccessful,113 and even those in which the applicant has prevailed related to matters occurring many years previously.114 have the exclusive right to vindicate this public interest. This raised obvious political conflicts of interest given that the AG is a member of the Cabinet. After the World Development Movement was granted standing by the Divisional Court to challenge misuse of public money in a complex deal involving arms sales, corruption and aid to Malaysia (R v SoS for Foreign and Commonwealth Affairs, ex p. World Development Movement, [1995] 1 WLR 386), the courts have granted standing to public interest organisations like Greenpeace and Joint Council for the Welfare of Immigrants to challenge alleged illegality, generally without objection from the Government. The CAAT litigation, discussed at pp 127–130 below, is the latest example. 111 Professor Hanschel’s discussion of judicial review is limited entirely to parliamentarians, excluding individuals entirely: see below, chapter six. The German legal tradition has historically been very influential in central and eastern Europe, and it is therefore likely that the courts in many other EU States would follow the same restrictive course as those in Germany. The same is true of the USA, where Professor Spear reports that the only judicial consideration of arms exports concerned the relative allocation of constitutional competence between the President and Congress; see chapter  nine. The absence of judicial involvement may well reflect a restrictive approach to individual standing articulated through the doctrines of ‘injury in fact’ to a protected ‘zone of interest’ (conceived in personal terms) found in the relevant legislation, allied to a restrictive view of causation. See, eg, Lujan v Defenders of Wildlife, 504 US 555 (1992). However there are later cases, also raising issues relating to environmental damage, which seem to take a less restrictive approach, see, eg, Friends of the Earth Inc v Laidlaw Environmental Services, 528 US 167 (2000). The governing principles remain cloudy, but it does seem that allowing a challenge to an authorised arms export, where the damage would be inflicted outside the country, would require a significant liberalisation of the law on standing. 112 Freedom of Information Act 2000, s 27(1) and (2). This section is regularly cited to deny information sought by MPs’ Parliamentary Questions; see, eg, HC Deb, 16 July 2019, cW, in response to a PQ by Catherine West MP concerning the cumulative value of pending licence applications for exports to Saudi Arabia. FOI statutes in all jurisdictions invariably contain very similar provisions. 113 See further Z Yidehgo, ‘Arms Trade and Public Controls: The Right to Information Perspective’ (2009) 59 Northern Ireland Legal Quarterly 379. Subsequent Tribunal decisions have been in the same vein. 114 The research of Nicholas Gilby, who in 2008 prevailed in an Information Tribunal appeal against the FCO and has provided valuable documentation of bribery involving UK companies, supported by officials, concerned acts occurring in the 1960s and 1970s. See N Gilby, Deception in High Places (London, Pluto Press, 2014), especially chs two to four.

Arms Sales and Judicial Review  127 Even if the courts were to overturn their longstanding resistance to imposing a common law requirement that reasons be given for administrative decisions,115 approvals would doubtless be couched in terms like ‘there are no reasons to believe that this application raises issues under the Common Criteria’ or ‘the provisions of the Common Criteria appear to be satisfied’. Given the sheer number of applications annually – the great bulk of which are uncontroversial under the current standards116 – imposing a requirement of more detailed justification would be onerous and in most cases unnecessary.117 Thus to challenge an approval as unlawful, a public interest litigant must be able to mount at least a prima facie case that the recipient has used the equipment in ways that are contrary to one or more of the Criteria, and that shipments under extant licences are likely to continue. It must also penetrate the Government’s decision process sufficiently to demonstrate that the authorities have, in approving the licence, failed to act reasonably or more precisely, acted unreasonably in the sense described above.118 These evidential issues were at the heart of the unprecedented Court of Appeal judgment rendered in July 2019.119 The action was brought by a civil society organisation, Campaign Against the Arms Trade (CAAT), which asserted that continued approval of shipments of planes and weapons to Saudi Arabia was illegal in light of the Criterion Two prohibition against exporting equipment where there is a ‘clear risk’ that it will be used to commit violations of IHL.120 The Divisional Court found against the Claimants (who were joined by other civil society organisations as intervenors, providing written submissions in support). That judgment121 emphasised heavily the high barrier faced by Claimants attacking a decision on grounds of irrationality, and decided they could not surmount it. It gave particular emphasis to the nature of the decision involved, carrying overtones of national security, an area in which courts have accepted they have limited institutional competence. It also rejected a range of criticisms of how the Government had formed its judgments about the risk of IHL violations. On appeal, it was common ground between the parties that irrationality is indeed ‘a deliberately high threshold’ for Claimants to cross,122 and that the

115 This is a subject of longstanding debate. See, eg, Craig (n 99) paras 12-038–12-045, and the detailed account in M Elliott and J Varuhas, Administrative Law: Text and Materials, 5th edn (Oxford, Oxford University Press, 2017) ch 11. Contrast the position in EU law: P Craig, EU Administrative Law, 3rd edn (Oxford, Oxford University Press, 2018) 369–72. 116 See above n 101. 117 For a judicial exploration of this point in relation to export licensing, see R (on the application of Hasan) v Secretary of State for Trade and Industry [2009] 3 All ER 539 (CA). 118 See above, p 124. 119 Campaign Against the Arms Trade (CAAT) v Secretary of State for International Trade [2019] EWCA Civ 1020. 120 Above chapter four at pp 76–77. 121 [2017] EWHC 1726 (Admin). 122 [2019] EWHC, para 57.

128  The UK: Innovation and Dependency ‘­decisions in question’ are in ‘an area particularly far within the responsibility and expertise of the executive branch’.123 It was also accepted that the Court’s decision was not about the merits of the licence approval, and that the final decision about the existence of a ‘clear risk’ remains ultimately with the Minister. However, the manner in which the Minister went about his decisions124 was found to be so inadequate that it could not support the rationality of the result. The flaw in the decisions was therefore procedural, but the flaw in procedure contaminated the outcome: in particular the failure to compile and take account of information that the Court saw as central to any rational decision on the issue. This approach drew upon long-accepted principles of English administrative law, most notably the so-called ‘Tameside duty’ to ‘take reasonable steps to acquaint himself with the relevant information’ in order to answer properly the question before him – in this case, the assessment of risk required by Criterion Two.125 Logically, challenging adequacy of fulfilment of that duty requires that the decision process be known to the challenger. In this case that was partially established by statements provided to the lower court by several senior officials in relevant departments. Perhaps more important, it was supplemented by material, much of it not publicly disclosed, but which was available under a special procedure. This is the so-called Closed Material Procedure (CMP) established by s 6 of the Justice and Security Act 2013. It is extremely controversial – numerous critics in Parliament and academia have argued that it would cause injustice to litigants challenging government decisions covering a wide range of activities under an expansive notion of national security.126 These points have particular force in relation to decisions concerning matters such as deportation, denying security clearances or freezing assets, which are heavily based on prediction of future conduct: is a particular person likely to act in some way that would create a ‘threat’ to a vital public interest. However, these objections are less applicable when the claimant seeks judicial review, and the key issue is how the government body has acted in the past. In the CAAT case, internal documents were made available to the claimant as open material which led deep into decision-making by the several government departments involved. It is highly likely that the Government

123 Ibid, para 144. 124 The approvals go through the process described on pp 114–115 above, involving input from multiple departments and several individuals in each, but are formally taken in the name of the individual Minister, now the Secretary of State for International Trade. 125 The term derives from the speech of Lord Diplock in SoS for Education and Science v Tameside MBC [1977] AC 1014, 1065, quoted in CAAT (n 119) at para 58. 126 See the analysis presented, and multiple sources cited, in P Scott, The National Security Constitution (Oxford, Hart Publishing, 2018) 209–21, and more recently L Graham, ‘Tariq v United Kingdom: Out with a Whimper?’ (2019) 25 European Public Law 43; L Graham, ‘Statutory Secret Trials: The Judicial Approach to Closed Material Procedures under the Justice and Security Act 2013’ (2019) 38 Civil Justice Quarterly 189. A key aspect of the procedure is that the Court sits both in open and closed sessions, hears open and closed material, and in addition to issuing an open – ie public – judgment (the one analysed herein), supplements it with a closed judgment which is never made public.

Arms Sales and Judicial Review  129 would have been able to withhold a significant amount of that material had discovery been controlled by Public Interest Immunity practice, which was displaced in CAAT by CMP.127 Moreover, under CMP, closed material – documents and other information excluded from the sight of claimants or their lawyers – is shown under confidential circumstances to so-called ‘Special Advocates’. These securitycleared barristers then make representations to the court or tribunal based on it, and in CAAT closed material – unavailable to the claimants but favourable to their p ­ osition – was cited at several points by the Court of Appeal to support its ­conclusion that the Government’s decision process was faulty. Having accepted the point that assessment of possible future risk must ­inevitably include evaluation of past conduct,128 the Court then stated: A close reading of the CLOSED evidence would suggest that in the early months of 2016 there was either a decision, or a change of position, so that there would be no ­assessment of past violation of IHL … [Thus] there is no document or documents to which the Secretary of State can turn, setting out the rationale by which it was thought right that no assessments of past violations should be made or even attempted.129

It continued: [W]ithout them, how was the Secretary of State to reach a rational conclusion as to the effect of the training, support and other inputs by the UK, or the effect of any high level assurances by the Saudi authorities?130 If the result of historic assessments was that violations were continuing despite all such efforts, then that would unavoidably become a major consideration in looking at the ‘real risk’ in the future. It would be likely to help determine whether Saudi Arabia had a genuine intent and, importantly, the capacity to live up to the commitments made.131

The result, as the Court emphasised, was a ruling of deliberately narrow scope. It did not undertake the risk assessment itself, but quite explicitly remitted that task to the Secretary of State, thus recognising the paramount role of the executive branch and the restricted scope of judicial review, devoted to ensuring the requirements of rationality.132 The practical result was to require the Government to undertake a review of past licence approvals, and not to issue new licences for exports to Saudi Arabia until that process is completed and – presumably – a more robust process of risk assessment is put in place. However, and with what seems an inexplicable contradiction, the extant licences remained legally in effect, and thus deliveries under them were permitted to continue. 127 For further discussion of this contentious procedure, see Scott (n 126) 196–203 and Craig (n 99) Ch 13. The view expressed here differs in part from these analyses because of the difference in context: judicial review, as against cases affecting specific individuals. 128 This conclusion seems inescapable as a matter of logic. 129 CAAT (n 119) para 141 (emphasis added, but capitals in the original text). 130 Both of these factors had been relied upon by the Division Court in upholding the rationality of the decisions to approve licences. 131 CAAT (n 119) para 144. 132 CAAT (n 119) paras 144–45. The possible application of the principle of proportionality was not raised by any party to the case.

130  The UK: Innovation and Dependency The Government has been granted leave to appeal the ruling to the Supreme Court. Assuming the judgment remains undisturbed, essential questions about practical impact remain. First, as was agreed by the Claimant, the extant licences, of which there were approximately 60, were unaffected, so deliveries under them continued uninterrupted. Second, although the Government was required to develop a new decision process to satisfy the Court’s ruling, the judges did not lay down guidelines or standards to adhere to: crafting administrative process was left to the Executive branch. It seems also that the details of any procedural changes need not be publicly disclosed. Hence these will remain unknown unless and until a sufficient number of deaths over a significant period of time make it apparent that flaws remain, and civil society groups are compelled to return to the courts.

i. The CAAT Case and the Impact of Law The necessary implication of the Court’s approach to its reviewing role is that only if things go very badly wrong is there scope for judicial intervention. This fits comfortably within the canons of administrative law, and at most may represent a modest, though important, extension of judicial review principles. That conclusion has important implications for the questions raised in chapter two about the role of law in this sphere of governmental action. Clearly the existence of the Common Criteria, and the EU’s accompanying guidance in the form of the User’s Guide,133 were treated by the domestic court as binding on the administration. This represents a significant legal restriction on absolute discretion – pure political decision-making – and it has been shown to have practical effect. The effect has two dimensions: the requirement to justify the legality of challenged decisions to a court, and secondly that civil servants making the numerous daily decisions must structure them in light of the legal rules. However, the extent to which court review will curb the outcome is sharply limited by settled administrative law principles about substantive review designed to contain judicial oversight within narrow bounds, permitting officials to execute public policy unless there is substantial deviation from accepted norms. This residual role is reinforced in the context of arms exports by the long-established view that in areas related to ‘national security’ and foreign policy, the courts should be more than normally deferential to the executive branch.134 Thus whilst there is undoubtedly value in securing that licensing controls take the form of legally-enforceable rules, and

133 European Council (COARM) 153, User’s Guide to Council Common Position 2008/944/CFSP (16 September 2019) and also discussed above in chapter three at p 55. 134 For analyses and critiques, see most recently Scott (n 126) 238–48, and A Tomkins, ‘National Security and the Role of the Court: A Changed Landscape?’ (2010) 126 Law Quarterly Review 543. For a sense of how the debate, academic and judicial, has moved over two decades, see the discussion in L Lustgarten and I Leigh, In From the Cold: National Security and Parliamentary Democracy (Oxford, Clarendon Press, 1994) 329–34, 338–41 and 348–59.

Arms Sales and Judicial Review  131 that those rules be drafted so as to express the restrictions in terms as explicit as practicable, the primary responsibility for the proper application of those rules will remain with the executive branch. It will be through the political process – parliamentary oversight and civil society campaigning – that compliance with the rules will most effectively be monitored and enforced. The role of the courts will remain residual.

B.  Judicial Review, Corruption and the Constitution Nothing better illustrates how deeply arms exports, especially in the dominant (corporate) person of BAE, have burrowed into the core of UK politics – and from there into the legal system – than the manner in which BAE escaped prosecution in relation to the al-Yamamah contracts. After whistleblower revelations appeared in the Press,135 the company became subject to a lengthy investigation by the UK Serious Fraud Office (SFO) concerning bribery in relation to securing the contracts. This investigation concerned BAE only: at no time was it directed at criminality by Saudi officials or citizens beyond UK jurisdiction.136 It continued for nearly two and a half years, and had progressed to the point where, in the summer of 2006, SFO investigators had traced millions of pounds which had accumulated in accounts held in the Bank of England which were transferred to accounts in Switzerland. It was suspected that these were transfers of money used to bribe various Saudis, including some of the most important members of the Royal Family.137 At that point, in the words of Robert Wardle, Director of the SFO, ‘we found that Saudi authorities did not want those inquiries to be made’. This was

135 What is presented here draws on material appearing in newspaper accounts over many years, particularly investigations by David Leigh and Rob Evans of The Guardian (n 32 above) who received the first whistleblower disclosures, reports in The Sunday Times and, based on a WikiLeaks document, The Daily Telegraph. The material has recently been well summarised in D Wearing, AngloArabia (London, Polity, 2018) 40–43, 166–75. Fuller documentation may be found in A Feinstein, The Shadow World: Inside the Global Arms Trade (London, Penguin Books, 2012) Chs three, five, and seven. The most succinct and piercing report, which drew on much of that material and also contained interviews with several persons outside the UK who were deeply involved in the events, came in a BBC Documentary, ‘The House of Saud: A Family at War’, Part Two, aired on 16 January 2018, from which otherwise unattributed quotes and factual statements in the text are taken. The Divisional Court judgment in the case under discussion, R (on the Application of Corner House Research and others) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin), sets out the internal correspondence among various government bodies in great detail: see paras 8–44. 136 Such persons would inevitably have been complicit in any offences, but could not be charged. 137 The sum of all the bribes paid to the Saudis, primarily to various Princes, was estimated at £6 billion: in Feinstein’s words, ‘the most corrupt transaction in commercial history’. However, the first contract was signed in 1985 and investigation had to be limited to conduct occurring after ss 108–109 of the Anti-Terrorism, Crime and Security Act 2001 came into effect. Previous UK anti-corruption legislation did not apply effectively to overseas acts. (That legislation was in turn repealed and replaced by provisions of the Bribery Act 2010, when the UK finally enacted the OECD Anti-Bribery Convention of 1997.)

132  The UK: Innovation and Dependency lawyerly understatement for what Lord Bingham would later describe as ‘an ugly and obviously unwelcome threat’.138 Earlier, BAE had spoken with the Permanent Under-Secretary of the MOD, Sir Kevin Tebbit, arguing that compliance with the notices it had received from the SFO would involve releasing information that would jeopardise the al-Yamamah contracts and raise issues of confidentiality between itself and the MOD. It lobbied the Attorney-General, Lord Goldsmith QC, in the same vein. These actions were remarkable: the subject of a criminal investigation contacting high officers of the State to suggest that the investigation would be against the national interest. The fact that the recipients of these contacts expressed no shock or offence is a telling measure of the Company’s power.139 Indeed, Tebbit made two telephone calls urging that the public interest dimension be considered at an unusually early stage.140 Although something was said about the UK-Saudi relationship, the clear focus of the great pressure was on business: perhaps disruption of the existing contracts, but most importantly, refusal of future ones. The SFO refused to abandon the investigations, a decision supported by the Attorney-General.141 However, the pressure was ramped up in the ensuing months, with a radical shift in emphasis. Letters from the Cabinet Secretary to the Director were followed by no less than three meetings with the UK Ambassador to Saudi Arabia, who warned him that Saudi withdrawal of co-operation with the UK on anti-terrorist activities would mean ‘as he put it to me, British lives on British streets were at risk’.142 This card had not been played in the early stages of the effort to abort the investigation, and clearly was a calculated escalation of pressure. There followed the trump card: a personal minute from the Prime Minister, Tony Blair, to the AttorneyGeneral in which, after ritual obeisance to the independence of the Law Officers in matters of prosecution, he emphasised ‘the damage currently being done to Saudi confidence in the UK as an international partner’ with the possible consequence of ending ‘our exchanges with the Saudi authorities in countering international

138 R (on the Application of Corner House Research and others) v. Director of the Serious Fraud Office [2008] UKHL 60, para 41. This judgment reversed that of the Divisional Court (n 135 above). The account presented in the judgments of both Courts of the interactions between various elements of the Government, the Law Officers and the SFO are closely in line with the journalistic narratives presented in the sources cited in n 135. 139 The Legal Secretariat to the Attorney-General did however reply that it was inappropriate for the law officers to receive importuning messages for which confidentiality was demanded: Corner House Divisional Court judgment (n 135) para 9. 140 The standard test for whether a prosecution should go forward is in two stages: first, sufficiency of evidence and then whether there are overriding public interest considerations that might dictate abandonment. See the CPS Code for Crown Prosecutors www.cps.gov.uk/publication/code-crownprosecutors, issued 26 October 2018. One unusual aspect of the BAE case was that the pressure was applied before the investigation had come near to finishing, and hence probably years before any ­decision to prosecute would have been taken. 141 Corner House Divisional Court judgment (n 135) paras 1417. 142 Corner House Divisional Court judgment (n 135) para 28. The Ambassador, Sir Sherard CowperColes, soon thereafter became Ambassador to Afghanistan, and in 2011 became a Director of BAE.

Arms Sales and Judicial Review  133 terrorism’ and also loss of their co-operation in relation to the ‘highest foreign policy priority of working towards peace and stability in the Middle East’.143 The message was communicated to Mr Wardle, who then felt compelled to abandon the investigation. The result, in the words of the Divisional Court, was ‘a successful attempt by a foreign government to pervert the course of justice in the United Kingdom’,144 an action which, if perpetrated by an individual within the UK, would clearly have amounted to a crime. It also astutely pointed out, without comment, that only days before the Prime Minister sent his minute, that Prince Bandar bin Sultan, the key Saudi figure in procurement, had ‘spent the week in Paris negotiating the purchase of alternative fighter aircraft with President Chirac.145 The Director’s decision was challenged by Corner House, an NGO dedicated to researching and campaigning against corruption overseas, and the role of the UK within it. The Divisional Court’s judgment was unusually blunt, and in places expressed outrage. It emphasised with great force that the attempts to influence the Director’s decision was a grave violation of the rule of law. Their success required judicial intervention to redress the violation: safeguarding the rule of law is a paramount function of the courts under the constitutional precept of separation of powers. The Court intervened even as it recognised that prosecuting authorities enjoy a very wide discretion in relation to investigations and prosecutions. It declared the decision to abandon the investigation unlawful. Doctrinally, the Divisional Court purported to identify a principle, grounded in fidelity to the rule of law, to justify judicial intervention into this normally almost unconstrained prosecutorial discretion. The House of Lords was not persuaded by the result, and unanimously reversed, holding that the Director was entitled to take account of the representations by the Prime Minister, the Ambassador and others.146 The doctrinal dispute is beyond the scope of this book. What the case does present, and represent, is the power that arms sales, and the health of the UK’s largest weapons manufacturer, exerts throughout the political system. The House of Lords took the view that, however regrettably, the ‘realities’ of international politics which create dangers to public safety must be respected, whatever the cost to the integrity of the UK’s legal system. This both expresses and supports a comforting interpretation of events: of good people compelled to make a hard choice, sacrificing an important principle for the greater (human) good. Unfortunately it rings hollow. The sequence of events strongly suggests that the Saudis came up with the ­ultimate threat of non-co-operation on terrorism when less aggressive approaches failed. Why did they up the stakes so dramatically? It is safe to assert that the

143 The full minute from the PM is quoted at great length at Corner House Divisional Court judgment (n 135) para 31. 144 Corner House Divisional Court judgment (n 135) para 6. 145 Corner House Divisional Court judgment (n 135) para 30. 146 Above n 3. Lady Hale expressed qualms (paras 52–57), but joined the result.

134  The UK: Innovation and Dependency facts to support a definitive answer will never become publicly available, so any interpretation, such as that offered here, must be based on reasonable inference. It would seem that they wanted to avoid any public scandal, and in particular, anything that cast a dark shadow on Prince Bandar, the individual who would have been most exposed, as he was later alleged to have personally received payments of more than one billion pounds from BAE in relation to al-Yamamah.147 It is notable that he never began any action under English defamation law which, at the time, made London notorious as the libel capital of the world.148 Indeed in an interview from 2001, rebroadcast by the BBC in 2018, he displayed a remarkably casual attitude towards corruption.149 Testimony and documents presented in open court would have been a different matter, however, and in subsequent US proceedings relating to the same contracts his lawyers were at pains to emphasise to the Saudi Embassy in Washington that their negotiations with the Department of Justice had succeeded in removing any references to the Prince and the al-Yamamah deal in the eventual settlement agreement between BAE and the Department of Justice.150 That agreement, in addition to maintaining strict secrecy, also reduced the original bribery charges to those of false accounting and making misleading statements – a critical resolution for BAE, for criminal conviction for bribery would have led to debarment from bidding on US government contracts in future. The supine response of the UK Government under Tony Blair is even more intriguing: it seems never to have even attempted to push back against the Saudi threat. It never responded, as the Divisional Court suggested it could and should have done, by insisting that constitutional arrangements in the UK would have ensured that threats of this kind on the SFO would be struck down by the courts.151 And at a less exalted, more viscerally effective level, it could have threatened in effect to immobilise the Saudi Air Force, by immediately withdrawing all members of the UK military, whose presence has always been essential to the functioning of the Saudi Air Force as pilot instructors and technical advisers on the use of electronic systems. (Indeed some of them provide assistance on the running of the al-Yamamah programme itself.)152

147 D Leigh and R Evans, ‘BAE Accused of Secretly Paying £1 bn to Saudi Prince’ The Guardian, 7 June 2007. 148 The major reforms enacted by the Defamation Act 2013 were specifically intended to protect media and commentators by widening defences available, notably with respect to public interest (s 4) and honest opinion (s 3). These were not available when the allegations were published. 149 Above n 135. No one could accuse the Prince of lacking a sense of humour. He said, ‘We did not invent corruption, this happened since Adam and Eve … [they] were in Heaven, they had hanky panky and they had to go down to Earth, so this is human nature’. 150 C Swisher et al, ‘US Investigation into BAE Saudi Arms Deal Watered Down, Leaked Memo Suggests’ The Guardian, 6 March 2018. This is a report based on a memo from the Prince’s lawyers, leaked many years after it was written in 2010. 151 Corner House Divisional Court judgment (n 135) paras 79–80. This of course would have been the position had that Court’s judgment been upheld. 152 See above, pp 109–110.

Arms Sales and Judicial Review  135 Playing those cards might have allowed the investigation to proceed unimpeded. It might also very possibly have led to the expiration, and even more likely non-renewal of al-Yamamah, thus jeopardising BAE’s viability and the continued employment of many of its staff. Instead, a few months after the investigation was halted in December 2006, Blair visited Saudi Arabia to sign a multi-billion pound extension of the deal. The obvious result was that BAE escaped any further investigation. It was not alone. The corruption allegations also contended that the payments were made with the knowledge and acquiescence of officials in the Ministry of Defence. A full investigation would have required interviewing senior UK civil servants and even military officers,153 as potential criminal suspects; the same might have applied to certain officials of the Bank of England in relation to offences of complicity. MOD involvement might well have been pleaded as a defence if a prosecution had gone forward, in parallel with the defence that caused the presiding Judge to terminate the Matrix Churchill prosecution.154 This may well have been in the mind of the Attorney-General when he reportedly warned Cabinet colleagues that ‘government complicity’ might become public knowledge if the investigation was not prevented.155 In sum, the perceived dependence of the UK on its economic and political relations with Saudi Arabia had caught both its major arms exporter and its own officials in a web that, to put it at the very lowest, ensnared them in potentially criminal conduct. Hence in another instance of the ‘too big to jail’ phenomenon156 corrupt practices inseparable from arms exports to the UK’s leading customer escaped both full public exposure and criminal justice. The damage done by capitulation to the Saudi threats ran deep, to the structure of the UK constitution itself. That has been deformed by a significant dependency on a corrupt autocracy, of which one vital element is the billions of pounds involved in arms sales. Most of the critical fire directed at the arms trade over past decades has concentrated on the human and material destruction caused by conflict in the Global South. It has too often been assumed that exporting States have remained untouched. But the UK, and to some extent other exporters,157 has suffered damage of a different form – not bloody and less tangible – but a very real damage to the legitimacy of government. It would be hard to imagine a better illustration of the saying from the Apocrypha: ‘he that toucheth pitch shall be defiled’. 153 Both civilian and military officials participated in the activities of the Defence Sales Organisation, which was said to be where the funds used for bribery were held. 154 See above, pp 108–109. 155 Leigh and Evans (n 147). The interpretation offered here was developed before reading Wearing (n 135) 174–75, who presents a similar view. 156 B Garrett, Too Big to Jail (Cambridge, Massachusetts, Harvard University Press, 2014). The author, a US criminal law professor, limits his study to the USA, but its lessons carry over directly to the UK because the Deferred Prosecution Agreements he discusses and criticises have become part of UK practice since Schedule 17 of the Crime and Courts Act 2013 came into force. 157 As reported in chapter seven, France has endured repeated scandals involving corrupt activities connected to arms sales by individual politicians seeking financial support for their electoral campaigning.

136  The UK: Innovation and Dependency

VII. Conclusion The UK occupies a precarious position in the global arms market: a significant though not major participant, uniquely dependent on one purchaser and therefore seriously vulnerable to pressure from that customer to disregard its conduct despite conflict with the legal rules that are supposed to govern the regulations the UK purports to apply. It has also experienced periods when arms sales achieved unusually high political salience, and has on occasions taken the lead in enacting regional and international regulations. At the same time, it has experienced scandals and both political and legal controversy about the failure to follow properly the rules to which it has proclaimed adherence. (These scandals did not however involve payments to politicians or to the governing Party [as notably occurred in France].) Despite frequent public proclamations that the UK adheres to the Criteria it helped create, the data on the frequency of use of Criterion Two, which governs the most controversial exports, demonstrate the acute sensitivity of its application to divergent policies of different governments. The sharp decline in its invocation since 2015, under the first purely Conservative Government for nearly 20 years, is the clearest illustration. Legal challenges to export approvals have been more common in the UK than in any other exporting country. Most notable was the decision of the English Court of Appeal in July 2019, holding that the procedures by which the Government arrived at its decisions regarding approval of exports to Saudi Arabia were defective. Even if that specific ruling were to be reversed on appeal, the potential for judicial scrutiny will remain a constant influence on the administration of export controls. So too will the need to respond to parliamentary oversight in the form of an unusual committee which has at certain points in its existence exercised a strong critical voice, independent of partisan influence, in relation to particular policies and which has helped raise public awareness of arms export issues to a higher degree than is found in most other countries.

APPENDIX ONE The Place of Arms Exports in the UK Economy DR SAM PERLO-FREEMAN This section will attempt to estimate the number of jobs in the UK that are sustained by arms exports, in relation to overall employment. This is a very challenging task, for which no official statistics exist. The Ministry of Defence (MOD) used to make very rough estimates, but discontinued these after 2008, in part because they were

Appendix One   137 considered too inaccurate. The most recent estimate, for 2006–2007, gave a figure of 25,000 direct and 30,000 indirect jobs linked to arms exports.158 The reasons why it is so difficult to estimate are: • The value of arms that are actually exported from the UK is unknown, as the UK does not collect this data.159 • We don’t know how many jobs are sustained by each million pounds of exports, as we have too little information on the precise industrial categories into which UK arms exports fall. A broader problem with estimating employment associated with the arms industry in general (whether for export or for domestic procurement by the MOD) is that, in the system of Standard Industrial Classifications (SIC) for economic activities, used by the Office for National Statistics (ONS) and internationally, there is no single SIC code, or set of codes covering the arms industry; rather, apart from the category of ‘weapons and ammunition’, arms production is split between a variety of categories that cover both military and civilian production, such as aircraft and spacecraft, shipbuilding and various electronics categories. Thus, the ONS data that would normally be the best source of information for output and employment in different industries is not available to us. We will specifically estimate the number of direct jobs sustained by arms exports, that is, jobs created or sustained by the production of the final product or service for the customer. To estimate indirect jobs, created in the supply chain for arms exports,160 would require detailed input-output matrices for the specific industrial sectors covered by arms exports, for which the available information is not remotely sufficient. However, a very rough ballpark estimate might be that there is likely to be around one indirect job created for every direct job.

1.  Existing Information on Arms and Defence-related Jobs The best source of information on jobs related to arms production and other military activities comes from the annual MOD publication, ‘MOD Regional Expenditure with UK Industry and Associated Employment’,161 which for 158 UK Defence Statistics, https://webarchive.nationalarchives.gov.uk/20140116143051/http://www. dasa.mod.uk/index.php/publications/UK-defence-statistics-compendium/2008/; personal conversation with former MOD Chief Economist Neil Davies. 159 See S Perlo-Freeman, ‘How Big is the International Arms Trade’ (World Peace Foundation, July 2018), https://sites.tufts.edu/wpf/how-big-is-the-international-arms-trade/. 160 Including both civilian and military components and subsystems, but also for example financial services purchased by the exporting companies. 161 For the most recent version, see MOD Regional Expenditure with UK Industry and Associated Employment 2017–18, 31 January 2019, www.gov.uk/government/statistics/mod-regional-expenditurewith-uk-industry-and-supported-employment-201718.

138  The UK: Innovation and Dependency 2017–18 estimated that 115,000 jobs were directly supported by MOD spending with UK industry. Table A1 below presents the breakdown of these jobs by industrial sector. Table A1  Jobs Created by MOD Spending with UK Industry by Industrial Sector 2017–18 Sector

Jobs 2017–18

Weapons and ammunition

5,700

Data processing equipment

400

Other electrical engineering Electronics Precision instruments

1,000 700 1,500

Shipbuilding and repair

19,300

Aircraft and Spacecraft

4,400

Other manufacturing

5,300

Electricity, gas and water

800

Construction

6,500

Wholesale and retail trade; Repair of motor vehicles

1,700

Hotels, catering and restaurants

5,300

Transport via railways

200

Other land transport

1,700

Water, air and auxiliary/freight supply transportation

3,200

Telecommunications

3,000

Technical and financial services, etc

41,600

Real estate and renting

5,200

Computer services

7,100

Total

115,000

Source: MOD Regional Expenditure with UK Industry and Associated Employment 2017–18.

The MOD does not attempt to estimate indirect jobs created by its spending with UK industry. Unfortunately, as well as arms production and military services, this includes jobs in completely non-military-related industries such as hospitality and catering, transportation, heating and lighting and construction. Moreover, the single biggest category of industry, accounting for over 41,600 jobs, was ‘Technical and financial services, business activities, health, education, and other services’. This will include non-military services such as financial services and management consulting, but also services of a much more specifically military nature, such as training, technical support services and research and development services carried out by companies such as QinetiQ. Another category, Computer services

Appendix One   139 (7,100 jobs), is also likely to include military-specific services like the naval IT command system developed for the MOD by a private company, as well as more generic IT services. Thus, how many of these 115,000 jobs fall within what might reasonably be called the ‘defence industry’ or ‘arms industry’ is not known. Moreover, of course, the figures do not include jobs related to arms exports. However, this information will be extremely useful in constructing our ­estimate (see section 2.3), as, when combined with the data from the same source on MOD spending with each sector, it allows us to calculate figures for the number of jobs created per million pounds of spending in different sectors of the arms industry. The other source of information is periodic reports produced by ADS Group, the industry association representing the Aerospace, Defence, Security and Space sectors. Their 2019 report, ‘UK Defence Outlook 2019’,162 estimated that there were 135,000 direct jobs in the UK ‘defence sector’ in 2018. The 2017 Defence Outlook report estimated 142,000 direct jobs for 2016, and 120,000 indirect jobs.163 However, exactly what is included in this estimate and how it is arrived at is not clear. What types of activities are included in the ‘defence sector’? For companies involved in the defence sector and other civilian activities, are only employees working specifically on defence-related activities counted? An indication of the difficulty is that the 2018 ADS fact sheet gave a figure of 380,000 jobs for the combined Aerospace, Defence, Security and Space sectors; but the figures for the four separate sectors added up to 410,000, implying that some employees are counted in multiple sectors.164 Aside from the problem of coverage, a further reason why the ADS figures cannot be compared to the MOD figures (it would be nice if we could simply deduct the second from the first to obtain a figure for jobs from arms exports) is that some of the indirect jobs from MOD procurement might still be within the defence industry, but lower down the supply chain, and thus count as direct defence sector jobs in the ADS figures.

2.  Approach to Estimating Jobs Related to Arms Exports To make a rough estimate of the direct employment created or sustained by arms exports, we proceed in two stages: first, we take available figures on the value of

162 See www.adsgroup.org.uk/blog/uk-defence-outlook-2019/. 163 See www.adsgroup.org.uk/reports/uk-defence-outlook-report-2017/. The estimate was produced by Oxford Economics, a consulting company. 164 See www.adsgroup.org.uk/wp-content/uploads/sites/21/2018/05/Annual-Facts-2018-LoResspreadsREV2.pdf.

140  The UK: Innovation and Dependency arms exports, and attempt to estimate a breakdown of these sales by industrial category, using information on arms export licences; second, we use the MOD information from section 1 on the number of direct jobs created per million pounds of output for each category, to estimate the number of jobs supported by each category of arms exports. Since the categories used in export licensing and those reported by the MOD do not precisely align, some assumptions have to be made as to how best to link the two, which is one of the many sources of uncertainty in this estimate.

2.1.  Size of the UK Arms Trade There are two official sources of financial data on UK arms exports: i. ii.

Data from the Export Control Organization on export licences issued to UK companies;165 and Figures for export orders provided by the Department of International Trade’s Defence & Security Organization (DSO).166

The former include quite detailed information on the types of equipment licensed for export. The problem is that financial values of licences are only provided for ‘Single Individual Export Licenses’ (SIELs), which permit the export of a specified quantity and value of equipment to the named recipient. However, a large proportion of UK arms exports are made through a variety of ‘open’ licences, which allow unlimited exports of specified equipment to specified recipients over their period of validity.167 No financial value is attached to these licences. The DSO figures are more comprehensive, although there are still some categories of exports they exclude, however, in particular export of equipment to partner nations for collaborative arms production programmes such as Eurofighter Typhoon. However, they probably give the best available estimate of the total value of UK arms exports. The main limitation of this data is that virtually no detail is given on the recipients and types of equipment. To allow for year-on-year fluctuations that don’t necessarily represent ­employment changes, and the fact that orders often take a long time to complete, we take a 10-year average of the DSO figures from 2009–18. This comes to

165 These are available through an online government database, www.exportcontroldb.trade.gov.uk/ sdb2/fox/sdb/SDBHOME, but can be far more readily viewed and searched on the Campaign Against the Arms Trade (CAAT) website, www.caat.org.uk/resources/export-licences. 166 UK Department of Trade and Industry Defense & Security Organization, ‘UK Defence and Security Exports for 2018’, 30 July 2019, www.gov.uk/government/statistics/uk-defence-and-securityexports-for-2018?utm_source=112cf6f5-01d5-40a9-a2db-41eca64111e3&utm_medium=email&utm_ campaign=govuk-notifications&utm_content=immediate. 167 See above at p 116.

Appendix One   141 £8.2 billion per year which, adjusted for Consumer Price Index inflation, comes to £8.7 billion per year.

2.2.  Breaking Down Arms Exports by Industrial Groupings While the MOD provides figures breaking down its spending by industrial groupings, there is no comparable data for arms exports. We therefore turn to a next-best source, namely UK arms export licensing data. UK arms export licensing data reports categories of equipment licensed according to the EU’s Common Military List (the ML classification).168 For the most common type of licence, SIELs, which authorise a single delivery of equipment to a specified recipient, the value of equipment under each ML category is also reported. Unfortunately, as discussed in section 2.1, this does not cover a variety of ‘open’ licences, which allow for multiple deliveries of the same types of equipment, to which no financial value is attached. While the ML categories do not correspond directly to SIC codes, a reasonable correspondence can be made for most of the ML categories, in particular those that cover the great majority of the value of SIELs. The next step is to attempt to map ML categories to the industrial groupings.169 We will use this data to estimate the proportion of UK arms exports by industrial category, which will be applied to the previous estimate for the overall value of exports. Since the total value of SIELs is substantially lower than the total arms export figures provided by DSO, we use the proportions rather than the absolute values. The resulting breakdown of the export licences by the MOD industrial groups is as follows: • • • • • • •

Aircraft & Spacecraft  52.0% Weapons & Ammunition  25.1% Shipbuilding & Repair  6.2% Other Manufacturing  5.9% Electronics 4.7% Precision Instruments  4.4% (software, technology)  1.8%

168 See above, chapter three, n 2. 169 As discussed, the correspondence is not precise, and as the financial data does not cover Open licences, we cannot be certain that the breakdown of SIELs by ML categories accurately reflects all UK arms exports. However, there is no obvious reason why Open licences should disproportionately fall in certain ML categories rather than others.

142  The UK: Innovation and Dependency

2.3.  Estimating the Jobs Created We now return to the MOD data for UK jobs by industrial sector, as well as the corresponding information on MOD spending (with UK industry) by sector, to calculate jobs per million pounds of spending in each case. Table A2 shows the level of MOD spending by industry group, the jobs supported (as per Table A1), and the number of jobs per million pounds of spending for 2017–18, for the categories that are relevant for arms exports (specifically, manufacturing industry, excluding services, construction, etc). Some of these categories are extremely broad, such as the ‘other manufacturing’ category, including a large number of separate SIC codes. Others, such as the Aircraft & Spacecraft category or Weapons & Ammunition include a fairly small number of quite specific SIC codes. Table A2  MOD Spending and Jobs Created with UK Manufacturing Industry by Sector Industry Group Weapons & ammunition

Jobs 5700

Spending (£m)

Jobs/£m

1,333

4.28

Data processing equipment

400

96

4.17

Other electrical engineering

1000

150

6.67

700

127

5.51

Electronics Precision instruments

1500

274

5.47

Motor Vehicles & Parts

---

22

---

Shipbuilding & Repair

19,300

3,207

6.02

Aircraft & Spacecraft

4,400

1,719

2.56

Wholesale & Retail Trade

1,700

638

2.66

Other Manufacturing

5300

930

5.70

We can therefore calculate a weighted average of these figures, to provide an estimate of the number of jobs created per million pounds of arms exports, using the proportions calculated in section 2.2. This gives the following calculation: Weighted average = 0.52*2.56 + 0.251*4.28 + 0.062*6.02 + 0.059*5.7 + 0.047*5.51 + 0.044*5.47 = 3.615 Applying this to the average of £8,700 million per year for total UK arms exports over the period 2009–18 gives an estimate of 32,000 direct jobs supported by UK arms exports, to the nearest 1,000. As discussed in section 1, estimating indirect jobs supported by arms exports is essentially impossible, due to the lack of clear and detailed data on the industrial categories of these exports that could be used to generate the ‘input-output’ matrices typically used for estimating indirect employment. The 2017 DSO report provided an overall estimate of 120,000 indirect jobs generated by the defence

Appendix One   143 sector, compared to 142,000 direct jobs; but this ratio might be an underestimate for our purposes, as some of the supply chain jobs from arms exports would fall within the defence sector itself. A rough ballpark estimate of 1-1 might not be unreasonable, and would chime with older MOD estimates. Since these were subsequently abandoned as too uncertain, one should not bet the farm on such an estimate.

3. Discussion Due to the various gaps in the data, there are numerous sources of uncertainty in this estimate. These include: • Possible errors in mapping ML categories to industry groups. • Jobs supported by intangible transfers (software and technology) are not counted. • A significant proportion of arms export orders relate to services rather than equipment, which are not covered by the ML categories. As services often support more jobs per million pounds, this would lead to an underestimate. • On the other hand, the value of orders also includes services performed in the recipient country by local workers (most notably by BAE in Saudi Arabia), which therefore do not support any UK employment. • The breakdown of exports made under open licences may not be the same as for SIELs. • There is likely to be variation in the jobs/output ratio within each industrial group. It is possible that the breakdown of arms exports within particular groupings may differ significantly than the breakdown of MOD spending in this category. These give a significant margin for error, but the uncertainties pointing in a specific direction to some extent balance, while in other cases there is no clear reason to suspect a systematic error.

4.  Summary and Conclusion • The figure of £8.7 billion a year for arms export represents 0.49% of UK GDP, averaged over 2009–18. • It represents 1.7 per cent of total UK exports averaged over 2008–17.170 170 ONS trade data, Pink Book 2018, www.ons.gov.uk/releases/ukbalanceofpaymentsthepinkbook 2018.

144  The UK: Innovation and Dependency • Based on figures from the UK manufacturing industry body,171 arms exports represent around 3 per cent of UK manufacturing exports. • Assuming one indirect job per direct job, implying a very rough estimate of 64,000 jobs supported by UK arms exports, this represents 0.2 per cent of UK employment, averaged over 2009–18. • The direct employment estimate for arms exports represents 1.2 per cent of the total number of people directly employed in manufacturing.172 However, as much of the indirect employment sustained by arms exports is also within manufacturing, this would make overall arms export employment as a share of manufacturing employment rather higher – perhaps around 2 per cent, at a generous estimate.

APPENDIX TWO The (Likely) Impact of Brexit As noted earlier,173 the UK is applying the Criteria found in the EU Common Position when taking arms export decisions. However, the legal force of those rules does not rest on EU law, but on their incorporation into UK domestic law by means of an Act of Parliament – the Export Control Act 2002 (ECA) – the legal source of the Ministerial Statement of 2014. Therefore in strict legal terms, the day after Brexit will see no change at all in the UK arms control regime. Any change can only come via one of two methods: amendment or repeal of the ECA, or alteration of the Ministerial Statement. The latter, which would not require parliamentary approval, would be the quickest means, and of course avoid the possibilities of embarrassing amendments or rejection in the House of Lords, even assuming eventual passage through the Commons. The formal departure of the UK from the EU at the end of January 2020 will thus have no immediate effect. And with the fine but essential details of the future trade and security relationships between the two forming the subject of what are likely to be complex and difficult negotiations throughout the remainder of 2020, the specifics of export control law are unlikely to receive great attention. Perhaps the most that can safely be said is that, given other priorities, Brexit is unlikely in the medium term to lead to major changes in UK weapons export controls.

171 The Manufacturer, UK Manufacturing Statistics, www.themanufacturer.com/uk-manufacturingstatistics/. 172 Ibid. 173 See above, p 117.

Appendix Two  145 Yet an exclusive focus on the law will fail to take account of other important dimensions of Brexit impact. Failure of a Member State to follow the Common Position has never been met with legal sanction.174 However a government avowedly doing so would have faced several informal pressures: domestic media and Opposition criticism of violations of norms that despite absence of sanction are legally binding under EU law, and private criticism from some other Member States at Council meetings relating to foreign affairs. And whilst it has always been true that a State’s unduly lenient interpretation of the Common Position cannot be challenged legally within the EU structure, it had to face some unwelcome diplomatic fallout. This included having to justify criticism from representatives of other Members at meetings of COARM, the EU Working Group on Convention Arms Exports set up by the Council.175 And if the Member State complied with its obligation to circulate a confidential Report to the other 27 members on its exports and implementation of the Common Position,176 notable failings revealed therein would also be open to sharp private responses by other governments. Brexit would remove these pressures and obligations. It will also deprive EU States of the benefits of UK membership in COARM, so that the information gathered by its intelligence apparatus – one of, if not the, largest among the Members – will no longer be available on the same terms. Nor will the UK have to comply with the very important requirement of Article 4 of the Common ­Position177 that it informs the other members of denials of a­ pplications, thus alerting them to problems of which they might not have been aware. From both directions, the strength of weapons export controls is likely to be weakened. Longer term, there is now nothing in law to prevent a UK government from tearing up the Criteria entirely, or merely watering them down substantially. The only international law restrictions that would continue to bind the UK are those found in the Arms Trade Treaty, which in some key provisions are weaker than the Criteria.178 Yet given the substantial political and reputational costs, it is more likely that a trade-orientated government would make fullest use of the flexibility of the Criteria to be even more lax in granting approvals. In such circumstances, not only will the UK no longer be formally accountable within the EU, it could well push the remaining States further down the slope of permissiveness. This ‘downward competition’ – a phrase long familiar to labour lawyers – has ominous precedents, most notably in the history of the dilution of employment protection laws in Europe when faced with rising Asian competition in the 1980s. Whilst



174 This

is the result of the special legal character of decisions taken under the CFSP; see above, p 48. chapter three at p 58. 176 As required by Art 8.1 of the Common Position (n 45). 177 See above, chapter three at p 58. 178 See chapter 14 below. 175 Above

146  The UK: Innovation and Dependency competition through deterioration is not inevitable, Brexit plainly will exempt the UK from requirements and pressures to harmonise its policies with the other States.179 Conversely, a future government of different mind will not be in as strong a position to influence the others to tighten weak policies. However, there is one issue that, unless specific provision for it is made quickly, will cause immediate problems. A paradigm case of the multi-national manufacture of weaponry noted earlier180 is the Eurofighter Typhoon, parts of which are manufactured on assembly lines of four EU Member States.181 Components currently pass freely across borders. At the very least, absent a special arrangement, there will be a vast increase in form-filling as UK components will have to be registered for compliance with EU standards, and some reverse procedure is put in train for material being imported into the UK. A separate problem is that some components may, to minimise transport costs, be shipped in containers also containing non-military goods. However, even though military goods covered by the Wassenaar Arrangement are tariff-free, if tariffs are imposed on EU-UK commerce, their export may be delayed as the duty on the civilian goods is assessed. The Eurofighter is by no means the only product which has developed within the framework of frictionless transport of goods within the Union, and its dismantling, even if only partial, will be very disruptive in the short-term. Finally, there are further, related issues which cannot be pursued here. Two vitally important areas of export control are now part of UK law only by virtue of EU Regulations. These concern dual-use goods, and goods that may be used for carrying out capital punishment or torture. The latter are banned, the former subject to complex controls which are however largely administered by each Member State.182 Full regulatory powers will revert to the UK after Brexit, and the extent to which it will re-enact the current measures is entirely up in the air. Given the close connection particularly between dual-use goods and weaponry,183 this will be a matter of grave concern.

179 Notably, the EU has long operated informally a ‘no undercut’ principle, given practical effect by COARM discussions and the Common Position requirement, in Article 4, that details of denials be circulated to all other Member States; all recipients are required, before granting a licence for an ‘essentially identical transaction’ both to consult with the first State and, if deciding to go ahead with approval, provide the latter with ‘a detailed explanation of its reasoning’. 180 See above chapter three at p 46. 181 The UK, Germany, Italy and Spain. 182 The first is governed by Regulation 428/2009 [2009] OJ L134/1 (Dual-use Regulation), the second by Council Regulation 1236/2005 [2005] OJ L200/1 (the Torture Regulation), amended further in 2011. See chapter three above at pp 61–62. 183 As in the Matrix Churchill case, above, pp 108–109.

Appendix Two  147

List of References Aldrich, R and Cormac, R, The Black Door: Spies, Secret Intelligence and British Prime Ministers (London, William Collins, 2016). Caedel, M, Semi-Detached Idealists: The British Peace Movement and International Relations, 1854-1945 (Oxford, Oxford University Press, 2000). —— Pacifism in Britain, 1914-45 (Oxford, Oxford University Press, 1980). Cooper, N, ‘Arms Exports, New Labour, and the Pariah Agenda’ (2000) 21 Contemporary Security Policy 54. —— The Business of Death (London, IB Taurus, 1997). Craig, P, EU Administrative Law, 3rd edn (Oxford, Oxford University Press, 2018). —— Administrative Law, 8th edn (London, Sweet & Maxwell, 2016). Elliott, M and Varuhas, J, Administrative Law: Text and Materials, 5th edn (Oxford, Oxford University Press, 2017). Feinstein, A, The Shadow World: Inside the Global Arms Trade (London, Penguin Book, 2012). Garrett, B, Too Big to Jail (Cambridge Massachusetts, Harvard University Press, 2014). Gaskarth, J, British Foreign Policy (Cambridge, Polity Press, 2013). Gilmore, J, ‘The Uncertain Merger of Values and Interests in UK Foreign Policy’ in T Edmunds et al (eds), British Foreign Policy and the National Interest (Basingstoke, Palgrave Macmillan, 2014) 36–41. Graham, L, ‘Statutory Secret Trials: The Judicial Approach to Closed Material Procedures under the Justice and Security Act 2013’ (2019) 38 Civil Justice Quarterly 189. Graham, L, ‘Tariq v United Kingdom: Out with a Whimper?’ (2019) 25 European Public Law 43. Griffiths, The Politics of the Judiciary, 5th edn (London, Fontana, 1997). Leigh, D and Evans, R, ‘BAE Accused of Secretly Paying £1 bn to Saudi Prince’ The Guardian, London, 7 June 2007. —— ‘The BAE Files: the al-Yamamah Deal’ The Guardian, London, 22 December 2007. Leigh, I and Lustgarten, L, ‘Five Volumes In Search of Accountability: The Scott Report’ (1996) 59 Modern Law Review 695. Lewis, M, and Templar, K, ‘UK Personnel Supporting the Saudi Armed Force-Risk, Knowledge and Accountability’ (2018). Lustgarten, L, ‘The Arms Trade and the Constitution: Beyond the Scott Report’ (1998) 61 Modern Law Review 499. Lustgarten, L and Leigh, I, In From the Cold: National Security and Parliamentary Democracy (Oxford, Clarendon Press, 1994). Moraes, R, Our Weapons, Our Problem: Arms Exports, Democracy and Civil Society in Brazil and the UK, D Phil Thesis (University of Oxford, Hilary Term, 2019). Petrova, M, ‘Rhetorical Entrapment and Normative Enticement: How the United Kingdom Turned From Spoiler Into Champion of the Cluster Munitions Ban’ (2016) 60 International Studies Quarterly 387. Phythian, M, The Politics of British Arms Sales Since 1964 (Manchester, Manchester University Press, 2000). Scott, P, The National Security Constitution (Oxford, Hart Publishing, 2018).

148  The UK: Innovation and Dependency Swisher, C, et al, ‘US Investigation into BAE Saudi Arms Deal Watered Down, Leaked Memo Suggests’ The Guardian, 6 March 2018. Tomkins, A, ‘National Security and the Role of the Court: A Changed Landscape?’ (2010) 126 Law Quarterly Review 543. Wade, H and Forsyth, C, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014). Wearing, D, AngloArabia (London, Polity, 2018). Yidehgo, Z, ‘Arms Trade and Public Controls: The Right to Information Perspective’ (2009) 59 Northern Ireland Legal Quarterly 379. —— ‘Arms Sales and Parliamentary Accountability: The Role of the Quadripartite Committee’ (2008) 61 Parliamentary Affairs 661.

Other Publications Kift, R and Page, R, ‘Arms Industry Statistics’, House of Commons Briefing Paper CBP 7842 (21 December 2016) 5. Perlo-Freeman, S, ‘Special Treatment: UK Government Support for the Arms Industry and Trade’ (Stockholm, Stockholm International Peace Research Institute (SIPRI), 2016) 11. Wezeman, P, et al, ‘Trends in International Arms Transfers 2018’ (Stockholm, SIPRI Fact Sheet, March 2019).

6 The German Control Regime on Arms Exports DIRK HANSCHEL*

I. Introduction In spite of recent drops in overall figures, Germany is currently the fourth biggest arms exporter in the world.1 Judged by that situation and by the particular German military history, public debate still appears to be rather limited (even though the discussion has picked up a little more recently). This might be partially owed to the importance of this sector of the industry to the economic well-being of this highly export-oriented country, and partially to the fact that governmental licensing and control of arms exports is conducted under a substantial level of confidentiality. Generally, Germany’s approach to arms export relies on relatively strict legal standards and controls, but somewhat limited public, parliamentary or judicial scrutiny, as illustrated by the recent ruling of the Federal Constitutional Court (FCC) on Members of Parliament (MPs) access to information regarding governmental deliberations on licensing decisions.2 Public decision-makers generally show a certain level of moral consciousness and sense of German historical responsibility, which probably has prevented many of the worst export decisions that could have otherwise been taken. At the same time, strong economic incentives and ­security interests have favoured decisions that sometimes tend to stretch the scope of ­discretion or to read down restraining rules and principles.

* The author wishes to thank Till Stoye and Stev Zabel for their valuable editorial assistance. 1 For a recent assessment see the Stockholm International Peace Research Institute (SIPRI) ­Yearbook 2018, www.sipri.org/sites/default/files/2018-06/yb_18_summary_en_0.pdf; P Wezeman et al, ‘Trends in International Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019) (hereinafter ‘SIPRI Factsheet 2018’) 2, 5, www.sipri.org/sites/default/files/2019-03/fs_1903_at_2018_0.pdf; see furthermore BMWi, Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2017 (BMWi Berlin, 2017); as well as the report of 2018: BMWi, Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter 2018 (BMWi Berlin, 2018). 2 See BVerfG, 21 October 2014–2 BvE 5/11, paras 1–232, available in English at www.bverfg.de/e/ es20141021_2bve000511en.html.

150  Dirk Hanschel

II.  The Politics and Economics of Arms Export from Germany The German situation needs to be considered within the specific historical and political context. Germany’s manufacturing industry has traditionally been heavily reliant on export. The production and export of weapons has increasingly become part of that.3 In the aftermath of the Second World War, Germany was, for obvious reasons, unable to engage in this branch of industry. However, with the building of a new army strictly for defence purposes (the Bundeswehr), largely based on conscription and the doctrine of citizens in uniform (Staatsbürger in Uniform), as well as with the stepwise regaining of full national sovereignty from allied control, this has gradually changed to such an extent that the country is by now one of the biggest exporters of weapons in the world.4 Such exports have not only been an important source of economic revenue and contributed substantially to the gross national product.5 They have also allowed Germany to provide substantial contributions to its allies within NATO and to UN-mandated missions – beyond the mere funding of operations, but below the level of an active engagement by sending its own troops to crisis areas. This may have been particularly important since for a long time Germany’s history as well as its constitutional restrictions have made it difficult to become engaged in a more direct fashion. After reunification, this has gradually started to change as the country has increasingly become involved in UN-mandated missions, often carried out by NATO, as in Kosovo or Afghanistan, or by the EU, as the anti-piracy missions off the Horn of Africa, whilst potential constitutional restrictions have increasingly been clarified.6 Weapons exports, once initiated, have continued to proliferate alongside that and, whilst triggering fierce public debate in the past, today appear less visible in public discussions than Germany’s more recent direct military engagement – the latter being subject to

3 See Pauly, Steinmetz: ‘Deutschlands Geschäft mit dem Krieg’ (Spiegel Online, 25 January 2018); on economic incentives in the arms trade see C Schulze, O Pamp, PW Thurner, ‘Economic Incentives and the Effectiveness of Nonproliferation Norms: German Major Conventional Arms Transfers 1953-2013’ (2017) 61 International Studies Quarterly, 529 et seq. See furthermore the journalistic report by J Grässlin, Schwarzbuch Waffenhandel – Wie Deutschland am Krieg verdient (München, Heyne Verlag, 2013). 4 On the concept of ‘Staatsbürger in Uniform’ see Bundesministerium der Verteidigung at www. bmvg.de/de/themen/verteidigung/innere-fuehrung/staatsbuerger-in-uniform; on the recent development of arms export see GKKE, Rüstungsexportbericht 2018 der GKKE (Bonn/Berlin, 2018) 8 ff; for the English version of the summary see www.justitia-et-pax.de/jp/aktuelles/data/20190312_gkke_arms_ report_summary_2018_pdf.pdf; SIPRI Yearbook 2018 (n 1); SIPRI Factsheet 2018 (n 1) 2, 5. 5 See www.sicherheitspolitik.bpb.de/m3/infographics/economic-importance-of-the-german-armsindustry. 6 eg BVerfG, 22 November 2001–2 BvE 6/99, paras 1–164, available in English at www.bverfg.de/e/ es20011122_2bve000699en.html.

The German Control Regime on Arms Exports  151 a still rather new and intense discussion about a potentially more active role for Germany within its international alliances.7 Today German arms technology and components are exported to many countries world-wide. Shipments go to NATO countries, but also to countries such as Saudi Arabia or Algeria.8 The official Rüstungskontrollbericht (arms control report) of the Bundesministerium für Wirtschaft und Energie (BMWi) (Federal Ministry for Economic Affairs and Energy) relating to the first half of 2018 shows that exports worth roughly €2.5 billion were carried out.9 In the complete year of 2018 the exports amounted to €4.82 billion.10 Algeria received the biggest volume of exports (around €640 million), the US came second (around €240 million) and Saudi Arabia third (around €160 million).11 The overall figures show a clear decline in comparison to the previous year. Between 2016 and 2017 there had already been a decline of around 10 per cent.12 It is difficult to gain much insight from short periods as the export of weapons is often guided by longer-term decisions and contracts. Therefore, it is important to note that Germany’s percentage of worldwide arms export decreased by 36 per cent between 2007–2011 and 2012–2016.13 However, this was partially due to a steep global rise in exports of about 20 per cent in the same period that Germany did not participate in, which is why the absolute numbers have not fallen more considerably.14 As recent figures show, they are still substantial.15 The BMWi which, mainly through the Bundesamt für Wirtschaft und Ausfuhrkontrolle (BAFA) (Federal Office for Economic Affairs and Export Control), is the key actor in the licensing process, has put in place a policy that is guided primarily by security, not by economic or labour concerns.16 The Ministry emphasises the focus on human rights concerns and the fact that arms exports must not contribute to crises.17 It furthermore stresses that the particular circumstances matter, eg where Germany provides weapons for the protection of maritime borders, the fight against terrorism or within the framework of ­international 7 See the speech of the former Bundespräsident Gauck at the Münchener Sicherheitskonferenz in 2014, www.bundespraesident.de/SharedDocs/Downloads/DE/Reden/2014/01/140131-MuenchnerSicherheitskonferenz-Englisch.pdf?__blob=publicationFile. 8 See BMWi, halbjährlicher Rüstungsexportbericht 2018, Anlagen 5–7. 9 Ibid, Anlage 6. This constitutes a reduction vis-a-vis the first half of 2017 where the overall figure was around 3.5 billion. 10 See BMWi, Rüstungsexportbericht 2018, p. 5. 11 See BMWi, halbjährlicher Rüstungsexportbericht 2018, Anlage 6. 12 For the whole year numbers went down by around 10%, see ‘German Arms Sales Drop almost 10 Percent’ (DW, 20 June 2018). 13 See SIPRI, ‘Increase in Arms Transfers Driven by Demand in the Middle East and Asia, says SIPRI’ (SIPRI, 20 February 2017), available at www.sipri.org/sites/default/files/AT-Press-Release-ENG.pdf. 14 Ibid. 15 SIPRI Factsheet 2018 (n 1) 2, 5. In fact when comparing the periods 2009–2013 and 2014–2018 there even appears to be an increase both in numbers and global share. This shows that depending on calculation methods and clustering of periods, the results may look quite different. 16 See www.bmwi.de/Redaktion/DE/Dossier/ruestungsexportkontrolle.html. 17 Ibid.

152  Dirk Hanschel alliances.18 It notes that the export licences also cover defensive devices, such as minesweepers, security glass for embassies, etc which may also constitute military equipment.19 It points out that the sheer numbers do not allow a reliable assessment of governmental policy as the kind of military goods and their specific use matter, as well.20 This policy, which is guided by a set of principles,21 is embedded in a rather tight legal framework which shall be analysed subsequently before turning to practice.

III.  The Legal Framework of Arms Export Control The German system of arms export control is governed by a rather strict legal regime.22 This constitutes a multi-layered system ranging from pertinent rules of international, European, constitutional and statutory law, and is furthermore guided by internal administrative provisions in the form of political principles.

A.  The Multitude of Relevant Standards of International Law Germany’s law on arms export is subject to multiple restrictions stemming from its international legal obligations. Notably, the Versailles Treaty stipulated in Art 170 that Germany was under a strict prohibition regarding ‘the manufacture for, and export to, foreign countries of arms, munitions and war material of every kind’.23 This obviously did not stop Germany from rearming itself and waging the Second World War. As a result of this clearly devastating war, Germany’s military capacity was essentially crushed, and it had to accept numerous restraints to 18 Ibid. 19 BMWi, Rüstungsexportbericht 2017, p. 5; www.waffenexporte.org/wp-content/uploads/2016/10/ Auswertung-R%C3%BCstungsexporte-2016.-Vorl%C3%A4ufige-Zahlen-des-BMWi.pdf. The export list distinguishes between classical military goods such as weapons and others of a dual use character that display a specific military construction, see www.reguvis.de/aw-portal/aussenwirtschaft/hinter​ gruende-und-fachwissen/wann-ist-ein-bestandteil-ein-ruestungsgut-im-sinne-der-ausfuhrliste.html. According to several court decisions, the military purpose of a good needs to be derived primarily from its concrete technical properties and its actual usability, whilst the intended use is merely an additional criterion, see VGH Hessen, 14.10.2009–6 A 2113/08. 20 See www.bmwi.de/Redaktion/DE/Parlamentarische-Anfragen/2018/09-320.pdf?__blob=publication File&v=2. 21 See below, section IV.A. 22 See I Davis, The Regulation of Arms and Dual-Use-Exports – Germany, Sweden and the UK (Oxford, Oxford University Press, 2002) 155 et seq, who calls it the ‘legalistic approach’. 23 See www.versailler-vertrag.de/vv5.htm#512; on the destiny of this treaty see, for instance, Deutscher Bundestag – Wissenschaftliche Dienste: ‘Zu den Bestimmungen des Versailler Vertrages und der Schlussakte des Wiener Kongresses hinsichtlich der Wasserstraße Elbe’, available at www. bundestag.de/resource/blob/414646/4f7565d7d61348693242bed2bc224919/WD-2-064-07-pdf-data. pdf, p. 8 et seq.

The German Control Regime on Arms Exports  153 its potential rebuilding.24 Germany decided to integrate itself firmly into the international community by helping create and by signing up to a tight web of multilateral treaty engagements, including international organisations. When East–West tensions materialised and Germany became divided, the Federal Republic aligned itself with Western partners within NATO and the European Economic Community. In parallel, the 1954 Brussels Treaty on the foundation of the Western European Union (WEU) obliged Germany to renounce weapons of mass destruction.25 In the context of reunification this was reconfirmed decades later by the 1990 Two Plus Four Agreement.26 Further limitations result from a number of international agreements, such as the Treaty on NonProliferation of Nuclear Weapons, the Biological Weapons Convention, the Chemical ­Weapons  ­Convention, the Comprehensive Nuclear Test Ban Treaty, the 1925 Geneva Protocol, the Anti-Personnel Mine Ban Convention, the Outer Space Treaty, the Antarctic Treaty, etc.27 Most recently, Germany became bound by the Arms Trade Treaty (ATT) which entered into force on 24 December 2014;28 the German Government had been actively involved in the negotiation process advocating a strong approach.29 Furthermore, Germany is a party to most international human rights treaties, such as the International Covenant on Civil and Political Rights (1966/1976).30 Treaties are usually transferred into German law through an Act of Parliament according to Art 59, para 2 of the Basic Law (BL). This means that the ATT for instance forms part and parcel of federal statutory law. Due to the constitutional principle of friendliness towards international law (Völkerrechtsfreundlichkeit), other laws are interpreted in light of pertinent international law obligations assuming that the legislator will not intend to derogate from them and hence violate international law.31 Hence, sticking to the example, whilst some of the German safeguards against export of war weapons are probably much tighter than those in

24 See Davis, Regulations (2002), 155. 25 Davis (n 22) 155; R Streinz, ‘Art. 26’ in M Sachs (ed), Grundgesetz-Kommentar, 7th edn (München, Beck, 2014) para 47. 26 See Davis (n 22) 155; Streinz, ibid, para 47. 27 Streinz (n 25); disarmament.un.org/treaties/s/germany. 28 United Nations Arms Trade Treaty, 24 December 2014, see United Nations Treaty Collection at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-8&chapter=26&clang=_en. 29 See Auswärtiges Amt, https://www.auswaertiges-amt.de/en/aussenpolitik/themen/aussenwirtschaft/-/ 231420. 30 International Covenant on Civil and Political Rights, UNTS no 999/165, 19 December 1966; for an non-governmental organisation (NGO) perspective on the relevance of human rights treaties in arms export control, see ‘How to Apply Human Rights Standards to Arms Transfer Decisions’ (Amnesty International Publications, 2008), available at www.amnesty.org.uk/sites/default/files/how_to_apply_ human_rights_standards_to_arms_transfer_decisions.pdf. 31 M Herdegen, ‘Art. 25’ in T Maunz and G Dürig (eds), Grundgesetz Kommentar 85nd ­Ergänzungslieferung (München, Beck, 2018) paras 6–8; BVerfG, 26 March 1957–2 BvG 1/55, paras 239–242; BverfG, 30 June 1964–1 BvR 93/64, para 27; BVerfG, 15 December 2015–2 BvL 1/12, paras 67–73 available in English at www.bverfg.de/e/ls20151215_2bvl000112en.html.

154  Dirk Hanschel the ATT, this treaty provides an additional safety net to make sure German standards will not be substantially lowered in the future.32 Furthermore, there are non-binding, but nevertheless important principles such as the Organisation for Security and Co-operation in Europe (OSCE) Principles Governing Conventional Arms Transfers.33 They can inform interpretation of binding international law or constitute the starting point for later binding agreements. To the extent that they might turn into rules of customary international law, they will be automatically part of the law of the land according to Art 25 BL. But even without achieving that binding effect by themselves they have been incorporated into the German licensing practice by the Political Principles for the Export of War Weapons and Other Military Equipment published by the BMWi which provide important guidance for ministerial decisions on export licences.34 Legally, they may be considered as administrative regulations that can guide the administrators’ exercise of discretion.35 Finally, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, in which Germany participates, should also be mentioned.36 According to I, 1, of the ‘Guidelines & Procedures, including the Initial Elements’, the Arrangement aims to ‘contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations’.37 There is no fully-fledged obligation, but ‘[p]articipating States will seek, through their national policies, to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities’.38 The Arrangement sets up a rather informal forum for regular meetings in order to enhance transparency and responsibility.39 Controls pertain to items listed on the ‘WA Control Lists’, ie the ‘Munitions List’ and the ‘List of Dual Goods and Technologies’.40 Embargoes established under international law are another important part of the control framework.41 They might be imposed by the United Nations or by the 32 See www.sicherheitspolitik.bpb.de/m3/articles/the-arms-trade-treaty-att. 33 OSCE, ‘Principles Governing Conventional Arms Transfers’, 25 November 1993, available at www. osce.org/fsc/42313?download=true. 34 Political Principles adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment, 19 January 2000; new Political Principles adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment from 26 June 2019 available in German at: https://www.bmwi.de/ Redaktion/DE/Downloads/P-R/politische-grundsaetze-fuer-den-export-von-kriegswaffen-undsonstigen-ruestungsguetern.pdf?__blob=publicationFile&v=4. 35 JJ Claßen, Das Kontrollverfahren beim Export von Kriegswaffen aus Deutschland (New York, Peter Lang GmbH, 2017) 115 ff. 36 See www.wassenaar.org/. 37 See https://www.wassenaar.org/app/uploads/2019/12/WA-DOC-19-Public-Docs-Vol-I-FoundingDocuments.pdf. 38 Ibid. 39 www.wassenaar.org/about-us/. 40 Ibid. 41 For an overview, see SIPRI, www.sipri.org/databases/embargoes.

The German Control Regime on Arms Exports  155 European Union.42 German embargoes are listed and explained by BAFA.43 Arms embargoes are usually directed against individual countries and details will be dealt with in the respective Security Council Resolutions or Common Positions of the EU Council.44 The current BAFA list shows various categories such as arms embargoes, embargoes concerning dual use goods, export or import restrictions which have usually been enacted through an EU regulation.45 In addition there is a list specifically with regard to terrorism.46 To the extent that such lists amount to export prohibitions, the respective countries are generally listed in § 74 of the Foreign Trade and Payments Ordinance.

B.  The Influence of European Law European Union (EU) law plays a crucial role in export and trade matters as it has displaced Member States’ law in vast areas and hence limited their sovereignty accordingly. Due to its overriding character it is of particular importance and should be considered before turning to the national level. As illustrated by Kirchner,47 the applicable law is first of all Art 206–207 of The Treaty on the Functioning of the European Union (TFEU) which, together with Regulation 1061/2009, followed by Regulation 2015/479,48 lays down the EU’s Common Commercial Policy including the general principle of freedom of exportation, subject to conditions and limitations. The Common Commercial Policy is under the exclusive powers of the EU (Art 3, para 1 lit e TFEU), so that there is no scope for unilateral measures, unless EU law empowers Member States or makes exemptions (Art 2, para 1 TFEU). To that effect, Art 346, para 1 b TFEU states: any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes. 42 Ibid. 43 For a current list see www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Embargos/embargos_ node.html; for an explanation see www.bafa.de/SharedDocs/Downloads/DE/Aussenwirtschaft/ afk_merkblatt_embargo.pdf?__blob=publicationFile&v=2. 44 See www.bafa.de/SharedDocs/Downloads/DE/Aussenwirtschaft/afk_merkblatt_embargo.pdf?__ blob=publicationFile&v=2, p. 5 et seq. 45 See the BAFA list at www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Embargos/embargos_ node.html. 46 See www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Embargos/Terrorismus/terrorismus_ node.html. 47 P Kirchner, ‘Das System der Rüstungsexportkontrolle – am Beispiel der Panzerlieferungen nach Saudi-Arabien’ (2012) Deutsche Verwaltungsblätter 336, 336 ff. 48 Council Regulation (EC) No 1061/2009 of 19 October 2009 establishing common rules for exports https://eur-lex.europa.eu/eli/reg/2009/1061/oj. This Regulation was repealed by Regulation (EU) 2015/479 of the European Parliament and of the Council of 11 March 2015 on common rules for exports https://eur-lex.europa.eu/eli/reg/2015/479/oj.

156  Dirk Hanschel What qualifies as such is determined by Art 346, para 2 TFEU in conjunction with a constitutive list of the Council dating from 1958.49 In addition, there are rules facilitating trade of certain military goods within the EU, in particular Directive 2009/43/EC50 ‘simplifying terms and conditions of transfers of defence-related products within the Community’.51 Limitations mainly result from embargoes imposed through EU regulations. An example in relation to terrorism would be Council Regulation (EU) 753/201152 ‘concerning restrictive measures directed against certain individuals, groups, undertakings and entities in view of the situation in Afghanistan’ which implements various UN Security Council Resolutions.53 This essentially means that, in spite of the EU’s far-reaching competencies in the field of trade and commerce, the regulation of the export of war weapons remains largely under the national authority.54 However, beyond that area, eg in the field of dual use goods, EU law continues to be highly relevant.55 Furthermore, the EU passed the non-binding 1998 Code of Conduct on Arms Exports.56 This Code and its binding follow-up rules (ie the 2008 Council Common Position 2008/944/ CFSP,57 together with the Common Military List of the European Union58) provide important minimum standards concerning domestic arms export licensing decisions; like the OSCE Principles, they have been incorporated into the Political Principles for the Export of War Weapons and Other Military Equipment published by the BMWi.59 Hence, pertinent international rules are safeguarded through the domestic exercise of discretion in licensing decisions.60 Whilst the EU rules are binding, the ‘decision to transfer or deny the transfer of any military technology or equipment shall remain at the national discretion of each Member State’ (Art 4, para 2, cl 1 of the Common Position).

49 Council decision 255/58 of April 15, 1958, see http://register.consilium.europa.eu/doc/srv?l= EN&f=ST%2014538%202008%20REV%204. 50 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (Text with EEA relevance) https://eur-lex.europa.eu/eli/dir/2009/43/oj. 51 Ibid. 52 Council Regulation (EU) No 753/2011 of 1 August 2011 concerning restrictive measures directed against certain individuals, groups, undertakings and entities in view of the situation in Afghanistan https://eur-lex.europa.eu/eli/reg/2011/753/oj. 53 Ibid. 54 Streinz (n 25) para 48. 55 See Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items https://eur-lex.europa.eu/eli/ reg/2009/428/oj; see further U Karpenstein and J Sack, ‘Teil 2, Verordnung (EG) Nr. 3381/94 des Rates’ in H Hohmann and K John, Ausfuhrrecht Kommentar (München, Beck, 2002) 49 et seq. 56 See EU Code of Conduct on Arms Exports (1998), available at https://www.sipri.org/sites/default/ files/research/disarmament/dualuse/pdf-archive-att/pdfs/eu-code-of-conduct-on-arms-exports.pdf. 57 See eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008E0944. 58 See eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52010XG0318(01)&from=EN. 59 For the EU Code of Conduct see www.fas.org/asmp/campaigns/code/eucodetext.htm; for the Council position see eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008E0944&fro m=EN; on the function of the EU rules as minimum standards see Claßen (n 35) 98 et seq. 60 See Claßen (n 35) 98 et seq.

The German Control Regime on Arms Exports  157 These EU rules, which, according to Art 29 TEU, require observance in the Member States,61 stipulate that a Member State ‘shall assess the export licences made to it for items on the EU Common Military List mentioned in Article 12 on a case-by-case basis against the criteria of Article 2 (Art 1 of the Council Common Position). The criteria are first: ‘Respect for the international obligations and commitment of Member States, in particular the sanctions adopted by the UN Security Council or the European Union, agreements on non-proliferation …’; second ‘Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law’; third ‘Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts’; fourth ‘Preservation of regional peace, security and stability’, fifth ‘National security …’; sixth ‘Behaviour of the buyer country with regard to the international community, as regards particular its attitude to terrorism …’; criteria seven and eight, however, address the risk of diversion (Art 2). Member States may adopt more restrictive policies (Art 3). The Common Military List to which these rules apply appears to be quite broad. Yet, as the above-mentioned Articles illustrate, Member States are left with substantial discretion as to how they balance the various criteria mentioned in the list. It is the Member State that will ‘assess’ export decisions ‘against the criteria’ and ‘on a case-by-case basis’ (Art 1 (1)). Human rights concerns may be balanced against national security interests in a rather discretionary way, as Art 2 Nr 5 a) clarifies in a paradigmatic fashion: the potential effect of the military technology or equipment to be exported on their defence and security interests as well as those of Member State and those of friendly and allied countries, while recognising that this factor cannot affect consideration of the criteria on respect for human rights and on regional peace, security and stability.

This norm sounds like a typical formulaic compromise, as it appears to encapsulate divergent Member States’ positions. Art 3 therefore aptly states that ‘[t]his common position shall not affect the right of Member States to operate more restrictive national policies’. Below the level of EU law, Germany and France recently agreed to co-ordinate their weapons exports policies in the Aachener Vertrag, thereby amending the Élysée Vertrag of 1963 which stipulates close bilateral co-operation and marks the beginning of Franco-German friendship.62 The Aachener Vertrag builds on this by strengthening co-operation in a number of fields including armament. Whilst conferral of respective powers to the EU level still appears rather unrealistic at this stage, the two countries engage in a bilateral approach which is backed up by a

61 On the effects of Council common positions, see www.bafa.de/SharedDocs/Downloads/DE/ Aussenwirtschaft/afk_merkblatt_embargo.html. According to Art 29, cl 2 TEU, ‘Member States shall ensure that their national policies conform to the Union positions’. 62 See www.bundesregierung.de/breg-de/aktuelles/%C3%A9lys%C3%A9e-vertrag-ein-zeichen-derfreundschaft-1569908.

158  Dirk Hanschel defence and security council.63 The agreement states that both countries will, with regard to joint projects, develop a common approach for arms exports.64 Hence, the obligation is rather limited. At the same time, there appears to be a confidential addition to the agreement according to which Germany may, in essence, only object to French exports of jointly produced arms to third countries where direct interests or national security concerns are at stake.65 The background of that appears to be a more lenient arms export policy of France which the country does not want to see compromised by joint weapon production the export of which is then blocked by Germany.66 If this is correct, German export control with regard to human rights concerns might be reduced to quite an extent, at least if joint arms production plays a major role.

C.  The Constitutional Level: Art 26, para 2 of the Basic Law The German domestic control regime on arms exports starts at the constitutional level which, in comparison with other States, is quite extraordinary.67 The Constitution intends to provide a firm response to previous German history by entrenching a democratic order that is based on liberty and peace. Accordingly, Art 26, para 2 Basic Law (BL) stipulates that ‘[w]eapons designed for warfare may be manufactured, transported or marketed only with the permission of the German Government. Details shall be regulated by a federal law’.68 This needs to be viewed in the context of para 1, which essentially contains a prohibition of acts of aggression against other States. Read in conjunction with Art 24, para 2 BL, which allows German integration into international collective security systems, and with the Preamble (‘Inspired by the determination to promote world peace

63 See Sprenger: ‘France, Germany Aim to Unify their Clashing Weapons-Rules’ (Defense News, 11 January 2019). 64 Art 4 (3) 5 of the Aachener Vertrag: ‘Beide Staaten werden bei gemeinsamen Projekten einen ­gemeinsamen Ansatz für Rüstungsexporte entwickeln’, www.bundesregierung.de/resource/blob/ 997532/1570126/c720a7f2e1a0128050baaa6a16b760f7/2019-01-19-vertrag-von-aachen-data.pdf. 65 See ‘Deutsch-französisches Geheimpapier regelt Waffenexporte neu’ (Spiegel Online, 15 February 2019); Abkommen zwischen der Regierung der Bundesrepublik Deutschland und der Regierung der Französischen Republik über Ausfuhrkontrollen im Rüstungsbereich, 23 October 2019. 66 Ibid; more generally on Germany’s role in European arms politics, see T Heider, ‘Deutschlands Rolle in der Europäischen Rüstungspolitik und Rüstungskontrollpolitik’ in Schlotter et al (eds.), Berliner Friedenspolitik? Militärische Transformation – Zivile Impulse – Europäische Einbindung (Baden-Baden, Nomos, 2008) 314. 67 Davis (n 22) 155 calls it the ‘legalistic model’; on the control procedures, see generally Claßen (n 35); specifically on the constitutional framework, see V Epping, Grundgesetz und ­Kriegswaffenkontrolle (Berlin, Duncker & Humblot, 1993). 68 www.gesetze-im-internet.de/englisch_gg/englisch_gg.pdf; on this provision see Streinz (n 25) paras 35 et seq; F Wollenschläger, ‘Art 26’ in H Dreier, Grundgesetzkommentar, 3rd edn (Mohr Siebeck, 2015) Vol 2, paras 43 et seq; W Heintschel von Heinegg, ‘Art. 26’ in V Epping and C Hillgruber, Grundgesetz Kommentar, 2nd edn (München, Beck, 2013) paras 29 et seq.

The German Control Regime on Arms Exports  159 as an equal partner in a united Europe […]’), Art 26 BL may be viewed as an expression of the Friedensgebot (requirement of peacefulness) as a constitutional principle of the Basic Law.69 Within Art 26, para 2 BL, it should be noted that the clause ‘being designed for warfare’ needs to be interpreted in an objective fashion.70 Otherwise the requirement for authorisation would be rather void.71 Ambivalent weapons that can be used by the army and the police, by the Government and by individuals, are deemed to be subjected to the licensing requirement, as well.72 The same is true for components that are not on the war weapons list73 but can be easily combined with other components in order to be used as weapons.74 There is an academic debate on the question as to whether the licensing requirement should be viewed as a general prohibition with individual exemptions (repressives Verbot mit Befreiungsvorbehalt), or as a mere caveat to a general right to obtain a licence (präventives Verbot mit Erlaubnisvorbehalt).75 According to the general aim of Art 26, para 2 BL, which is to ensure tight control of such dangerous items, the former understanding appears more convincing.76 This is also reflected by the statutory level where § 6 para 1 of the Kriegswaffenkontrollgesetz (KWKG) (War Weapons Control Act) clarifies that there is no right to be granted a licence.77 Limitations typically touch upon and restrict the exercise of freedom of profession as guaranteed under Art 12 BL and to some extent the right to property according to Art 14 BL that require justification in light of a limited set of public interests and the principle of proportionality.78 Conversely, the question is furthermore to what extent limitations for the licensing of arms export can directly be inferred from fundamental rights in the German BL.79 Arts 1 to 19 BL entail a catalogue of fundamental rights which,

69 See M Herdegen, ‘Art. 26’ in Maunz and Dürig (n 31) para 2. 70 Epping (n 67) 128 ff; on the discussion of the interpretation of the term ‘weapons’ within Art 26 (2) BL, see Claßen (n 35) 47 ff. 71 See Streinz (n 25) para 38. 72 Streinz (n 25) para 39. 73 See section III.D.ii. below. 74 Streinz (n 25) para 39. 75 Streinz (n 25) para 45; on the discussion see furthermore Claßen (n 35) 65 ff; for the discussion at the statutory level, see Kirchner (n 47) 339; Claßen (n 35) 73 ff. 76 See Kirchner (n 47) 338; contrary Heintschel-Heinegg (n 68) para 33; Epping (n 67) 108ff; Claßen (n 35) 64 et seq. 77 For the current German version, see www.gesetze-im-internet.de/bundesrecht/krwaffkontrg/ gesamt.pdf. A translation of the version from 11 October 2002 can be found at germanlawarchive. iuscomp.org/?p=741. On the details of licensing see below under section III.D. 78 See Claßen (n 35) 77 ff; P Busche, Grundrechtlicher Schutz des Herstellens, Beförderns und ­Inverkehrbringens von Kriegswaffen (Baden-Baden, Nomos, 2017). 79 For a discussion of this matter see A Papp, Extraterritoriale Schutzpflichten (Berlin, Duncker & Humblot, 2013) 156 ff.

160  Dirk Hanschel according to Art 1(3) BL, bind all public authority in the exercise of their functions. Art 2(2) 1 BL which guarantees the right to life, is of particular relevance in this regard. Licensing decisions are undoubtedly acts of German authorities and hence of the German State. What is doubtful is to what extent the consequences of those decisions can still be attributed to the German licensing authorities. What happens, for example, if arms are exported and then used by the foreign government’s military to kill their own citizens? Can the family of a shot person claim damages from the German Government for having authorised that export? This is problematic in a number of respects: One question would be to what extent such a use of the arms is foreseeable. Another question is whether that use is still attributable to the German Government even though a much more direct action outside its jurisdiction, namely the actual killing, is carried out by the foreign government. Furthermore, one may wonder to what extent a violation of fundamental rights in Germany would depend on the illegality of the recipient government’s use of the weapon according to international law. The Federal Constitutional Court has established that, within their scope ratione materiae, fundamental rights bind the German public authority even where relevant effects of domestic acts occur outside the territory of the Federal Republic of Germany.80 However, according to this doctrine there are clear limits: Where governmental acts are not completely confined to the territorial scope of the Basic Law, in particular where they are influenced by actions of other States that the German Government cannot control, German fundamental rights become less powerful and pervasive.81 Hence, in most cases, it will be very difficult to establish that Germany has violated fundamental rights in such instances. There appears to be limited evidence of such a discussion within the literature or in court cases.82 More research needs to be undertaken to achieve more balanced and convincing results in this regard. In current practice, relevant concerns are largely tackled at the statutory level where rather strict standards based on human rights concerns have arguably been put in place. This will be discussed in the subsequent section.

80 BVerfG, 25 March 1981–2 BvR 1258/79, paras 42 et seq. 81 M Herdegen, ‘Art. 1 III’ in Maunz and Dürig (n 31) Rn 72, 75 with references to pertinent decisions of the German BVerfG, 21 March 1957–1 BvR 65/54, paras 16–18; BVerfG, 07 July 1975–1 BvR 274/72, paras 122 et seq; BVerfG, 16 December 1980–2 BvR 419/80, paras 36 et seq. 82 For an overview with regard to foreign military action of the German Bundeswehr, see the analysis Deutscher Bundestag – Wissenschaftliche Dienste: ‚Rechtliche Fragen zu Auslandseinsätzen der Bundeswehr’ available at www.bundestag.de/blob/414662/97447b00513af871dc41cf174f7a9654/wd-2108-07-pdf-data.pdf, 6 ff; on the limits of the Basic Law in the different case of so-called ‘Auslandsgeschäfte’, ie deals where the arms are already outside Germany, see K Ipsen, ‘Kriegswaffenkontrolle und Auslandsgeschäfte’ in Beyerlin et al (ed), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhard (Berlin-Heidelberg, Springer Verlag, 1995); A. Mrozek, ‘Rule of Law Implications for Supranational Military Cooperation’ (Verfassungsblog, 29 March 2019); M Nettesheim, ‘Art. 59’ in Maunz and Dürig (n 31) paras 221f.

The German Control Regime on Arms Exports  161

D.  The Statutory Export Licensing System i.  Pertinent Laws Arms exports from Germany are essentially governed by two statutes, namely the KWKG and the Außenwirtschaftsgesetz (AWG) (Foreign Trade and Payments Act),83 together with the Außenwirtschaftsverordnung (AWV) (Foreign Trade and Payments Ordinance).84 In addition there are further rules and regulations with regard to the ban of particular items.85 The KWKG executes Art 26 (2) BL and contains a list of weapons qualifying as war weapons. By contrast, the AWG is not limited to such weapons, but establishes rules on a wider set of items with an actual or potential military use, to the extent that these rules have not been superseded by European Union law.86 With regard to arms export, binding EU rules merely provide guidance for domestic licensing decisions. Together with the non-binding OSCE Principles, they have been integrated into the Political Principles. The latter can be qualified as internal administrative regulations that guide decisionmaking practice.87 By themselves they are merely of an internal character, but their application has contributed to the establishment of an administrative practice by which the authorities bind themselves in such a way that similar cases cannot be decided differently without a good reason.88 Due to the lack of public information of decision-making practice it appears, however, difficult to make such a case successfully before the courts.89

ii.  Licensing Procedures As a consequence of these two statutes, the export of arms from Germany requires two licences, one under the KWKG90 and one under the AWG. Neither licence replaces or entails the other, although in practice the KWKG licence is the more important one as it is subject to stricter conditions and therefore prejudices the licence under the AWG.91 The licensing requirement under the KWKG is laid down in §§ 2(2), 3(3) KWKG in conjunction with an Annex listing specific weapons determined for warfare (Kriegswaffenliste).92 § 2(2) KWKG states that ‘[a]nyone who intends to 83 English Version: www.gesetze-im-internet.de/englisch_awg/englisch_awg.pdf. 84 English Version: www.gesetze-im-internet.de/englisch_awv/. 85 See www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Gueterlisten/gueterlisten_node.html. 86 See, eg, Wollenschläger (n 68) Rn. 12, 13; Kirchner (n 47) 336. 87 Claßen (n 35) 115 et seq. 88 Claßen (n 35) 115 et seq. 89 Claßen (n 35) 172, concludes that they do not constitute a binding justiciable framework. 90 For an English version see www.bafa.de/SharedDocs/Downloads/EN/Foreign_Trade/afk_war_ weapons_control_act.html. 91 See Kirchner (n 47) 339. 92 On the details of applicability of these norms see, partially diverging, Epping (n 67) 177ff; D Holthausen, ‘Der Verfassungsauftrag des Art. 26 II GG und die Ausfuhr von Kriegswaffen’ (1995) JuristenZeitung 284 ff; Claßen (n 35) 42 ff.

162  Dirk Hanschel acquire actual control of war weapons from or to transfer it to another person shall need a licence’. § 3(3) KWKG adds to that by stipulating that ‘[w]ar weapons may only be imported, exported, transported through or otherwise be brought into or out of federal territory if a licence has been granted for the requisite transport […]’.93 The KWKG operates in such a way that export of war weapons is generally banned, but subject to individual exceptions.94 § 6(1) KWKG states that there is no ‘entitlement to the granting of a license’. The following paragraphs list reasons why licences may or have to be denied in particular.95 In a nutshell, licences may be denied especially where they would ‘militate against the interest of the Federal Republic of Germany in maintaining good relations with other countries’, where someone involved in the transaction is not a German citizen or resident, or where other relevant licences are missing (para 2). Licenses shall be denied where the weapons might be used for an act against the peace, where the granting of a licence might violate Germany’s fulfilment of international obligations, or where the reliability of the applicant is doubtful (para 3). One peculiarity of the KWKG licensing regime is that such a licence can be revoked at any time (§ 7 KWKG), which marks a clear departure from the general rules of the Verwaltungsverfahrensgesetz (Code of Administrative Procedure) by which legitimate expectations are normally protected.96 Licenses shall be revoked where reasons specified under § 6(3) KWKG apply and are not remedied in due course. Revocation may lead to compensation, ie merely a secondary remedy (§ 9(1) KWKG). Compensation is not granted where the licensee or others under the licensee’s supervision have given rise to the revocation by their own culpable behaviour § 9(2) KWKG. The second licence is required under the AWG:97 § 1 AWG stipulates that trade is, in principle, not restricted. Whilst exports are generally free, § 4(1) AWG stipulates a number of circumstances under which they can be restricted, e.g. in order: (1) to guarantee the essential security interests of the Federal Republic of Germany; (2) to prevent a disturbance of the peaceful co-existence of nations; or (3) to prevent a substantial disturbance to the foreign relations of the Federal Republic of Germany. Further clauses (4 and 5) refer to exemptions under EU law. Paragraph 2 adds that restrictions can also be imposed by ordinances in order to implement international obligations. More detailed restrictions are laid down in the AWV and its annexes which include all the items covered by the KWKG.98 The Ausfuhrliste (export list) in 93 On the discussion regarding the relationship between those two norms and their applicability to arms exports, see Claßen (n 35) 42 ff, who claims that the application for an export licence encompasses both the transfer and the cross border transport (at 46). 94 On the constitutional equivalent see above section III. C. 95 See in detail Claßen (n 35) 88 ff. 96 U Ramsauer, ‘§ 43’ in O Kopp and U Ramsauer, Verwaltungsverfahrensgesetz: VwVfG, 19nd edn (München, Beck, 2018) Rn 7f, 14b. 97 www.gesetze-im-internet.de/englisch_awg/englisch_awg.html#p0088. 98 See www.gesetze-im-internet.de/englisch_awg/englisch_awg.html#p0008.

The German Control Regime on Arms Exports  163 Annex I is of particular importance, especially Part I, Sections A and B which list weapons, ammunition and military equipment (A), as well as nationally determined dual use products (B).99 Several other ordinances, such as the Anti-Folter-Verordnung (Anti-Torture-Ordinance), several Embargoverordnungen (embargo ordinances) eg with regard to Iran, North Korea or Russia, the Feuerwaffen-Verordnung (Firearms Ordinance) provide further restrictions.100 For exports from the EU the so-called Dual Use Regulation No 428/2009 and its Annex I needs to be observed which has superseded the national law to a substantial extent.101 Furthermore, Directive 2009/43 EC facilitates trade within the European Union of the listed defence-related products.102 Due to the very broad discretion that is granted to BAFA decisions under the licensing law in spite of the guidance provided by the Political Principles, it is not surprising that there have been hardly any successful court cases. One such case deserves mentioning, however. Heckler & Koch sued the BAFA in 2015, demanding permission to export G 36 components to Saudi Arabia or, in their auxiliary request, at least to decide at all on the case. The main request failed as it is for the Government to exercise discretion, but the auxiliary request succeeded.103 The Court stated that even under the premise of governmental prerogative of assessment, its broad discretion and the requirements to consult with several ministries, BAFA is required under administrative law to bring the procedure to an end and to get to a decision.104 Another trial concerned the company Rheinmetall, which sued the German Government due to the recent embargo against Saudi Arabia.105 Apart from the AWG, the grounds for potential lawsuits can be found in the Basic Law which establishes the guarantees to freedom of profession (Art 12) and property (Art 14). In addition, Art 3 BL requires authorities to not deviate from established administrative practice without good reason. However, these basic rights are subject to limitations by themselves. In addition, there are the

99 See www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Gueterlisten/gueterlisten_node.html; for the current export list see www.bafa.de/SharedDocs/Downloads/DE/Aussenwirtschaft/afk_ ausfuhrliste_zwoelfte_vo_aenderung_awv.pdf?__blob=publicationFile&v=5. 100 See www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Gueterlisten/gueterlisten_node.html. 101 Karpenstein and Sack (n 55) paras 19 et seq. 102 Directive 2009/43 EC, eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:146:0001: 0036:en:PDF; for subsequent amendments, see www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/ Rechtsgrundlagen/rechtsgrundlagen_node.html. 103 See R. Glawe, ‘Der Staat muss sich entscheiden’ (Legal Tribune Online, 15 July 2016); www.lareda. hessenrecht.hessen.de/lexsoft/default/hessenrecht_lareda.html#docid:7606778. 104 VG Frankfurt am Main, vom 23.06.2016 - 5 K 3718/15.F. 105 S Sprenger and A. Chuter, ‘Rheinmetall, BAE Systems Launch Joint Venture for M ­ ilitary ­Vehicles’ (Defense News, 21 January 2019); M Gebauer and C Schult, ‘Großbritannien wirft Berlin mangelnde Bündnistreue vor‘ (Spiegel Online, 19 February 2019); ‘Frankreich fordert von Deutschland Lockerung der Waffenexportregeln‘ (Zeit Online, 24 February 2019, ZEIT Online, Reuters, AFP, mp); https://www.handelsblatt.com/unternehmen/industrie/ruestungsexporte-verwaltungsgerichtkippt-ausfuhr verbot-fuer-ruestungsgueter-nach-saudi-arabien/25296488.html?ticket= ST-7654577-gZx6qtsw25K5SKdIkoat-ap2; the Court decision may still be appealed against, VG Frankfurt 3. December 2019 5 K 1067/19.F.

164  Dirk Hanschel above-mentioned restrictions resulting from Art 26, para 2 BL. Without knowing details of the case or the administrative practice, it is difficult to assess its chances for success. Conversely, it is almost inconceivable that non-governmental organisations or worried citizens could sue as German doctrine regarding locus standi in administrative law requires that, in order for a case to be admissible, claimants need to show a potential violation of their own individual rights.106 In the case of weapons export, this makes it rather difficult to bring a case.

iii.  Licensing Institutions Decisions under the AWG are taken by the BAFA.107 According to § 11 KWKG read jointly with § 1 of the First Regulation on the KWKG (Erste Verordnung zur ­Durchführung des Gesetzes über die Kontrolle von Kriegswaffen),108 the competence for licensing is transferred from the Federal Government (§ 11 paras 1, 2 KWKG) to various ministries, while in practice the BMWi will often be in charge.109 One may doubt whether such transfer of decision-making power to individual members of the Federal Government is constitutional as Art 26(2) BL requires decisions by the Federal Government as a whole.110 In practice, the more controversial decisions are prepared and at least de facto decided by the Bundessicherheitsrat (Federal Security Council).111 This body is the successor of the Bundesverteidigungsrat (Federal Defence Council) initiated in 1955 by the then Chancellor Konrad Adenauer. It constitutes a governmental committee which is chaired by the Chancellor and includes currently eight further members of government. It is concerned with security issues in the field of defence, disarmament and arms control.112 It acts confidentially and only releases annual statistical information of a more general kind, ie through its reports on arms exports.113 In 2014 the Federal Constitutional Court decided on the right of MPs to be informed by the Government on its decisions in the Bundessicherheitsrat:114 106 On this German doctrine, see for instance A Scherzberg, Individual Rights in German Administrative Law (Paper presented at a German-Columbian Law Colloquium, Erfurt, 2008), available at www.uni-erfurt.de/fileadmin/user-docs/Oeffentliches_Recht/Internetpubli/indrights_germanpubliclaw08.pdf. 107 See www.bafa.de/EN/Home/home_node.html; see www.bafa.de/EN/Federal_Office/Tasks/tasks_ node.html. 108 See https://www.gesetze-im-internet.de/krwaffkontrgdv_1/BJNR006490961.html. 109 See ‘Wer entscheidet über deutsche Waffenexporte?’ (SWR, 7 June 2015). 110 Streinz (n 25) para 46; M Herdegen, ‘Art. 26’ in Maunz and Dürig (n 69) para 69. 111 BVerfG, 21 October 2014–2 BvE 5/11, paras 6–9; Claßen (n 35) 201 ff. 112 See Kirchner (n 47) 337. 113 BVerfG, 21 October 2014–2 BvE 5/11, paras 9–12; generally on the relationship between Parliament and the Bundessicherheitsrat, see www.bundestag.de/dokumente/textarchiv/2015/kw02_ artikel_26_gg/348420; more broadly on the Bundessicherheitsrat see R Glawe, Organkompetenzen und Handlungsinstrumente auf dem Gebiet der nationalen Sicherheit (Baden-Baden, Nomos, 2011) 23 ff. 114 BVerfG, Press Release No 91/2014 of 21 October 2014; BVerfG, 21 October 2014–2 BvE 5/11, paras 1–232; for an assessment, see M Stemmler, ‘Rüstungsexportkontrolle light – Das Bundesverfassungsgericht

The German Control Regime on Arms Exports  165 Several Members of Parliament had inquired about arms exports to Saudi Arabia and Algeria; the Government refused to answer with regard to individual approvals which it claimed had to remain secret. The Court left the question unanswered as to whether ‘the Federal Government was and is entitled to establish the Federal Security Council and to transfer to that Council or to individual federal ministers the authority to decide on applications for the export of arms’115 by simply stating that ‘in legal relations with the Bundestag and its members, the Council’s decisions are to be attributed to the Federal Government, pursuant to Art. 26 sec. 2 sentence 1 GG’.116 The Court emphasised the right of parliamentarians to ask questions and receive answers from the Government. ‘Keeping secrets from Parliament limits that body’s options for oversight, and may thereby impair or disrupt the necessary democratic legitimation’. The Court furthermore stated that while arms export control is not, as a matter of foreign policy, a priori exempted from parliamentary scrutiny, the claim to information is limited by distribution of powers, welfare of the State, as well as the fundamental rights of others. It held that consultation and decision-making in the Bundessicherheitsrat is placed within the ‘core sphere’ of executive powers. ‘Parliamentary oversight only extends to procedures that have already been completed’. Otherwise Parliament would be in the position to ‘co-govern on a decision that is under the authority of the Federal Government’. ‘Oversight would be distorted into a steering capacity’. Furthermore, this could conflict with the ‘welfare of the state, which may be endangered if information that requires secrecy becomes public’.117 Such publicity might impair foreign policy interests in the course of pending negotiations. In exceptional cases this may even allow ‘refusal to answer’ whether a permit was given. Further limitations result from protection of fundamental rights (ie freedom of profession, Art 12 BL) of the concerned companies in order to avoid ‘business and trade secrets’ being disclosed, especially whilst the transaction is still pending. When asked, the Government has to inform about ‘positive permit decisions’, but it is not required to inform about prior deliberations or vote of members as confidentiality interests prevail. Answers cannot be withheld due to an alleged lack of ministerial competence, as the MPs have a right to obtain information from the Government as such, ie from each of their members.118 The Court finds that secrecy measures by ­Parliament cannot ‘resolve the conflict of interests’. If information was only

zieht dem parlamentarischen Fragerecht (zu) enge Grenzen’ (2015) Die Öffentliche Verwaltung 139 ff; F Meinel, ‘Organisation und Kontrolle im Bereich der Regierung – Zur verfassungsrechtlichen Stellung von Kabinettsausschüssen, insbesondere des Bundessicherheitsrats, im parlamentarischen Regierungssystem’ (2015) Die Öffentliche Verwaltung, 717 ff; R Glawe, ‘Der Geheimrat Zum Informationsrecht von Parlamentariern über Beratung und Beschlussfassung im Bundessicherheitsrat’ (2014) NVwZ, 1632; Claßen (n 35) 165 ff. 115 BVerfG, 21 October 2014–2 BvE 5/11, paras 148. 116 BVerfG, 21 October 2014–2 BvE 5/11, paras 141. 117 BVerfG, 21 October 2014–2 BvE 5/11, paras 137. 118 BVerfG, 21 October 2014–2 BvE 5/11, paras 1–232, available in English at www.bverfg.de/e/ es20141021_2bve000511en.html.

166  Dirk Hanschel revealed to a ‘parliamentary oversight body’, there would be more secrecy, but an interference with the rights of MPs not represented within it. ‘If such a power is delegated in the interest of public confidentiality, the delegation must be absolutely necessary and restricted to a few exceptions with limited application.’ The Court states that these conditions are not met. Furthermore, such a body would ­‘eliminate oversight by the citizenry’.119 It makes sense that the Bundessicherheitsrat cannot respond to any queries that require it to reveal strategic considerations in the process of negotiation, etc, which may be highly politically sensitive. But it would clearly strengthen parliamentary scrutiny and hence democratic legitimation of the outcomes if this body was open to at least a small number of MPs that take part in the deliberations.120 Such a setup is not novel, but instead common to security matters, as exemplified by the Parlamentarisches Kontrollgremium (Parliamentary Control Body) that monitors secret service activities.121 It had several successors, ranging from the Parlamentarisches Vertrauensmännergremium (PVMG) established in 1956 under the chancellorship of Konrad Adenauer and the Parlamentarische Kontrollkommission (PKK) set up in 1978. In 1999 it received its current name. It is based on the Kontrollgremiumsgesetz (PKGrG) and – since 2009 – on Art 45d BL.122 It can demand access to files and governmental offices and ask members of the secret agencies questions, which they have to answer fully and truthfully (§ 5 PKGrG). A permanent representative is appointed (§ 5 a, b PKGrG). Whilst an analogous structure in the field of arms export control may be for the legislator to provide, the fact that such an option exists seems to make the Court’s assessment of the necessity of confidentiality even vis-à-vis parliamentarians less compelling. The argument that other MPs would then be excluded could be countered by granting them the same rights to ask questions that they currently have. Hence, there would be two layers of information. This actually matches jurisprudence by the Court which has clarified that the parliamentary right to ask questions includes the field of secret service.123 The Court clarified that the Parliamentary Control Body merely serves to fill a gap as certain information can neither be disclosed to Parliament nor the public.124 Furthermore, the way that the Court has accepted attribution of the Bundessicherheitsrat’s decisions to the Government may be considered as problematic, as Art 26, para 2 BL requires deliberation within the Government as a whole on each of the decisions.125 The term ‘Federal Government’ is defined in Art 62 BL

119 BVerfG, 21 October 2014–2 BvE 5/11, paras 197–199. 120 More generally for a stronger involvement of Parliament, see also J. von Achenbach, ‘Alle ­Rüstungsexportgewalt geht vom Volke aus?’ (Verfassungsblog, 22 October 2014). 121 See www.bundestag.de/ausschuesse/weitere_gremien/parlamentarisches_kontrollgremium. 122 Ibid. 123 See BVerfG, 01 July 2009–2 BvR 5/06, paras 1–147. 124 Ibid, para 127. 125 See already Epping (n 67) 226 ff; Claßen (n 35) 201 ff.

The German Control Regime on Arms Exports  167 as consisting ‘of the Federal Chancellor and the Federal Ministers’.126 Accordingly, whenever the Basic Law imputes a right or duty upon the Federal Government, it would normally mean every member of it.127 Whilst this may be subject to practicability concerns in other fields, such dilutions appear more problematic in areas of key concern for the preservation of peace which constitutes a core concern of the Basic Law.128 A body that is only a partial reflection of the Government cannot provide the same level of discussion. The full participation of the Government in each decision may be difficult to realise. However, if this is part of an unchecked core of governmental discretion it would be appropriate to at least make sure of a maximum plurality of views and discussion within that body (even if no members of the opposition are inside it). The rules of procedure of the Bundessicherheitsrat seem to take account of the problematic authorisation by stating that this organ merely advises questions of security politics (§ 1 para 2). That, however, means that the Federal Government would subsequently have to endorse each decision individually. Whether that is formally the case, remains at least doubtful.129

IV.  The Policy Level The exercise of discretion within the normative framework sketched out above is guided by political principles and informed by political practice.

A.  Guiding Principles The Federal Government has agreed upon a licensing policy which entails Political Principles Adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and other Military Equipment130 that start by laying down a set of general principles. Section I: General Principle 1 incorporates the EU Code of Conduct as well as the OSCE Principles whilst stipulating that the domestic principles take precedence over the EU Code as far as they are more restrictive. This is important as they appear to be much stricter than the EU Code and have been subject to further tightening in 2019, e.g. with regard to human rights concerns. Principle 2 states that special weight is placed on respect for human rights both in the recipient State and in the State where the items ultimately remain. Exports are generally not licensed where there is sufficient cause to suspect that items will be

126 See www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0294. 127 Claßen (n 35) 202 et seq. 128 Claßen (n 35) 202 et seq. 129 See Claßen (n 35) 106. 130 https://www.bmwi.de/Redaktion/DE/Downloads/P-R/politische-grundsaetze-fuer-den-exportvon-kriegswaffen-und-sonstigen-ruestungsguetern.pdf?__blob=publicationFile&v=4; on the Principles see more generally Claßen (n 35).

168  Dirk Hanschel used for domestic suppression or other forms of sustained and systematic violations of human rights (Principle 3). To that end the human rights situation in the recipient country is monitored, which includes data from the European Union, Council of Europe, United Nations, OSCE and other international bodies, as well as reports by international human rights organisations (Principle 4). This is clearly a stricter stance than the EU Common Position expresses. Finally, the ultimate destination of the items needs to be secured in an effective manner (Principle 5, detailed under Section V). In addition, there are specific principles in sections relating on the one hand to NATO and EU Member States and to States that are treated in equivalence to NATO members (II), and on the other hand to other states (III). Exports to the first group of States should be guided by national security interests within the framework of NATO and the EU. They are, in principle, not restricted, but may be subjected to individual restrictions due to specific political reasons. By contrast, exports to other States are to be handled in a restricted fashion and may only be licensed on an individual basis due to specific reasons, mostly relating to security and foreign policy. Limitations result from situations of human rights violations, armed conflict and terrorism. In addition, there are rules on how to secure the final destination of arms (IV.). The last section (V.) sets up rules on transparency relating to publication of the regular export control report and information of Parliament on final export licensing decisions involving the Federal Security Council. As regards the final destination of arms, post-shipment controls were introduced in 2015. The guidelines demand that the AWV be altered accordingly.131 Since 19 March 2016, § 21 of the regulation stipulates that with regard to certain countries and weapons, the BAFA may demand evidence regarding the acceptance of post-shipment controls from the target country (§ 21 para 5), the details (according to para 6) to be determined by administrative ordinances (Allgemeinverfügung). During the current pilot phase, the focus lies on small arms and similar weapons.132 The condition for this is that the export has been licensed on the condition of authorisation of such post-shipment controls.133

B.  Political Practice Comparing the high aspirations to practice has a certain sobering effect. Platte and Leuffen conducted a statistical analysis of arms exports from 1992 to 2013 which does ‘not support the claim that the human rights situation in recipient

131 See www.bmwi.de/Redaktion/DE/Downloads/E/eckpunkte-einfuehrung-post-shipmentkontrollen-deutsche-ruestungsexporte.pdf?__blob=publicationFile&v=1. 132 See www.bmwi.de/Redaktion/DE/FAQ/Aussenwirtschaft/faq-ruestungsexporte.html. 133 Ibid.

The German Control Regime on Arms Exports  169 countries play an important role for German arms export decisions’.134 Their model ‘supports a trading state rather than civilian power reading of Germany, at least when it comes to arms export practices’.135 In fact they conclude that ‘lower levels of human rights seem to increase the chances of receiving German MCWs as well as the amount of arms exported’.136 Another analysis by Schulze, Pamp and Thurner covers the much longer period of 1953–2013 and arrives at similar results, whilst conceding that embargoes have largely been complied with.137 They ‘conclude that the noneffectiveness of certain rules and norms stems from both the ambiguity of norms and the opacity of decision-making processes’.138 They claim that their ‘findings suggest that charges of hypocrisy when it comes to discrepancies between public declarations and actual conduct […]indeed apply to German arms export policies, too’.139 This seems to amount less to an actual breach of binding rules, but rather, where economic and security interests are dominant, to ‘efforts of creative interpretation and dilution of relevant norms and procedures’.140 Whilst these analyses may be subject to a number of caveats, they certainly show that it is important to look at practice and not only at rules and principles. Since a detailed statistical survey is beyond the scope of this analysis, it may suffice to look at some of the more controversial cases and their treatment by the respective decision-makers. This, together with more recent figures, may indicate that a certain swing towards a more restrictive and human rights conscious policy is actually underway, even though security and economic consideration are still prevalent. When the previous Minister for Economic Affairs and Energy Sigmar Gabriel took office, he announced that he would substantially review the former practice of arms export licensing with a view to restraining such exports.141 The figures discussed above show that numbers went down from 2015 to 2016, but were still very high when compared to arms export in previous years.142 Under his successors Brigitte Zypries and Peter Altmaier, the decline continued in 2017, and in 2018 the overall export volume went down by 22.7 per cent as compared to 2017 levels, with regard to exports to countries outside the EU and NATO even by 32.8 per cent143 For some time numbers declined, which may be attributable to

134 H Platte and D Leuffen, ‘German Arms Exports: Between Normative Aspirations and Political Reality’ (2016) German Politics 561, 575. 135 Ibid 561. 136 Ibid 575. 137 Schulze, Pamp and Thurner (n 3). 138 Ibid 529. 139 Ibid 540. 140 Ibid 541. 141 See, eg, ‘Gabriel will strengere Regeln für Waffenexporte’ (Spiegel Online, 29 January 2014); ‘Rüstungsexporte: Gabriel verspricht Kehrtwende bei Waffengeschäften’ (Zeit Online, 18 May 2014). 142 BMWi, Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2016 (Berlin, BMWi, 2016); BMWi, Rüstungsexportbericht 2017. 143 See ‘Deutsche Waffenexporte brechen ein’ (Handelsblatt, 17 January 2019); www.bmwi.de/ Redaktion/DE/Parlamentarische-Anfragen/2019/01-29.pdf?__blob=publicationFile&v=4; www.bmwi.de/ Redaktion/DE/Parlamentarische-Anfragen/2018/12-390.pdf?__blob=publicationFile&v=4.

170  Dirk Hanschel swings in government policies.144 Yet, in 2018 still more than half of the licenses (53 per cent) concerned countries outside of the EU and NATO, even though this is the lowest number since 2011.145 It would take a more in-depth qualitative (instead of merely quantitative) analysis of the particular licensing decisions and their ramifications to establish whether the practice has really changed and on the basis of what particular policy. The limited availability of data renders such an analysis difficult to undertake. Furthermore, there is a certain delay effect as, due to existing contracts and licenses, reversal of policies need time to actually have an impact. However, one should note that the determination to reverse the trend and to be more restrictive on arms exports seems to be continuing. Hence, the so-called Grand Coalition, consisting of the Christian Democratic Union (CDU), the Christian Social Union (CSU) and the Social Democratic Party (SPD), agreed in spring 2018 to reduce arms exports in the following way: We continue to restrict the export of arms for third countries which are neither members of NATO or the EU nor their equivalent. As a supplement to the light weapons policies of May 2015, light weapons should in principle no longer be exported to third countries.146

Turning to public perception, one may observe that in spite of decades of increasing exports of weapons and recent quarrels about exports to Saudi-Arabia, it appears that most decisions have not been subject to an intense public debate. However, once in a while, in particular where weapons were exported to non-EU or NATO members, licenses did spark off a major controversy, in particular with regard to potential human rights violations. Licensing decisions do not have to lead to actual exports, and in fact they may often not do so.147 Therefore the discussion may sometimes focus on decisions that are of little practical relevance. This, however, does not alter the fact that the actual licensing decision should be the focus of public scrutiny as this decision constitutes the way in which the Government can exercise control and hence implement the restrictive approach of Art 26 (2) BL in practice. For a long time licensing decisions seem to have been rather generous and with limited checks,148 in particular as regards human rights violations. The coalition of SPD and BÜNDNIS 90/DIE GRÜNEN in 1999 argued heavily about the export of Leopard 2 tanks to Turkey; similar discussions ensued regarding exports of submarines to Israel and tanks to the United Arab Emirates.149 This led 144 Ibid (Handelsblatt, 17 January 2019). 145 BMWi, Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter 2018 (BMWi Berlin, 2018), p. 20. For more recent figures see, however, https://www.zeit.de/ wirtschaft/2019-07/deutschland-ruestungsexporte-2019-gestiegen. 146 See the English translation of the coalition agreement by the Konrad-Adenauer-Foundation at www.kas.de/c/document_library/get_file?uuid=d58641a0-02ab-935a-c295-1148b45cc426&groupId= 252038; www.cdu.de/system/tdf/media/dokumente/koalitionsvertrag_2018.pdf?file=1, 149. 147 See ‘Gabriel verteidigt Anstieg bei Waffenexporten’ (Zeit Online, 4 July 2016). 148 Ibid. 149 M Thumann, Erobern mit deutscher Wertarbeit‘, DIE ZEIT, 14 Feb 2019, p 6.

The German Control Regime on Arms Exports  171 to a tightening of the political principles which now included respect for human rights.150 Whilst this seemed to endorse the more restrictive line with regard to Turkey, the new Government in 2003 which started off by strengthening civil rights relaunched the discussion.151 In the last days of the coalition in 2005, the Bundessicherheitsrat authorised export of the 298 tanks to Turkey, apparently without any restrictions regarding their use.152 This decision turned out to be very problematic when in 2013 Turkish politics changed rather heavily in a much more repressive direction; apparently German tanks were then used against the Kurds in Syria.153 Ironically, some of these tanks seem to have been destroyed by Milan rockets from German-French production.154 Another controversial decision concerned the licensing of the export of weapons to the Kurds in Northern Iraq.155 The plan was to support them in their struggle against the called “Islamic State”. The Government stated that the export was subject to an agreement that the Kurdish regional Government would only use the weapons for this purpose.156 Nevertheless, there seems to have been a leakage of weapons which led to coverage in the media.157 A recurring issue was the (potential or actual) delivery of weapons to Saudi Arabia.158 The discussion of a potential export of 200 German tanks to Saudi Arabia in 2011 sparked off a lively political debate in Parliament, leading to the Constitutional Court decision discussed above.159 This was prompted by various media reports according to which Saudi Arabia had signalled an interest in these tanks and the Bundessicherheitsrat had generally authorised the export. This was criticised with the argument that Saudi Arabia had allegedly helped its neighbour Bahrain to quash civil protests against the Government.160 At some stage the issue caused such public uproar that Saudi Arabia stated that it was no

150 Ibid. 151 Ibid. 152 Ibid. 153 Ibid. 154 Ibid. 155 See D Vates, ‘Keine Waffen in Krisengebiete – das war einmal’ (Berliner Zeitung, 11 December 2016); see furthermore Claßen (n 35) 175 ff. 156 See dipbt.bundestag.de/doc/btd/18/121/1812170.pdf, p 3; more generally on the export of Leopard tanks during this period, see dipbt.bundestag.de/dip21/btd/17/147/1714736.pdf. 157 See ‘Waffen aus Bundeswehrbeständen auf Basaren in Nordirak aufgetaucht’ (Süddeutsche Zeitung, 21 January 2016). 158 See ‘Leos für die Saudis’ (Spiegel Online, 4 January 2011); D Böcking and C Elmer, ‘Handel mit den Henkern’ (Spiegel Online, 6 January 2016); Kirchner (n 47) 336 ff; According to Claßen (n 35) 130: the Middle East shows the most massive rearmament worldwide, which due to high economic wealth and a lack of strong domestic weapons industries is largely accomplished by arms import; see furthermore his report on export to Saudi Arabia at 172 ff; see also the latest SIPRI report, according to which Germany’s arms export to the Middle East increased by 125% when comparing the periods 2009–2013 and 2014–2018, www.sipri.org/sites/default/files/2019-03/fs_1903_at_2018_0.pdf, p 5. 159 BVerfG, 21 October 2014–2 BvE 5/11, paras 13–17. 160 See ‘Opposition fordert Ende der deutschen Waffenlieferungen an Saudis’ (Spiegel Online, 3 ­January 2016).

172  Dirk Hanschel longer interested in the tanks.161 Similar discussions had arisen with regard to the export of patrol boats in the light of Saudi Arabia’s military engagement in Yemen.162 The coalition agreement of spring 2018 stated that ‘[w]ith immediate effect, we will no longer approve exports to countries that are currently involved in the war in Yemen’.163 This may reveal an increased awareness of problematic export decisions coupled with more public attention. However, this policy only fully materialised in November 2018 when Germany was the only major arms exporter within EU and NATO to announce a complete export ban regarding Saudi Arabia as a reaction to the killing of the journalist Jamal Khashoggi, including exports that had already been licensed.164 In spite of this, Saudi Arabia was, in that year, still one of the biggest importers of German arms, with an overall volume of 416 million EUR.165 Furthermore, the reaction to the incident does not seem to amount to a rejection of licenses, but merely to a stand-by situation generated by a moratorium.166 This appears to affect French and British arms exporters, as well, as jointly manufactured products such as the Eurofighter plane are also concerned by this policy.167 In 2014, it was reported that Germany was planning to enter into major arms deals with Algeria.168 The overall volume of these deals placed Algeria at the top of the 2016 weapons export list; in 2017 and 2018 this trend continued.169 Most of the time, however, the debate does not reach a level that might create intense pressure for the Government. The public’s interest appears to be somewhat limited. It seems that more ‘robust’ views have become more prevalent in a situation where the main discussion revolves around more recent active German military engagement abroad. Security issues appear to be on the rise, primarily through 161 See ‘Saudi-Arabien will deutsche Leopard-Panzer nicht mehr’ (Zeit Online, 31 May 2016). 162 See M Gebauer, ‘Regierung genehmigt Waffendeal mit Saudi-Arabien’ (Spiegel Online, 5 June 2016). 163 See www.kas.de/c/document_library/get_file?uuid=d58641a0-02ab-935a-c295-1148b45cc426&gr oupId=252038, p 23. 164 See ‘Deutsche Waffenexporte brechen ein’ (Handelsblatt, 17 January 2019); C Bormann and A. Ludwig, ‘Der Fall Khashoggi‘ (2019) Die öffentliche Verwaltung p. 629, 629ff. 165 Ibid; for a discussion of arms exports to Saudi Arabia more generally see D Regev, ‘Should Germany Stop Exporting Arms to Saudi Arabia?’ (DW, 4 January 2016). 166 The extension of this moratorium almost split the Grand Coalition, see M Gebauer, V Medick, C Schult and G Traufetter: ‘Entscheidung in geheimer Runde’ (Spiegel Online, 26 March 2019). 167 Gebauer and Schult (n 105); ‘Frankreich fordert von Deutschland Lockerung der Waffenexportregeln’ (Zeit Online, 24 February 2019); see furthermore A. Shalal, ‘Germany Risks Harming Industry with Unilateral Arms Embargoes: Minister’ (Reuters, 7 March 2019); on the difficult choices, see M Gebauer et al: ‘German Ban on Arms Exports to Saudis Spurs Pushback’ (Spiegel Online, 6 March 2019); on the case of the Eurofighter see S. Sprenger, ‘European Dispute over Arms Exports Tests Germany’s Stance of “Nein!” (Defense News, 25 February 2019); for the position of Human Rights Watch, see Jaennerod and Michalski: ‘Why Germany Shouldn’t Yield on Arms Sales to the Saudis’ (Human Rights Watch, 25 March 2019). 168 See ‘Germany to Sell Algeria Arms Factory’ (The Local, 18 June 2014). 169 BMWi, Rüstungsexportbericht 2016, Anlage 7; BMWi, Rüstungsexportbericht 2017, Anlage 7; BMWi, Rüstungsexportbericht 2018, Anlage 7.

The German Control Regime on Arms Exports  173 the threat of terrorism. The US under the Trump presidency currently exerts pressure on the European NATO members to increase their military expenditure which is likely to enhance the already booming arms trade, as well. While there is a public debate on arms exports, the more restrictive approach by some German politicians  is sometimes viewed as an expression of pacifist views that do not fully come to terms with international political realities and perceived necessities regarding a more active military engagement.

V. Conclusion The German system of arms export control is characterised by a rather tight legal control regime at various levels, ranging from international to European, constitutional, statutory law and political practice. In spite of a general licensing requirement that is subject to ambitious standards, the actual volume of arms exports is very substantial, and a number of licensing decisions may be viewed very critically. The large volume of arms exports could be partially owing to the fact that the arms industry benefits from and contributes to Germany’s general reputation as an exporter of high quality products, in particular with regard to its manufacturing industry. In the past, arms exports may also have served to make up for the lack of more active military engagement, e.g. by sending troops into conflict areas, and hence to live up to expectations raised by German allies, in particular from other NATO countries. More recently, public debate appears to have become quieter on this issue than it sometimes has been. Corresponding with a stronger engagement of the Bundeswehr abroad and with an enhanced security debate at home, the population seems to have adopted a more ‘robust’ way of thinking when it comes to the correlating export of arms. As sobering as it may sound, the consequences of such licensing decisions do not directly affect German citizens at home, and in times of terrorist threats and active engagement of the German military abroad it can be difficult to gain enough attention for the ethical questions involved, especially as it may also be quite challenging to receive reliable data even though governmental reports provide a certain amount of detail. Whilst governmental control is rather tight, export decisions often remain relatively unchecked by parliamentary or judicial scrutiny. There is a rather odd situation of high legal and political standards that are, however, partially maintained by rather secretive bodies, which places a certain amount of unchecked responsibility on them. Parliamentary control includes the right to be informed about licensing decisions, but without very much detail and without the opportunity to participate in the actual deliberations. Judicial scrutiny has so far mainly operated the other way around, eg by the weapons industry suing the G ­ overnment,

174  Dirk Hanschel be it against adverse decisions, for lack of action or in order to obtain an export licence.170 This may be remedied in a couple of ways. Exporting weapons to other EU or NATO countries may correspond to duties within the alliance and contribute to a useful division of labour. Even here, however, as with exports to Turkey, more public scrutiny could be very useful or in fact necessary. Outside these alliances, it may become even more difficult to discern how exports can be justified. The arms industry seems to be able to deal with setbacks. Hence, German defence manufacturing company Heckler & Koch have apparently decided only to export to NATO countries, because it was otherwise getting too difficult to gain governmental permission.171 It is certainly an important function of the State to maintain public order and to protect its borders and defend its citizens against aggressors. In their protective function, weapons do not only establish security, but also freedom. German democracy, which also describes itself as a wehrhafte Demokratie (a democracy that knows how to defend itself) is certainly aware of that. However, many governments appear to abuse military power or to lack the capacity or the will to control their weapons so that they can change hands easily and end up in some of the worst perpetrators’ hands. Germany may have a strategic interest to support countries such as Saudi Arabia that may be able to provide some stability in contested areas of the world.172 But it should be quite scrupulous when assessing what can happen with or to these weapons, in particular in light of potential human rights violations. Another argument might be that the German arms industry needs export opportunities to remain competitive and hence in the position to equip the Bundeswehr with the latest technology.173 However, should it not be possible to accomplish this amongst countries that maintain comparable standards? Where this is not sufficient, arms production might be funded and controlled by the State itself in order to provide the necessary equipment. In institutional terms, it seems to be useful to reform the Bundessicherheitsrat which in its current shape appears in some ways as quite an anachronism for a modern democratic State. The German model of a parliamentary democracy

170 VG Frankfurt a. Main (Frankfurt Administrative Court), Urt. v. 23.06.2016, Az. 5 K 3718/15.F, see Pressemitteilung VG Frankfurt am Main Nr. 04/2016 (23.06.2016); see further ‘Heckler & Koch will Waffenexporte erzwingen’ (Zeit Online, 20 May 2016); ‘Bundesregierung muss über Waffenexport nach Saudi-Arabien entscheiden’ (Spiegel Online, 23 June 2016); ‘Heckler & Koch will Exporte erzwingen’ (NTV, 21 May 2016); see furthermore the case of a lawsuit against rejection of an export licence, VG Frankfurt a. Main, Urt. v.29.11.2012, Az. 1 K 675/12.F, available at openjur.de/u/598698.html. 171 ‘Heckler & Koch to Stop Doing Deals with Non-NATO Countries’ (Reuters, 28 November 2016); there is, however, much more discomforting news, as well, as allegations of potential bribery through clever party donations appear to be under investigation at the moment, see Knight: ‘Angela Merkel’s Party Accused of Taking Bribes from German Gunmaker H&K’ (DW, 23 May 2018). 172 A Heinrich, ‘Sand im Getriebe – Opposition scheitert mit ihren Anträgen gegen ein Panzergeschäft mit Saudi-Arabien’ (2011) Das Parlament 28–30. 173 For arguments in this direction see for instance H Friederichs, ‘Die stumpfen Argumente der Waffenbauer’ (Zeit Online, 24 June 2018).

The German Control Regime on Arms Exports  175 suggests more parliamentary control of the Government, especially in such a sensitive field as the export of arms. This might be accomplished by opening this body to a limited number of parliamentarian members without necessarily changing the secrecy rules. Other forums such as the Parliamentary Control Body provide valid models in this regard. Furthermore, decisions of the Bundessicherheitsrat require validation (or alteration) by the Government as a whole, unless Art 26, para 2 BL is modified in order to do away with that requirement. The same applies, but even more powerfully, to situations where decisions are simply taken by a single Minister. Licensing practice shows how much scope/discretion the law leaves to decisionmakers.174 This illustrates that the law as such is not enough to exercise effective control. It also takes responsible decision-makers, subjected to public scrutiny. As regards the latter, the current doubling of reporting through the Rüstungsexportbericht (arms control report)175 is an improvement, but, due to the relative scarcity of information presented in this report, not necessarily sufficient to allow the public to decide as to whether its representatives take the right decisions on these delicate matters. In addition, it appears worthwhile considering passing an ‘Arms Export Control Act’ as suggested by the Joint Conference Church and Development (GKKE), which could encapsulate the EU Common Position and domestic political principles.176 This could make them justiciable and would expand tighter controls to arms beyond the terms of war weapons. With regard to fundamental rights (be it at the constitutional or international level), more research needs to be undertaken to determine the precise scope and limitations of such rights with regard to arms exports from Germany. To what extent can they be used to check the validity of governmental decisions that are taken within the domestic jurisdiction, but may have grave adverse effects abroad? The current doctrine of the Federal Constitutional Court does not appear to fully provide that clarity with regard to the scope of Art 1, para 3 BL. According to this Article, ‘[t]he following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law’.177 Such issues will also arise where German arms producers do not aim to export complete weapons, but only parts of them, or where they intend to build arms factories abroad. This raises intricate problems under international, constitutional and statutory law. Public attention to these matters might gain more of a momentum in the light of the current refugee situation. Germany’s acceptance of almost one million refugees in 2015/16 led

174 See R Weiss, ‘Germans Defend Export Licences Decline amid Minister Scrutiny’ (Bloomberg, 25 June 2015). 175 On that agreement, see ‘’Rüstungsexporte sollen transparenter werden’ (Spiegel Online, 7 ­November 2013). 176 See www.justitia-et-pax.de/jp/aktuelles/data/20190312_gkke_arms_report_summary_2018_pdf.pdf; on a discussion of this matter, see K Keul and HM Wolffgang, ‘Brauchen wir ein Rüstungsexportkontrollgesetz’ (2018) Zeitschrift für Rechtspolitik 155. 177 See www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0144.

176  Dirk Hanschel to questions as to whether many of these people may have fled from dictatorial regimes or civil war where weapons were used against them that may have come from German production.178 This shows the interconnectedness in today’s globalised world. On holidays there’s nothing I like better Than talking about war and war’s display, When in Turkey far away, People one another batter. You sit by the window: have a glass: See the bright boats glide down the river, Then you walk back home and bless Its peacefulness, and peace, forever.179

This Faustian view may hence not only be considered cynical, but also very untrue when applied to our situation.

List of References Bormann, C and Ludwig, A, ‘Der Fall Khashoggi‘ (2019) Die öffentliche Verwaltung 629. Bundesministerium für Wirtschaft und Energie (BMWi) (ed), Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2018 Rüstungsexportbericht (BMWi Berlin, 2018). Bundesministerium für Wirtschaft und Energie (BMWi) (ed), Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im ersten Halbjahr 2018, Rüstungsexportbericht 2018 (Berlin, BMWi, 2018). Bundesministerium für Wirtschaft und Energie (BMWi) (ed), Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2017, Rüstungsexportbericht 2017 (Berlin, BMWi, 2017). Bundesministerium für Wirtschaft und Energie (BMWi) (ed), Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2016, Rüstungsexportbericht 2016 (Berlin, BMWi, 2016). Busche, P, Grundrechtlicher Schutz des Herstellens, Beförderns und Inverkehrbringens von Kriegswaffen (Baden-Baden, Nomos, 2017). Claßen, JJ, Das Kontrollverfahren beim Export von Kriegswaffen aus Deutschland (New York, Peter Lang GmbH, 2017). Davis, I, The Regulation of Arms and Dual-Use-Exports – Germany, Sweden and the UK (Oxford, Oxford University Press, 2002). Epping, V, Grundgesetz und Kriegswaffenkontrolle (Berlin, Duncker & Humblot, 1993). Gemeinsame Konferenz Kirche und Entwicklung (GKKE) (ed), Rüstungsexportbericht 2018 der GKKE (Bonn/Berlin, 2018). Glawe, R, ‘Der Geheimrat – Zum Informationsrecht von Parlamentariern über Beratung und Beschlussfassung im Bundessicherheitsrat’ (2014) Neue Zeitschrift für Verwaltungsrecht 1632.

178 See D Scally, ‘German Arms Exports at Odds with Refugee Crisis Demands’ https://www.irishtimes. com/news/world/europe/german-arms-exports-at-odds-with-refugee-crisis-demands-1.2362036 (Irish Times, 23 September 2015). 179 See www.poetryintranslation.com/PITBR/German/FaustIScenesItoIII.htm.

The German Control Regime on Arms Exports  177 —— Organkompetenz und Handlungsinstrumente auf dem Gebiet der nationalen Sicherheit (Baden-Baden, Nomos, 2011). Grässlin, J, Schwarzbuch Waffenhandel – Wie Deutschland am Krieg verdient (München, Heyne Verlag, 2013). Heider, T, ‘Deutschlands Rolle in der Europäischen Rüstungspolitik und Rüstungskontrollpolitik’ in P Schlotter, W Nolte and R Grasse (eds), Berliner Friedenspolitik? Militärische Transformation – Zivile Impulse – Europäische Einbindung (Baden-Baden, Nomos, 2008) Heinrich, A, ‘Sand im Getriebe – Opposition scheitert mit ihren Anträgen gegen ein Panzergeschäft mit Saudi-Arabien’, Das Parlament, 2011, Nr 28-30. Heintschel von Heinegg, W, ‘Art. 26’ in V Epping and C Hillgruber (eds), Grundgesetz Kommentar, 2nd edn (München, Beck, 2013). Herdegen, M, ‘Art. 1 Abs. 3’ in T Maunz and G Dürig (eds), Grundgesetz Kommentar, 85nd Ergänzungslieferung (München, Beck, 2018). —— Art. 25’ in ibid. —— Art. 26’ in ibid. Holthausen, D, ‘Der Verfassungsauftrag des Art 26 II GG und die Ausfuhr von Kriegswaffen’ (1995) JuristenZeitung 284. Ipsen, K, ‘Kriegswaffenkontrolle und Auslandsgeschäfte’ in Beyerlin et al (eds), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt (Berlin-Heidelberg, Springer Verlag, 1995). Karpenstein, U and Sack, U, ‘Teil 2, Verordnung (EG) Nr. 3381/94 des Rates’ in H Hohmann and K John (eds), Ausfuhrrecht Kommentar (München, Beck, 2002). Keul, K and Wolffgang, HM, ‘Brauchen wir ein Rüstungsexportkontrollgesetz?’ (2018) Zeitschrift für Rechtspolitik 155. Kirchner, P, ‘Das System der Rüstungsexportkontrolle – am Beispiel der Panzerlieferungen nach Saudi-Arabien’ (2012) Deutsche Verwaltungsblätter 336. Meinel, F, ‘Organisation und Kontrolle im Bereich der Regierung – Zur verfassungsrechtlichen Stellung von Kabinettsausschüssen, insbesondere des Bundessicherheitsrats, im parlamentarischen Regierungssystem’ (2015) Die Öffentliche Verwaltung 717. Nettesheim, M, ‘Art. 59’ in T Maunz and G Dürig, Grundgesetz Kommentar 85nd Ergänzungslieferung (München, Beck, 2018). Papp, A, Extraterritoriale Schutzpflichten (Berlin, Duncker & Humblot). Platte, H and Leuffen, D, ‘German Arms Exports: Between Normative Aspirations and Political Reality’ (2016) 25 German Politics4, 561. Ramsauer, U‚ ‘§ 43’ in O Kopp and U Ramsauer (eds), Verwaltungsverfahrensgesetz: VwVfG, 19nd edn (München, Beck, 2018). Schulze, C, Pamp, O and Thurner, PW, ‘Economic Incentives and the Effectiveness of Nonproliferation Norms: German Major Conventional Arms Transfers 1953-2013’ (2017) International Studies Quarterly 61, 529. Stemmler, M, ‘Rüstungsexportkontrolle light – Das Bundesverfassungsgericht zieht dem parlamentarischen Fragerecht (zu) enge Grenzen’ (2015) Die Öffentliche Verwaltung 139. Streinz, R, ‘Art. 26’ in M Sachs (ed), Grundgesetzkommentar, 7nd edn (München, Beck, 2014). Wollenschläger, F, ‘Art 26’ in H Dreier (ed), Grundgesetzkommentar, 3rd edn(Mohr Siebeck, 2015) Vol 2.

178

7 Arms Exports in France JEAN-PHILIPPE DEROSIER AND BASAK ACAR

France has always been one of the world leaders amongst arms exporters. Orders have continually increased over the last 20 years, sometimes exponentially and reaching record levels, particularly in 2012 and 2017.

I.  Legal Provisions and Institutional Structures A.  Legal Provisions The French Constitution of the Fifth Republic does not include any provisions regarding arms export, for obvious reasons: the topic is of a very specific nature and constitutional provisions are meant to have a general scope. The French Constitution thus differs from the German Basic Law of which Article 26 specifically subordinates the fabrication, transport and distribution of certain weapons to the Government’s authorisation – although this actually represents a peculiar and unique case. Some French constitutional provisions nonetheless make reference to defence policies and to institutions, and ought to be mentioned. First, the Preamble to the Constitution of 27 October 1946, which still holds constitutional value today and is part of the 1958 Constitution, concerns peace preservation. It reads: ‘the French Republic, faithful to its traditions, shall comply with the rules of Public International Law. It shall undertake no war with conquering aims, nor shall it ever resort to force against the freedom of any people’1 and ‘subject to reciprocity, France shall consent to limitations upon its sovereignty as are necessary to the organisation and preservation of Peace’.2 Second, according to Article 5 of the 1958 Constitution, the President of the Republic ‘shall be the guarantor of national independence, territorial integrity and



1 Preamble 2 Preamble

to the Constitution of 27 October 1946, para 14. to the Constitution of 27 October 1946, para 15.

180  Jean-Philippe Derosier and Basak Acar treaty compliance’. Hence, Article 15 makes the President ‘Commander in Chief of the Armed Forces’. As such, ‘he chairs high-level councils and committees pertaining to national defence’. Article 20 however states that ‘the Armed Forces […] are at the disposal of the Government’ and Article 21 makes the Prime Minister ‘responsible for national defence’. Here lies a dichotomy of competences between the President on the one hand and the Government and Prime Minister on the other hand. This illustrates specificities in the French political system as a whole, and holds particular consequences in matters pertaining to defence and foreign affairs. The French political system is often described as ‘semi-Presidential’ due to the special place and power the President of the Republic purportedly holds, in particular vis-à-vis the Prime Minister and the Government. This is however a distorted perception, not to say erroneous: the French system is fundamentally parliamentary. The President however does enjoy ascendancy over the Government because of the legitimacy bestowed by his/her election via direct universal suffrage and his/ her political mission that was entrusted to him by the people (and not only formal, as is the case in Austria or Portugal, by way of example). The legitimacy of the President’s mission conferred by the people therefore allows him/her to choose a Prime Minister, distinct from the leader of the majority party in Parliament at the time of appointment but who fulfils such position thereafter. Such legitimacy also allows the President to set the political direction for the Nation, which the Prime Minister will implement first, followed by the Government and Parliament. However, the above is not rendered possible because of the President’s election, but because of the support provided to him/her by the National Assembly. The first Chamber of Parliament, directly elected by the people a few weeks after the President, provides indispensable support: without victorious legislative elections giving him/her political majority in the Assembly, the President would not be able to action the Prime Minister and Government to do what s/he cannot do given his/her lack of formal prerogatives. Thus, only the Prime Minister holds the power to introduce bills (shared with members of Parliament but with no other member of the Government, Article 39 of the Constitution); only the Prime Minister has regulatory powers (save for a few exceptions) that may be delegated to Ministers (Articles 37 and 21 of the Constitution); and on top of it all, only said Prime Minister countersigns all Presidential Acts, bar eight specific ones. Ultimately, parliamentary elections and therefore parliamentary support do give the President the ability to guide the Government’s choices and decisions. Defence and foreign affairs remain however peculiar, specific areas. The French constitutional and political doctrine calls it ‘domaine réservé’, ie ‘reserved area’.3 It does not have any legal value and is only the result of a convention according to which the President may decide whether s/he shall be directly dealing with

3 See G Carcassonne, ‘Le Premier ministre et le domaine dit réservé’ (1997) Pouvoirs 65–74 (#83 Le Premier ministre).

Arms Exports in France  181 issues pertaining to international affairs and defence, and which ones, if any. In other words, the President himself/herself decides what the ‘domaine réservé’ covers. Although any presidential decision has to be countersigned, the Prime Minister and the Ministers of Foreign Affairs and of Defence remain in fact in the President’s shadow, as per a well-implemented tradition. This can be at times problematic, and in particular during so-called ‘cohabitation periods’, that is, when the President and the Prime Minister do not belong to the same political majority. This may directly impact arms export because either the President or the Minister of Defence can lead related negotiations depending on what the political relevance of trade at the time is. Thus, there was a clear evolution in the French arms industry under President Hollande (2012–2017) due to the President’s strategy that his Minister of Defence, Jean-Yves Le Drian, implemented. It represented in fact a characteristic example of dual synergy at the State’s highest echelon: upon arrival at the Élysée Palace, François Hollande steered a reverse course from that of his predecessor Nicolas Sarkozy by choosing discretion rather than grand gestures. François Hollande entrusted his Minister of Defence Jean-Yves Le Drian with developing relationships with interested States and assessing their needs to forge long-term partnerships.4

This was best illustrated by the sale transaction of Rafale planes to Egypt in 2015, which ended the ‘curse’ of the manufacturer of this flagship aircraft. Following top-level State negotiations, ‘the core was sealed in Ryad on 25 January [2015] during a tête-à-tête between François Hollande and his Egyptian counterpart’.5 In the same vein, President Emmanuel Macron signed a 12 billion US dollar contract on 12 December 2017 during the course of a diplomatic visit in Qatar. Last but not least, Article 34 of the Constitution gives the Parliament competence on ‘the basic principles for the general organisation of national defence’. Article 53 also requires Parliament’s agreement and authorisation to ratify international treaties pertaining to peace and trade agreements, as well as treaties making commitments on State finances. The consequence is that any treaty pertaining to arms trade, such as the 2013 Arms Trade Treaty, can only be ratified after a parliamentary Act of agreement. However, Article 55 of the French Constitution provides that treaties, as soon as they are ratified and under condition of reciprocity, have higher authority than the law, yet remain below the Constitution. The Conseil Constitutionnel therefore cannot operate any control vis-à-vis the law6 and it is for the judiciary to set aside a law that would be contrary to a treaty or to European Union law.7 4 D Gallois, ‘L’industrie française de la défense profite du réarmement mondial’ Le Monde, 29 December 2016. 5 D Gallois, ‘La vente du Rafale au Caire bouclée en un temps record’ Le Monde, 14 February 2015 (Éco&Entreprises). 6 Conseil constitutionnel n° 74-54 DC, 15 January 1975, Loi relative à l’interruption volontaire de la grossesse. 7 Cass. Ch. Mixtes, 24 May 1975, Jacques Vabre and CE Ass., 20 Octobre 1989, Nicolo.

182  Jean-Philippe Derosier and Basak Acar At a statutory level, France provides two rather recent, codified texts: the Defence Code (2004) and the Interior Security Code (2012). In both, regulatory provisions are additional to statutory ones.8 Both Codes include provisions relating to arms export and trade, although the most substantive part of them is found in the Defence Code. By way of simplification, one can say the Defence Code deals with arms fabrication, trade, export and possession; whilst the Interior Security Code provides for arms possession, acquisition and retail trade. The Interior Security Code further identifies a ‘special administrative police’ for arms (or weapons, in this instance) and ammunition, regulated by 60 articles.9 The Defence Code identifies ‘war materials, arms and ammunition’ (Part 2, Book 3, Title 3, 65 articles)10 and provides for the prohibition of certain weapons (Part 2, Book 3, Title 4, 118 articles)11 such as biological and chemical ones, antipersonnel mines and cluster munitions. The provisions governing arms export are found in Title 3 that regulates the licensing system in particular. Finally, French Procurement Law provides for a single legal regime applicable to public defence and security procurement. The 2016-361 Decree of 25 March 2016 on ‘safety or security rights’ arranges and harmonises a legal regime that provides for the specificities of these markets, accessible to all European companies who meet the required criteria laid herein. As a Member State of the European Union (EU), the law in France distinguishes between exports to other Member States (ie inside the EU) and exports to third-countries (ie outside the EU). According to the so-called ‘ICT Directive’12 transposed in French law by a 2011 Parliament Act,13 EU countries are subject to ‘transfer licences’ whilst non-EU countries require ‘export licences’. Although this bears a similar end, that is, a principle of ‘no trade without permission’, export outside the EU appears a little more restrictive than transfer within the EU. Article L.2335-2 of the Defence Code clearly states indeed that ‘export without previous authorisation of war materials or war-related materials to States outside the European Union and territories excluded from the European Union’s customs territory are prohibited’. Such a general prohibition does not exist for transfers within the EU.

8 In France, most Codes are divided in two parts that generally both present the same outline: a statutory or legislative one (‘Partie Législative’) and a regulatory one (‘Partie Réglementaire’). 9 From Article L.311-1 to L.315-2. 10 From Article L.2331-1 to L.2339-19. 11 From Article L.2341-1 to L.2344-11. 12 Directive 2009/43/EC of the European Parliament and of the European Council of 6 May 2009, simplifying transfers and conditions of transfers of defence-related products within the Community [2009] OJ L146/1. See L Béraud-Sudreau, French Adaptation Strategies for Arms Export Controls Since the 1990s (October, 2014) Paris Paper n° 10. 13 Loi n° 2011-702 du 22 juin 2011 relative au contrôle des importations et des exportations de ­matériels de guerre et de matériels assimilés, à la simplification des transferts des produits liés à la défense dans l’Union européenne et aux marchés de défense et de sécurité, JORF n° 0144, 23 June 2011, 10673.

Arms Exports in France  183

B.  Licensing Process Both licensing systems are divided into three categories: general, global and individual licences, all of which are granted by the central administration. General licences are executive orders (Decrees by the Prime Minister) that establish a list of defence-related products authorised for transfer or export by a supplier or exporter, without any restriction on quantity or amount, to a category or categories of recipients located in another EU Member State (for transfers) or a non-EU State (for exports). These general licences also enable the supplier or exporter to make any commercial and technical previous operations, such as publicity of information relating to a contract’s negotiation, signature or order acceptance. General licences are signed by the Prime Minister and several other Ministers, namely that of Foreign Affairs, Defence, Economy and in most cases, Budget. Prior to first use of a general licence, a supplier or exporter shall carry out registration. The procedure differs according to the licence’s nature. To make first use of a general licence for transfer (ie inside the EU), a supplier shall make a declaration at least 30 days prior to the start of transfer operations. To make first use of a general licence for export (ie outside the EU), an exporter shall ask permission to the Administration at least three months before the beginning of export operations. In both cases, this requirement only stands for the first use of a licence, although this goes for each single licence a supplier or an exporter may resort to. Filing the abovementioned declaration or permission is done through the ‘SIGALEInformation System’, an online system elaborated by the Ministry of Defence for all licensing procedures.14 As of today, there are ten general transfer licences and one general export licence, categorised as follows: Table 1  The Ten General Licences in France15 LGT FR 101

to armed forces and contracting authorities

LGT FR 102

to certified companies

LGT FR 103

for exhibitions and demonstrations at trade fairs

LGT FR 104

for tests and demonstrations to the benefit of armed forces and contracting authorities (continued)

14 SIGALE stands for Système d’Information, de Gestion et d’Administration des Licences d’exportation (Export Licences Administration, Management and Information System). It is available online and all procedures are digital. See the website www.ixarm.com/fr/sigale. 15 LGT FR 101 à 106: six ‘Arrêtés’ (executive orders) for general transfer licences, 6 January 2012; LGT FR 107: ‘Arrêté’ for general transfer licences, 3 June 2013; LGT FR 108 and LGE FR 201: two ‘Arrêtés’ for general transfer licences and for general export licences, 6 June 2013; LGT FR 109: ‘Arrêté’ for general transfer licences, 14 November 2014; LGT FR 110: ‘Arrêté’ for general transfer licences, 28 July 2015.

184  Jean-Philippe Derosier and Basak Acar Table 1  Continued LGT FR 105

for tests and demonstrations to the benefit of private companies

LGT FR 106

to police forces, coastguards and border guards

LGT FR 107

for transfers to EU countries of material previously temporarily transferred to France for exhibitions, presentations, demonstrations or tests

LGT FR 108

to national armed forces stationed within the EU and their exclusive use

LGT FR 109

for transfer of technology to armed forces, contracting authorities in the defence industry or a business in an EU Member State

LGT FR 110

for transfer of materials required by the Ariane 6 co-operation programme intended to any partner governmental entity or international organisation in the EU, as well as to industrial contributors established in the EU for the benefit of the programme

LGE FR 201

to French forces positioned outside the EU and their exclusive use

Global licences enable suppliers and exporters to transfer or export at their request specific defence-related products to one or more determined recipients located in another EU Member State (for transfers) or non-EU State (for exports). Licences shall be granted for a determined period (three years maximum, renewable) without any restriction on quantity or amount. Individual licences enable suppliers or exporters to transfer or export at their request one or more determined defence-related product, once or several times, to a recipient located in another EU Member State of the EU (for transfers) or non-EU State (for exports). Both global and individual licences have to be notified to the supplier or exporter. Notification is done by customs, following an administrative procedure. First, the supplier or exporter has to apply online through the SIGALE-System. This requires them to be registered as such in the operator’s database and to provide the product’s instructions with specific information, as required by the administration (including, inter alia, the product’s name, technical details, fabricant and category). The application is subject to a formal and technical consideration of admissibility by the Direction Générale de l’Armement (DGA), or Arms General Direction, an administrative service under the Minister of Defence. Second, once the application has been declared admissible, the cross-ministerial step begins under the Commission Interministérielle d’Étude des Exportations de Matériels de Guerre (CIEEMG), or Cross-ministerial Committee for Consideration of War Material Exports. This Committee is chaired by the Secrétaire Général de la Défense et de la Sécurité Nationale (SGDSN), or Secretary-General for Defence and National Security, an administrative service under the Prime Minister that works closely with both the Prime Minister and the President of the Republic on all defence and national security matters. In the licence procedure, the Secretary-General is in charge of gathering the advice of four different

Arms Exports in France  185 a­dministrations: those of the Prime Minister, Foreign Affairs, Defence and Finances. Should their opinion be favourable, the Secretary-General is then responsible for issuing the licence. At the end of the process, the supplier or exporter by customs gets notified of the licence. All licences may include conditions or restrictions as regards the final use of the transferred or exported product. In the instance of a transfer inside the EU, conditions or restrictions concerning their export outside the EU can also be applied. For example, licences may require that an End-Use Certificate (EUC) is granted by the final recipient or user. The licence itself then determines whether such certificate is to be provided. There is no such requirement if the licence does not mention this. Otherwise, it is the supplier or exporter’s responsibility to ensure that the certificate is compliant, prior to the delivery of the products. For an individual licence, the certificate is to be sent to the administration immediately. For a global or general licence, the certificate is to be kept by the supplier or exporter and presented to the administration upon request. The certificate represents the only way for the French Government to monitor the use of defence-related products after they have been transferred or exported. It comes from the Arms Trade Treaty of 3 June 2013, to which France is a party.16 The certificate allows France to require the undertaking State or purchasing State to commit as to the end-use and location of the products as expressly indicated. But it also enables France to ensure that they are not used in connection with nuclear explosives or uncontrolled activities within the nuclear fuel cycle; for purposes linked to chemical or nuclear weapons; to proceed with transfers of technology transfers, except where the third party accepts the commitments of the EUC and ‘if it is known that the third-party is trustworthy and reliable’. Finally, France requires being informed of the final civil use of the exported goods. The certificate may also contain an additional clause to prevent re-exportation. The certificate indicates the undertaking of a given company or of the purchasing State to use the materials or services supplied by France for its own needs and not to transfer them to a third party without the agreement of the French Government.17 The certificate ought to indicate the quantities and description of the purchased goods. It is especially important to tick the Non-Re-exportation Clause (NRC) in order to ‘certify being the end-user of the referenced products’. The buyers therefore undertake ‘not to sell, give, lend, transmit or exports the goods to anyone without written agreement of the French Government, including the equipment, spare parts and related special tools delivered as part of customer service, and the corresponding notices and documents’.18 Some States are however



16 See

below, section IX. www.ixarm.com/fr/certificats-de-non-reexportation. 18 Formulaire Cerfa 10919*3. 17 See

186  Jean-Philippe Derosier and Basak Acar exempt from NRC authentication; those are listed on the Ministry of Armed Forces website.19 One can put the effectiveness of such a process into perspective. Controlling post-exportation operations without undermining the sovereignty of the purchasing State is a delicate process. The EUC is thus essentially based on the good faith and reliability of the purchasing State, albeit the presence of French industrialists on the purchasing State’s territory during the transfer of technology. Additionally, it is easier to operate the abovementioned control in case of heavy weapons sale since small arms are more difficult to trace (note that France essentially exports heavy weapons).

II.  Political and Economic Factors Influencing Arms Export The French Government’s official position is to sustain the exportation of arms for two main reasons. On the one hand, arms export contributes to France’s defence and security policies, closely linked to the general military strategy. On the other hand, arms export supports the French economy. The latter is probably officially the most important one, as demonstrated by the report on the country’s arms export which the Minister of Defence has presented to Parliament every year since 1998. Published in 2000,20 this unprecedented report allowed Parliament to exercise its role as controller of public policies in the field of arms export and sales for the first time. Although not very detailed at the beginning, the report was enhanced through the years so as to meet Parliamentarians’ expectations. Reports to Parliament only indirectly mention the economic aspect of arms export. In 1998, export served a two-pronged objective: maintain a dynamic industrial base and participate in a broader defence relationship. In 1999, the Government also presented the benefits of the contribution of arms export to employment to Parliament. The last report to Parliament presented the aforementioned objectives without ever directly referring to the economic aspect. In 2018, arms export constituted an instrument of French foreign and defence policies, necessary to the preservation and development of the industrial base. Nonetheless, arms export also supports economic development and contributes to the job market (see below). As such, supporting arms export does not appear linked to any will to maintain or ensure political influence over a specific geographical area or over given ­countries. France approaches arms export from the market angle rather than as

19 See www.ixarm.com/sites/default/files/documents/liste_des_pays_exemptes_d_authentification_ de_cnr.pdf. 20 Rapport d’information n°2334 déposé par la commission de la défense nationale et des forces armées et enregistré à la présidence de l’Assemblée nationale, 25 April 2000.

Arms Exports in France  187 a way to assert dominance over its allies. Its clients are thus not selected to serve hegemonic politics, at least not officially. And finding a solid analysis of France’s ambitions of political domination is difficult, be it in French or in foreign literature. Beyond economic stakes, geostrategic influence is undeniably present – if nowhere else than in stakeholders’ minds: France’s main customers are located in the Middle East (Egypt, United Arab Emirates, Saudi Arabia, Qatar), which nourishes special and, at times problematic (see below), relationships with this part of the globe. This ‘puts France in the front line should a conflict spread in this area, a few steps from Iran, Iraq, Yemen’21 and raises questions at the level of domestic politics.22 Over the 2008–2017 period, 40 per cent of purchases came from the Middle East, 29 per cent from Asia, 13.1 per cent from the Americas and 10.3 per cent from Europe.23

III.  The Importance of Arms Export to the Economy Defence policies are overall important to the French economy. In 2017, the general expenditure of the Ministry of Defence represented 1.4 per cent of the GDP, excluding the cost of pensions and veterans. The same year, the Defence expenditure equalled 10.3 per cent of the national budget.24 According to the Loi de programmation militaire 2019–2025 (Military Planning Act for 2019–2025), the objective is to increase spending on defence to up to two per cent of the national GDP by 2025. There is little discussion about such increment or about the share the overall national budget defence represents: a rather large cross-party agreement was reached during the debate and consideration of the Military Planning Act in Parliament, from the right to the left of the political spectrum, including centrists but excluding the extreme left. 2015 was an important year regarding arms export, especially due to the first orders and deliveries of the Rafale planes to foreign countries (Egypt and Qatar). This explains the record of orders and deliveries of 16.9 and 6.2 billion euro respectively, which represent a 55 per cent increase compared to 2014.25 In 2016, orders decreased slightly to 13.9 billion euro (−17.8 per cent), although they remained at a particularly high level thanks to contracts signed with India (which ordered 36 Rafale aircraft) and Australia (thanks to the submarine programme signed with the company DCNS). Meanwhile, deliveries reached a record of 7.1 billion

21 Ph. Leymarie, ‘La grande chasse aux milliards’ Le Monde diplomatique, April 2016, 13–15. 22 In particular the case of journalist Jamal Khashoggi’s death or the situation in Yemen, two issues that involve Saudi Arabia with the latter leading to the setup of a parliamentarian Commission of Inquiry, see below, section V. 23 Rapport au Parlement 2018 sur les exportations d’armement de la France, Ministère des Armées, June 2018, 15. 24 Annuaire statistique de la défense, 2017, 24. 25 See Table 3 below.

188  Jean-Philippe Derosier and Basak Acar euro. This means that over the five-year period covering François Hollande’s term (2012–2017), orders increased by 189.6 per cent and deliveries by 108.8 per cent, making for a historical development. The year 2017 however saw a sharp drop in orders (down to 6.9 billion euro, or −50.4 per cent) and a slight decrease in deliveries (to 6.7 billion euro, or −5.6 per cent). This is mainly explained by the electoral context with Presidential and Parliamentary elections. The 2018 conclusion of a contract for 12 additional Rafale aircrafts with Qatar, however, bodes well for good future results.26 The arms export of France is managed by 676 firms (2015), 85 per cent of which are small and medium-sized companies (SMC) and intermediate-sized companies. The number of SMC taking part in arms exports has been increasing since 2013. Large companies represent only 15 per cent of war-related product exports, but nonetheless generate 92.5 per cent of the exports’ amount, while SMC and intermediate-sized companies account for 7.5 per cent of the total amount. But note that the seven biggest companies also subcontract approximately 40 per cent of the orders they receive to smaller companies.27 The major companies are referred to as the ‘BIG 7’ and comprise: Airbus (the biggest, with 14.5 billion euro in 2014, although it is not exclusively French); Dassault-Aviation; DCNS; MBDA; Nexter-Systems; Safran; and Thales (the biggest French one, with 8.6 billion euro in 2014). Table 2  Ranking of Orders to French Companies (2018)28 Last Year’s National World World Ranking Ranking Ranking Company

Country

2017 Defence Revenue (in millions)

2016 Defence % 2017 Total Revenue Defence Revenue Revenue (in Revenue (in from millions) Change millions) Defence

1

7

7

Airbus

France– $11,185.91 $12,321.00 Netherlands

−9%

$75,702.63

15%

2

9

10

Thales

France

$8,926.13

$8,362.00

7%

$17,852.26

50%

3

18

23

Naval Group (DCNS)

France

$4,178.33

$3,540.90

18%

$4,178.33

100%

4

33

–

KNDS (Nexter Systems)

France

$2,991.95

$2,903.84

3%

2,991.95

100%

5

44

51

Dassault

France

$2,124.19

$1,356.00

57%

5,434.77

39%

6

53

49

Safran

France

$1,519.70

$1,374.18

11%

18,666.91

8%

26 Rapport au Parlement, 2018 (n 22) 12. 27 See JM Oudot, ‘L’essor des livraisons internationales des entreprises de défenses’ (May 2016) ÉcoDef. Le bulletin de l’observatoire économique de la défense, vol 79. 28 DefenseNews.com.

Arms Exports in France  189 Comparing importations with exportations, France imported 1.7 billion euro worth of war-related products in 2015, which represented a 3.4 per cent drop compared to 2014. This means that the export of war-related materials in 2015 was four times more important than that of import. The balance of trade (imports/ exports) therefore generated a 5.7 billion euro contribution to the external trade balance that year. The companies involved therefore widely participate in global export for they are responsible for the production of 20 per cent of French exports. Of course this also has an important effect on employment. In 2015, arms export directly provided for 26,300 jobs. This figure represents the employment generated by export companies, while a total of 34,900 jobs were indirectly connected to the industry (ie employment generated by subcontracting companies). This represents a total of 61,200 jobs. This makes for approximately 8.3 jobs in France for each million euro of exported war-related products, be it directly or indirectly.29 Companies involved in the building of French defence constitute what is called the Industrial and Technological Defence Base (ITDB). They are indexed in the SANDIE directory (which in French stands for Annual Data on Defence, its Industry and Businesses) issued by the Economic Observatory of Defence (EOD), a statistics department under the Minister of Defence. The SANDIE directory is covered by data protection and is not published. However, publications and studies are provided by the EOD for transparency. The directory is nearly exhaustive, with the vast majority of companies indexed therein.30 Comprising 47,276 defencerelated ‘units’, that is, ‘units that directly or indirectly supply goods and services resorted to by the defence community’,31 the directory lists service providers which are not directly involved in French defence, such as those involved in catering or the transport of individuals. The directory hence operates a distinction between units that specialise in the production of armaments and defence systems (they represent the core of the abovementioned ITDB), and those that provide services that do not directly contribute to it but merely support it. The ITDB is mainly (96 per cent) composed of trade companies, and those are predominantly industrial (more than a third of the listed units).32 The French ITDB stands out because of a high State protectionism that makes it particularly dependent on State orders. The French State is the main shareholder of defence companies as well as their main client. It holds 62.49 per cent of Naval Group’s market share, 26.4 per cent of Thales’ and 13.1 per cent of Safran’s. The units of the French army bodies are mainly supplied within the French ITDB, which inevitably goes to reinforce the autonomy of French Defence vis-à-vis

29 Ibid. 30 S Moura and I Raton, ‘Analyse des entreprises liées à la défense: présentation du répertoire SANDIE’ (June 2011) Le bulletin de l’observatoire économique de la défense, vol 55 1. 31 S Moura, ‘La base industrielle et technologique de défense: identification et caractéristique’ (January 2012), Le bulletin de l’observatoire économique de la défense, vol 58 2. 32 Ibid.

190  Jean-Philippe Derosier and Basak Acar foreign powers. ‘This national preference opposes the reality of the market’ given that some technologies are not produced by the French industry and ‘foreign purchases only represent 3% of the French military orders’.33 France’s investments are primarily directed towards the defence industry: the Ministry of Defence is the major recipient of public investment.34 This French protectionism of the defence industry is illustrated by a growing control of foreign investments as well as by the resort to ‘golden shares’ or specific shares during privatisations. This enables France to maintain a certain level of public regulation within the concerned companies.

IV.  Arms Exports’ Alteration During the past few years, French arms exports have considerably increased. This is due essentially to specific arms export-related policies led by the 2012–2017 political new majority and the French Minister of Defence Jean-Yves Le Drian. As a result, the first orders and deliveries of Rafale planes in 2015 were to foreign countries (Egypt and Qatar). This followed almost three decades of exclusivity for national deliveries. The year 2016 was marked by the ‘contract of the century’ between DCNS and Australia regarding a submarine programme for 50 billion AUS dollar, that is, 34.3 billion euro. To consider the volume and amount of exports in general, one has to distinguish between orders and deliveries. Orders are concluded at a given point in time but may produce effects over many years after, including the conclusion of other services-related contracts. To the contrary, deliveries are considered on a yearly basis and focus solely on war-related products, generally excluding other services. Over the past two decades, from 1997 to 2016 included, orders have increased by 202.2 per cent, from 4.6 billion euro in 1997 (at the time 43.3 billion franc) to 13.9 billion euro in 2016. This represents a 9.3 billion growth and a 10.1 per cent growth per year on average. However, as already mentioned, 2015 and 2016 were very specific years: the total amount for orders in 2014 was 8.2 billion euro, which means there was more than a 100 per cent growth between 2014 and 2015. Should 2015 and 2016 be set aside, orders between 1997 and 2014 would ‘only’ have increased by approximately 80 per cent (3.6 billion euro). And should 2017 be set aside as well, orders from 1997 to 2017 would have then increased by 50 per cent (2.3 billion euro). One should note nonetheless that values are fluctuating up and down continuously and were only growing for three consecutive years from the year 2012 onwards. Deliveries appear quite stable over the same period. From 1997 33 G Lagane, Quelle industrie pour la défense française? (Fondation pour l’innovation politique, May 2011) 10. On the evolution of the French industry, from the end of the Cold War to 2014, see AE Fleurant and Y Quéau, L’industrie de défense française: une autonomie stratégique sous contrainte (Bruxelles, Note d’Analyse du GRIP, 1 September 2014). 34 Annuaire statistique de la défense, 2018, 20.

Arms Exports in France  191 to 2017 included, deliveries have only very slightly increased, from 6.6 billion euro in 1997 (actually 43.3 billion franc) to 6.7 billion euro in 2017, which represents a bump of only 0.1 billion euro. Should there be a year-by-year scrutiny, one would however note that values are fluctuating up and down even more constantly.35 The report to Parliament in 2018 was the first presented by the new Government, composed according to the new majority emerging from the 2017 elections. The report followed a more constraining framework as regards arms export and orders over that period. This was caused by the postponement of some acquisition projects due to the economic slowdown of purchasing States and by the entry into force in 2018 of contracts signed in 2017. France nonetheless remained on average at the same level compared to previous years with regards to orders received, which accounted for 6.9 billion euro. Table 3  Orders and Deliveries Alterations over the 1997–2017 Period36 Orders Billions €

Deliveries

Variation 1 Y

Variation 5 Y

2017

6,9

−7

−50,4%



2016

13,9

−3

−17,8%



2015

16,9

8,7

106,1%

2014

8,2

1,3

18,8%

Billions €

Variation 1 Y

6,7

−0,4 −5,6%



7,1

0,9

14,5%





6,2

2,2

55,0%





4

0,1

2,6%



14,7%



9,1

189,6% 

2013

6,9

2,1

43,8%



3,9

0,5

2012

4,8

−1,7

−26,2%



3,4

−0,4 −10,5% 

0,8

14,0%

Variation 5 Y 3,7

108,8%



2011

6,5

1,4

27,5%



3,8

0

0,0%

 −0,7 −15,6% 

2010

5,1

−3

−37,0%



3,8

0,1

2,7%



2009

8,1

1,2

17,4%



3,7

0,5

15,6%



−1,3 −28,9% 



2008

6,9

1,2

21,1%



3,2

2007

5,7

−0,1

−1,7%



4,5

0,5

12,5%



2006

5,8

1,7

41,5%



4

0,2

5,3%

 −0,4 −9,1%

2

52,6%



2005

4,1

0,7

20,6%



3,8

2004

3,4

−0,8

−19,0%



7,1

2,8

65,1%



2003

4,2

0,4

10,5%



4,3

−0,1 −2,3%





−3,3 −46,5% 

2002

3,8

−0,1

−2,6%



4,4

1,3

41,9%



2001

3,9

−3,1

−44,3%

 −0,7 −15,2% 

3,1

0,4

14,8%

 −3,5 −53,0% 

2000

7

2,4

52,2%



2,7

−1,1 −28,9% 

1999

4,6

−3

−39,5%



3,8

−2,5 −39,7% 

1998

7,6

3

65,2%



6,3

−0,3 −4,5%

1997

4,6



6,6

35 See Table 3. 36 Rapports annuels au Parlement du Ministère de la Défense sur les exportations d’armement de la France. The variation over five years corresponds to the Legislature term and the Presidential election (2002, 2007, 2012).

192  Jean-Philippe Derosier and Basak Acar The situation of France’s defence market these past five years is explained by the dynamism of the Minister of Defence Jean-Yves le Drian, but also by the country’s adaptability to demand trends.37 Technology transfers and industrial co-operation have become the major assets of French arms export. Industrialists are no longer hostile to these processes. During his hearing before the National Assembly on 11 September 2013, Eric Trappier, the fifth and current Chairman and CEO of Dassault Aviation, declared himself ready ‘without qualms’ to manufacture Rafale planes in India, including the equipment originally intended to the French army, despite the prima facie restrictions linked to national security concerns.38 Finally, the special case of technology transfer should be mentioned here. A major instrument in the negotiations of arms contracts for closed and hard-toreach markets (such as those of China, South Korea, Russia and Brazil), technology transfer is an original kind of arms export widely resorted to in ‘arms contract negotiations with developing countries’.39 Defined as ‘the process by which a technology, knowledge or expertise developed by one party to a project or to an agreement is obtained by the other party’,40 the goal is to enable purchasing States to become independent from their arms supplier and develop their own defence industry. This is not concretely a matter of arms export, but is indirectly connected. French law only very partially supervises the process for technology transfers. The abovementioned Cross-ministerial Committee for Consideration of War Material Exports is here again tasked with issuing export licences,41 yet without distinguishing transfers of technology from those that concern arms export without technology transfers. Nor does it provide provisions on the content of such particular arms contracts. Only technology transfers that have already been arranged can shed light on what they really cover. The Eurosam European Consortium, made up of the MBDA and Thales companies, won the tender of the Turkish Ministry of Defence in January 2018 intended to set up an aerial defence system. Turkey initially negotiated with China (China Precision Machinery Import-Export Corporation) and Russia, but neither of them offered a technology transfer able to develop an autonomous national defence system. Thus, the winning contract did not only provide for the export of arms but also for industrial co-operation enabling the development of a new missile defence system. The control and expertise of Eurosam will be in turn inevitably shared with the Turkish manufacturers Aselsan and Roketsan. Similarly, Naval Group signed an arms contract for submarines with Brazil in 2009 that was negotiated by Presidents Sarkozy and Lula. The contract arranged for 37 Rapport au Parlement 2015 sur les exportations d’armement de la France, p 15. 38 Commission de la défense nationale et des forces armées, audition ouverte à la presse de M. Eric Trappier sur le projet de loi de programmation militaire 2, 11 September 2013. 39 B Warusfel, ‘La prolifération des technologies sensibles vers le sud: menaces et perspectives de contrôle’ (1991) Cultures & Conflits vol 2. 40 S Pellet, ‘Les transferts de technologie vers les pays en développement’, Regards croisés sur l’économie vol 6 #2 229. 41 See above, section I.

Arms Exports in France  193 four Scorpene (classic propulsion submarine, first assembled in February 2018) but mainly provided for the support of Brazilian industrialists aiming towards the development of a programme for nuclear propulsion submarines. The equipment will be produced in co-operation with Itaguaï Construções Navais. The French company concurrently participates in the setting of a new shipyard in Sepetiba. This ­singular contractual feature enabled the French consortium to win the market over Germany.42 On top of this, the transfer of technology has enabled the inauguration of a Franco-Brazilian school of submarine design with the objective to support, advise and fully participate in the development of the Brazilian defence industry.

V.  The Executive, Legislative and Judicial Powers As already mentioned (see section I), the French Constitution contains a dichotomy between the competences of the President of the Republic and those of the Prime Minister (and the Government) over foreign affairs and defence issues, referred to as the ‘domaine réservé’. The President, at will and depending on the importance of the issue, may be the one leading a transaction at the international level, representing French interests all over the world. Regardless, the powers of the Parliament remain of little significance vis-à-vis exports, for these are a prerogative of the executive branch, in particular the licensing process that are of the competence of the Prime Minister. However, the Government remains accountable before the Parliament for the entirety of its political course, including on defence and arms export. This means the Parliament has an oversight prerogative, although not necessarily resorted to in full. The control over arms sales can be divided into three kinds: the first is fully administrative; the second is specifically over arms exports and may be exercised by Parliament; the third is more generally over foreign affairs as they relate to arms trade and concerns the conclusion of treaties. In 2011, the administrative check over arms export shifted from an a priori to an a posteriori audit process, that is, after licensing. This new process comprises an audit based on the record of every licence and exporter, and an additional audit carried out on the spot. To perform the audit on record, any holder of an individual or global licence, or any exporter or supplier making use of a general licence, has to provide documents to the administration. These include any contracts for individual licences, contracts over 200,000 euro for global and general licences, copies of EUCs, and a half-yearly report (provided by the first of September for the first half of the year and by the first of March for the second half). The second type of audit is conducted at the administration’s discretion: approximately 40 ­companies 42 V Lamigeon, ‘Comment les sous-marins de Naval Group ont conquis le Brésil’ (20 February 2018) Challenges.

194  Jean-Philippe Derosier and Basak Acar are subject to an audit performed on the spot every year. Sworn-in personnel from the Ministry of Defence may check documents such as contracts and order vouchers, invoices, delivery vouchers and EUCs. This entire audit process is conducted under the supervision of the Ministry of Defence, more specifically of the Comité Ministériel du Contrôle A Posteriori (CMCAP), or Ministerial Committee for A Posteriori Control. The Committee is in charge of approving audit procedures, setting the priorities for audits and programmes, providing opinions on the consequences of audit reports (if any) and proposing changes to the regulatory statements (if any). The Committee’s yearly report is at the disposal of the Minister of Defence in order to be fed into the Ministry’s yearly report to Parliament. As already explained, since 1998 the Minister of Defence is tasked with producing a yearly report on France’s arms export that is in turn presented to Parliament (see above, section II). This yearly report is generally considered as real progress towards transparency and parliamentary control over arms sales, even though it remains considered a ‘business booster’ to ‘promote French excellence’.43 In any case, the report provides important information about the country’s policy vis-à-vis arms export and the control the Government exercises in this matter. Thanks to this report, members of Parliament are able to exercise their own oversight over the Government and the administration, by, inter alia, asking the Minister of Defence questions, setting Inquiring Committees or Information Missions, or even conducting an audit of records and/or an audit on the spot themselves. The fact they do not exercise said oversight could probably be explained by a lack of interest in the exercise rather than lack of means. The structure of the reports to Parliament has developed towards greater transparency in order to render all the necessary data available. This allows the national representation to exercise its power of control. Albeit the addition of annexes that provide for the statistical analysis of arms exports, the report’s structure has not changed much. In that sense, although the reports did at the beginning allow for details and identification of the kinds of products sold by France, the data is now presented to Parliament. The report is structured similarly each year. The Minister of Defence, today heading the renamed Ministry of Armed Forces, prefaces the report and recapitulates the outcome of the previous year as well as the main guidelines on arms export.44 In 2018, the Minister of Armed Forces stressed for the first time that strategic autonomy ‘can no longer be solely domestic’45 but must be inscribed within a European perspective. The European future is presented then as sine qua non condition for the strategic independence of each Member State.



43 Ph.

Leymarie (n 20). for the year 2017 where the report did not comprise any introductory message. 45 Rapport au Parlement 2018 (n 22) 3. 44 Save

Arms Exports in France  195 In the first part of the report, the Parliament is informed of France’s export policy. The latter translates into: (1) its contribution to the country; (2) its positioning on the global market; and (3) State support to companies. In the second part of the report, the Parliament is notified of the country’s policy on arms control. In France, arms control is thus transcribed into an administrative framework to the benefit of the CMCAP; a national framework through parliamentary control (this will be examined below in section VI); a European framework through the transposition of directives; and finally an international framework through the ratification of all international treaties pertaining to disarmament, arms control and their non-proliferation. Finally, the report contains data on export, including the details of products delivered per country since 2007 and their regional distribution. That data was not provided in the first reports. However, the report does not contain any information on the final use of the concerned equipment or the control operated by the administration in that regard. When the Minister of Armed Forces hands over the report to Parliament, s/he may be heard over its content and format but also on ‘other points’.46 In truth, the presentation of the report by the Minister in person remains solemn and rare and is usually restricted to the first report of a given fiveyear period. For example, Jean-Yves Le Drian had presented himself in Parliament in 2012 and Florence Parly did so in 2018, that is, at the beginning of the term of each newly elected President. The report could most certainly be fleshed out. Critics see it however as an ‘advertising pamphlet’ rather than a ‘pedagogic document’, let alone a true control tool. This is because the report emphasises ‘the promotion of exports over transparency’, preventing ‘either parliamentarians, researchers or the civil society to exercise effective control’.47 In this regard, the Observatory for armaments calls for the development of the annexes and to publicise, by way of example, the ‘police equipment transfers’.48 In addition to the inadequacy of the data presented in the report, it would appear that parliamentary control remains relatively weak. The report is not the only tool parliamentarians possess to carry out their work. In fact, whilst the initial objective of the report was officially to enhance transparency, it was also intended to ‘maintain the link with the parliamentary majority’.49 In addition to the report, the Parliament possesses all its supervisory powers to oversee the arms export policy. These include hearings, written and oral questions and control of appointments. But such initiatives are rare and their 46 Commission de la défense nationale et des forces armées, Audition de Mme Florence Parly, ­ministre des Armées, sur le rapport au Parlement sur les exportations d’armement de la France, 4 July 2018. 47 P Bouveret and T Fortin, ‘Transferts d’armement: pour un contrôle parlementaire effectif ’ (September 2015) Les Notes de l’Observatoire, Vols 2, 3 and 5. 48 Ibid. 49 L Béraud-Sudreau, S Faure and M Sldeczek, ‘Réguler le commerce des armes par le Parlement et l’opinion publique’ (2015/2) Politique européenne vol 48, 94.

196  Jean-Philippe Derosier and Basak Acar materialisation rather exceptional. There was recently a proposal for a parliamentary Commission of Inquiry tabled before the National Assembly on 6 April 2018 that failed and will probably not succeed,50 despite the fact a Member of Parliament from the Government majority initiated it, and despite the media showing interest in the issue.51 Furthermore, the Parliament may also exercise its oversight in the examination of treaty ratification bills. Some treaties indeed require the Parliament’s authorisation to proceed with their ratification. Such were the cases of the Arms Trade Treaty ratified by France in 2013, and of the agreement with Russia regarding the non-delivery of Mistral ships in 2015 following the Ukrainian crisis (see below). Parliamentary control lacks effectiveness overall.52 As mentioned above, members of Parliament do not carry out their oversight prerogative by lack of interest rather than lack of means. The control exercised by parliamentarians is not an administrative control such as the one exercised by the Cross-ministerial Committee for Consideration of War Material Exports, neither is it meant to become one. The objective, as part of its competence of constitutional control, is to participate in the democratic debate and to control the Government’s policy on arms export.53 The yearly report could become more attractive and find an amplified echo in the media if presented to the Parliament by the Prime Minister instead of the Minister of Armed Forces on behalf of the Government. Indeed, the Prime Minister is responsible for national defence and s/he heads the General Secretariat for Defence and National Security. Similarly, control activities are carried out by the parliamentarians within the two committees on defence of the Senate and National Assembly. This is because France does not have committees nor parliamentary delegations on arms export such as the one that exists on intelligence. Setting up a delegation on arms export could make political control more efficient and enhance democratic transparency. As an alternative to a delegation, parliamentarians within the CIEEMG could be appointed in order to increase the political oversight on said administrative body.54 Finally, the judicial review over arms export in general is very poor, in particular the licensing process. This is explained by the important discretionary power of the Government in the process. The Government has indeed the power to suspend

50 S Nadot, Proposition de résolution tendant à la création d’une commission d’enquête sur le respect des engagements internationaux de la France au regard des autorisations d’exportations d’armes, munitions, formations, services et assistance accordées ces trois dernières années aux belligérants du conflit au Yémen, n° 856, 6 April 2018. 51 See below, section VI. 52 B Acar, Le contrôle parlementaire du renseigement et des opérations extérieures. Étude comparée France, Turquie (2017), Mémoire de recherche de Master 2 Droit et politique de défense et sécurité, University Lille II – Droit et Santé. 53 Bouveret and Fortin (n 44). 54 N Chabanne and Y Foulon, ‘MPs, Rapport d’information en conclusion des travaux d’une mission d’information sur le dispositif de soutien aux exportations d’armement’, Commission de la défense nationale et des forces armées, Assemblée nationale, 14e Législature, n° 2469, 17 December 2014.

Arms Exports in France  197 or cancel exports due to a change of circumstances (such as a newly imposed embargo, by way of example). The most important case is the cancellation of the contract with Russia regarding the delivery of Mistral ships following the crisis in Ukraine in 2015. The crisis was caused by the annexation of Crimea by Russia from March 2014 onwards. Crimea is a Ukrainian territory that had unilaterally declared its independence from Ukraine and its annexation to Russia, in relation to the Ukrainian political crisis that had started at the end of 2013. It led to an international diplomatic crisis and a civil war in the Donbass region, topped off by the incident of the Amsterdam-Kuala Lumpur flight operated by Malaysia Airlines, which was taken down by a surface-to-air missile on 17 July 2014 over the area and killing the 298 passengers on-board. From there onwards, many called for the suspension of the ships delivery to Russia. It was officially cancelled the following August (2015) despite the important compensation France had to pay to Russia. This cancellation was nonetheless of little consequence for companies, mostly DCNS, because of insurance cover and the successful, immediate re-sale to Egypt. It had, however, a major impact on the insurance company (namely, Coface), national finances and the Government. The sale agreement was secret but the cancellation decision made it public, resulting in a bad image for France’s executive branch. Additionally, the compensation agreement signed with Russia on 5 August 2015 had to be submitted to Parliament for ratification authorisation. This resulted in a public debate on a sale that was initially secret and a monetary compensation that amounted to nearly one billion euro.55 However, besides a few press articles56 and the rallying of a few experts who called for the reinforcement of transparency,57 this incident did not spark much emotion within public opinion.

VI.  Public Debate and Media Attention Arms export certainly is not the most covered topic by the media in comparison to football or, more seriously, unemployment. However, it does pay regular attention to the matter. This has been particularly true over the past few years as arms export increased considerably. Many press articles have been written when the

55 La loi fut effectivement adoptée: Loi n° 2015-1254 du 9 octobre 2015 autorisant l’approbation de l’accord sous forme d’échange de lettres entre le Gouvernement de la République française et le Gouvernement de la Fédération de Russie sur le règlement des obligations complémentaires liées à la cessation de l’accord du 25 janvier 2011 relatif à la coopération dans le domaine de la construction de bâtiments de projection et de commandement, JORF du 10 octobre 2015. 56 ‘L’annulation de la vente des Mistral à la Russie validée par les députés’ Le Monde, 17 ­September 2015; ‘Mistral: l’annulation de la vente à la Russie va coûter 2 milliards à la France’ Challenges.fr, 12 August 2015; ‘Mistral à la Russie: la France reporte la livraison “ jusqu’à nouvel ordre”’ L’Express, 25 November 2014. 57 G Garrigos, T Fortin and C Fehrenbach, ‘La France doit être transparente sur le marché des armes’ Le Monde, 21 August 2015.

198  Jean-Philippe Derosier and Basak Acar deal with Egypt was concluded in early 2015, as it was the first sale of Rafale planes to a foreign country. This was also the case for the sales to Qatar and India, as well as for the Airbus agreement on the sales of Caracal helicopters to Singapore and Kuwait. The media generally report about orders or agreements to be concluded, highlighting the positive (or negative) economic impact on the French industry and the Government. Its focus is therefore more on economic issues rather than on political issues. In comparison, the general media did not cover the agreement on the Arms Trade Treaty and its ratification by France. As mentioned above, there is certain homogeneity in the media coverage of the arms trade. Arms sales are indeed mainly perceived as advantageous from an economic standpoint but disadvantageous from a moral point of view, especially in regards to the final destination of the products. In that sense, the economic benefits are often regarded in a neutral way.58 That being said, one can reflect on media coverage when done by a newspaper that is entirely or in part controlled by arms manufacturers, such as the daily issued Le Figaro, bought by Dassault in 2004. The journal does not prohibit the promotion of the equipment produced by the aeronautical company59 and is criticised for not having supported corruption allegations against the group’s CEO Serge Dassault, incidentally also a Senator.60 As early as 1997, that is, a few years before the acquisition of the newspaper, Serge Dassault did not hesitate to express his desire ‘to own a newspaper or a weekly magazine to convey [his] opinion and perhaps also answer to some journalists who wrote in a not very pleasant manner’61 on a continuous information TV channel (namely, LCI). The Dassault group was also the sole shareholder (100 per cent) of Valmonde between 1998 and 2006, who created Valeurs actuelles, a weekly magazine now known for its far-right ideology. Conversely, media coverage is rather negative as regards the end destination of arms export products, in particular with respect to sales to Saudi Arabia. On this particular point, condemnation by the media is almost unanimous because of the repercussions that arms sales may have on the humanitarian situation in Yemen or, more recently, because of the scandal of the death of journalist Jamal Khashoggi.62 The situation in Yemen draws particular attention because of the 58 This is the case for numerous newspapers: ‘La France, troisième exportateur mondial d’armement’ Le Monde, 12 March 2018; ‘Ventes d’armes: la France talonne désormais la Russie’ Challenges.fr, 28 August 2017; ‘La France, championne des ventes d’armes’ Challenges.fr, 16 May 2017; ‘Ventes d’armes: la France a battu un record historique en 2016’ Le Figaro, 28 February 2017. 59 ‘L’État commande le nouveau Rafale’ Le Figaro, 10 January 2014. 60 TV programme Arrêt sur images, ‘Dassault/Corbeil: Service minimum au Figaro’, 17 September 2013. 61 M Bénilde, ‘Médias français, une affaire de familles’ Le Monde Diplomatique, November 2003. 62 ‘La France rattrapée par ses ventes d’armes à l’Arabie Saoudite’ Liberation, 20 March 2018; ‘Armement: la France, supermarché de l’Arabie Saoudite’ Le Point, 20 March 2017; ‘Yémen: des ONG s’interrogent sur les conséquences de vente d’armes de la France à l’Arabie Saoudite’ Le Monde, 20 March 2018; ‘Comment Macron soutient les ventes d’armes à l’Arabie Saoudite’ Challenges.fr, 22 February 2018.

Arms Exports in France  199 maintenance of arms export to the country and signs of the presence of weapons of French origin in Yemen used by the Saudi coalition,63 which questions the reliability of the EUC. On 15 April 2019, the French press accused the Government of State of lying and revealed information that contradict France’s official position on the use of weapons provided to Saudi Arabia. Officially, the exported arms in question are for defensive use only. A highly classified note leaked from the Direction du Renseignement Militaire, or ‘Directorate for Military Intelligence’, corroborated the position of a collective of journalists that alleged that a high number of civilians are impacted by the coalition’s strikes.64 The matter is under enhanced scrutiny because of the number of aerial strikes that have been conducted by the Arab coalition since 2015. This adds to the geopolitical issue of the role of Saudi Arabia which maintains an embargo on Yemen and hence prevents the relief of humanitarian aid. Yet, more arms exports to Saudi Arabia are scheduled for 2019 and 2021. Apart from these few particular cases and scandals that sometimes stirred the media and public (see below, section VII), there is relatively little discussion about France’s position regarding arms exports. Some non-governmental organisations do try to alert public opinion but their impact remains rather minimal.

VII.  Arms Exports Scandals There have not been that many scandals relating to arms export concerning the French Government that were revealed by the media, which isn’t to say that there weren’t any. Five major scandals can be listed over the past 35 years: • 1982: The Exocet missiles in Argentina, linked to the Falklands War. Exocet missiles (produced by the State-owned French company Aérospatiale) were sold to Argentina in 1979. The French company continued to provide maintenance for the missiles after the Falklands War, despite the embargo on Argentina at the time. • 1986–1988: The Luchaire-gate. In 1986, a newspaper revealed that France and the French company Luchaire had sold 450,000 shells to Iran, whilst France was an Iraq ally and Iran had been under embargo since 1979. In March 1986,

63 T Fortin, ‘Des armes et équipements militaires français semblent bien utilisés au Yémen’ Le Monde, 7 April 2018; ‘Ventes d’armes françaises: “ indices de présence” au Yémen et nécessaire refonte des mécanismes de contrôle des exportations’, note conjointe de la Fédération Internationale des Ligues des Droits de l’Homme (FIDH), l’Observatoire des Armements (OBSARM), la Ligue des Droits de l’Homme (LDH) et la Sisters Arab for Human Rights, April 2018, available at: www.fidh.org/IMG/pdf/fidh_ yemen_final_report.pdf. 64 P Alonso, ‘Armes françaises au Yémen: le document missile’ Libération, 15 April 2019; L Imbert and N Guibert, ‘Une note « confidentiel-défense » détaille l’emploi des armes françaises au Yémen’ Le Monde, 15 April 2019.

200  Jean-Philippe Derosier and Basak Acar a report commissioned by the new Government demonstrated that the sale had contributed to finance the Parti Socialiste, the left-wing party of then President Mitterrand. This led to the first law on political transparency. • 1991: The Taiwan frigates. In 1991, the French company Thomson (today renamed Thalès) concluded a contract with the Taiwanese Government regarding the sale of six frigates. Because of the China-Taiwan conflict, the then French Minister of Foreign Affairs, Roland Dumas, resorted to France’s veto power to prevent the transaction, although it materialised regardless. A scandal on kickbacks followed, which potentially concerned Roland Dumas. • 1993–1998: The Angola-gate. During the Angolan civil war and embargo, Russia and France sold weapons to the Angola Government. This caused a scandal at the highest political level concerning kickbacks. • 2002: The terrorist attack of Karachi, in Pakistan. This attack on a bus of the Pakistani army which had 23 French individuals on-board (from the DCNS company) was considered an act of retaliation against France for putting an end to kickbacks following the election of the new President, Jacques Chirac. Although rare, these scandals concerning French arms export reveal the complexity of the relationships maintained between the defence industry and the politicians who negotiate and sign the contracts. The Rafale contract signed with India in 2016 illustrates this complexity perfectly. The contract was signed between Dassault-Aviation and Reliance ADA Group, an Indian conglomerate that is very active in various sectors such as health and telecommunication, but not in the aerospace sector.65 In September 2018, the Indian opposition however accused the Government of having favoured a private business over a State-owned company in order to take advantage of an industrial compensation offered by the French industrialist, against the backdrop of a political crisis in India.66 Industrial compensation, also referred to as offset agreement, is ‘the agreement proposed by […] the exporting company, whereby the exporter undertakes to carry out or to have undertaken, in the country of their client, purchases of goods and services, investments and/or transfers of technology in return for a sale’.67 As mentioned above, in the context of technology transfer, the purpose of industrial compensation is to contribute to the development of a developing country. However, the Indian opposition revealed that the conglomerate had participated in the financing of a movie production by Julie Gayet, the partner

65 ‘Contrats de Rafale à l’Inde: François Hollande au cœur de la polémique’ Le Monde, 22 September 2018. 66 J Bouissou, ‘En Inde, le contrat Rafale tourne au scandale politique’ Le Monde, 29 August 2018. 67 Th. Sauvin, ‘Modalités et fonctions des accords de compensation internationaux: le cas des relations Nord-Sud’ (1995) Tiers Monde, vol 144, 897.

Arms Exports in France  201 of the then French President of the Republic, which would have influenced the choice of the French industrialist. Although Dassault appeared to have negotiated the terms of the contract alone and without the intervention of any politician, this ‘scandal’ undoubtedly contributed to the opacity of relationships between the defence industrial base in France and the State at the highest level. Kickbacks have also been at the heart of several French scandals. Charles Millon, Minister of Defence from 1995 to 1997 under President Chirac, shared his ‘intimate conviction’ about the existence of kickbacks68 to Judge Renaud Van Ruymbeke, who was in charge of the financial component of the Karachi case. Kickbacks are payments to intermediaries – often in less democratic c­ ountries – that negotiate the contract on arms sale to the benefit of the exporting company. It is difficult to appreciate the involvement of politicians in that practice. Although a long time tolerated, the ratification of the Organisation for Economic Co-operation and Development’s Anti-Bribery Convention enabled the strict control of related money transfers and bribery of foreign public officials. The goal is in fine to prohibit bribery of political representatives in exchange for the negotiation or arms contracts. Kickbacks meanwhile allow the exporting producers to recover clandestinely part of the commission generated by the sale through a political representative who in turn transfers some of it back, after keeping their cut. The suicide bombing of Karachi on 8 May 2002 against a Pakistani military bus that carried employees of the Naval Group, formerly known as the Directorate for shipbuilding (DCN), enabled the French judicial system to investigate suspicions of kickbacks69 that had allegedly enabled the financing of the campaign of the former Prime Minister (1993–1995) and at the time Presidential candidate, Edward Balladur. The decision of President Jacques Chirac to cease the practice of kickbacks after his election in 1995 could possibly have triggered the suicide bombing. These elements are very difficult to ascertain with respect to arms export given the multitude of stakeholders involved and their status. Arms export-related funding of political parties is not limited to the right wing of the French political spectrum. A local daily newspaper, La Presse de la Manche, issued an investigation on 28 February 1986 entitled ‘Cherbourg: Shell Traffic for Khomeini’ that revealed that the EUCs of the Luchaire company had been deliberately falsified. The weapons sold during the presidency of François Mitterrand were not delivered to Brazil and Thailand as indicated by the certificate but in fact to Iran which had been under embargo ever since the conflict with Iraq. In the end, this was dismissed but led to the adoption of the first legislation on financial transparency in political life.70

68 ‘Rétrocommissions de Karachi: Million renforce les soupçons’ Libération, 18 November 2010. 69 ‘Marchand d’armes, un job (souvent) légal’ Slate.fr, 5 October 2011; ‘Affaire de Karachi: où en est l’enquête ?’ Le Monde, 17 November 2010. 70 Loi n°88-227 du 11 mars 1988 relative à la transparence financière de la vie politique.

202  Jean-Philippe Derosier and Basak Acar

VIII.  Position vis-à-vis International Regulations France is one of the first countries to have made an international commitment to arms trade regulation. It is party to the Wassenaar Arrangement,71 and played a crucial role in the signature of the Arms Trade Treaty of 2013. It was furthermore one of the first signatories, on 2 April 2014.72 The parliamentary procedure for ratification illustrates the homogeneous support of Members of Parliament and of Senators for a restrictive regulation. The bill for ratification was tabled on 11 September 2013 before the Senate and adopted after its first reading at the National Assembly on 12 December 2013. There was very little debate during the discussions. France now strictly abides by the provisions of the Treaty by providing for a regime of national control both for conventional weapons (Article 3 of the Treaty) and for the export of parts and components (Article 4).73 Article 5 of the Treaty states that each State Party shall designate ‘one or several national focal points in charge of information sharing’.74 Additionally, States Parties and, above all, selling States must take measures to prevent the diversion of weapons according to Article 11.75 France is also party to all the authorities that unite States that favour a control over the export of nuclear and chemical weapons. For example, France is part of the Nuclear Suppliers Group, the Australia Group and the Missile Technology Control Regime. Despite such commitments, France still has no national regulations on embargo violations. The bill on the violation of embargoes and other restrictive measures was tabled in the Senate on 21 February 2006 by the then Minister of Defence, Michèle Alliot-Marie. Fourteen years on, this is yet to be passed.76 It was introduced to the National Assembly on 14 February 2013 and transmitted to the Senate for a second reading on 28 January 2016. The related parliamentary reports are fairly light and do not exceed ten pages. As it stands, the text of the embargo bill comprises five articles, two of which were adopted after amendment. In particular, it provides a definition for embargo,77 penal sanctions for its violation and most importantly a national 71 See below section IX, as it is now incorporated into Regulation (CE) n°428/2009 of 5 May 2009. 72 Ratification enacted by the loi n°2013-1202 of 23 December 2013. 73 See above sections I and II and the rules stated by the Code of Defence. 74 For France, this is Camille Pintout, see www.thearmstradetreaty.org/download/4a5af1d9-15cc-3dc 0-998a-bd1b0a4b3133. 75 See above, section I. 76 See Réponse ministérielle n°91626, 8 December 2015. 77 ‘Art. 437-1. – I. – An embargo or restrictive measure for the purposes of this chapter is the ­prohibition or restriction of commercial, economic, training, advisory or technical assistance activities in relation to a foreign or foreign-controlled power, company or organisation or their agents or any other person […]’.

Arms Exports in France  203 a­dvisory c­ommission tasked with the monitoring of embargo regimes and economic restrictions against foreign powers or entities. Despite the lack of a national legislation, the Minister of Armed Forces declared that an embargo violation constituted an offence as it is considered ‘a violation of the principle of prohibition’.78 The Minister recalled that exemptions could however be granted, in particular as regards the transfer of non-lethal military equipment. Such exemptions are meant to ‘facilitate the conduct of given operations’, in particular those designed to evacuate French nationals or that support the overall process of restructuration of security forces or the development of their capacities. Future legislation could yet enable the transcription of such offence into the Criminal Code and therefore ensure its effectiveness on the one hand, and strengthen parliamentary control through the presence of parliamentarians in the advisory commission on the other hand. Finally, France complies with international regulations on arms trade control, such as those contained in the UN Register of Conventional Arms and the UN Reports on Military Expenditures and on National Legislation on Transfer of Arms, Military Equipment and Dual-Use Goods and Technology.

IX.  EU System of Criteria Implementation France is implementing the 2008 EU Common Position,79 abiding by the eight criteria provided in its Article 2. The yearly report to Parliament has contained a quantitative balance of those criteria since 2000 (that is, prior to the Common Position and following the adoption of the 1998 Common Code of Behaviour) and further detailed all exports that were denied because they did not comply with them. Whilst European regulations tend to control arms export between EU Member States and third parties, controlling embargoes is more difficult to implement. The European Parliament Resolution of 13 September 2017 on arms export highlights the violation of the 2008/944/CFSP Common Position as regard certain arms transfers from EU Member States to unstable countries and regions where weapons have been used to wage conflict, such as Saudi Arabia. In the latter case, the EU Parliament had already tabled a request for embargo in a 25 February 2016 Resolution.

78 Rapport au Parlement 2018 (n 22) 28. 79 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99.

204  Jean-Philippe Derosier and Basak Acar

List of References Daily and weekly press articles (chronologically ordered): ‘Contrats de Rafale à l’Inde: François Hollande au cœur de la polémique’ Le Monde, 22 September 2018. Bouissou, J, ‘En Inde, le contrat Rafale tourne au scandale politique’ Le Monde, 29 August 2018. Fortin, T, ‘Des armes et équipements militaires français semblent bien utilisés au Yémen’ Le Monde, 7 April 2018. ‘La France rattrapée par ses ventes d’armes à l’Arabie Saoudite’ Liberation, 20 March 2018. ‘Yémen: des ONG s’interrogent sur les conséquences de vente d’armes de la France à l’Arabie Saoudite’ Le Monde, 20 March 2018. ‘La France, troisième exportateur mondial d’armement’ Le Monde, 12 March 2018. ‘Comment Macron soutient les ventes d’armes à l’Arabie Saoudite’ Challenges.fr, 22 February 2018. ‘Ventes d’armes: la France talonne désormais la Russie’ Challenges.fr, 28 August 2017. ‘La France, championne des ventes d’armes’ Challenges.fr, 16 May 2017. ‘Armement: la France, supermarché de l’Arabie Saoudite’ Le Point, 20 March 2017. ‘Ventes d’armes: la France a battu un record historique en 2016’ Le Figaro, 28 February 2017. Gallois, D, ‘L’industrie française de la défense profite du réarmement mondial’ Le Monde, 29 December 2016. ‘L’annulation de la vente des Mistral à la Russie validée par les députés’ Le Monde, 17 September 2015. Garrigos, G, Fortin, T and Fehrenbach, C, ‘La France doit être transparente sur le marché des armes’ Le Monde, 21 August 2015. ‘Mistral: l’annulation de la vente à la Russie va coûter 2 milliards à la France’ Challenges.fr, 12 August 2015. Gallois, D, ‘La vente du Rafale au Caire bouclée en un temps record’ Le Monde, 14 February 2015 (Éco&Entreprises). ‘Mistral à la Russie: ‘la France reporte la livraison “ jusqu’à nouvel ordre”’ L’Express, 25 November 2014. ‘L’Etat commande le nouveau Rafale’ Le Figaro, 10 January 2014. ‘Marchand d’armes, un job (souvent) légal’ Slate.fr, 5 October 2011. ‘Rétrocommissions de Karachi: Million renforce les soupçons’ Libération, 18 November 2010. ‘Affaire de Karachi: où en est l’enquête ?’ Le Monde, 17 November 2010.

Doctrine (alphabetically ordered): ‘Ventes d’armes françaises: “ indices de présence” au Yémen et nécessaire refonte des mécanismes de contrôle des exportations’, note conjointe de la Fédération Internationale des Ligues des Droits de l’Homme (FIDH), l’Observatoire des Armements (OBSARM), la Ligue des Droits de l’Homme (LDH) et la Sisters Arab for Human Rights, avril 2018, available online: www.fidh.org/IMG/pdf/fidh_yemen_final_report.pdf.

Arms Exports in France  205 Acar, B, Le contrôle parlementaire du renseigement et des opérations extérieures. Étude comparée France, Turquie (2017) Mémoire de recherche de Master 2 Droit et politique de défense et sécurité, University Lille II – Droit et Santé. Bénilde, B, ‘Médias français, une affaire de familles’ Le Monde Diplomatique, November 2003. Béraud-Sudreau, L, Faure, S and Sldeczek, M, ‘Réguler le commerce des armes par le Parlement et l’opinion publique’ (2015/2) Politique européenne vol 48, 94. Bouveret, P and Fortin, T, ‘Transferts d’armement: pour un contrôle parlementaire effectif ’ (September 2015) Les Notes de l’Observatoire vol 2 3 and 5. Carcassonne, G, ‘Le Premier ministre et le domaine dit reserve’ (1997) Pouvoirs 65–74 (#83 Le Premier minister). Chabanne, N and Foulon, Y, MPs, Rapport d’information en conclusion des travaux d’une mission d’information sur le dispositif de soutien aux exportations d’armement, Commission de la défense nationale et des forces armées, Assemblée nationale, 14e Législature, n° 2469, 17 December 2014. Fleurant, AE and Quéau, Y, L’industrie de défense française: une autonomie stratégique sous contrainte (Bruxelles, Note d’Analyse du GRIP, Bruxelles, 1 September 2014). Lagane, G, Quelle industrie pour la défense française? (May 2011) Fondation pour l’innovation politique 10. Lamigeon, V, ‘Comment les sous-marins de Naval Group ont conquis le Brésil’ Challenges, 20 February 2018. Leymarie, Ph, ‘La grande chasse aux milliards’ Le Monde diplomatique, April 2016, 13–15. Moura, S, ‘La base industrielle et technologique de défense: identification et caractéristique’ (January 2012) Le bulletin de l’observatoire économique de la défense vol 58, 2. Moura, S and Raton, I, ‘Analyse des entreprises liées à la défense: présentation du répertoire SANDIE’ (June 2011) Le bulletin de l’observatoire économique de la défense vol 55, 1. Oudot, JM, ‘L’essor des livraisons internationales des entreprises de défenses’ (mai 2016) ÉcoDef. Le bulletin de l’observatoire économique de la défense vol 79. Pellet, S, ‘Les transferts de technologie vers les pays en développement’ Regards croisés sur l’économie vol 6 #2, 229. Sauvin, Th, ‘Modalités et fonctions des accords de compensation internationaux: le cas des relations Nord-Sud’ (1995) Tiers Monde vol 144, 897. Warusfel, B, ‘La prolifération des technologies sensibles vers le sud: menaces et perspectives de contrôle’ (1991) Cultures & Conflits vol 2.

Official Publications (chronologically ordered): Rapports annuels au Parlement du Ministère de la Défense sur les exportations d’armement de la France. Nadot, S, Proposition de résolution tendant à la création d’une commission d’enquête sur le respect des engagements internationaux de la France au regard des autorisations d’exportations d’armes, munitions, formations, services et assistance accordées ces trois dernières années aux belligérants du conflit au Yémen, n° 856, 6 April 2018. Annuaire statistique de la défense 2017. Rapport d’information n°2334 déposé par la commission de la défense nationale et des forces armées et enregistré à la présidence de l’Assemblée nationale 25 April 2000.

206

8 Sweden’s Arms Export Controls: Balancing Support and Restraint MARK BROMLEY*

I. Introduction Sweden is both an appropriate and important subject of study in any comparative analysis of States’ arms export controls, largely due to the strong and conflicting pressures to which it is subject. Political actors on both the left and right of its political spectrum argue that Sweden needs to maintain an independent defence industry supported by foreign sales. What makes Sweden unusual is the level of ambition in its defence industrial strategy and the volume of arms exports compared to other economic and political indicators. During 2019, Sweden ranked 23rd in the world in terms of Gross Domestic Product (GDP) and 33rd in its military spending.1 However, Sweden seeks to maintain independent production capacities in a range of key areas and consistently ranks higher in terms of its arms exports. For 2015–2019 Sweden was the world’s 15th largest supplier.2 On the other hand, there is an almost constant national discussion about arms exports in Sweden and a sizeable majority of the public favours imposing tighter restrictions than are agreed at the international and European level. Moreover, this view is shared by mainstream political parties on both the left and right of Sweden’s political spectrum. Establishing the reasons behind the strong support for Sweden’s arms exports and the significant domestic opposition to its involvement in this trade, is beyond

* Much of the material included in this chapter was originally collected by the author for an unpublished briefing paper that served as background material for a report published by the Flemish Peace Institute: See D Cops, N Duquet and G Gourdin, Towards Europeanised Arms Export Controls? Comparing Control Systems in EU Member States (Belgium, Flemish Peace Institute, 15 June 2017). 1 The World Bank, GDP (current US$), https://data.worldbank.org/indicator/NY.GDMKTCD; and Stockholm International Peace Research Institute (SIPRI) Military Expenditure Database, www.sipri. org/databases/milex. 2 SIPRI Arms Transfers Database, www.sipri.org/databases/armstransfers.

208  Mark Bromley the scope of this chapter. However, a likely part of the explanation is Sweden’s policy of non-alignment during the Cold War. This policy created a strong focus on maintaining an independent defence industrial base supported and subsidised by exports abroad. Since the end of the Cold War Sweden has moved away from this policy of non-alignment but many of the accompanying policies it has pursued – particularly reductions in both military spending and state support to the arms industry – have been used to bolster the arguments of those who favour supporting Sweden’s arms exports. At the same time, the policy of non-alignment also served to strengthen Sweden’s self-image as a State that stands outside the armed conflicts that afflict other parts of the world and at the forefront of processes of developing and promoting global norms in human rights and democracy. For many in Sweden this self-image was sharply at odds with its role as a prominent producer and exporter of arms. Developments since the end of the Cold War – particularly the increased emphasis on integrating human rights and international humanitarian law (IHL) into States’ foreign and security policies – have been used to bolster the arguments of those on this side of the debate who favour restricting Sweden’s arms exports. This chapter explores how Sweden structures and implements its arms export controls in the face of these conflicting pressures. Section II examines the arguments of domestic political actors seeking to support Sweden’s arms exports. It examines how their views are grounded in Sweden’s policy of non-alignment during the Cold War and how they have developed in the years since. The section also uses official government and Stockholm International Peace Research ­Institute (SIPRI) data to describe the size and composition of Sweden’s arms industry and exports. Section III examines the arguments of domestic political actors seeking to restrict Sweden’s arms exports. As with section II, it examines how this view has roots in the Cold War and how it has developed since. The section goes on to describe the recent review of Sweden’s arms export controls, which began in 2012 with a parliamentary enquiry and ended in 2018 with the adoption of new legislation. Section IV analyses three key areas of Sweden’s arms export controls: their legal and regulatory ‘framework’, the ‘process’ through which decisions are made about whether to permit particular arms exports, and the ‘criteria’ on which those decisions are based. For each area, it examines the proposals made in the 2012 parliamentary enquiry and how they have been reflected in the 2018 legislation. Section IV also highlights three ways in which Sweden’s arms export controls in each of these areas differ in content or focus from other similar supplier States in ways that reflect the particularities of the Swedish case. This can be seen in a strong emphasis on building and maintaining consensus, the focus on ‘depoliticising’ the issue of arms exports, and the attempt to simultaneously reflect the concerns of both those calling for maintaining or restricting Sweden’s arms exports. Section V presents some initial conclusions. In doing so, it seeks to connect the findings of the chapter with other studies of the way Swedish political institutions

Sweden’s Arms Export Controls  209 seek to manage conflicting normative pressures. In particular, it draws on the work of Nils Brunson from the 1980s and his notion of ‘organised hypocrisy’.3 Brunsson studied Swedish local authorities in the 1980s and noticed the conflicting normative pressures to which they are subject. Brunsson argued that – faced with such pressures – these bodies are not able to achieve a consistent interpretation and assimilation of external inputs and – indeed – their ‘success’ is not measured by their ability to do so. Instead, their success is measured by their ability to manage these pressures, something they achieve by creating a level of disconnect between their talk, their decisions and their actions. Sweden’s export controls are similarly subject to competing normative pressures and are designed in ways that reflect the structures described by Brunsson. The conclusions end by looking at the ways in which this approach has been tested by the 2012 parliamentary enquiry and some of the objections that could be made to viewing Sweden’s arms export controls in this way.

II.  Swedish Arms Exports: A Key Aspect of Foreign and Security Policy A.  Arms Exports and Sweden’s Foreign and Security Policy During the post-Cold War period, Sweden’s foreign and security policy was broadly structured around a focus on remaining non-aligned in the midst of the ongoing confrontation between the United States and the Soviet Union. From 1956 onwards, the overarching goals of this policy were defined as ‘alliansfrihet i fred, syftande till neutralitet I krig’ (non-aligned in peace, aiming for neutrality in conflict). Under this broad formulation Sweden’s foreign and security policy evolved during the Cold War, seeing periods of both disengagement and active involvement in world affairs, such as during the 1960s when Sweden was a vocal critic of the US-led war in Vietnam.4 However, a more or less constant component was an emphasis on maintaining a strong domestic arms industry with limited input from foreign suppliers.5 As part of this approach, Swedish arms ­producers 3 See N Brunsson, The Organization of Hypocrisy: Talk, Decisions and Actions in Organizations (New York NY, John Wiley and Sons, 1989). 4 See U Bjereld, AW Johansson and K Molin, Sveriges Säkerhet och Världens Fred (Swedish Security and World Peace) (Swedish Security and World Peace) (Stockholm, Författarna och Santérus Forlag, 2008). 5 M Axelsson and M Lundmark, Försvarsindustri i Sverige – Konsekvenser av ­internationaliserat ägande (The Defence Industry in Sweden – The Consequences of Internationalised Ownership) ­(Stockholm, Totalförsvarets Forskningsinstitut, March 2007) 10; and P Holmström and U Olsson, ‘Sweden’ in N Ball and M Leitenberg (eds), The Structure of the Defence Industry (London, Croon Helm, 1987) 147.

210  Mark Bromley were domestically owned and favoured when making procurement decisions. Moreover, Sweden often funded the development of new weapon systems from scratch, even when potentially cheaper alternatives were available on the international market.6 Despite the focus on domestic needs, arms exports from Sweden did take place during the Cold War and were actively sought. Indeed, arms exports came to be seen as a key way of supporting the domestic arms industry, reducing procurement costs for the Swedish Government, and maintaining levels of production that would allow Sweden to increase supplies at times of conflict.7 During the 1970s, Sweden accounted for 0.4 per cent of global arms transfers and was the world’s 13th largest exporter.8 Moreover, despite striving for self-sufficiency, Sweden was never entirely independent of foreign suppliers in meeting its domestic arms procurement needs, a trend that became more pronounced as the Cold War developed.9 According to the Swedish Government, the level of self-sufficiency in Swedish arms acquisitions fell from 90 per cent in the 1960s to 70 per cent in the 1980s. Indeed, having some level of reliance on foreign suppliers came to be increasingly viewed by the Swedish Government as having positive connotations, particularly as it helped Sweden to strengthen its relationships with key powers.10 The end of the Cold War led Sweden to move away from its policies of nonalignment and become increasingly focused on developing and maintaining strong alliances with like-minded States. For example, Sweden joined the North ­Atlantic Treaty Organisation (NATO) Partnership for Peace (PfP) programme in 1994 and the Euro-Atlantic Partnership Council in 1997.11 This shift was accompanied by a number of key developments that affected both the structure of the Swedish arms industry and the nature of its relationship with the State. First, as part of broader processes of privatisation, Swedish arms manufacturers were opened up for foreign ownership. As a result, during the 1990s and early 2000s a majority of Sweden’s larger arms producing companies were partly or completely acquired by foreign companies.12 Second, in line with a broader realignment of its foreign and security policies Sweden significantly reduced the size of its armed forces and its

6 M Bromley and ST Wezeman, Current Trends in the International Arms Trade and Implications for Sweden (Stockholm, SIPRI, October 2013) 7. 7 See L Åkeström, Den Svenska Vapenexporten (Swedish Arms Exports) (Stockholm, Leopard, 2016) 16. 8 SIPRI Arms Transfers Database (n 2). 9 Fred och säkerhet. Svensk säkerhetspolitik 1969–89, SOU 2002:108 (Peace and Security. Swedish Security Policy 1969–89, SOU 2002:108) (Stockholm, Swedish Government, 2002) 546. 10 Ibid. 11 ‘Relations with Sweden’ (NATO, 4 October 2018), www.nato.int/cps/su/natohq/topics_52535.htm. 12 For example, the UK company Alvis purchased Hägglunds Vehicle in 1997, the US company United Defense Industries (UDI) purchased Bofors Weapon Systems in 2000. Alvis was acquired by BAE Systems in 2004 and UDI was purchased by BAE Systems in 2005, making both Hägglunds and Bofors subsidiaries of BAE Systems.

Sweden’s Arms Export Controls  211 defence budget.13 As a result, there was both a decreased need for Sweden to make arms acquisitions and a reduction in the funds available to support the purchases made. Third, the growing focus on partnerships with allied States led Sweden to increasingly emphasise the importance of ensuring the inter-operability of its armed forces. This led to a growing focus on engaging in international defence procurement and development projects.14 These developments significantly affected the extent to which Sweden was willing to support Swedish arms producers through its defence acquisitions. The 2004 Defence Bill identified certain key ‘niche’ sectors in Sweden’s arms industry that were of particular strategic importance.15 In common with its practices during the Cold War, the Government indicated that it was still willing to prioritise domestic arms purchases if they supported these key niche sectors, even if potentially cheaper alternatives were available abroad. However, by 2008 there was a distinct change in course. The 2008 Defence Bill outlined a new set of principles for supplying equipment to the Swedish military. Preference should be given to the purchase of fully developed systems that are already available, even if Swedish industry could develop and produce an alternative.16 In situations where Sweden did invest in the development and acquisition of new weapon systems, preference should be given to co-operation projects with other States, preferably EU Member States.17 The implications of this shift in policy could be seen in subsequent procurement policies by the Swedish Government. For example, in 2010 Sweden ordered the fully developed Finnish AMV armoured vehicle, rather than a still-to-be-developed Swedish alternative.18 In addition, in 2013 Sweden ordered the German-built IRIS-T Surface to Air Missile (SAM) system to replace the Swedish-built RBS-70.19 In addition to increasingly looking abroad for its acquisition needs, decisionmaking on whether to fund the development of weapons systems by domestic producers began to take greater account of whether the system was likely to be sold abroad. This shift is most clearly visible in Sweden’s approach to the procurement of the next generation of the Gripen combat aircraft. In January 2013 the Swedish Government approved the development and acquisition of 60 Gripen-E

13 Calculated in constant (2018) USD, Sweden’s defence budget fell from USD6.6 billion in 1990 to USD4.8 billion in 2009. It has since risen to USD6.3 billion in 2019. SIPRI Military Expenditure Database (n 1). 14 Strategic Export Controls in 2017 – Military Equipment and Dual-Use Items, Comm 2017/18:114 (Stockholm, Swedish Government, March 2018) 10. 15 These were aerospace, armoured vehicles, network-centric capabilities, communications and short-range weapons. J Janssen Lok, ‘Swedish Defence Industry Warms to Exports as Domestic Markets Cool’ (Jane’s International Defence Review, May 2005) 53. 16 Strategic Export Control in 2013 – Military Equipment and Dual-Use Items, Comm 2013/14:114 (Stockholm, Swedish Government, March 2014). 17 Ibid. 18 ‘Hägglunds förlorade igen (Hägglunds Loses Again)’ (SVT, 13 August 2010). 19 ‘Diehle to supply IRIS-T SLS missile systems to Swedish Army’ (Army-technology.com, 14 March 2013).

212  Mark Bromley for the Swedish armed forces.20 Unlike the combat aircraft acquisitions Sweden made during the Cold War, the financial viability of the Gripen-E programme was made dependent upon gaining export orders. Indeed, the Swedish Government retained the option to cancel its order if no export sales were secured.21 The shift in Swedish procurement priorities has contributed to a growing reliance on exports among Swedish arms producers. In the early 2000s, exports accounted for around 25 per cent of Swedish defence companies’ sales. In 2015 they accounted for 60 per cent of sales.22 In order to help compensate industry for the reduced access to procurement spending, offset domestic procurement costs, and enable Sweden’s participation in joint procurement projects, the Government increased its support for Swedish arms exports. In August 2010 the Government established the Swedish Defence and Security Export Agency (FXM), a special government agency responsible for the promotion of exports for the arms industry. FXM took over the export promotion role held from the Defence Materiel Administration (FMV).23 Sweden’s centre left coalition closed down FXM in 2015 and transferred its tasks and resources back to FMV.24 However, it is unclear if this led to any reduction in the steps taken by the Swedish State to promote arms sales abroad. For example, in late 2016 Swedish government ministers engaged in high-level diplomatic efforts aimed at supporting sales of Gripen-E to both Botswana and India.25 The role of Swedish arms exports in supporting the Swedish defence industry – and the importance of this industry for Sweden’s national security – is central to the thinking of both the centre-left Social Democrats and the centre-right Moderates, the two largest parties in the Swedish Parliament.26 The jobs provided by the Swedish defence industry are also a key consideration, though perhaps more so for the Social Democrats who maintain strong links with Sweden’s trade unions. According to the Swedish Defence Industry Association (SOFF), 11,000 people were engaged in the production of military equipment in Sweden in 2017.27

20 ‘Swedish Government OKs Purchase of 60 Saab Gripen Jets’ (Reuters, 17 January 2013). 21 Bromley and Wezeman (n 6) 8–9. 22 ‘Swedish Security & Defence Industry Association (SOFF)’ in Remissvar: Skärpt exportkontroll av Krigsmateriel SOU 2015:72 (Public Consultation Responses: Tightened Export Control for Military ­equipment SOU 2015:72 (Stockholm, Swedish Government, November 2015). 23 Bromley and Wezeman (n 6) 8. 24 ‘Försvarsexportmyndigheten Avvecklad (Defence Export Agency Discontinued)’ (FXM, 17 June 2015), http://fxm.se/forsvarsexportmyndigheten-avvecklas/?mc_cid=8b4165b244&mc_eid= 3353d7b45c. 25 ‘Peter Hultqvist närvarade vid Botswanas självständighetsjubileum (Peter Hultqvist Attends Botswana’s Independence-day Anniversary)’ (Stockholm, Swedish Government, 6 October 2016) and E Zetterström, ‘Historic Order in Sight’ (Swedish Press Review, 3 November 2016). 26 ‘Flera partier vill gå längre med förbud mot vapenexport (Many Parties Want to Go Further with a Ban on Arms Exports)’ (NyTeknik, 30 August 2018). 27 ‘Elva myter om försvarsföretagen (Eleven Myths about Defence Companies’) (Swedish Security & Defence Industry Association (SOFF)), March 2019, https://soff.se/wp-content/uploads/2019/03/ myter.pdf.

Sweden’s Arms Export Controls  213 This represents only 0.2 per cent of the Swedish workforce and is lower than previous years (see Table 1). Nonetheless, many of the jobs are well-paid and highly skilled and the trade union that represents many within the sector, IF Metall, has strong connections to the Social Democrats. The current leader of the Social Democrats and Sweden’s Prime Minister, Stefan Löfven, is a former President of IF Metall. Table 1  Number of Employees in the Swedish Defence Sector (2011–2017) 2011

2012

2013

2014

2015

2016

2017

Working in security and defence sector

38,000 44,000 52,000 33,000 31,000 28,000 28,000

Producing military equipment

12,000 16,000 20,000 16,000 12,800 11,000 11,000

Total employment in Sweden (millions)

4.076

4.087

4.111

4.189

4.289

4.355

4.481

Source: Säkerhets- och försvarsföretagen (SOFF) and Statistiska centralbyrån (SCB).

B.  The Size and Composition of Sweden’s Arms Industry and Exports There are five main arms producers in Sweden: Saab; BAE Systems Bofors; BAE Systems Hägglunds; Kockums; and Nammo Sweden. Saab produces the Gripen combat aircraft as well as a range of other military equipment, including radars and other sensors, naval combat systems, anti-ship missiles, SAM missiles, ­anti-tank missiles, and recoilless rifles. BAE Systems Bofors produces artillery, naval guns and ammunition. BAE Systems Hägglunds produces tracked combat vehicles and specialised soft-terrain tracked vehicles. Kockums produces advanced small- and medium-sized submarines, fast attack craft and corvettes, patrol craft and air-independent submarine propulsion systems. Nammo Sweden produces ammunition.28 There are two main sources of data on Sweden’s arms exports. The S­ wedish Government publishes figures on the financial value of arms export licences and actual arms exports, and the SIPRI Arms Transfers Database provides the figures on the value of all States’ arms exports and imports. According to Swedish Government data, the value of Swedish arms export licences and arms exports fell between 2013 and 2015 but have since increased (see Table 2). In 2019, the value of exports rose by 43 per cent to SEK 16.3 billion ($1.7 billion), or 1 per cent



28 Bromley

and Wezeman (n 6) 10.

214  Mark Bromley of all Swedish exports.29 The fall between 2013 and 2015 reflects the completion of a number of high value deliveries that began in the mid-2000s.30 The increase since 2015 is largely due to the transfer of goods associated with the SEK39 billion ($5.8 billion) sale of 36 Gripen E combat aircraft to Brazil, which was signed in 2015.31 Deliveries under the Brazil deal are due to continue until 2024, indicating that the value of Sweden’s arms exports will continue to rise in the coming years. According to Swedish Government data, the largest recipient of Swedish arms in 2016–2019 was Brazil, which received SEK 3 billion (USD321 million) in arms from Sweden in 2019, 18.4 per cent of all deliveries. The most significant recipients of Swedish arms in 2019 after Brazil were United States, which received SEK 1.71 billion (USD 182 million), UAE which received SEK 1.36 billion (USD 145 million), Pakistan which received SEK 1.44 million (USD 128 million), and India which received SEK 893 million (USD 96 million).32 Table 2  Value of Arms Exports and Arms Export Licences (2002–2019) 70,000 60,000

SEK (th.)

50,000 40,000 30,000 20,000 10,000 0

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Arms exports

Arms export licences

Source: Swedish Government, National Reports on Arms Exports 2003–2020.

29 Strategisk exportkontroll 2019 – krigsmateriel och produkter med dubbla användningsområden (Strategic Export Controls in 2019 – Military Equipment and Dual-Use Items, Comm 2019/20:114 (Stockholm, Swedish Government, 9 April 2020). 52; and Statistiska centralbyrån (SCB). 30 Comm 2017/18:114 (n 14). 31 S Trimble, ‘Brazil Finalises $4.68bn Gripen NG Deal’ (Flight Global, 10 September 2015). 32 Comm 2019/20:114 (n 29).

Sweden’s Arms Export Controls  215 SIPRI’s Arms Transfers Database also indicates that Sweden’s arms exports have decreased in recent years. According to SIPRI data, the volume of exports from Sweden fell by 65 per cent between 2010–14 and 2015–19. As a result, Sweden’s share of the global arms trade fell from two per cent to 0.6 per cent and it dropped from being the 11th largest arms supplier to the 15th largest.33 SIPRI data also indicates that the relative importance of different recipient States and regions has changed significantly in recent years. According to SIPRI data, during 2010–14, the top five recipients of Swedish exports of major weapons were South Africa, Thailand, Pakistan, Singapore and UAE. For 2015–19, the top-five recipients were United States, Algeria, UAE, Pakistan and Norway (see Table 3). However, SIPRI data also indicate a reduction in deliveries to the States in the Middle East and North Africa, with only a limited amount of deliveries to the UAE in 2017 and 2018 and none to Saudi Arabia and Algeria and none to any of these States in 2019.34 The types of weapons exported from Sweden have also shifted during the last 10 years. During 2010–14, aircraft accounted for 50.6 per cent of Sweden’s exports of major conventional weapons, followed by sensors, ships and missiles. By contrast, during 2015–19 sensors accounted for 35.1 per cent of Sweden’s exports of major conventional weapons, followed by missiles, engines and armoured vehicles (see Table 4). Comparing the level of ‘restrictiveness’ in different States’ arms export controls is challenging given the limited amount of information they provide on potential sales that have been blocked. Moreover, it is difficult to determine if differences in exports towards particular destinations are due to greater or lesser restrictiveness by supplier States or the requirements and preferences of the importer State. Nonetheless, it is clear that Sweden is at the more conservative end of the spectrum of European suppliers. It has, for example, been less willing to supply certain types of equipment to States in the Middle East, a trend which has strengthened in the wake of the 2011 Arab Spring and the ongoing Saudi-led military operation in Yemen. That said, transfers to the region have continued and Sweden has resisted calls for a full arms embargo on Saudi Arabia (see below).

33 SIPRI Arms Transfers Database (n 2). The SIPRI Arms Transfers Database counts a delivery as taking place when the weapon system enters the service of the recipient State’s military. Hence, unlike Sweden’s national data, SIPRI’ s data will only begin to count deliveries of Gripe-E combat aircraft to Brazil when they become operational. 34 However, this picture will change when transfers of airborne early-warning radars and accompanying aircraft to UAE – which appear in the Swedish government's data for 2019 but not the SIPRI data – are reflected in the SIPRI figures.

216  Mark Bromley Table 3  Swedish Exports of Major Conventional Weapons by Recipient country: 2010–19

2010–2014

2015–2018

South Africa

Thailand

Pakistan

United States

Algeria

UAE

Singapore

UAE

Netherlands

Pakistan

Norway

Thailand

Other

OTHER

Source: SIPRI Arms Transfers Database, accessed 27 April 2020. Table 4  Swedish Exports of Major Conventional Weapons by Type: 2010–19

2010–14

2015–2019

Aircraft

Sensors

Sensors

Missiles

Ships

Missiles

Engines

Armoured vehicles

Armoured vehicles

Engines

Naval weapons

Ships

Naval weapons

Aircraft

Source: SIPRI Arms Transfers Database, accessed 27 April 2020.

Sweden’s Arms Export Controls  217

III.  Swedish Arms Exports: A Focus of Political and Public Opposition A.  Political and Public Opposition to Sweden’s Arms Exports Sweden’s policy of non-alignment during the Cold War is also central to the line of argumentation that favours a much more restrictive approach to arms exports. Indeed, the idea of non-alignment and restraint in arms exports have always been tightly entwined and were explicitly linked in some of the first international agreements on the arms trade that were drafted in the late nineteenth and early twentieth centuries. Article 6 of the 1907 Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War forbids neutral powers from supplying, ‘directly or indirectly … war-ships, ammunition, or war material of any kind whatever’ to a belligerent power.35 The idea that Sweden’s policy of non-alignment led it to pursue a higher level of restraint in arms export controls was also prevalent in academic research during the Cold War. For example, according to Frank Blackaby’s 1971 typology of different types of arms suppliers, Sweden’s policy of neutrality led it to pursue a ‘restrictive’ pattern of behaviour.36 During the Cold War there was a more or less constant national debate about Sweden’s arms exports and the extent to which they were in line with Sweden’s policy of non-alignment and its reputation as a restrictive supplier. These debates typically focused on particular scandals that highlighted one of two sets of connected issues: the re-export of Swedish arms by the recipient State without Sweden’s approval and the direct transfer of arms from Sweden to States that had either a poor human rights record or were at risk of armed conflict. The scandals grew in regularity until the 1980s when there was a more or less constant series of revelations about Sweden’s arms exports, most of which related to the sales undertaken by the company Bofors.37 These revelations involved, in particular, the illegal re-export of RBS-70 SAMs from Singapore to the UAE and Bahrain and allegations of bribery in connection with the sale of artillery systems to India.38 35 International Committee of Red Cross (ICRC), ‘Treaties, States Parties and Commentaries’. 36 F Blackaby, et al (eds), The Arms Trade with the Third World (Stockholm, Almqvist & Wiksell, 1971). 37 L Beraud-Sudreau, Support or Control? The Politics of Arms Sales in France and Sweden (1990–2015) (PhD Thesis, June 2017) 299–310. 38 See Åkeström (n 7) 19.

218  Mark Bromley As Sweden moved away from its policy of non-alignment in the period after the end of the Cold War, it also adopted a range of other policies that served to strengthen the notion that Sweden’s arms export both were – and should be – more restrictive than other States. In particular, Sweden was both influenced by – and helped to drive – the various steps that Western States took in the postCold War period to increase the prominence of normative and legal frameworks derived from IHL and human rights in their arms export controls.39 For example, Sweden played a leading role in the negotiation of the Arms Trade Treaty (ATT) and was one of a small group of States that pushed for the inclusion of some of its more progressive elements, such as the inclusions of language on gender based violence (GBV).40 Against this background, the national debate about re-exports of ­Swedish arms and sales to sensitive destinations has continued. For example, in 2012 M3 recoilless rifles that had been exported from Sweden to India in 2003 were found in the hands of the Myanmar army.41 The re-export of the arms by India without Swedish permission would represent a violation of enduse controls attached to the original export.42 In response, the Swedish licensing authority launched an investigation. India responded and there are no indications that export licensing to India was affected by the case.43 In 2015, it was reported that a Czech company was supplying BMP-1 armoured vehicles to Iraq that had been previously imported from Sweden. In 2008 Sweden sold around 360 BMP-1 armoured vehicles and spare parts to the company.44 At the time, the company informed the Swedish authorities that the BMP-1s would be used for spare parts for the Czech military’s fleet.45 The Swedish authorities stated that no re-export restrictions had been placed on the sale but – had they been aware that they were going to be re-transferred to Iraq – they would not have approved the original sale. In response to these and other cases involving re-exports of Swedish arms, nongovernmental organisations (NGOs) have called on the Swedish authorities to put in place improved ‘end-use controls’ and implement stricter standards for export licence authorisations.46

39 See M Bromley, N Cooper P and Holtom, ‘The UN Arms Trade Treaty: The Human Security Agenda and the Lessons of History’ (2012) 88/5 International Affairs 1029–48. 40 Comm 2017/18:114 (n 14) 40. 41 ‘Svenska vapen hos Burmas armé (Swedish Weapons with the Myanmar Aarmy)’ Svenska Dagbladet, 10 December 2012. 42 ‘Indien avkrävs svar om granatgevär (India is Requested to Reply on Bazookas)’ (Sveriges ­Television, 13 December 2012). 43 M Bromley, ‘End-Use Controls: Recent Technology Developments and Emerging Trends’ (2015) 33/2 Security and Peace. 44 Bromley and Wezeman (n 6) 8–9. 45 ‘250 Swedish Military Vehicles Sold to Iraq’ (Radio Sweden, 31 March 2015), http://sverigesradio. se/sida/artikel.aspx?programid=2054&artikel=6106834. 46 L Åkeström and S Tuvestad, ‘What YouTube Taught Us about SALW’ (Svenska Freds, 3 June 2015). End-use controls are efforts by exporting States to impose restrictions on how, where, and by whom exported arms are used after delivery. See Wassenaar Arrangement, ‘Introduction to End-user/ End-use Controls for Exports of Military-list Equipment’ (3 July 2014).

Sweden’s Arms Export Controls  219 Swedish sales to a range of sensitive destinations have been the subject of debate in the post-Cold War period, but transfers to the Middle East have proven particularly controversial. These debates increased in intensity in 2011 in response to the violent response of States in the region to the Arab Spring uprising. They reached a peak in mid-2012 as a result of revelations about the so-called ‘Saudi Agreement’. In 2005 Sweden and Saudi Arabia signed a Memorandum of Understanding (MoU) on military co-operation.47 The MoU received little public attention until March 2012 when the Swedish media reported that, under its auspices, the Swedish Defence Research Agency (FOI) was negotiating an agreement with Saudi Arabia regarding the provisions of assistance with the construction of a factory for manufacturing anti-tank missiles. Although no factory was built, many aspects of the negotiations and the proposed agreement were criticised by the Swedish media and opposition political parties. These included the level of secrecy surrounding the negotiations, whether the proposed agreement was in line with Sweden’s arms export control criteria, and whether FOI and the government agency responsible for implementing arms exports controls in Sweden – the Inspectorate for Strategic Products (ISP) – had acted appropriately during the negotiations.48 In late March 2012, the Swedish Defence Minister, Sten Tolgfors, resigned, largely as a result of his failure to adequately address the questions raised by the scandal.49 In March 2015, the Swedish Government announced that it would not be renewing the 2005 MoU with Saudi Arabia. At the time, most of the areas of co-operation laid out in the agreement were inactive. The decision was also taken during a period of increased diplomatic tension between Sweden and Saudi Arabia. Since 2015, the conduct of Saudi Arabia’s military operations in Yemen and the murder of the US-based Saudi journalist Jamal Khashoggi have led many States in Europe to place tighter restrictions on their arms exports to Saudi Arabia. Sweden’s position was that it did not need to change its policies since they were already ‘highly restrictive’ and that no new licences for exports to Saudi Arabia had been issued since 2015.50 However, arms exports to Saudi Arabia under previously agreed deals – so-called ‘follow on’ deliveries – are still permitted and continue to take place. During 2019, SEK 128 million (USD 13.6 million) of military equipment was transferred.51 In addition, significant deliveries to other members of the Saudi-led coalition – and particularly UAE – have also continued. Most of these

47 ‘The Memorandum of Understanding with the Kingdom of Saudi Arabia on Military Cooperation Will Not Be Renewed’ (Government of Sweden, 13 March 2015). 48 ‘Saudiavtalet: Detta Har Hänt (The Saudi Agreement: This Has Happened)’ (Sveriges Radio, 9 March 2015). 49 ‘Trycket Blev För Stort För Sten Tolgfors (The Pressure Became Too Much For Sten Tolgfors)’ (Sveriges Radio, 29 March 2012). 50 B Bolling, ‘Grannar stoppar vapenexport till Saudiarabien – Sverige fortsätter (Neighbours Stop Arms Exports to Saudi Arabia – Sweden Continues)’ Dagens Nyheter, 25 November 2018. 51 Comm 2019/20:114 49. Most of these transfers are likely connected to a SEK4.5 billion (USD670 million) deal for 2 Saab-2000 AEW aircraft that was signed in 2010.

220  Mark Bromley deliveries are part of deals signed in 2015 with SAAB for air-borne early warning radars and accompanying aircraft. However, the Swedish government states that no licences for new exports to UAE have been issued since 2017.52 NGOs and political parties on the left and right continue to criticise Sweden’s failure to impose an outright ban on arms exports to Saudi Arabia. There has long been a strong majority in the Swedish population that view Sweden’s involvement in the arms trade as directly at odds with its national selfimage and something that needs to be far more strictly curtailed. A public opinion survey from 2014 found that 84 per cent of Swedes favour a ban on all arms sales to States that engaged in serious human rights abuses, 79 per cent favoured a ban on exports to dictatorships, and 54 per cent wanted to see a complete halt to all weapons sales from Sweden.53 Parties on both the left and right of the Swedish political spectrum have consistently shared this view and have either called for an outright ban on all arms sales or the imposition of much tighter controls. On the left, the Green Party and the Left Party favour stricter controls. Both parties favour banning all exports to States in conflict, States that violate human rights and dictatorships, while the Green Party’s long-term goal is a total ban on all arms exports.54 On the right, the Christian Democrats want to see a ban on exports to dictatorships, while the Liberal Party favour the implementation of much tighter restrictions on transfers to such destinations as part of a general tightening of controls.55

B.  The Review of Sweden’s Controls and the 2018 Legislation As in other European States, scandals have played a key role in driving substantive changes in Sweden’s arms export controls. The Bofors scandals described above led directly to new legislation in this area in 1992 and the creation of ISP (see below). In May 2011, a similar process began when the Swedish Parliament stated that the Swedish Government should make proposals on how to ‘sharpen controls on exports to non-democratic states’.56 The initial request was driven by reports about the use of western-supplied military equipment in the violent response of States in the Middle East to the Arab Spring uprisings. However, the issue was given added significance following revelations about the ‘Saudi Agreement’ in March 2012 (see above). 52 Comm 2019/20:114 6. 53 ‘Allmänhetens syn på vapenexport (Society’s View of Arms Exports)’ (IPSOS Public Affairs, May 2014). 54 ‘Flera partier vill gå längre med förbud mot vapenexport’ (n 26). 55 ‘Flera partier vill gå längre med förbud mot vapenexport’ (n 26). 56 Strategisk Exportkontroll 2010 – Krigsmateriel Och Produkter Med Dubbla ­Användningsområden Samt Genomförande Av Direktiv Om överföring Av Krigsmateriel Utrikesutskottets Betänkande 2010/11:UU3 (Stockholm, Swedish Parliament, May 2011).

Sweden’s Arms Export Controls  221 In June 2012, the Government responded to the Parliament’s request by appointing a parliamentary enquiry to review Sweden’s arms export controls. The parliamentary enquiry, consisting of representatives from all eight political parties in the Swedish Parliament, was tasked with ‘conducting an inquiry into future Swedish export controls on military equipment and the regulatory framework surrounding these’.57 The remit of the parliamentary enquiry was expanded by the Government beyond the Parliament’s initial request to include both tightening controls on non-democratic States and a range of other issues. These included examining: i.

the potential consequences of imposing tighter controls on arms transfers to non-democratic States; ii. options for improving the ‘openness and transparency’ of Swedish export controls; iii. the way in which Sweden controls so-called ‘follow-on’ deliveries; and iv. the possibility of changing the types of penalties associated with violations of Swedish arms export controls.58 The parliamentary enquiry was originally required to submit its final report in December 2014. A report focusing on penalties for export control violations was released by this date and proposed introducing a set of administrative penalties for minor violations which ISP could issue. The existing system required the launching of a full criminal prosecution for any violations of controls.59 However, the parliamentary enquiry’s full report was not issued until June 2015. The Committee made a number of detailed recommendations on how Swedish arms export controls could be improved. In particular, the parliamentary enquiry called for: (i) creating a new Military Equipment Act; (ii) revising and improving the S­ wedish export control criteria; (iii) making ‘the democratic status of the recipient country … a key condition in the assessment of applications for licences’; and (vi) releasing more detailed information on Sweden’s arms exports. Stakeholders were asked for their opinions on the parliamentary enquiry’s report and, by August 2015, over 70 responses had been submitted. The responses from Swedish NGOs, the defence industry and government agencies were ­critical of the report. In a joint response, The Swedish Peace and Arbitration Society (SPAS), the Women’s International League for Peace and Freedom (IKFF) and the Swedish Fellowship of Reconciliation (SweFOR) argued that the proposed language on human rights and democracy were too vague and that the ‘democracy criteria’ did not clearly formulate an unconditional ban on transfers to 57 Comm 2013/14:114 (n 16) 6–7. 58 Skärpt Exportkontroll Av Krigsmateriel (Tighter Export Controls on War Material) (Stockholm, Swedish Government, June 2015). 59 C Dackö and O Johannessen, ‘More Effective Enforcement of Export Control Rules in Sweden’ World ECR, No 41, June 2015.

222  Mark Bromley non-democratic States.60 In contrast, SOFF argued that integrating democracy criteria into Sweden’s arms export controls would make Swedish controls significantly more restrictive than other EU Member States.61 In its response, ISP argued that the parliamentary enquiry should have looked in more detail at what impact a reduction in arms exports would have had for Sweden’s defence industry.62 In 2015, the Swedish Government announced that it would put forward a bill in the Spring of 2017 on the basis of the parliamentary enquiry’s report and the responses submitted.63 In the months that followed, debate centred on whether or not the bill would include a ban on exports to non-democratic States or instead integrate the issue of a recipient States’ level of democracy into the existing export control criteria. The Government at the time was made up of a coalition of the Social Democrats and the Green Party and within both parties there were efforts by members to force the leadership to support a bill that included an outright ban.64 The issue was particularly controversial for the Green Party since its official party position had previously been that there should be an end to all Swedish arms exports and, failing that, a ban on all transfers to dictatorships.65 In October 2017, the Government presented Bill 2017/18:23.66 The Bill was adopted and entered into force on 15 April 2018. It implements most of the key recommendations that were made in the parliamentary enquiry’s report but with several key differences. The main changes to Sweden’s arms export controls that have been made and the extent to which they reflected the parliamentary enquiry’s recommendations are examined in more detail below. On the key issue of arms exports to non-democratic States, the Bill proposed that: the democratic status of the recipient country constitute a key condition for examination of licence applications. The worse the country’s democratic status, the less scope there is for licences to be granted. If serious or extensive infringements of human rights or severe deficiencies in the recipient’s democratic status occur, this poses an obstacle to the granting of licences.67

As such, the language represented a middle position that satisfied neither those who were looking for a clear ban on exports to non-democratic States, nor those who were concerned about the potential impact of stricter controls in this area on Sweden’s arms exports. 60 ‘Svenska freds-, Internationella kvinnoförbundet för fred och frihet (IKFF), Kristna fredsrörelsen’ in Remissvar: SOU 2015:72 (n 22). 61 ‘Swedish Security & Defence Industry Association (SOFF)’ in Remissvar: SOU 2015:72 (n 22). 62 ‘Inspectorate for Strategic Products (ISP)’ in Remissvar: SOU 2015:72 (n 22). 63 Inspectorate for Strategic Products (ISP), ‘Årsredovisning 2015 (Annual Report 2015)’, 22 February 2016, 11. 64 L Benigh, ‘Ny strid inom Miljöpartiet kan orsaka regeringskris (New Conflict within the Green Party can Create a Government Crisis)’ (SVT, 19 February 2017), and ‘S-Kongressen: Ny Skrivning Om Vapenexporten (S-Congress: New Draft on Arms Exports)’ Sydsvenskan, 9 April 2017. 65 ‘Sverige Ska Inter Beväpna Diktaturer (Sweden Should Not Arm Dictatorships)’ (Miljöpartiet, nd). 66 Regeringens proposition 2017/18:23 – Skärpt exportkontroll av krigsmateriel (Stockholm, Swedish Government, October 2017). 67 Comm 2017/18:114 (n 14) 7.

Sweden’s Arms Export Controls  223

IV.  Sweden’s Arms Export Controls: Between Facilitation and Restraint A.  The ‘Framework’ of Sweden’s Arms Export Controls Sweden’s arms export control legislation is prohibitive, which means that ‘all exports of military equipment are a priori prohibited, and only allowed if an exemption in the form of an export license is granted’.68 The regulatory framework consists of the Military Equipment Act (1992:1300) and the Military Equipment Ordinance (1992:1303) and the Government’s guidelines on exports of military equipment.69 These instruments came into force on 1 January 1993 and regulate the production and export of military equipment, as well as brokering, the granting or transfer of production rights, and the provision of technical assistance and military training. An updated version of the legislation entered into force on 24 March 2015. Among other things, the update clarified the scope of the new General licences that Sweden has introduced to implement the EU ­Intra-Community Transfer Directive (ICT Directive) and regulate the trade in transfers of military equipment to and from other EU Member States.70 ISP, the government agency responsible for implementing arms exports controls in Sweden, was established on the basis of the 1992 legislation and was founded in 1996. ISP is an independent government agency and, in addition to arms export controls, is responsible for implementing dual-use export controls and the management of targeted sanctions. As an independent government agency, ISP operates in accordance with guidance issued by the Swedish Ministry for Foreign Affairs (MFA) but is independent in its day-to-day decision-making. Before 1996, export licensing decision-making was handled by the Swedish MFA. In May 2016, the Swedish Government took the decision to move responsibility for export control questions from the MFA to the Justice Ministry.71 The Swedish control list specifying which military goods are subject to control is an annex to the Swedish Military Equipment Ordinance (SFS 1992:1303).72 The control list follows both the coverage and categorisation of the EU Common Military List. However, the items on the Swedish control lists are divided between Military Equipment for Combat (MEC) and Other Military Equipment (OME). MEC covers ‘equipment with a destructive impact including sights for such

68 ‘Sweden National Report’, Arms Trade Treaty – Baseline Assessment Project, (nd), www.armstrade. info/countryprofile/sweden/. 69 Comm 2017/18:114 (n 14) 6. 70 Comm 2017/18:114 (n 14) 55. Directive 2009/43/EC of the European Parliament and of the ­Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (2009) OJ L146/1. 71 ‘Regeringsombildning 25 Maj 2016 (Government Reshuffle 25 May 2016)’ (Swedish Government, 25 May 2016), www.regeringen.se/pressmeddelanden/2016/05/regeringsombildning-25-maj-2016/. 72 The list is available (in Swedish) at https://isp.se/media/1313/sfs2019-314.pdf.

224  Mark Bromley e­quipment and fire control equipment’.73 OME covers ‘parts and components for MEC, as well as equipment that do not have a directly destructive impact in a combat situation’.74 Export licences are required for both MEC and OME and the system of applying for authorisations is the same. However, slightly different decision-making guidelines are applied (see below). The Swedish export licencing system has a number of additional steps which are not present in many other export States. First, before submitting an export licence application a company must first apply for and receive a ‘Licence to produce or manufacture arms’.75 Companies that receive this licence are then required to submit regular ‘Reports on marketing’ to ISP, detailing their efforts to generate sales abroad. In certain cases, the reports will form the basis for meetings between ISP and the company where the company may get feedback about their proposed projects and clients.76 Second, before submitting a formal export licence application, companies can submit an ‘Advance notice before export’ to ISP. This enables companies to carry out an early political test of a potential export.77 Third, the actual export licensing process itself is divided into two stages. At the point that a company is planning to submit a binding offer to a customer or is preparing to sign a contract, it needs to submit a ‘Notification of tender / contract’ to ISP.78 Before exporting the arms, companies must then apply for either an ‘Individual licence’ or a ‘Global licence’.79 ISP also has the authority to revoke a granted licence permanently or for a specific period of time.80 This can happen ‘if the recipient state becomes involved in an armed conflict with another state or becomes the site of internal armed unrest’.81 73 Strategic Export Control in 2014 – Military Equipment and Dual-Use Items, Comm 2014/15:114) (Stockholm, Swedish Government, March 2015) 33. 74 Ibid. 75 ‘Utförsel via Individuellt Tillstånd (Export via Individual Licence)’ (Inspectorate for Strategic Products (ISP), nd). 76 ‘Redovisning av marknadsföring (Reports on marketing)’ (Inspectorate for Strategic Products (ISP), nd), https://isp.se/krigsmateriel/skyldigheter-for-tillstandshavare/redovisning-avmarknadsforing. 77 ‘Förhandsbesked inför export (Advance notice before export)’ (Inspectorate for Strategic Products (ISP), nd), https://isp.se/pda/export-och-overforing/forhandsbesked-infor-export/. 78 ‘Underrättelse om anbud eller avtal (Notification of Tender or Contract)’ (Inspectorate for Strategic Products (ISP), nd), https://isp.se/krigsmateriel/skyldigheter-for-tillstandshavare/underrattelseom-anbud-eller-avtal/. 79 An individual licence gives a company the right to deliver ‘a specified quantity of specified material – through one or more shipments – to a particular recipient in another country’. A global licence gives a company the right to deliver ‘a specified or unspecified quantity of specified material one or more recipients or categories of recipients in one or more countries’. ‘Individuellt utförseltillstånd (Individual licence)’ (Inspectorate for Strategic Products (ISP), nd), https://isp.se/krigsmateriel/ utforsel-fran-sverige/individuellt-utforseltillstand/; and ‘Generellt tillstånd (General Licence)’ (Inspectorate for Strategic Products (ISP), nd), https://isp.se/krigsmateriel/utforsel-fran-sverige/ generellt-tillstand/. 80 ‘Sweden National Report’ (Arms Trade Treaty – Baseline Assessment Project, nd), www.armstrade.info/. 81 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’ Translated in Comm 2013/14:114 (n 16) 82–84.

Sweden’s Arms Export Controls  225 The multi-stage licensing process gives ISP a significant level of oversight over the activities of companies producing and exporting arms. It also gives it the ability to steer companies’ decision-making about particular types of exports and ­destinations at an early stage of the marketing process and to avoid situations in which a company invests time in negotiating a sale that is denied an export licence.82 As a result it is relatively unusual for companies to receive a negative response to a ‘Notification of tender / contract’ since, prior to this point, there has already been a dialogue between the company and ISP about the sale. At the same time, the Swedish system has also created challenges when it comes to the export licencing information sharing systems set up by the EU and the Wassenaar Arrangement. These are based on States exchanging information on export licence denials in order to get a picture of how they are interpreting the shared criteria to which they have agreed. Since Sweden issued so few licence denials, it often had little information to share. In 2014 the Swedish Government stated that it had responded to this concern by sharing information on denial notifications ‘in more situations than was previously the case’.83 The framework of Sweden’s arms export controls points to a strong emphasis on building and maintaining consensus amongst key stakeholders. This is clearly apparent in the close contact that is created between the Swedish export licensing authority and exporting companies. It also reflects a clear attempt to ‘depoliticise’ arms exports. This is particularly visible in the way ISP was set up as an independent government agency that would allow Sweden’s elected officials to avoid answering questions about particular arms sales. The shift in overall responsibility for this area of policy from the MFA to the Justice Ministry in 2016 also reflects this effort. According to media reports, the decision was taken because the Justice Ministry had ‘time available’ and that export control issues did not sit well at the MFA.84 However, the move can be seen, in part, as an attempt to further distance high-profile government officials from difficult questions about these issues. The parliamentary enquiry called on the Government to create a new ­Military Equipment Act in order ‘to make the wording of the Act clearer’. However, the Government stopped short of taking this step and instead confined itself to making changes to the wording of the criteria and making other adjustments to the particular aspects of the control system. The parliamentary enquiry did not recommend making any changes to the multi-stage licensing, indicating the broad consensus that exists on the value of this aspect of Sweden’s export control system.

82 ‘Sweden ATT Initial Report’ (The Arms Trade Treaty Secretariat, 27 August 2015), https://thearmstradetreaty.org/download/bebf4cc5-4957-378f-9bd4-166c36eb57ad. 83 Comm 2013/14:114 (n 16) 13. 84 T Wikström, ‘Ledare: Handelspolitiken alltför viktig för att ligga på UD (Leader: Trade Policy is too Important to leave with the MFA)’ Dagens Industri, 25 May 2016.

226  Mark Bromley

B.  The ‘Process’ of Sweden’s Arms Export Controls ISP is solely responsible for assessing export licence applications.85 Indeed, in order to ensure ‘impartial application of the law’, the MFA and all other branches of government are barred from influencing the ISP’s decision-making procedures.86 ISP can draw upon expertise from other government agencies but there is no formalised process for how this should take place. ISP makes an annual report to the Government detailing the decisions it has taken and how it has applied the Swedish Guidelines.87 However, this report is not made public. In a limited number of cases, decision-making will be transferred from ISP to the Government. In particular, when a licence application is ‘of principle meaning or otherwise of particular importance’, ISP hands over the case.88 The idea behind this mechanism is to ensure that the Government is able to determine practice when it relates to particularly difficult foreign and security policy issues.89 The DirectorGeneral of ISP is responsible for determining which cases are referred. However, the Government can, if it wishes, instruct ISP to hand over certain types of cases. No information in available on the details of the cases involved but they appear to be very uncommon. One case was handed over in 2015 and 2016, three in 2017 and one in 2018.90 In many ways Sweden is among the most transparent States in terms of the amount of information it publishes on its arms exports. Sweden’s first annual report on arms exports was produced in 1985, making it the first country in Europe to produce such a publication. In addition, Sweden’s annual report is published in March or April, making the data it contains among the most timely of those produced. However, there are also certain aspects of Swedish reporting which are significantly less detailed than other EU Member States. For example, Sweden only provides the EU Military List category of the goods licensed and exported. Other EU Member States such as Germany give descriptions of the goods involved. In addition, Sweden only provides the number of export licence denials issued for each destination. Other EU Member States such as the Netherlands give details of each denial issued. The judiciary in Sweden has a restricted role in the export licensing process and there do not appear to have been any cases where companies or NGOs have sought to legally challenge ISP’s decision-making. As described above, Sweden’s 85 ‘Sweden ATT Initial Report’ (n 80). 86 ‘Sweden ATT Initial Report’ (n 80). 87 ISP Annual Report 2015 (n 61) 5. 88 Comm 2017/18:114 (n 14) 96. 89 Tighter Export Controls on War Material (n 56). 90 ISP Annual Report 2015 (n 61) 23; ‘Årsredovisning 2016 (Annual Report 2016)’ (Stockholm, Inspectorate for Strategic Products (ISP), February 2017) 22; and ‘Årsredovisning 2017 (Annual Report 2017)’ (Stockholm, Inspectorate for Strategic Products (ISP), 19 February 2018) 25; and ‘Årsredovisning 2018 (Annual Report 2018)’ (Stockholm, Inspectorate for Strategic Products (ISP), 22 February 2019) 24.

Sweden’s Arms Export Controls  227 arms export control legislation is prohibitive, meaning that all exports of military equipment are illegal and only permitted in certain circumstances. In addition, the system is expressly designed in order to help ISP avoid situations in which a company invests time and effort in negotiating a sale that is then blocked at the export licensing stage. These two factors clearly limit both the legal possibility, and the likely incentive, for companies to challenge licensing decisions made by ISP. A third factor, which affects the potential for legal challenges by both companies and NGOs, is that the Swedish legal system makes it difficult for external actors to challenge government decisions.91 In Sweden, Parliament – rather than the courts – is expected to play the main role in assessing and challenging governmental decision-making.92 Reflecting this fact, Sweden is unusual in that it affords a prominent role to parliamentarians in the export licensing assessment process via the Export Control Council (ECC). The ECC is a parliamentary committee which has some level of prior oversight with regards to the actual issuing of arms export licences. The precursor to the ECC – a Parliamentary advisory board – was established in 1984, on the basis of Government Bill 1984/85:82.93 The Bill called for greater transparency and consultation on matters relating to exports of military equipment. In response, the Swedish Parliament established an advisory board concerned with exports of military equipment. In 1996, the Government reorganised this board, integrating it into the ECC in connection with the establishment of the ISP.94 The ECC is chaired by the ISP Director-General and acts as an advisory board to the ISP. It is made up of 12 members drawn from the political parties in Parliament. Meetings of the ECC are focused on discussions of particular export licences that are under consideration. The Director-General of ISP decides which licence applications should be subject to examination by the ECC and there are no fixed guidelines that have to be followed. However, the Swedish Government has noted that exports to new customer countries are particularly relevant for the ECC.95 The ISP has also stated that cases where ‘developments require a new examination’ are referred to the ECC.96 The ISP Director-General also reports to the ECC on all licensing decisions that have been taken without consulting with it first.97 This presumably allows the ECC to question why particular cases were not brought to its attention. At meetings of the ECC, the MFA presents assessments of the relevant purchasing countries and the MoD provides assessments of the defence policy aspects of the applications. The ISP Director-General may

91 D Scott Clark, ‘13. Administrative Law Agencies and Redress Mechanisms in the United Kingdom and Sweden’ in Comparative Law and Society (London, Edward Elgar Publishing, 2012) 254–89, 269. 92 Ibid. 93 Comm 2017/18:114 (n 14) 32. 94 Comm 2017/18:114 (n 14). 95 Tighter Export Controls on War Material (n 56) 184. 96 ‘Verksamhet 2017 (Activity 2017)’ (Stockholm, Inspectorate for Strategic Products (ISP), 2017) 8. 97 Tighter Export Controls on War Material (n 56) 184.

228  Mark Bromley also summon other experts. The ECC does not have any explicit power to block export licences.98 Rather, it can ‘present opinions on proposed exports … in order to provide further guidance to the ISP’.99 Information about the cases the ECC considers and any decisions made are not made public and members are not allowed to discuss proceedings with anyone outside the group. The only information given is the number of meetings held and the number of cases considered. In 2018 the ECC met 8 times and considered 14 cases.100 The process through which export licences are assessed also reflects the strong emphasis in the Swedish system on building consensus and depoliticising these issues. This can be clearly seen in the limitations in the amount of data that are released about Swedish arms exports, the restricted role afforded to the courts in terms of challenging export licensing decisions and, particularly, the way in which the ECC is constituted and operates. Indeed, according to the Swedish Government, one of the main goals of the ECC and the system of consultations that take place ‘is to build a broad consensus on export control policy and promote continuity in the conduct of that policy’.101 As such, the ECC fits within a broader Swedish approach to engaging Parliament on issues of security and defence that developed after the end of the Second World War. During this period, several cross-party committees were established. One report on the subject has argued that through these committees parliamentarians were systematically ‘educated’ in defence matters and hand-picked for their reliability.102 As a result, the parliamentarians involved are socialised into aligning themselves with the predominant view of the larger group.103 The parliamentary enquiry made a number of recommendations that were focused on reforming the process through which Sweden assesses arms export licences. These included increasing the amount of information that is published on Sweden’s arms exports, particularly by detailing the reasons why certain licences where denied or issued and publishing more details about which cases have been referred to the Government or the ECC.104 In response, the 2018 legislation makes small changes to the way the system operates. In particular, members of the ECC will be allowed to discuss particular cases with their party colleagues and there is a commitment to seek to increase the amount of information that is released in the Swedish annual report. However, the lack of truly transformative proposals from

98 ‘Vad är Exportkontrorådet (What is the Export Control Council)’ (Svenska Freds, 28 November 2018), www.svenskafreds.se/kampanj/vad-ar-exportkontrollradet-ekr/. 99 Comm 2017/18:114 (n 14) 33. 100 ‘Årsredovisning 2018 (Annual Report 2018)’ (Stockholm, Inspectorate for Strategic Products (ISP), 22 February 2019) 24. 101 Comm 2017/18:114 (n 14). 102 N Stenlås, Technology, National Identity and the State – the Rise and Decline of a Small State’s Military-Industrial Complex, Paper no 130 (The Institute for Future Studies, April 2008) 14. 103 I Dörfer, Arms, Technology and the Domestication of Glory (Stockholm, Universitetsforlaget, 1973) 30–31. 104 ‘Tighter Export Controls on War Material (n 56) 399.

Sweden’s Arms Export Controls  229 the parliamentary enquiry – and the conservative way in which the recommendations made were reflected in the 2018 legislation – indicates that there is a broad consensus around keeping the system in its current format.

C.  The ‘Criteria’ of Sweden’s Arms Export Controls Sweden’s export licensing criteria are laid out in the Swedish Military Equipment Act. They consist of two ‘overriding principles’ and a series of unconditional and conditional ‘assessment criteria’. The overriding principles state that export licenses may only be granted if doing so is supported by security and defence policy reasons and provided there is no conflict with Sweden’s foreign policy. Hence the guidelines state that: (licences) for exports of military equipment or for other cooperation with foreign partners involving military equipment should only be granted where such exports or cooperation are judged to be necessary to meet the Swedish Armed Forces’ requirements for equipment or expertise or are otherwise desirable for reasons of national security and do not conflict with the principles and objectives of Swedish foreign policy.105

The Assessment criteria cover the following areas: • International agreements – The Swedish guidelines state that licences ‘must not be granted if this would contravene an international agreement to which Sweden is party, a decision of the UN Security Council or international legal rulings concerning exports from neutral states during a war’.106 • Human rights violations – The Swedish guidelines state that licences for military equipment ‘should not be granted where the recipient country is a state where there are widespread and serious human rights violations’.107 • Armed conflict – The Swedish guidelines state that licences for military ­equipment for combat purposes ‘or for other cooperation with foreign partners concerning military equipment for combat purposes or other military equipment should not be granted if the state in question is involved in an armed conflict with another state, regardless of whether or not war has been declared, is embroiled an international conflict that is in danger of becoming an armed conflict or is the site of internal armed unrest’.108

105 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’ Translated in Comm 2013/14:114 (n 16) 82–84. 106 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 107 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 108 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84.

230  Mark Bromley Neither the EU Common Position or the ATT are referenced directly in Sweden’s arms export guidelines. The Swedish national report on arms exports states that ‘(t)he EU Common Position on Arms Exports is applied in parallel with the Swedish guidelines’.109 According to the Swedish Government, the guidelines are covered by the reference to ‘international agreements to which Sweden is party’ in the Sweden guidelines.110 The standards for assessing exports of OME are slightly different than for MEC. For MEC, licences should not be issued if the recipient State is involved in armed conflict with another state, a state involved in an international conflict that is feared may lead to armed conflict, a state in which internal armed disturbances are taking place, or a state in which extensive and grave violations of human rights occur.111

For OME, licences should be granted, provided that ‘there are not widespread and grave violations of human rights in the recipient state; that the state is not in armed conflict with another state; and that the state is not experiencing internal armed tension/instability’. For both OME and MEC, no exports should be authorised ‘if there are unconditional obstacles, such as an arms embargo against the recipient state’.112 Sweden also maintains slightly different standards for what it defines as ‘follow-on deliveries’. The Swedish guidelines state ‘(l)icences should be granted for exports of spare parts for military equipment exported previously’ provided that there are ‘no unconditional obstacles’.113 The same standards apply ‘to other deliveries, e.g. of ammunition, linked to previous exports’.114 Finally, although an export ­licensing assessment is always carried out, Sweden operates on the basis of a ‘positive presumption’ in the case of exports to ‘the Nordic countries and the traditionally neutral countries of Europe’.115 Sweden’s end-use controls are based on commitments provided by the importer on how the arms will be used after delivery and pre-export risk assessments to determine the likelihood that they will be violated. As in other exporting States, the form and content of the commitments that importers are required to make varies depending on the State where they are located and the equipment involved. For example, when the importer is based in an EU Member State, Norway, Sweden,

109 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 80. 110 Comm 2014/15:114 (n 71) 96. 111 R Gerome, The Swedish Arms Trade and Risk Assessments: Does a Feminist Foreign Policy Make a Difference? (Reaching Critical Will, May 2016) 7. 112 Ibid. 113 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 114 Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 115 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84.

Sweden’s Arms Export Controls  231 USA, Canada, Australia, New Zealand or Japan exporters are required to provide an End-Use Certificate. Several difference templates for these End-Use Certificates are provided on the ISP website covering situations in which the end-user is a private company or a public entity. However, when the importer is based in any other State, the exporter must provide a Declaration by End-User (DEU). DEUs are printed on special paper and a signed copy must be sent to ISP via the Swedish embassy in the importing country.116 Unlike in the case of End-Use Certificates, in all DEUs, the importer has to state that the equipment will not be re-exported without Sweden’s prior consent. In cases where the exporting company is entering into an agreement with a foreign partner on the joint development or manufacture of military equipment, the standards on end-use controls are applied differently depending on (i) the level of ‘Swedish identity’ in the end-product, and (ii) the nature of Sweden’s relationship with the State where the production is taking place. If the product is deemed to have a ‘predominantly Swedish identity’ then ISP seeks to retain control of any subsequent exports. If it is deemed to have a ‘predominantly foreign identity’, then control over any subsequent exports can be handed over to the State where the production is taking place. However, responsibility for exports of items with a ‘predominantly Swedish identity’ can also be handed over to the State where the production is taking place if there are significant foreign or security policy interests at stake.117 There are no public guidelines detailing how ISP determines whether a product has a ‘predominantly Swedish identity’ or a ‘predominantly foreign identity’. The available material only notes that the assessment must take account of ‘all relevant elements’.118 Swedish guidelines state that any importer that fails to honour its end-use commitments will not be eligible ‘to receive such equipment from Sweden as long as these circumstances persist’.119 As noted, Swedish NGOs have argued that ISPs efforts in the field of ‘post-shipment monitoring’ are not sufficient to ensure that they are aware when commitments are not being honoured. Sweden has previously stated that it sometimes requires the inclusion of a clause in its end-user ­certificates (EUCs) that allow Swedish officials to carry out on-site inspections to ensure that commitments made on re-exports are being respected.120 However, these controls were not utilised on a systematic basis, largely due to a lack of capacity and resources.121 Information on the ISP website indicates that on-site

116 ‘Slutanvändarintyg (End-user certificate)’ (Inspectorate for Strategic Products (ISP), nd), https:// isp.se/krigsmateriel/utforsel-fran-sverige/slutanvandarintyg/. 117 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 118 Tighter Export Controls on War Material (n 56). 119 ‘Full Text of the Swedish Guidelines (pro 1991/92:174 S. 41 F.)’. Translated in Comm 2013/14:114 (n 16) 82–84. 120 O Greene and L Kirkham, Small Arms and Light Weapons Transfer Controls to Prevent Diversion (London, Saferworld, 2007) 18. 121 I Berkol and V Moreau, Post-Export Controls on Arms Transfers (Brussels, GRIP, 2009) 23.

232  Mark Bromley inspections controls are no longer an element in Sweden’s end-use controls. In addition, cases where potential violations of Swedish end-use controls have been detected appear to have become known as a result of media reporting rather than any active steps on the part of ISP (see above). The structure and content of Sweden’s guidelines reflect an attempt to speak directly to both the groups pushing for restrictiveness in Sweden’s arms export controls and those pushing for facilitation. On the one hand the ‘assessment criteria’, and particularly the policies on States engaged in an armed conflict or where human rights abuses take place, are among the most restrictive in Europe, and go beyond the language agreed in the EU Common Position or the ATT. At the same time, the overriding principles appear to provide potential means for justifying almost any export, even those that conflict with the criteria of the EU Common Position or the ATT. Meanwhile, the process though the ‘overriding principles’ and the ‘assessment criteria’ are considered and what happens when they point towards contradictory conclusions is not spelled out in any public document. In addition to calling for the introduction of greater restrictions on exports to non-democratic States, the parliamentary enquiry also recommended creating greater clarity with regards to the way Sweden’s export control criteria are implemented, particularly by detailing the content of the ‘overriding principles’ and ‘assessment criteria’ and the exact nature of the relationship between them. In response, the Swedish Government appointed an ‘inquiry chair’ tasked with examining ‘the prospects of combining the Swedish guidelines for material equipment exports with the provisions of the EU’s Common Position and the UN Arms Trade Treaty’.122 The report produced represents the first attempt to clearly state how the different components of Sweden’s export licensing criteria should relate to each other. In particular, it recommends adopting a four-step process in which an export’s compatibility with Sweden’s foreign and security interests is first assessed before the export is examined in light of the restrictions that are imposed by the different international and regional obligations to which Sweden is a party.123 The parliamentary enquiry also recommended creating a narrower definition of what constitutes a ‘follow-on delivery’. In response, the 2018 legislation clarifies certain aspects of the principles for follow-on deliveries but does not make any substantive changes to the way the system works in practice. Finally, as part of its response to the parliamentary enquiry on arms export controls, the Swedish Government is also looking at ways of strengthening its end-use controls.124 The final outcome of this process will not be apparent until later in 2020.

122 Comm 2017/18:114 (n 14) 4. 123 Konsolidering av nationella och internationella riktlinjer för exportkontroll av krigsmateriel Ds 2018:16 (Consolidation of national and international guidelines for export control on war material DS 2018:16 (Stockholm, Swedish Government, 2018). 124 Comm 2017/18:114 (n 14) 4.

Sweden’s Arms Export Controls  233

V. Conclusion Sweden maintains two distinct national narratives about its role in the international arms trade, both of which are strongly held by key political actors on the left and right of its political spectrum. The first holds that Sweden must maintain or expand its existing levels of arms exports in order to support its non-alignment and its national security. The second holds that Sweden must place firmer restrictions on its arms exports in order to reflect its position of non-alignment and its national values. These contradictory pressures are present in many western States but are particularly prevalent in Sweden. This chapter argues that key aspects of Sweden’s arms exports controls are best understood as an attempt to manage these competing pressures. This can be seen in the strong emphasis they place on building and maintaining consensus amongst key stakeholders, the attempt to ‘depoliticise’ the issue of arms exports, and the focus on seeking to simultaneously reflect the concerns of both those calling for maintaining or restricting Sweden’s arms exports. The focus on managing conflicting normative pressures is something that has been noted in previous studies of Swedish political processes. This argument was made particularly forcefully in the work of Nils Brunson in the 1980s and his notion of ‘organised hypocrisy’.125 Brunson studied the workings of Swedish local authorities in the 1980s. He argued that the range of competing norms and pressures to which they are subject meant that a consistent interpretation and assimilation of external inputs was impossible. In response, the councils sought to manage these pressures by creating a disconnect between their talk, their decisions and their actions. Hence, they ‘talk in a way that satisfies one demand … decide in a way that satisfies another, and … supply products in a way that satisfies a third’.126 As such, the ideals they profess often bear little or no relation to the actions they take, but this represents a perfectly rational response to the complexities of the world that they inhabit. As such, their efficiency is not measured in terms of its ability to generate co-ordinated action but in its ability to reflect inconsistent norms. In a similar way, the chapter shows that – rather than achieving a consistent assimilation and interpretation of its values and interests – Sweden’s arms export controls are primarily focused on managing the contradictory normative pressures to which they are subject. This approach has been stretched and tested in recent years, and particularly by the 2012 parliamentary enquiry and the process of drafting the 2018 legislation. In particular, the process exposed both the distance between the two groups’ positions but also the ways in which the system seeks



125 Brunsson 126 Brunsson

(n 3). (n 3) 27.

234  Mark Bromley to balance their opposing views. While the process reached a successful conclusion – in that it left the key components of the system broadly untouched – it has potentially served to renew and deepen the two groups’ broader dissatisfaction with Sweden’s control system and its failure to reflect their own position. Looking forward, it will be particularly interesting to see how the changes to the criteria of Sweden’s export controls are implemented in practice. These represent the most ambitious and far reaching changes to have resulted from the 2012 parliamentary enquiry and the 2018 legislation and have the potential to affect the balance between the competing normative pressures to which Sweden’s controls are subject. The natural critique of this analysis is that the more important aspects of Sweden’s arms export controls – such as decisions about exports – are more focused on maintaining and expanding arms exports, while the less important ones – such as export licensing criteria – are more focused on control and restraint. While this argument cannot be completely ignored, the chapter also shows that it underplays the extent to which all aspects of Sweden’s arms export controls have, at different times, sought to address both sets of values and interests. For example, there are several cases where decisions about exports – particularly visible in the trends in sales to the Middle East – appear to have been more influenced by those arguing in favour of greater control and restraint. Finally, it also exaggerates the extent to which it is possible to accurately determine which values and interests are ­dominant in a particular instance given the limits on the available data.

List of References Axelsson, M and Lundmark, M, Försvarsindustri i Sverige – Konsekvenser av internationaliserat ägande (The Defence industry in Sweden – The consequences of Internationalised Ownership) (Stockholm, Totalförsvarets Forskningsinstitut, March 2007). Åkeström, L, Den Svenska Vapenexporten (Swedish Arms Exports) (Stockholm, Leopard, 2016). Beraud-Sudreau, L, Support or Control? The Politics of Arms Sales in France and Sweden (1990–2015) (PhD Thesis, June 2017). Berkol I and Moreau, V, Post-Export Controls on Arms Transfers (Brussels, GRIP, 2009). Bjereld, U, Johansson, AW and Molin, K, Sveriges Säkerhet och Världens Fred (Swedish Security and World Peace) (Stockholm, Författarna och Santérus Forlag, 2008). Blackaby, F et al (eds), The Arms Trade with the Third World (Stockholm, Almqvist & Wiksell, 1971. Bromley, M, ‘End-Use Controls: Recent Technology Developments and Emerging Trends’ (2015) 33/2 Security and Peace. Bromley, M and Wezeman, ST, Current Trends in the International Arms Trade and Implications for Sweden (Stockholm, Stockholm International Peace Research Institute (SIPRI), October 2013). Bromley, M, Cooper, N and Holtom, P, ‘The UN Arms Trade Treaty: The Human Security Agenda and the Lessons of History’ (2012) 88/5 International Affairs, 1029–48.

Sweden’s Arms Export Controls  235 Brunsson, N, The Organization of Hypocrisy: Talk, Decisions and Actions in Organizations (New York NY, John Wiley and Sons, 1989). Cops, D, Duquet N and Gourdin, G, Towards Europeanised Arms Export Controls? Comparing Control Systems in EU Member States (Belgium, Flemish Peace Institute, 15 June 2017). Dackö, C and Johannessen, O, ‘More Effective Enforcement of Export Control Rules in Sweden’ World ECR, No 41, June 2015. Dörfer, I, Arms, Technology and the Domestication of Glory (Stockholm, Universitetsforlaget, 1973) 30–31. Gerome, R, The Swedish Arms Trade and Risk Assessments: Does a Feminist Foreign Policy Make a Difference? (Reaching Critical Will, May 2016). Greene, O and Kirkham, L, Small Arms and Light Weapons Transfer Controls to Prevent Diversion (London, Saferworld, 2007). Holmström, P and Olsson, U, ‘Sweden’ in Ball, N and Leitenberg, M (eds), The Structure of the Defence Industry (London, Croon Helm, 1987). Scott Clark, D ‘13. Administrative Law Agencies and Redress Mechanisms in the United Kingdom and Sweden’ in Comparative Law and Society (London, Edward Elgar Publishing, 2012) 254–89. Stenlås, N, Technology, National Identity and the State – the Rise and Decline of a Small State’s Military-Industrial Complex, Paper no 130 (The Institute for Future Studies, April 2008).

236

part iii The Major States Outside Europe

238

9 The United States and Arms Exports DR JOANNA SPEAR

The United States’ (US) approach to arms exports differs in several ways from the approaches of other western nations considered in this book. It is helpful to begin by being explicit about those differences. First, the initial motivation for arms export controls in the United States was achieving security through keeping the country out of other States’ wars. Security is still foundational to US arms export control legislation and to the procedures for judging proposed transfers. Over time concerns such as human rights have become other important motives for arms export control, but they do not trump traditional security concerns, leading to some controversial exports, as will be discussed below. Second, and related to the centrality of security, arms exports are seen in the US as positive. This perception has only increased in the post-Cold War period and in the US the export of conventional arms has generally become de-politicised and economised. That is to say, the dominant strategic narrative in the US presents arms exports as maintaining jobs in the defence industries, helping to keep the costs of the domestic procurement of advanced weapons systems down, helping the balance of payments, supporting key allies and contributing to interoperability. The contemporary view of arms exports also appreciates their value as a foreign policy tool – to reward or punish other nations – and as a way to support other States without committing US military assets. Third, given this broad perception of the advantages of US arms sales, once a potential sale has cleared some basic hurdles, the organisational culture of the executive branch institutions overseeing transfers today is permissive. Today the agencies in the executive branch that might seek to control arms transfers are weak. The Obama administration undertook the ‘reforming’ of export controls in the name of streamlining the decision-making process. One of the unintended consequences of these bureaucratic changes is to further marginalise the voices of those urging arms export restraint. Fourth, while the legislative branch has a role in arms transfer decision-making, it has – until very recently – not seriously exercised its oversight and approval role

240  Dr Joanna Spear in the process since the 1980s. The issue that has made Members of Congress pay attention is sales to Saudi Arabia, and this is discussed below. Fifth, whereas in other countries legislation is the sole source of authority on arms transfer decisions, in the US the executive branch has a role in formulating policy. Therefore, arms export policy changes with each administration. The regulation of arms exports is an arena of instrumental competition between Congress and the executive branch. This leads to tussles over the substance of export policies, reflecting battles over the balance of power between legislative oversight and executive power. Finally, whereas the trend amongst the western arms exporting States discussed in this volume has been towards tightening up export controls, in the US the dynamic is running in the opposite direction. There are a number of reasons for this trajectory, relating to the US’ strategic position in the post-Cold War period. As the West had ‘won’ the Cold War, the feeling in the US was that there were no longer pressing security threats that necessitated export restraints on most conventional weapons systems. Consequently, in the post-Cold War period the US has prioritised countering the threats posed by weapons of mass destruction over those from conventional weapons, and indeed, has even sought (unsuccessfully in the case of Pakistan) to use conventional arms exports to compensate States for not going nuclear.1 This chapter begins by considering the history of US legislation covering arms exports, also illustrating the battle for power between the executive and legislative branches fought through this issue. US export legislation has grown like coral, with amendments and new legislation added into the US Code (USC) on top of existing acts, which makes understanding the contemporary situation quite complicated and the history extremely relevant.

I.  Legislation Covering Arms Exports A.  A Brief Historical Background Export controls date from the founding of the US. In 1775, at the start of the American Revolution, Congress made it illegal to export goods to Great Britain, establishing the first export controls. Since then export controls have been sporadically updated and extended, usually in response to dangers, for example, the 1917 Trading with the Enemy Act, which covered all trade, was introduced when the US entered the First World War. Fearing entanglement in another European war, in the 1930s Congress enacted isolationist legislation. This began with the 1935 Neutrality Act, which forbade the 1 JL Buckley (Under Secretary of State for Security Assistance, Science and Technology), ‘Why the U.S. Must Strengthen Pakistan’ New York Times, 5 August 1981, A22.

The United States and Arms Exports  241 provision of arms and war materiel to either side, and was followed in 1936 by a ban on loans or credits to States at war. In 1940, the Roosevelt administration sponsored the Export Control Act, designed to stop the export of critical commodities to Japan and to more generally ensure that the US did not run short of them with war on the horizon. In 1942 the Act was extended to cover all commodities to a wider range of countries, and remained in force, with amendments, until 1948. In 1949 the Act was re-enacted as the Export Control Act, the first US peacetime export control law. The 1949 Act imposed licensing requirements on exports to the countries of the Soviet bloc, and justified this in terms of national security, foreign policy and ensuring that the US did not face any materiel shortages. This act was repeatedly extended until 1965. During the period from 1935 to the mid-1950s the vast majority of arms transfers were made through the Military Aid Program (MAP), which heavily subsidised transfers to allies because of the threat from the Soviet Union. Congress had a significant say over arms transfers because MAP money was appropriated annually by the legislature. However, in 1954 Congress began to phase out MAP (over the executive branch’s objections) because the European allies’ economies had recovered sufficiently that they were expected to pay for their arms, which would now be routed through the Foreign Military Sales (FMS) programme. However, without MAP appropriation, Congress was effectively excluded from the arms transfer decision-making process; access the legislature wanted for both instrumental and substantive reasons.2 Consequently, Congress began to try to legislate a new role for itself in the transfer process. The results of subsequent Congressional activism included the 1961 Foreign Assistance Act (which still exists in an amended form); the 1968 Foreign Assistance Act; the 1968 Foreign Military Sales Act, which included a clause denying the executive branch access to Export-Import Bank funding for arms sales to Less Developed Countries (reflecting concerns about recipient indebtedness and poor rates of repayment); and the 1969 Export Administration Act. This latter Act was the first major revision to the US export control system and acknowledged the need to strike a balance between export restraints and promoting trade that helps the US economy. Through these four acts Congress ensured that it had a statutory role in FMS programme decision-making. Congress wanted a substantive role in arms transfer decisions as a means to exert some control over an assertive executive branch under Richard Nixon, whose foreign policy activities in Vietnam and Cambodia, and illegal behaviour uncovered in the Watergate scandal had led to concerns about an ‘Imperial Presidency’. Moreover, the achievement of détente with the Soviet Union meant that there was no longer the same justification for executive dominance of national security and foreign policy. Members of Congress were also specifically concerned

2 J Spear, Carter and Arms Sales: Implementing the Carter Administration’s Arms Transfer Restraint Policy (Basingstoke, Macmillan, 1995) 40–41.

242  Dr Joanna Spear about the high levels of US arms sales to the Middle East (partly resulting from the ‘Nixon Doctrine’ of arming allies so they could defend themselves). A 1976 Senate Foreign Relations Committee report on arms sales to Iran concluded that transfers were ‘out of control’. In particular, there were concerns that the 22,000 US personnel based in Iran to assist the country maintain and use its sophisticated weapons created a danger of the US being dragged into a regional conflict.3 Congress’ role was further enhanced by a 1974 amendment to the 1968 Foreign Military Sales Act. The ‘Nelson Amendment’ gave Congress 20 days to review all proposed FMS transactions for major military equipment valued at $25 million or more, and over design and construction services valued at $100 million or greater. The amendment also ensured that Congress was able to veto any proposed FMS decision of the executive branch by passing a concurrent resolution of disapproval within that 20-day period.4 Supplementing the Acts were the 1974 provision that the legislature would receive a quarterly report of all pending arms deals, and the 1976 informal agreement that granted Congress a 20-day informal notification period (before the official notification period) of a planned FMS deal. Together these gave the legislature a more substantial role in the arms transfer decisionmaking process and more time to organise a veto, but Congress still wanted more. The ultimate result of Congressional activism was the passing of the pivotal Arms Export Control Act. Before it passed there was a real struggle between the executive and the legislature over the content of the Act. President Ford vetoed the original version of the Act (s 2662 Foreign Assistance Bill) for a number of reasons, including that it placed a $9 billion annual ceiling on US arms sales and contained very strong provisions for Congressional oversight. He also explicitly objected to the Bill’s disavowal of US foreign aid to countries that systematically ignored human rights. He declared in his veto statement: … such restrictions would most likely be counterproductive as a means for eliminating discriminatory practices and promoting human rights. The likely result would be a selective disassociation of the United States from governments unpopular with the Congress, thereby diminishing our ability to advance the cause of human rights through diplomatic means.5

Congress revised the Act to ensure its passage, shifting from a ceiling on sales to a non-binding ‘sense’ that arms sales should not traverse the current levels, watering down somewhat the provisions on legislative oversight, but maintaining the language about human rights and security assistance. The Act, the centrepiece of US arms transfer legislation, is now discussed in detail.

3 US Senate, US Military Sales to Iran, Staff Report to the Subcommittee on Foreign Assistance of the Committee on Foreign Relations, 94th Congress, 2nd Session, US Government Printing Office, July 1976. At: //ia801701.us.archive.org/30/items/usmilist00unit/usmilist00unit.pdf. 4 T Franck and E Weisband, Foreign Policy by Congress (Oxford, Oxford University Press, 1979) 103. 5 President Gerald R Ford, Veto of the Foreign Assistance Bill, 7 May 1976. www.senate.gov/­ legislative/vetoes/FordG.htm.

The United States and Arms Exports  243

B.  The 1976 Arms Export Control Act The 1976 Arms Export Control Act (AECA)6 combined elements from the 1968 Foreign Military Sales Act with parts of the 1954 Mutual Security Act and in so doing consolidated the regulations covering both FMS and commercial sales (now known as Direct Commercial Sales or DCS). The Act set the criteria for eligibility to receive US defence articles and services, and the uses to which those articles and services could be put. An important innovation was that the Act extended the rules governing how the Government made decisions over arms transfers and added new provisions into the executive branch process. The AECA has been amended over time, but the original version of the Act is discussed here. The AECA significantly changed the language and approach of the US Government towards arms transfers, substituting the previous emphasis on promotion for much greater emphasis on control, for example, declaring that: ‘The consequences for arms control must be considered when evaluating all arms sales.’7 US arms transfers are justified in creating long-term relationships with allies and other foreign countries. There are a limited number of legitimate uses for arms transfers identified in the AECA: Defense articles and defense services shall be sold or leased by the United States Government under this chapter to friendly countries solely for internal security, for legitimate self-defense, for preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons, to permit the recipient country to participate in regional or collective arrangements or measures consistent with the Charter of the United Nations, or otherwise to permit the recipient country to participate in collective measures requested by the United Nations for the purpose of maintaining or restoring international peace and security, or for the purpose of enabling foreign military forces in less developed friendly countries to construct public works and to engage in other activities helpful to the economic and social development of such friendly countries.8

Even though there was no monetary ceiling on sales written in to the final AECA, it does state that transfers: ‘in any fiscal year should not exceed current levels’.9 Each FMS transaction submitted for Congressional consideration was mandated to include an Arms Control Impact Statement. The executive branch had opposed

6 USC Title 22 Foreign Relations, Chapter 39 Arms Export Control. At: www.pmddtc.state.gov/ ddtc_public?id=ddtc_kb_article_page&sys_id=b9a933addb7c930044f9ff621f961932. 7 1976 Arms Export Control Act, Public Law 94-329, enacted 30 June 1976, (hereafter AECA), Title IV, Section 42{a}{3}. 8 USC Title 22, Chapter 39, Subchapter 1 § 2754. 9 1976 AECA Title II, Section 202 {a} {1} & {2}. USC Title 22, Chapter 39, Subchapter 1 § 2751.

244  Dr Joanna Spear the inclusion of these statements, regarding them as ‘burdensome and costly’, but they were retained.10 The AECA requires – through a delegation of authority from the President – the Department of State to create a US Munitions List (USML) that includes all defence articles and services that are to be controlled. The Act also legislated for how the executive branch was to process arms transfer requests, specifically mandating that the Director of the Arms Control and Disarmament Agency (ACDA) was to have a role in the formal decision-making process for granting export licences. The Director was to particularly consider: whether the sale could cause an arms race, whether it could exacerbate regional conflict and whether granting a licence for the equipment would stop progress on bilateral or multilateral arms control negotiations.11 The executive branch had opposed formalising the Director of ACDA’s role in the decision-making process, arguing that this was ‘unnecessary for appropriate ACDA participation in arms transfer decisions …’ because ‘the offices in the Department of State responsible for munitions export control and military assistance and sales are in frequent contact with ACDA on an informal basis’.12 Congress’ insistence on a statutory role for ACDA in the process was a concerted attempt to bring another strong arms control voice into the executive decision-making processes. The AECA brought to greater prominence a recipient country’s human rights record as a criterion to be considered by the executive branch in making decisions on arms transfers. ‘A principle goal of the foreign policy of the United States is to promote the increased observation of internationally recognized human rights’ declared the Act.13 Consequently, security assistance (that is, arms transfers that were funded by MAP or other US aid) should be denied to any country that displayed a consistent pattern of gross violation of human rights.14 If the executive branch wanted to continue aid and transfers to a country with a poor human rights record it was required to provide to Congress a full explanation of the ‘extraordinary circumstances’ necessitating continuation.15 Alongside concerns for human rights, the AECA laid down a marker that the executive branch should actively consider the impact of potential transfers on the economic and social development of the recipient State.16 In addition to laying out the criteria for a State to be able to obtain US defence materiel and services, the AECA also laid out the circumstances under which a

10 US Senate, Statement from the Director of the Arms Control and Disarmament Agency about Congress’ plans for the AECA, in ‘Foreign Policy Choices for the Seventies and Eighties’, Hearings before the Committee on Foreign Relations, 94th Congress, Vol 2, Parts 13–14, October 1975–March 1976, 153–54. 11 1976 AECA Title III, Section 38 {a} {2}. 12 Statement from the Director of the Arms Control and Disarmament Agency (n 10) 155. 13 1976 AECA Title III, Section 301 {a} {1}. 14 1976 AECA Title III, Section 303 {a} {2}. 15 1976 AECA Title III, Section 301 {c} {1} {C} {1}. 16 1976 AECA Title II, Section 202 {b} {1}.

The United States and Arms Exports  245 State may lose access to foreign military financing, to loan guarantees for purchases from the US, the right to have the goods they have purchased delivered, or to have previously made agreements implemented.17 The AECA also laid out in detail the information that the executive branch had to routinely provide to Congress to ensure that the legislature could vet not just FMS transactions, but also licences for DCS valued at $1 million or more (potentially closing a loophole whereby a State would purchase the same piece of military equipment but put it through the DCS route and therefore avoid legislative scrutiny). While Congress had no veto over licences for DCS (that was one of the things sacrificed to pass the Act), it did legislate that all sales of $25 million or more to non-NATO allies had to be routed through the FMS programme and therefore could potentially be vetoed. The Act also increased the time that Congress had to formally review a proposed arms transfer, from 20 days to 30 days, making it more feasible for Congress to pass a concurrent resolution of disapproval. According to Philip Farley, this allowed Congress sufficient time to reach its own conclusions about a sale.18 While the Act ensured a stronger role for Congress and put the consideration of human rights issues into the executive branches’ decision-making process, as Michael Klare pointed out in the early 1980s: Not only are such transactions submitted to Congress only when the key agencies involved have already aligned behind a particular solution … but also proposed transfers are only presented to Congress after years of negotiation have produced a de facto commitment to the buyer involved – a commitment that Congress can reverse only at some cost to U.S. relations with the country involved.19

That is, the permissive organisational culture of the executive branch had not been fundamentally affected by the AECA. Now, however, a new President sought to change that executive branch culture. President Carter’s election reflected an effort to break with past executive branch arms export policies. His administration enhanced the role of the Director of ACDA and initiated an arms transfer restraint policy which included active consideration of the human rights records of potential recipients. The policy was enshrined in Presidential Directive (PD) 13.20 It was met with significant bureaucratic, domestic and international opposition and was not consistently implemented by the administration itself.21

17 Congressional Research Service, RF Grimmett, ‘U.S. Defense Articles and Services Supplied to Foreign Recipients: Restrictions on Their Use’, CRS Report R42385, 2012, 1. 18 PJ Farley, ‘The Control of United States Arms Sales’ in A Platt and L Weiler (eds), Congress and Arms Control (Boulder, CO, Westview Press, 1978) 119. 19 MT Klare, American Arms Supermarket (Austin, University of Texas Press, 1984) 73. 20 The White House, ‘Conventional Arms Transfer Policy Presidential Directive / NSC – 13’, 13 May 1977. Jimmy Carter Presidential Library and Museum Archive. 21 Spear (n 2).

246  Dr Joanna Spear Towards the end of the Carter Administration – particularly after the Soviet invasion of Afghanistan – arms exports once again became a central element of national security policy.22 There were relatively few objections from Congress, in part because the fall of the Shah of Iran in 1979 had taken away a central issue for Congress (even though his fall in some ways vindicated their concerns) but also because the end of détente, and a Second Cold War made it natural for the executive branch to once again take control of foreign and defence policy. During the Reagan Presidency, administration officials argued strongly in favour of more arms transfers to support allies menaced by the Soviet Union in the new Cold War.23 Foreign policy tools such as security assistance and arms sales were restored to the centre of US strategic planning, where they have remained ever since. Interestingly, the end of the Cold War did not fundamentally change the central position of arms transfers in US foreign policy as might have been expected. In 1994 Congress mandated the creation of the President’s Advisory Board on Arms Proliferation Policy; a promising start for the re-evaluation of US policy. However, even before the Advisory Board had begun its work the Clinton Administration had released their Presidential Decision Directive (PDD) on arms transfer policy! The Advisory Board responded by choosing to evaluate and advise the Clinton Administration on its PDD and next steps to avoid the proliferation of sophisticated conventional arms by creating an international restraint regime, and also on administrative and policy processes.24 Unfortunately, these efforts were largely ignored by the Clinton Administration, whose economic revitalisation agenda came to include boosting arms exports.

C.  Subsequent Laws and Amendments to Existing Law While the 1976 AECA remains the ‘cornerstone of U.S. munitions export control law’, it has been watered down from the version passed in 1976.25 Elements of the legislation were amended because they were out of step with the geostrategic environment, for example, the Act’s ‘sense of Congress’ that the US Government actively seek to make arms control treaties with both suppliers and recipients to curb conventional weapons transfers.26

22 While candidate Ronald Reagan disavowed the Carter PD 13 restraint policy, that was the only mention of arms transfers in the 1980 presidential election campaign. Klare (n 19) 47. 23 The White House, ‘Conventional Arms Transfer Policy, National Security Decision Directive (NSDD) No. 5’, 8 July 1981. Ronald Reagan Presidential Library and Museum Archive. 24 JE Nolan, ‘Report of the Presidential Board on Arms Proliferation Policy’ 1996. At: https://fas.org/ asmp/resources/govern/advisory_board.html. 25 US Department of State, ‘Overview of U.S. Export Control System’. 26 1976 AECA Title II, Section 202 {a}. USC Title 22, Chapter 39, Subchapter 1 § 2751.

The United States and Arms Exports  247 One key aspect of the AECA was struck out in 1981: human rights. According to current US Code: Pub. L. 97–113 struck out [the] paragraph which provided that it was the sense of Congress that sales and guaranties under sections 2761, 2762, 2763, and 2764 of this title not be approved where they would have had the effect of arming military dictators who were denying the growth of fundamental rights or social progress to their own people but allowing the President to waive this limitation when he determined it would be important to the security of the United States ….27

This erasure reflected the renewal of the Cold War in the 1980s and the realisation that some of the US’s allies in that global struggle were authoritarian regimes in Asia and Africa. Nevertheless, the executive branch can still decide to prioritise human rights; it is just not obliged to do so by Congressional legislation. The Export Administration Act of 1979 was the source of presidential authority to control US exports for national security, foreign policy or reasons of limited supply between 1979 and 1994.28 Included in the Act was consideration of support for international terrorism as a reason for denying an arms transfer.29 The Act also acknowledged the futility of the US prohibiting a transfer if the system was freely available from foreign competitors.30 This Act made the Department of Commerce responsible for implementing the Export Administration Regulations (EAR) through the Department’s Bureau of Industry and Business. Even after the Act’s demise, the rules it established were not allowed to lapse. This was achieved by the President declaring that the Act’s expiration has created an emergency under the International Emergency Economic Powers Act, and re-authorising all the Act’s regulations on that basis. A Presidential Notice was used each year to extend the emergency justifying retention of the regulations. In July 1996 an amendment to the AECA was passed to require end use monitoring of defence articles and services supplied by the US through the FMS programme. In response, the executive branch developed the end-use monitoring programmes discussed below. In 2014, President Obama waived the section of the AECA about not sending weapons to a country determined to be providing support for acts of international terrorism, in order to provide weapons and assistance to Syrian rebels fighting the Assad regime. He specifically waived ‘the prohibitions in sections 40 and 40A of the AECA related to such a transaction’.31

27 USC Title 22, Chapter 39, Subchapter 1 § 2751, Amendments. 28 US House of Representatives. The Export Administration Act (EAA) of 1979. 29 1979 EAA, Section 3 (8) International Terrorism. 30 1979 EAA, Section 4 (c). 31 Statement of President Barack Obama, cited in: J Gehrke, ‘Obama Waives Ban on Arming Terrorists to Allow Aid to Syrian Opposition’ Washington Examiner (15 September 2013). At: www.washingtonexaminer.com/obama-waives-ban-on-arming-terrorists-to-allow-aid-to-syrian-opposition/ article/2535885.

248  Dr Joanna Spear Thanks to the AECA, Congress continues to acquire information that potentially enables it to perform oversight over US arms exports. It receives quarterly reports on proposed FMS and large DCS transactions, 20 days of informal notice of individual transfers and 30 days to consider a sale and (if desired) to pass a concurrent resolution of disapproval. However, having fought so hard in the 1970s for a strong statutory role in the arms transfer decision-making process, particularly vis-à-vis FMS transactions, Congress has subsequently let that role ossify. Most of the export information provided is now looked at in a most perfunctory manner because the Congressional staffers in the Senate Foreign Relations Committee and House Foreign Affairs Committee who seriously interrogated the list have retired. No action by Congress amounts to approval of a proposed transfer, making the current process often one of almost default approval. Congressional inattention to oversight has led to the balance of influence in arms transfer decision-making swinging back towards the presidency and the executive branch. The absence of strong legislative oversight is problematic given the permissive environment in the executive branch. This is illustrated in the next section which looks at the contemporary US decision-making process for arms transfers.

II.  The Arms Transfer Decision-Making Process The legislation discussed above provides the parameters for decision-making on arms transfers, but beyond that, export control practices are the result of the policies established within the executive branch by each administration.

A.  Presidential Arms Transfer Policies Since 1977, each President has issued their own conventional arms policy, reflecting their sense of the balance to be struck between export and restraint, and their judgement on what values to emphasise in the policy (non-proliferation, human rights, etc). Consequently, arms transfer policies can vary between administrations, for example, the Carter Administration, which pioneered having a conventional arms transfer policy and had a strong arms transfer restraint policy, whereas his successor, President Reagan, however, favoured robust US arms transfers. More recently, President Obama’s Conventional Arms Transfer Policy included two novel items; concerns about weapons reaching transnational organised crime groups, and the new criteria of whether other countries could/would supply the weapons (rendering US restraint futile).32 32 The White House, ‘Presidential Policy Directive PPD-27 – United States Conventional Arms Transfer Policy’, 15 January 2014. At: obamawhitehouse.archives.gov/the-press-office/2014/01/15/ presidential-policy-directive-united-states-conventional-arms-transfer-p.

The United States and Arms Exports  249 As human rights criteria are now the domain of the executive branch, the emphasis placed upon them in a presidential policy is an important signal. No President would feel able to leave them out of their policy, but they can be there more as an acknowledgement of what is expected, than as a serious consideration for decision-making on arms transfer requests. The US arms transfer bureaucracy is well attuned to these subtleties within the policy; they note how far up in the policy documents human rights comes, and also take signals from the past records of those appointed to key executive branch arms transfer decision-making positions. President Trump issued his conventional arms transfer policy in April 2018. His Presidential Memorandum reflects the economisation of arms transfers noted at the start of this chapter. As the Memorandum makes clear: By better aligning our policy regarding conventional arms transfers with our national and economic security interests, the approach outlined in this memorandum will serve several functions. It will help us maintain a technological edge over potential adversaries; strengthen partnerships that preserve and extend our global influence; bolster our economy; spur research and development; enhance the ability of the defense industrial base to create jobs; increase our competitiveness in key markets; protect our ability to constrain global trade in arms that is destabilizing or that threatens our military, allies, or partners; and better equip our allies and partners to contribute to shared security objectives and to enhance global deterrence. These security objectives include countering terrorism, countering narcotics, promoting regional stability, and improving maritime and border security.33

The policy goes on to lay out the Trump Administration’s priorities, which are in order: bolstering security; protecting high technologies; increasing opportunities for US defence firms; making weapons more affordable by ‘improving financing options and increasing contract flexibility’; helping partners and allies avoid civilian harm; strengthening military interoperability; preventing proliferation of potential delivery systems for weapons of mass destruction; and meeting all the requirements of US legislation.34 The policy includes the standard language that all arms transfer decisions will include consideration of human rights and international law, this forming the fourth of the five categories of issues to be assessed. The criteria laid out are interesting, using similar language to the Obama Administration, but placing them further down in the policy Memorandum: (i) The risk that the transfer may be used to undermine international peace and security or contribute to abuses of human rights, including acts of gender-based violence and acts of violence against children, violations of international humanitarian law, terrorism, mass atrocities, or transnational organized crime.

33 The White House, ‘National Security Presidential Memorandum Regarding U.S. Conventional Arms Transfer Policy’, 19 April 2018. At: whitehouse.gov/presidential-actions/national-securitypresidential-memorandum-regarding-u-s-conventional-arms-transfer-policy/. 34 Ibid.

250  Dr Joanna Spear (ii) Whether the United States has actual knowledge at the time of authorization that the transferred arms will be used to commit: genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949; serious violations of Common Article 3 of the Geneva Conventions of 1949; attacks intentionally directed against civilian objects or civilians who are legally protected from attack; or other war crimes as defined in section 2441 of title 18, United States Code. If the United States has such knowledge, the transfer shall not be authorized.35

Regardless of the presidential policy in place, in policy implementation, past practices and organisational culture cast a long shadow over bureaucratic behaviour. As the Carter Administration discovered, it was hard to change the organisational culture of the executive branch – that had long favoured arms transfers – towards a policy of restraint.36 The momentum that builds behind a sale and the permissive environment of the US arms transfer bureaucracy both endure.

B.  The Role of the Executive Branch The US Government plays a supportive role in enabling foreign governments to learn about weapons systems available from US firms. An important means by which this occurs is through Security Cooperation Offices (SCOs) in embassies abroad. Officials in the SCOs may be Foreign Area Officers (FAOs), or Senior Defence Officials or Defence Attaches (SDO/DATTs). SCOs in embassies support ship visits, air shows, defence trade shows and exhibits, as well as regularly interacting with foreign militaries and playing a role in end-use monitoring. The FAO has been a defined military career track since 2005, and they deal with all forms of security assistance. In the Army and Navy, being a FAO is an exclusive focus, but Air Force and Marine FAOs are dual track, making them also operational. This means that Air Force and Marine FAOs can, for example, observe the exercises and training of partner nation militaries, something that Army and Navy FAOs cannot do. Larger SCOs will have ongoing relationships with representatives of US defence industries and will meet them regularly because the firms are eager to make sales in that country. Smaller SCOs may have more limited contact with US industry if sales prospects are poor. In all cases FAOs and SDO/DATTs are subject to ethics laws that prohibit the taking of gifts and significantly limit the hospitality that can be accepted from either US firms or officials from the host country. The general attitude of the SCOs is that: ‘Industry is our partner, not our burden’.37 Nevertheless, some FAOs and SDO/DATTs feel pressured by US firms to give them more help. SCOs are a consultant for US defence firms, and are there



35 Ibid.

36 Spear

(n 2). from a training event at the Presidio, Monterey, California, January 2017.

37 Quotation

The United States and Arms Exports  251 to assist them, but must not favour any particular US firm. Nevertheless, in 1997 when the Czech Republic was in the market for fighter aircraft, there was internal competition within the military team in the US Embassy in Prague about which US defence firm to support. Playing out in the Embassy was competition between the Air Force (which flew the F-16 and wanted to sell that fighter) and the Navy (which flew the McDonnell Douglas F/A-18 and favoured supplying that).38 This case was a notable exception rather than the rule. The first stage in US decision-making on an arms export is when a foreign government (or occasionally an international organisation) expresses interest in obtaining military hardware. Interest is often first expressed through contacts between foreign military or political officials and the SCO. When a foreign government has had the opportunity to consider the general information provided through contacts with the SCOs and from US defence firms, they can submit a Letter of Request (LOR) to obtain data on price and availability. This LOR may be refused by the US Government if there are concerns about either the suitability of the weapons system or the potential buyer. This is the ideal point to block a country’s interest; before there has been any real momentum behind a transfer. If the LOR is accepted, when the foreign government has received satisfactory price and availability data they submit another LOR but this time asking for a Letter of Offer and Availability (LOA). This then triggers interagency consideration of the request. The initial review of a request is done by lower-level government officials across the various relevant offices in the executive branch, often by paper review but if the issue is controversial it will be taken to a higher level in the bureaucracy. Once a foreign government has determined that it wants to obtain defence systems or other equipment, there are some key decisions it needs to make about how to purchase the equipment from the US, either through the government to government FMS process or as a DCS. Both DCS and FMS transfers require a licence, though that is built into the cost and processing of a FMS deal. The upfront costs of a DCS are less than using the FMS route, which adds a 3.5 per cent administration fee to the cost. However, any FMS deal comes with the licence, training, spare parts, technical support and oversight and support from the local SCO, which is able to intervene if there are procurement problems. It is also possible to do a hybrid procurement, where some of the deal is done through a DCS but the classified technology or software, for example, is processed through the FMS channel. One advantage of the FMS route is that it is seen to be immune from any corruption as it is a government to government transfer. This can make the route attractive to some foreign governments (though it may put others off!). A recipient can choose to expedite the FMS procedure and pay a fee to do so. US Government officials are also able to expedite an FMS request if it is seen to be strategically important to do so.

38 J

Spear, ‘Bigger NATO, Bigger Sales’ (1997) 53 The World Today 274.

252  Dr Joanna Spear The route chosen – FMS or DCS – will affect which executive branch agency has delegated authority to determine whether or not the transfer is desirable, in consultation with other executive branch departments and agencies. It is even more complex than just selecting the channel, for depending on the nature of the proposed transfer one of three different agencies will be the primary export-licensing agency. • The Department of State’s Directorate of Defense Trade Controls (DDTC) regulates the export and licensing of single-use Defence Articles and Services (ie those with purely military applications – through either the FMS or DCS route). DDTC is in charge of revising and implementing the International Traffic in Arms Regulations (ITAR), which are the implementing regulations of the AECA, and cover both FMS and DCS. DDTC uses the ITAR, licensing rules and the 21 categories of the USML to determine whether a request for purchase or licence can be considered.39 DDTC also licences every US firm involved in the manufacturing, exporting and brokering of any item on the USML. • The Department of Commerce’s Bureau of Industry and Security regulates the export and licensing of dual use commodities (ie those with both commercial and military applications). It uses the Commerce Control List (CCL) to determine whether a request for purchase or licence can be considered. • The Department of Treasury’s Office of Foreign Assets Control (OFAC) regulates licensing of transactions involving sanctions and embargoes. These regulations may be comprehensive (for example, applying to a country such as North Korea) or selective applying to particular companies (for example, those trying to smuggle goods to Iran) or individuals.40 If a recipient opts to purchase equipment through DCS the involvement of the SCO in the field is limited; the US defence firm involved has to obtain the licence from the State Department and deal with any bureaucratic snags. When a country opts to purchase through the FMS channel (or realises they have no choice given the cost and sophistication of the system they want), it is the US Government that buys the system through the usual Department of Defense (DoD) procurement channels and then in turn sells it to the purchaser. In FMS 39 Department of State, Bureau of Political-Military Affairs, ‘U.S. Arms Sales and Defense Trade’, Fact Sheet, 21 May 2019. At: state.gov/u-s-arms-sales-and-defense-trade/. 40 When attempts are made to evade US export controls, in particular dual-use goods that could have weapons of mass destruction proliferation applications, or high-level technologies, the Department of Homeland Security spearheads and tries to co-ordinate enforcement and criminal prosecution activities. Many of the cases in the last decade have involved China or Iran. US Department of Justice, ‘Summary of Major U.S. Export Enforcement, Economic Espionage, Trade Secret and Embargo-related Criminal Cases’ (Justice.gov, March 2014), justice.gov/sites/default/files/nsd/legacy/2014/07/23/exportcase-fact-sheet-201403.pdf; US Department of Justice, ‘Summary of Major U.S. Export Enforcement and Embargo Criminal Prosecutions: 2007 to the Present’ (UFC.edu, November 2010), research.ucf. edu/documents/PDF/summary-eaca%20Nov%202010.pdf.

The United States and Arms Exports  253 cases the State Department has statutory authority, but it is the DoD, through the Defense Security Cooperation Agency (DSCA), that implements the deal, working through the military services to negotiate with US defence firms and the purchasing country. Within DoD, DSCA deals with all security assistance, including military aid, not just sales through FMS.41 DSCA is a not-for-profit organisation that makes a profit. It is overseen by the Office of Secretary of Defense for Policy. One advantage of using the DCS route is that ‘As a commercial transaction, DCS is not subject to many of the legal and regulatory requirements of FMS, and thus might be negotiated and finalized more flexibly and rapidly.’42 Nevertheless, any DCS transaction of more than $14 million is reported to Congress for approval. According to a FAO, using the FMS route ‘… provides the customer with assurance of relative transparency, significant quality controls and contracting oversight, as well as potential benefits of lower costs for research and development, production and other aspects of the purchase through economies of scale’.43 Moreover, a potential recipient may receive Foreign Military Financing (FMF) to help them pay for a FMS purchase.44 There is an exception that allows ten favoured countries to get FMF for DCS: Israel, Egypt, Jordan, Morocco, Tunisia, Turkey, Portugal, Pakistan, Yemen and Greece.45 Of course, the US also gets economic benefits when a sale is made, providing incentives to permit a transfer, by lowering the costs of domestic procurement and sometimes it might keep a production line open. To use the example of the Abrams Tank, the DoD has repeatedly said it does not need more of the model currently produced in Lima, Ohio (not coincidentally the home of three Congressional hawks pushing for more tank procurement). Until the new model Abrams that the DoD does want comes on stream, the plant is being kept alive primarily by orders from Saudi Arabia and Egypt.46 Transfers using the FMS route are legally restricted from any involvement in defence offset deals. Nevertheless, such offset deals can be directly negotiated between the US defence firm and the recipient State. What the 41 See the US Defense Security Cooperation Agency (DSCA) website at dsca.mil/. 42 US DSCA, D Gilman and R Nichols et al, Foreign Military Sales and Direct Commercial Sales, 30 September 2014, 39. At: dsca.mil/sites/default/files/final-fms-dcs_30_sep.pdf. 43 TA Cyril, ‘How to Win Friends and Influence People Using Security Cooperation’ (2016) 19 FAOA Journal of International Affairs 21. 44 ‘FOREIGN MILITARY FINANCING (FMF) PROGRAM – The amount of credit/grant extended to a foreign government or international organization in any fiscal year for the procurement of defense articles, defense services, and design and construction services. Such procurements may be from U.S. military departments under FMS/FMCS, or, for specific countries/organizations, may be negotiated directly with U.S. commercial suppliers following the approval of DoD. FMF credit is issued in the form of DoD direct loans, which require repayment, or FMF grants which do not require repayment. Annual foreign military financing programs may be applied to FMS/FMCS or commercial procurement contracts negotiated in prior, current or subsequent years within the parameters of the applicable purchase and loan/grant financing agreements.’ DSCA Historical Facts Book, September 2015, III. 45 LMDefense, ‘FMS vs. DCS’, lmdefense.com/foreign-military-sales/fms-vs-dcs/. 46 ‘Army Says No To More Tanks But Congress Insists’ (Associated Press, 28 April 2013). At: foxnews. com/politics/2013/04/28/army-says-no-to-more-tanks-but-congress-insists.html.

254  Dr Joanna Spear recipient does not get is any US government oversight of defence offsets or government guarantees of fulfilment; they are on their own for that. Nevertheless, US defence firms are required by law to submit an annual report that sets out (among other things) any offset agreements that exceed $5,000,000 in value. They must also report annually on offset transactions they have completed for which offset credits of $250,000 or more have been claimed from a foreign representative.47 This reporting was mandated by Congress out of concern that US firms in other sectors were losing business because of the offsets being agreed by US defence firms. There are well-established interagency processes for considering FMS and DCS requests. If a particular department flags concern about a transfer, the deal is given additional scrutiny. Sales to the Middle East region are always politically charged and are subject to close scrutiny and always justify face-to-face interagency meetings before decisions are taken. During the Carter years and even during the Reagan years of the 1980s, this interagency process resulted in long, fractious committee meetings, with some arms transfer requests being sent upward to the National Security Council – and even to the President – for decision. This reflected the fact that the system was set up to allow opponents of an arms transfer to ensure greater consideration of cases, with the ACDA having a statutory role in decision-making. While it was difficult during the Reagan Administration and beyond for opponents in a weakened ACDA to completely kill an arms transfer, they were able to throw up bureaucratic road-blocks to delay deals and force concessions about the transfer. Over time it has become even more difficult for opponents to block arms transfers at this stage in the process. When the ACDA was folded into the State Department in 1999 and ceased to have an independent voice in the transfer process, a potential dissenting voice was quashed. Given the proclivity of the geographical desks in the State Department for pleasing allies, this has led to concerns that there is no longer a voice for restraint in the interagency process. With the post-Cold War de-politicisation of conventional arms transfers, the vast majority of decisions are now made through routine paperwork passed through the various departments of the interagency. For example, the Export Administration Review Board, which is the ultimate authority (and third level of appeal) considering dual-use requests routed through the Commerce Department, in 2012 had ‘not met in more than 20 years because dual-use licensing adjudications have not escalated to this level’.48 One significant change in the executive branch review process in 2004 saw key allies, the United Kingdom and Australia, given special terms when making

47 Gilman and Nichols (n 42), citing 15 CFR Part 701. 48 Export Control Challenges Associated With Securing the Homeland (National Academies Press Open Book, 2012) c 3, fn 12.

The United States and Arms Exports  255 arms transfer requests. The ‘Bilateral Exchanges and Trade in Defense Articles and Defense Services Between the United States and the United Kingdom and Australia’ accelerated review of transfers to these countries and excluded from the process federal agencies beyond DoD and State.49 Concurrently, British defence firms were given preferential access to the US defence market. This concession was granted to British Prime Minister Tony Blair as a ‘reward’ for Britain’s contribution to the intervention in Iraq. The British thought that it would result in more defence exports to the US, while US firms favoured it because they expected to be able to make more sales to Britain!

C.  The Obama Administration’s Export Control Reform Programme The de-politicisation and economisation of the arms trade enabled the Obama Administration to launch an Export Control Reform (ECR) effort aiming to simplify the extremely complex export control system. The guiding concept behind the ECR effort is ‘higher fences around fewer items’.50 However, the planned changes – which are not particularly controversial within the country – will likely have the side effect of further marginalising the voices prioritising human rights issues and arms transfer restraint within the executive and legislative branches. In his first year in office, President Obama directed the National Security Council and the National Economic Council to review the US export control system. The review identified a number of issues with the existing export system: its complexity (which I can attest to, having tried to explain it here!); the slowness of the decision-making process; and that time is spent on reviewing relatively lowlevel technology requests, while not enough is done to protect the highest levels



49 Pub.

L. 108–375, div. A, title XII, §1225, Oct. 28, 2004, 118 Stat. 2091, provided that:

‘(a) Policy.-It is the policy of Congress that bilateral exchanges and trade in defense articles and defense services between the United States and the United Kingdom and Australia are in the national security interest of the United States and that such exchanges and trade should be subjected to accelerated review and processing consistent with national security and the requirements of the Arms Export Control Act (22 USC 2751 et seq). (b) Requirement.-The Secretary of State shall ensure that any license application submitted for the export of defense articles or defense services to Australia or the United Kingdom is expeditiously processed by the Department of State, in consultation with the Department of Defense, without referral to any other Federal department or agency, except where the item is classified or exceptional circumstances apply. (c) Regulations.-The President shall ensure that regulations are prescribed to implement this section.’ (USC Title 22, Chapter 39, Subchapter 1 § 2751.) 50 J Abramson, ‘Gates Outlines Export Control Overhaul’ (Arms Control Today, May 2010). At: armscontrol.org/act/2010_05/Exports.

256  Dr Joanna Spear of technology. A member of the National Security Council’s Taskforce on Export Control Reform described this as an ‘… arena that has generated broad-based bipartisan support’.51 This is true, but US defence industries were particularly enthusiastic for changes to be made to the export control system. The ECR programme aimed to address these types of problems by simplifying the process into ‘four singularities’: one single licensing agency; one single control list; a single enforcement structure; and a single information technology system. This has been met with enthusiasm by defence firms.52 Indeed, at a meeting at the Open Society Institute in 2014 a participant noted that in the ECR programme, industry ‘actually got more than it asked for’. One of the first developments was the setting up of a ‘fusion centre’ for enforcement. The Export Enforcement Coordinating Center (E2C2) within the Department of Homeland Security is expected to co-ordinate and streamline enforcement actions.53 However, E2C2 has been dogged by classic bureaucratic problems such as a reluctance to freely share information or good personnel with E2C2. In pursuit of one single control list, the Administration set about systematically re-classifying some of the more common systems and technologies on the USML and moving them onto the CCL. This was planned in stages because it was a complicated process and had legal implications for all US firms, brokers and countries working to transfer weapons. At the end of the Obama Administration the migration was incomplete and left the reform process at a difficult juncture. Despite rhetorical support for the effort, the Trump Administration does not appear to have prioritised ECR.54 However, the migration of goods from the USLM to the CCL continues at a steady pace, recently the State Department asked for public comments on plans to review USML categories IV (launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs and mines) and XV (spacecraft and related items).55

51 B Pasco, ‘The Case for Export Control Reform and What It Means for America’ (Harvard National Security Journal Blog, 2014). At: https://harvardnsj.org/2014/10/the-case-for-export-controlreform-and-what-it-means-for-america/. 52 C Currier, ‘In Big Win for Defense Industry, Obama Rolls Back Limits on Arms Exports’ (Propublica, 14 October 2013). At: propublica.org/article/in-big-win-for-defense-industry-obamarolls-back-limits-on-arms-export. 53 US Congressional Research Service, I Fergusson and P Kerr, ‘The U.S. Export Control System and the President’s Reform Initiative’, CRS Report R41916, 13 January 2014. 54 US Congressional Research Service (CRS), ‘The U.S. Export Control System and the Export Control Reform Initiative’, R41916 (2019) Version 48 At: https://crsreports.congress.gov/product/ details?prodcode=R41916; Alex Gray, Special Assistant to the President for the Defense Industrial Base remarks at the Center for Strategic and International Studies (CSIS) event ‘U.S. Arms Transfer Policy: Shaping the Way Ahead’, Washington, DC, 8 August 2018. At: csis.org/analysis/ us-arms-transfer-policy-shaping-way-ahead. 55 ‘Public Comments Regarding Review of United States Munitions List Categories IV and XV’. At: pmddtc.state.gov/sys_attachment.do?sysparm_referring_url=tear_off&view=true&sys_id=e1b847bcd bddff805c3070808c9619d3.

The United States and Arms Exports  257

D.  The Role of the Legislative Branch For military sales to most countries, formal Congressional notification is required 30 days before a FMS deal can be finalised by the executive branch. Congress must be notified if the sale is of: • Major defence equipment valued at $14 million or more. • Defence articles or services valued at $50 million or more. • Design or construction services valued at $200 million or more. The licences for DCS also have to be notified to Congress if they meet or exceed these monetary thresholds. It is worth noting that – in terms of defence e­ quipment – these are quite low dollar levels (and they have not changed much since the 1980s), meaning that most FMS and DCS have to be reviewed by Congress, which then has the opportunity to veto them. Sales to NATO members, Japan, South Korea, Israel, Australia and New Zealand are treated slightly differently.56 The formal notification period for both FMS and DCS is only 15 days, and the threshold values are higher: • Major defence equipment valued at $25 million or more. • Defence articles or services valued at $100 million or more. • Design or construction services valued at $300 million or more.57 Once a proposed FMS deal is agreed within the administration, it is reported informally to Congress. Since 2012 the State Department has been using a ‘tiered review’ system, meaning that relevant Congressional committees are informally notified between 20 and 40 calendar days before the formal notification, with the time given depending on both the weapons system and the recipient in question.58 This gives the relevant committees, the Senate Foreign Relations Committee and House Foreign Affairs Committee, time to assess a proposed sale before formal notification. During the pre-notification period, these committees and their staffs can raise questions about the proposed transfer with the State Department. According to Acting Secretary of State Tina Kaidanow, ‘The purpose it to provide Congress the opportunity to raise concerns, and have these concerns addressed, in a confidential process with the Administration, so that our bilateral relationship with the country in question is protected during the process.’59

56 US Defense Security Cooperation Agency, ‘Arms Sales: Congressional Review Process’. At: www. dsca.mil/resources/arms-sales-congressional-review-process. 57 Ibid 2. 58 CRS (n 54) 1. 59 T Kaidanow, ‘Foreign Military Sales: Process and Policy’, Statement before the Subcommittee on Terrorism, Nonproliferation and Trade, House Foreign Affairs Committee, 15 June 2017. Cited in ‘Arms Sales: Congressional Review Process’ (n 56) 1.

258  Dr Joanna Spear At this stage, Congress – through the committees – can signal to an administration that they are likely to oppose a sale, giving the executive branch time to alter or halt the sale. Currently, any move to block a sale has to come from these two committees. This is seen as unsatisfactory – in light of concerns about sales to Saudi Arabia – by some Representatives in the House who have recently proposed legislation that would allow any member to begin the process to veto a sale.60 The next stage is formal notification after which the legislature has 30 days in which to consider the proposed transfer. Congress may hold hearings on the proposed transfer and organise a concurrent resolution to veto the sale. This 30-day formal review period does not take into account weekends, holidays, congressional recesses or adjournments, meaning that the time for review may in practice be shorter.61 Nowadays once Congress is formally notified of the executive branches’ intent to make a transfer, some details of the deal are posted on the DSCA website.62 Under the AECA, it takes a concurrent resolution (ie passed in both Houses) for the Congress to block a proposed arms transfer. If a Congressional veto is cast, it is not the end of the process, as the President has the right to veto that concurrent resolution. If Congress still wants to stop the arms transfer, it must in turn veto by a two thirds majority the President’s veto. This is a very stiff hurdle for the legislature. It is rare for Congress to try and block an arms transfer, but it does occasionally happen. During the Reagan Administrations of the 1980s, Congress twice came very close to successfully passing a concurrent resolution against a proposed sale, on both occasions the potential recipient was Saudi Arabia, and opposition in Congress was spurred by pro-Israeli lobby groups. On 1 October 1981, the administration informally notified Congress of its intention to supply Saudi Arabia with F-15 enhancement equipment, 1,177 Sidewinder AIM-9L missiles, and Airborne Warning and Control Systems (AWACS) aircraft. This came after a contentious executive branch debate over the AWACS portion of the deal, during which details had been leaked to the press about the potential transfer. Congress was given early notice (even prior to informal notification) of the intention to bring the transfer forward for Congressional consideration, giving opponents time to mobilise. In July, 54 Senators wrote to the President to express concern and recommend that the proposal should not be sent to Congress. Even before the administration proceeded and gave informal notice of the deal, Congress was already holding hearings on the transfer!63 In all there 60 DR Mahanty and E Eikenberry, ‘How the “Arms Sales Oversight Act” Could Prevent American Arms from Continuing to the next Overseas Crisis’ (Just Security blog, 5 December 2018). At: ­justsecurity. org/61719/arms-sales-oversight-act-prevent-american-arms-contributing-overseas-crisis/. 61 CRS (n 54) 3. 62 See dsca.mil/major-arms-sales. 63 ‘Foreign Assistance Programs and Appropriations for 1982 Part 7: Proposed Airborne Warning and Control System (AWACS), F-15 Enhancement Equipment, and Sidewinder AIM-9L Missiles to Saudi Arabia’. Hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 97th Congress, 1st Session, 11 September 1981.

The United States and Arms Exports  259 were 13 separate hearings into the proposed deal. Despite White House efforts, the House of Representatives voted to veto the deal 301–111, leaving the administration facing defeat if the Senate voted against by more than 51 (out of 100). Various military ‘sweeteners’ were offered to Israel to sway opponents of the deal. Facing Congressional defeat, the White House switched to portray the transfer as an issue of presidential authority, and as endangering the delicate ‘strategic consensus’ in the Middle East. President Reagan’s engagement was crucial to turning around enough Senators to defeat the veto by the narrow margin of 52–48. It seems that the White House played ‘hard-ball’ to ensure the victory, with one staffer alleged to have said ‘we just took Jepsen [Senator Roger Jepsen from Iowa] and beat his brains out’.64 In the second case, in June 1986 Congress successfully passed a concurrent resolution to block the Reagan Administration’s plan to sell 100 Harpoon missiles, 200 Stinger missile launchers and 600 Stinger missile reloads.65 It was the Stinger missiles that made the deal controversial. President Reagan then vetoed the Congressional resolution of disapproval, allowing the sale to go ahead. Members of Congress supportive of Israel were unable to rally enough support to veto the President’s veto by the required two thirds majority.66 However, the signal had been sent and the Administration then removed the controversial Stingers, enabling the sale of the other missiles to Saudi Arabia to proceed. Once all the legislative hurdles have been cleared and the sale is approved, the DSCA issues a Letter of Offer and Acceptance (LOA) to the recipient that specifies the precise defence articles, training, and support to be delivered. DSCA is the key actor for implementing the deals once they have been approved. There is often a significant time lag between approval and delivery, reflecting the sophisticated nature of many of the US arms transfers.

E.  New Legislative Activism After a long period of legislative acquiescence to proposed US arms transfers, in the last few years the issue has bubbled to the surface again. At the centre of the debate – once again – is Saudi Arabia, but now the concern is not for Israel’s safety, but how the Saudi regime is employing US-made weapons in its military intervention in Yemen. Congressional opposition has steadily grown. In 2016 a Senate Joint Resolution to block the sale of M1A1 and A2 tanks and other defence equipment to Saudi Arabia, introduced by Senator Rand Paul of Kentucky, gained 27 votes in the Senate, an important signal of dissent, albeit far short of the number needed 64 D Pollock, The Politics of Pressure: American Arms and Israeli Policy Since the Six Day War (London, Greenwood Press, 1982) 283. 65 CRS (n 54) 7. 66 ‘U.S. Said to Plan Saudi Arms Sale’ New York Times, 17 August 1987. At: nytimes.com/1987/08/17/ world/us-said-to-plan-saudi-arms-sale.html.

260  Dr Joanna Spear for a veto.67 A Senate Joint Resolution in June 2017 to deny a sale of precisionguided munitions to Saudi Arabia attracted 47 votes (only four short of stopping the deal).68 Following that rebuke, and facing continued opposition from key Democratic senators, the Administration could not move forward on a planned sale of a further 120,000 precision-guided munition kits to Saudi Arabia.69 This was due to a clever bureaucratic manoeuver by the ranking Democrat on the Senate Foreign Relations Committee. In April 2018, Senator Bob Menendez blocked an administration attempt to sell the precision-guided munitions kits to Saudi. He did so by refusing to consent to formal notification of the deal pending information from State and DoD, confirming that the kits would enable more accurate delivery of the gravity bombs and therefore fewer civilian casualties (a noted feature of the Trump Administration’s own arms transfer policy).70 Congressional opposition to arms sales to Saudi Arabia further hardened in October 2018 after the murder of Washington Post contributor and Saudi citizen Jamal Khashoggi in the Saudi Embassy in Turkey. After that, Senator Paul was joined by others in declaring his intent to block future sales to Saudi Arabia. This was followed in April 2019 by a successful bipartisan resolution to end US military support for Saudi Arabia’s war in Yemen. As the US provides logistical aid to Saudi Arabia, this was a significant Congressional move. Importantly, ‘Republican support for the underlying resolution serve[d] to warn the administration against trying to force the arms sale by submitting a formal notification to Congress without Menendez’s consent’.71 This may account for President Trump’s announcement in May 2019 that he would make the unusual move of sidestepping Congressional approval on the basis of ‘a national security emergency’ and make 22 sales of $8.1 billion worth of defence equipment – including those precision guided munition kits – to Saudi Arabia, Jordan and the United Arab Emirates.72 Such a determination is legal under the AECA, but the President is expected to provide Congress with a ‘detailed justification for his determination, including a description of the emergency circumstances’ and a ‘discussion of the national security interests involved’.73

67 See congress.gov/bill/114th-congress/senate-joint-resolution/39. 68 See congress.gov/bill/115th-congress/senate-joint-resolution/42/text. 69 P Zengerle, ‘U.S. Lawmaker Holds Back Support for Munitions Sale to Gulf Allies Due to Yemen’ (Reuters, 28 June 2018). At: reuters.com/article/us-usa-arms-yemen/u-s-lawmaker-holds-back-supportfor-munitions-sale-to-gulf-allies-due-to-yemen-idUSKBN1JO2HA. 70 D Flatley and G Carey, ‘Saudi Arms Deal Languishes as a Rebuke of Trump and the Kingdom’ (Bloomberg News, 24 April 2019). At: bloomberg.com/news/articles/2019-04-24/saudi-arms-deallanguishes-as-a-rebuke-of-trump-and-the-kingdom. 71 Ibid. 72 J Spindel, ‘Yes, Trump Can Override Congress and Sell Weapons to Saudi Arabia – Even Over Republican Objections’ Monkey Cage blog, Washington Post, 30 May 2019. At: www.washingtonpost. com/politics/2019/05/30/yes-trump-can-override-congress-sell-weapons-saudi-arabia-even-overrepublican-objections/. 73 USC Title 22, Chapter 36 (b)(1) or 36(c)(1). CRS (n 54) 5.

The United States and Arms Exports  261 The national security emergency cited by Secretary of State Pompeo was the need to ‘deter Iranian aggression and build partner self-defense capacity’ in the Middle East.74 However, critics declared that Secretary Pompeo’s statement did not meet the reporting requirements for a national security emergency of the AECA. In response, Senators Mendez and Lindsey Graham (a Republican) tabled 22 resolutions designed to lead to votes on the deal on the floor of the Senate. The House paralleled this by tabling four resolutions of disapproval, one covering all 22 transfers. To veto the President’s executive national security emergency would require a two thirds majority in the Senate, and it is not clear if that hurdle can be cleared by opponents.75 The Trump move seems to have shifted some Republicans who see the move as a ‘power grab’ by the Administration encroaching on Congressional oversight and consent prerogatives. The battle lines had been drawn, with the State Department now fighting back by highlighting the role the US has played in destroying conventional weapons in Yemen, the Congress holding a fractious hearing on the proposed deals in June 2019, and the Speaker of the House vowing to block the deal.76 Subsequently, the opponents of the deal could not get sufficient support in the Senate to block the deal.77

III.  End-Use Monitoring Written into the AECA and Export Administration Act (EAA) is that the executive branch will monitor the end-use of military and dual-use products to ensure they are being used in accordance with the terms and conditions to which the transfer is subject.78 The executive branch is expected to also ensure that no US supplied military equipment or technology (or title to it) has been transferred onwards by the recipient country without the explicit consent of the President and

74 US Department of State, MR Pompeo, ‘Emergency Notification of Arms Sales to Jordan, the United Arab Emirates, and Saudi Arabia’, Press Statement by Secretary of State, 24 May 2019. At: https://www.state. gov/emergency-notification-of-arms-sales-to-jordan-the-united-arab-emirates-and-saudi-arabia/. 75 K Demirjian, ‘Trump’s Arms Deals Benefiting Saudi Arabia to Face their First Test in Congress’ Washington Post, 11 June 2019. At: www.washingtonpost.com/world/national-security/ trumps-arms-deals-benefiting-saudi-arabia-to-face-their-first-test-in-congress/2019/06/11/870fc4588c84-11e9-adf3-f70f78c156e8_story.html. 76 US Department of State, Bureau of Political-Military Affairs, ‘U.S. Conventional Weapons Destruction Program – Yemen’, Fact Sheet, 6 June 2019. At: state.gov/u-s-conventional-weaponsdestruction-program-yemen/; S George, ‘Lawmakers Challenge Trump Official Over Saudi Arms Sales’ Associated Press, 12 June 2019. At: https://apnews.com/3d5628aa8d4d4e3a87427f784f7248da. M Lillis, ‘Pelosi: Congress Will Block Trump Arms Sales to Saudi Arabia’ The Hill, 14 June 2019. At: thehill.com/homenews/house/448525-pelosi-congress-will-block-trumps-arms-sales-to-saudi-arabia. 77 J Gould, ‘US Senate Allows Arms Sales to Saudi Arabia, Sustaining Trump Vetoes’ Defense News, 29 July 2019. At: www.defensenews.com/congress/2019/07/29/us-senate-allows-arms-sales-to-saudiarabia-sustaining-trump-vetoes/. 78 AECA Section 40 (A), USC Title 22, §2785; Security Assistance Management Manual, Chapter 8. At: https://samm.dsca.mil/sites/default/files/2003%20SAMM/2003-10-03%20-%202003%20SAMM. pdf (hereafter SAMM).

262  Dr Joanna Spear the approval being reported to Congress, unless ‘the recipient is the government of a member country of the North Atlantic Treaty Organization, the Government of Australia, the Government of Japan, the Government of the Republic of Korea, the Government of Israel, or the Government of New Zealand’.79 In addition to the end-use monitoring requirements on transfers to all recipient countries, over time special restrictions towards specific countries have been added in to the US Code. In particular, in 2009 an amendment was added concerning the tracking and monitoring of defence articles provided to the Government of Iraq and other individuals and groups, and also a specific amendment was added relating to the registration and end-use monitoring of defence articles and services transferred to Afghanistan and Pakistan.80 The US Code is also explicit about a recipient State’s use of US arms transfers: (g) Unauthorized use of articles Any agreement for the sale or lease of any article on the United States Munitions List entered into by the United States Government after November 29, 1999, shall state that the United States Government retains the right to verify credible reports that such article has been used for a purpose not authorized under section 2754 of this title or, if such agreement provides that such article may only be used for purposes more limited than those authorized under section 2754 of this title, for a purpose not authorized under such agreement.81

The route through which the arms transfer decision was made will determine which executive agency is charged with doing end-use monitoring. Dual-use transfers are monitored by the Department of Commerce, which conducts enduse checks. Equipment and technology sold through FMS is monitored by the DoD using the SCOs. By contrast, the end-use monitoring of equipment and technology sold through DCS is handled by the Department of State.82 These latter two processes are now examined in turn.

A.  The Golden Sentry Program This is the name of the end-use monitoring process of the DoD for FMS deals. There are two forms of monitoring conducted by DoD; Routine end-use monitoring (EUM) and enhanced EUM. The LOA given through the FMS program contains Standard Terms and Conditions for the sale, which include that the recipient country ‘agrees that it will 79 USC Title 22, Chapter 39, Subchapter 1 § 2753 (b). 80 USC Title 22, Chapter 39, Subchapter 1 § 2751, Tracking and Monitoring of Defense Articles Provided to the Government of Iraq and Other Individuals and Groups in Iraq (a)–(f) and Registration and End-Use Monitoring of Defense Articles and Defense Services Transferred to Afghanistan and Pakistan (a)–(e). 81 USC Title 22, Chapter 39, Subchapter 1 § 2753 (g). 82 T Rutledge, Office of Defense Trade Controls Policy, US Department of State, ‘Blue Lantern End-Use Monitoring Program’ 2015. At: www.bis.doc.gov/index.php/documents/update-2015presentations/1375-civil-military-ddtc/file.

The United States and Arms Exports  263 only use the defense articles or services for purposes of legitimate self-defense, internal security and other purposes allowed under section 4 of the AECA’.83 Another prerequisite for a sale is the stipulation that the foreign country would not use ‘or permit the use of such article or related training or other defense service for purposes other than those for which furnished unless the consent of the President has first been obtained’.84 The same Standard Terms and Conditions ensure that the foreign government agrees not to transfer title or possession of the equipment, to keep it as secure as the US itself would, and allows the US Government to conduct end-use monitoring inspections.85 They also ‘permit observation and review by, and to furnish necessary information to, representatives of the U.S. Government with regards to the use of such articles’.86 Personnel in SCOs undertake training to implement the Golden Sentry EUM program. The Defense Institute of Security Cooperation Studies (DISCS) had the training online – and open for anyone to take – and the training took about 11 hours.87 As was noted above, human rights concerns are no longer a statutory interest of the US Government in considering EUM (though the issue is always mentioned in executive branch policies). Nevertheless, DISCS training included a module on Human Rights and Security Cooperation (though it is not specifically focused on FMS), which took one hour to complete.88 According to the Security Assistance Management Manual (SAMM): Routine EUM is required for all defense articles and services provided via governmentto-government programs. SCO personnel are required to observe and report to the CMD [Command], DSCA, and DoS [Department of State] any potential misuse or unapproved transfer of U.S.-origin defense articles. SCO personnel perform Routine EUM in conjunction with other security cooperation functions, during visits to the host nation’s installations, through interaction with other assigned embassy personnel, and from any other readily available or opportune source of information. SCOs must document Routine EUM on at least a quarterly basis and maintain records for five years.89

SCOs complete a FMS Routine EUM Summary Report. This provides a ‘watch list’ of specific categories of defense articles exported via FMS that includes, but is not limited to: battle tanks, armored combat vehicles, artillery systems, fixed and rotary wing aircraft, unmanned aerial systems, warships and military

83 Gilman and Nichols (n 42) 5. 84 USC Title 22, Chapter 39, Subchapter 1 § 2753 (a) (2). 85 LOA Standard Terms and Conditions, ¶¶ 2.3–2.6 and 4.4. Cited in Gilman and Nichols (n 42) 5, fn 19. 86 Gilman and Nichols (n 42) 12, citing Section 505 of the Foreign Assistance Act and Sections 3 and 4 of the AECA, USC Title 22, Chapter 39, Subchapter 1 §§ 2753, 2754. 87 DISCS, Training in the Golden Sentry End-Use Monitoring (EUM) Program. This online training programme has now ended. www.discs.dscu.mil/_pages/courses/online/learning_guides/golden_ sentry_end_use_monitoring_program.aspx?section=des. 88 DISCS, Online Training in Human Rights and Security Cooperation. This online training programme has now ended. www.discs.dscu.mil/_pages/courses/online/catalog/default.aspx?section=guides. 89 SAMM (n 78) c 8, C8.3.1.

264  Dr Joanna Spear vessels, missiles and missile systems, military vehicles, bombs, crew served and individual weapons, platform-mounted night vision systems, and man-portable NVDs [night vision devices] monitored through Routine EUM.90

Interestingly, current guidance on EUM singles out two particular transfers for attention: ‘White Phosphorous and Cluster Munitions. Munitions containing White Phosphorous (See Section C4.4.8.) and cluster munitions permissible for transfer under U.S. law (See Section C4.4.6.) are transferred with notes restricting the conditions under which they may by employed. SCOs should be aware of host nation inventories of these weapons and the restrictions on them, and alert to reports of how the host nation is employing them in operations. SCOs should report to DSCA (Programs Directorate) any information that suggests these items are not being used in accordance with the terms under which they were sold.91

This is particularly relevant in light of the allegations of illegal Israeli use of White Phosphorous against civilian targets – including a United Nations office and school – in the Gaza Strip during Operation Cast Lead between 27 December 2008 and 18 January 2009.92 According to Human Rights Watch, the phosphorous shells were manufactured in 1989 in the US by Thiokol Aerospace and in 1991 at the Pine Bluff Arsenal.93 Similarly, cluster munitions have been an issue of controversy because while they can have legitimate military uses such as rendering runways unusable, there are fears that they can be used with devastating effects against civilians. The 2016 Saudi Arabian request for cluster bombs brought concerns about the country’s intervention in Yemen to the fore, and resulted in a rare attempt in the Senate to veto a proposed transfer, as discussed above, because they were concerned that this could implicate the US in war crimes.94 The DoD also operates Enhanced End Use Monitoring (EEUM). Appendix One provides an authoritative list of the FMS military systems always subject to EEUM. According to the current SAMM, Enhanced EUM, based on the principle of trust with verification, is required for defense articles and services or individual transfers specifically designated for EEUM by the

90 SAMM (n 78) c 8, C8.3.1.1. 91 SAMM (n 78) c 8, C8.3.2.2. 92 Human Rights Watch, Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, 25 March 2019. At: hrw.org/report/2009/03/25/rain-fire/israels-unlawful-use-white-phosphorus-gaza.This allegation was disputed by Israel, although in 2013 it announced it would no longer use White Phosphorus to create smoke shields for aircraft attacks (the legitimate use of the product). 93 Human Rights Watch, ‘Israel: White Phosphorous Use Evidence of War Crimes’, Press Release, 25 March 2009. At: hrw.org/news/2009/03/25/israel-white-phosphorus-use-evidence-war-crimes. 94 R Kheel, ‘Human Rights Groups Cheer Saudi Arms Sale Vote Despite Failure’ (The Hill, 12 September 2016). At: thehill.com/policy/defense/297084-human-rights-groups-applaud-saudiarms-sale-vote-despite-failure; K Gould, ‘FCNL Applauds 27 Senators Who Voted to Block Saudi Arms Deal’ (Friends Committee on National Legislation, Press Release, 21 September 2016). At: fcnl. org/updates/fcnl-applauds-27-senators-who-voted-to-block-saudi-arms-deal-4.

The United States and Arms Exports  265 MILDEP’s [Military Department’s] export policy, the inter-agency release process, or by DoD policy as a result of consultation with Congress.95

As a consequence of this designation for EEUM, the equipment has to be guaranteed special physical security in the recipient country. When equipment is first delivered, SCOs undertake Familiarization and Assistance Visits. Subsequently EEUM involves regular Compliance Assessment Visits to see the military equipment, check its physical security and to check serial numbers. This is all recorded in a database, which includes accountability of inventories and final disposition of all EEUM-designated defense articles, i.e., expended, lost, and destroyed. SCOs must ensure the host nation reports any losses, firings/expenditures, or disposal of any EEUM-designated defense article as required in the transfer agreement and enter the information in the SCIPEUM database.96

Clearly this is an exacting process. If EEUM problems are suspected, Investigation Visits are undertaken. Should real problems be identified the recipient country has 60 days to provide actions to correct the problem. There are two main types of end-use problems. The first is unauthorised use of a piece of US supplied military equipment. Guidance for SCOs is clear: SCOs must report all potential unauthorized end-use, including unauthorized access, unauthorized transfers, or security violations to DoS (PM/RSAT), DSCA (Programs Directorate), and the CCMD [Combatant Command]. It is particularly important that SCOs are alert to, and report on, any indication that United States-origin defense articles are being used against anything other than a legitimate military target, are otherwise being used for unauthorized purposes, are being tampered with or reverse engineered, or are accessible by persons who are not officers, employees, or agents of the recipient government. Potential violations can be notified via email or message. SCOs must assess the sensitivity of the potential violation and other factors to determine the means of notification. The DoS investigates and reports potential violations and determines whether the AECA section 3 (22 U.S.C. 2753), criteria require notification to Congress.97

The second type of end-use problem is where a US supplied system worth more than $1 million is transferred to a third party without the requisite permission from the US Congress. SCOs play a role in any FMS-origin third party transfer monitoring.98 A good example of the problem occurred in 2016 when there were concerns about what appeared to be US origin tanks being used by Hezbollah in Syria.99 95 SAMM (n 78) c 8, C8.4.1. Definition. 96 SAMM (n 78) c 8, C8.4.1.4. 97 SAMM (n 78) c 8, C8.6.2. Reporting End-Use Violations. 98 SAMM (n 78) c 8, C8.7 Third Party Transfers, Changes in End-Use and Disposal. 99 T Gibbons-Neff, ‘Hezbollah has U.S. Armored Personnel Carriers. But How Did They Get Them?’ Washington Post, 16 November 2016. At www.washingtonpost.com/news/checkpoint/wp/2016/11/16/ hezbollah-has-u-s-armored-personnel-carriers-but-how-did-they-get-them/.

266  Dr Joanna Spear

B.  The Blue Lantern Program Transfers made through DCS are subject to EUM under the Department of State’s Blue Lantern Program. This programme is nearly 30 years old now. Blue Lantern is run through Regional Affairs and Analysis under the Director of Policy in the Directorate of Defense Trade Controls.100 There are pre-licence, post-licence, and post-shipment elements of the programme, all designed to ensure the bona fides of foreign consignees and end-users, the proper receipt and disposition of the exported articles, and to confirm end-use and compliance with all requirements and provisos. Basic end-use monitoring of DCS involves the verification of brokers and the end users and how they employ US exports of defence articles, technology and services. Blue Lantern checks involve a number of different activities conducted by State Department officials: • Open source research ○ eg Internet, public business listings and databases, etc • Consult host government officials and law enforcement agencies, if appropriate ○ Verify order/delivery ○ Verify bona fides, request and derogatory info ○ Verify licences/authorisations, import/export certificates • Request site visit • Interview foreign consignee or end-user ○ In-person ○ Telephone or email.101 Post-shipment checks make up roughly 45 per cent of the checks made. US Embassy officials in co-operation with officials from the recipient government perform the checks. In 2014, 564 Blue Lantern checks in 79 countries were performed out of approximately 63,000 export authorisation requests, and in 2015 570 Blue Lantern checks were completed out of 44,000 licence authorisation requests – about 1.3 per cent of the total, by 2018 the figures were 35,779 licence applications and 466 Blue Lantern checks, again about 1.3 per cent of the total.102 These figures ­indicate that targeting for EUM is deliberate. However, it could also indicate that the implementing office, the Country and End-Use Analysis (CEA) division in

100 The organisation chart can be found at: www.pmddtc.state.gov/ddtc_public. 101 Rutledge (n 82). 102 Rutledge (n 82); ‘End-Use Monitoring of Defense Articles and Defense Services Commercial Exports FY 2018’, Report, Department of Defense Trade Controls, US Department of State, 14 May 2019. At: pmddtc.state.gov/sys_attachment.do?sysparm_referring_url=tear_off&view=true&sys_id= d53a84efdb9177045564ff1e0f961910 (last accessed July 2019).

The United States and Arms Exports  267 DDTC is understaffed. In fiscal year (FY) 2018 the CEA office was staffed by five full-time State Department employees and six contractors, though US Embassy officials do much of the work.103 If the result of a Blue Lantern EUM is unfavourable, there are a couple of different possible responses. An application can be returned without action, denied or revoked. If appropriate, the entities implicated can be added to a Watch List, referred to the Compliance Office and/or law enforcement for possible civil and/ or criminal action. In FYs 2015 and 2018 the unfavourable results (ie inconsistencies were discovered) of Blue Lantern investigations were classified as follows:104 Table 1  Unfavourable Blue Lantern Investigations Problem

FY 2015

FY 2018

Derogatory information/foreign party deemed unreliable recipient of USML

61

52

Refusal to co-operate

33

68

Unauthorised re-export/retransfer

28

Unable to confirm order or receipt of goods

3 54

Foreign party involved in transaction but not listed on licence/application

25

12

Indication of potential or actual diversion

12

1

Deficient accounting or inventory errors

9

Regional concerns

4

Lack of secure facilities

1

7

Inability to confirm existence of a foreign party

3

Evidence of stockpiling

1

End-use monitoring has been an executive branch activity for nearly 30 years now, and DoD and State there have developed elaborate bureaucratic procedures to fulfil the task. However, this seems to largely be a bureaucratic form-filling exercise, unless a problem is flagged up. The problems that get more attention are those with a potential connection to weapons of mass destruction or potential re-routing of weapons to problematic States. A potentially important category for end-use monitoring is not getting much attention; establishing whether US origin weapons are being used in line with the AECA guidelines about use for only self-defence. It would seem that the US Government is generally satisfied with the utilisation of US defence ­equipment,



103 ‘End-Use 104 Rutledge

Monitoring’ (n 102). (n 82); ‘End-Use Monitoring’ (n 102).

268  Dr Joanna Spear though Congress is concerned about the use of US weapons in Yemen by Saudi Arabia. Sometimes, in practice, definitions such as ‘legitimate military target’ are significantly stretched. During the Reagan Administration Israel was reprimanded for using US origin bomber aircraft to destroy the Iraqi Osirak nuclear facility. In response, President Reagan chose not to deliver four F-16 fighterbombers ready to deliver to Israel. Subsequently Israel used US origin fighter aircraft and missiles against targets in Lebanon. The Israeli Government’s justification was that the use was legitimate as ‘hot pursuit’ after enemy fighters had penetrated Israeli airspace. However, the Reagan Administration rejected this interpretation and to show its irritation with Israel it delayed the delivery of more fighter aircraft to the country even though they had been paid for and were complete.105 While the Trump administration could use moves such as this in its relations with Saudi Arabia, there is no evidence so far that they are inclined to do so.

IV.  Considerations Shaping US Arms Export Policies As noted at the outset of this chapter, the US has generally regarded arms exports as a positive element of her security and defence policies, with important economic benefits for the US defence industrial base. A number of quotes will help to show the factors acknowledged to be influencing US export policies. In 2014 a FAO acknowledged that (relative) austerity within the DoD had affected the defence industrial base: ‘… the U.S. military market has been curbed in recent years by serious cuts to our federal budget. The U.S. military and industrial base is surviving from sales and work in the foreign markets’.106 In this sense, arms exports are seen as an important cushion for US defence firms when domestic procurement is relatively depressed. The role of arms transfers in cementing security alliances is also acknowledged: United States DOD security cooperation programs are an important element of the U.S. National Security strategy, establishing and strengthening military-to-military relationships between the U.S. and partner nations. These programs promote mutual understanding between militaries, as well as interoperability through joint exercises and foreign military sales (FMS) programs.107

105 H Smith, ‘Reagan Delays Jets to Israel’ New York Times, 21 July 1981. At: nytimes. com/1981/07/21/world/reagan-delays-jets-israel-us-6-allies-urge-all-side-middleast-cease-reprisals. html?pagewanted=all. 106 J Hetherington, ‘What Do FAOs Do After They Retire?’ (2014) 17 FAOA Journal of International Affairs 39. 107 Defense Institute for Security Assistance Management (DISAM), ‘The Role of the Export Credit Agency in Supporting Arms Transfers: A Comparative Analysis’ (2014) 3 The DISAM Journal 79.

The United States and Arms Exports  269 The 2016 posture statement of European Command included the following statement: Foreign Military Sales benefits not only interoperability with our Allies and partners, but also our defense industrial base, with defense articles and services totalling well over $5 billion per year in the European theatre. From Israel to the Arctic, our FMS programs are improving Alliance capabilities and meeting the challenges associated with meeting NATO’s capability targets.108

Bringing this all together, the Trump Administration declared of their conventional arms transfer (CAT) policy: The new policy reflects the priorities of the president’s National Security Strategy, which are, namely, to preserve peace through strength by reforming regulations to facilitate the exports of U.S. military equipment; to strengthen partners and allies; to facilitate U.S. economic security and innovation … and to uphold respect for human rights and U.S. nonproliferation objectives. In short, the new CAT Policy was designed to expand opportunities for American industry, create American jobs, and maintain U.S. national security, ensuring that we continue to review each arms transfer thoroughly in order to ensure that it is in the national interest of the United States.109

Reflecting this positive perception of the role of arms exports, US export control policies – beyond the legislation that governs them – are really concerned about best managing the process of making transfers, not about restraining sales.

V.  Economic Importance of Sales According to Alex Gray, Special Assistant to President Trump for the Defense Industrial Base, US aerospace and defence industries ‘contribute almost $1  ­trillion annually to the U.S. economy and they support about 2½ million A ­ merican jobs’.110 In 2018 the US economy generated a gross domestic product (GDP) of $20.50 ­trillion.111 The defence industrial sector is obviously important to the US economy, producing one twentieth of GDP. It is not, however, a preeminent sector, with real estate, professional and business services, state and local government, finance and insurance, health care and social assistance, manufacturing of durable goods and wholesale trade all generating more GDP.112

108 US European Command, ‘Posture Statement of General Philip Breedlove, Commander, U.S. European Command’, 25 February 2016. At: https://news.usni.org/2016/02/26/document-2016-us-european-command-posture-statement. 109 Kaidanow (n 59). 110 Gray (n 54). 111 US Bureau of Economic Analysis, News Release BEA 19-05, 28 February 2019. At: bea.gov/ news/2019/initial-gross-domestic-product-4th-quarter-and-annual-2018. 112 N Schriever, ‘Ranking the Biggest Industries in the US Economy – With a Surprise #1!’ (Blue Water Credit, 18 March 2019). At: bluewatercredit.com/ranking-biggest-industries-us-economy-surprise-1/.

270  Dr Joanna Spear In terms of exports, defence goods are split across a number of official US categories, making it difficult to extract the data from US publications. However, the Stockholm International Peace Research Institute (SIPRI) tracks the value of major weapons transfers delivered each year. The latest data spanning 2009–2018 shows that the US is the dominant exporter of major defence systems, and, given the lag between agreeing an export and actually delivering the system, that dominance will only be increasing. Appendix Two is a table of US arms transfers delivered during the period 2005–18. It was generated from the SIPRI Arms Transfer Database. It shows the US dominance of the global market, and the importance of US sales to the Middle East for ensuring that dominance. President Trump has taken a robust approach to boosting the economic contributions of defence exports, most notably in his first meeting with the new Saudi leader Crown Prince Mohammed bin Salman, where he pushed for more exports.113 In terms of agreements (a good guide to intent to supply, though not all deals make it to delivery), in 2018 General Hooper, director of DSCA was lauding US FMS levels for FY 2018; $55.6 billion, an increase of 33 per cent over FY 2017’s total of $41.93 billion.114 At the same time the amount of DCS for 2018 was three times as big at $136.6 billion. Together exports through FMS and DCS in 2018 made up nearly 20 per cent of total US defence production. This is a phenomenal figure, as discussed below. There are a number of different figures for employment in the US defence industry, possibly attributable to whether employment in sub-component firms and allied industries are included. The Trump Administration’s CAT policy gives an employment figure of 1.7 million but the Department of State cites ‘almost 2.5 million people’.115 Overall employment in the US stood at 155.76 million in 2018 and in 2019 the increase in employment is expected to be 2 million, so clearly employment is per se not a crucial issue. However, many defence industry jobs are high-value, technologically sophisticated positions requiring a highly educated workforce; a population that the US would be loath to lose. As Gray stated, Defense exports are an important tool for maintaining a healthy and resilient defense industrial base, including one capable of surging in a crisis. A diversified defense export sector also supports a wide variety of critical labor skills that are required by the U.S. defense industrial base, as well as our allies and partners.116

113 T Wilkinson and N Bierman, ‘Trump Meets with Saudi Crown Prince “MBS” to Push Arms Deals and Challenge Iran’ Los Angeles Times, 20 March 2018. At: latimes.com/nation/la-fg-trump-saudiprince-20180320-story.html. 114 A Mehta, ‘America sold $55.6 billion in weapons abroad in FY 2018 – a 33 percent jump’ Defense News, 9 October 2018. At: defensenews.com/digital-show-dailies/ausa/2018/10/09/ america-sold-556-billion-in-weapons-abroad-in-fy18/. 115 ‘NSPM Regarding U.S. Conventional Arms Transfer Policy’ (n 33); Department of State, Bureau of Political-Military Affairs, ‘United States Conventional Arms Transfer Policy’, Fact Sheet. At: www.state. gov/united-states-conventional-arms-transfer-policy/. 116 Gray (n 54).

The United States and Arms Exports  271

VI.  Patterns of US Arms Exports A. Volume During the eight years of the Obama Administration, the volume of arms transfers increased quite dramatically. A 2015 Congressional Research Service report concluded that the US made 46.3 per cent of all arms transfer agreements with developing countries between 2011 and 2014, valued at $115 billion (2015 dollars). Russia was next with a comparatively modest 16.8 per cent of all agreements valued at $41.7 billion.117 It is important to note that these figures exclude arms agreements with advanced industrial economies, which tend to make up around 25 per cent of annual sales. Given that many US allies – Israel, Australia, NATO countries – fall into this category, the US is even more dominant in terms of arms transfer agreements and this will continue as the extremely expensive F-35 programme matures. This upward trend has continued under President Trump.

B. Content As SIPRI official Aude Fleurant explained, ‘The USA exported arms to at least 98 countries in the past five years; these deliveries often included advanced weapons such as combat aircraft, short-range cruise and ballistic missiles, and large numbers of guided bombs.’118 While many of the US exports are high-­technology, high-value weapons platforms, the US is also a player in most sections of the defence market, including small arms and light weapons, with the exception of fast patrol boats, which it has never manufactured.

C. Recipients While the US supplies weapons to nearly 100 countries, a key region for lucrative exports is the Middle East. Major sales have been made to countries in the Middle East who were previously blocked from purchasing the most advanced weapons systems, in particular the Emirate of Qatar and to Kuwait. In a 2016 deal, Qatar was allowed to purchase 30 F-15E Strike Eagle fighters and Kuwait 24 F/A-18E/F Super Hornets. In this case there had been more than two years of

117 CA Theohary, ‘Conventional Arms Transfers to Developing Nations, 2007–2014’, CRS Report R44320, Congressional Research Service, 21 December 2015. 118 SIPRI, ‘Global Arms Trade: USA Increases Dominance: Arms Flows to the Middle East Surge, says SIPRI’, 11 March 2019. At: sipri.org/media/press-release/2019/global-arms-trade-usa-increasesdominance-arms-flows-middle-east-surge-says-sipri.

272  Dr Joanna Spear discussion within the administration between when Qatar initially requested the sales and the Obama Administration agreeing to the transfers and sending the deals to Congress for consideration.119 According to a former Pentagon appointee from the Obama Administration, this was because of the need to maintain Israel’s QME [qualitative military edge, which is written into the current arms transfer legislation120] and ‘QME often held deals up, [it was] slow because it was a reservation about a particular sale from State, DoD etc. or concerns about a technology going to a state doing things in the region’.121 According to a news report from September 2016, ‘An aircraft deal with Bahrain may be further from fulfilment, due to concern in Washington about the country’s human rights record.’122 However, the Trump Administration was satisfied with the deal and the transfer was approved by the Senate in June 2019.123 Sales to these countries are controversial because of the potential impact on Israeli security. According to the same official, there was a blunt dialogue with Israel when the administration wanted to sell weapons to Qatar and Bahrain, to say that the sales would not be threatening to Israel’s QME. They threatened to go to the Hill [to Congress] but ultimately did not do, so … they did not want that fight.124

What helped to quiet Israeli concerns was a Memorandum of Understanding with the US which guaranteed $38 billion in military aid to Israel that ensures the State can maintain a QME. Israel is to procure the F-35 fighter, which is more advanced than the aircraft to be sold to Kuwait and Qatar. As was noted above, sales to Saudi Arabia have become controversial for new reasons; the Saudi war in Yemen. Whereas in years past the Kingdom bought vast amounts of advanced weapons but did not use them in combat, under the adventurist Mohammad bin Salman the Saudis are now deploying US-origin weapons in interventions abroad. This has thrown up new dilemmas for the US Government, which has stuck by Saudi Arabia despite mounting concern in Congress. The Saudi use of US weapons is potentially vulnerable to criticism for not being used in defence, but for offence. However, given the geo-strategic situation and the administration’s opposition to Iran, this argument has yet to be deployed.

119 C Dillow, ‘Why the U.S. is About to Sell Billions in Boeing Fighter Jets to Qatar’ (Fortune.com, 20 April 2016). At: fortune.com/2016/04/20/u-s-to-sell-fighter-jets-to-qatar/. 120 USC Title 22, Chapter 39, Subchapter III / §2776. 121 Background interview with a former Senior Political Appointee from the Department of Defense. Washington, DC, 15 February 2017. 122 S Snyder, ‘A Massive US Weapons Deal with Israel Means More Weapons for its Arab Neighbors, too’ (The World / Public Radio International, 22 September 2016). At: pri.org/stories/2016-09-22/ massive-us-weapons-deal-israel-means-more-weapons-its-arab-neighbors-too. 123 J Gould, ‘US Senate Upholds Arms Sales to Bahrain, Qatar’ Defense News, 13 June 2019. At: www. defensenews.com/congress/2019/06/13/us-senate-upholds-arms-sales-to-bahrain-qatar/. 124 Background interview (n 121).

The United States and Arms Exports  273

D. Routing A striking change in the pattern of arms transfers is the amount of transfers now being made through DCS. There was a startling hike in DCS between the late 1990s and the early 2000s. The Table below shows the balance between FMS and DCS over 14 years and charts the rise of direct commercial sales. Table 2  Balance between Foreign Military Sales and Direct Commercial Sales over 14 Years Year ending

Total FMS and FMCS agreements, thousands of dollars125

DCS authorisations126 rounded to the nearest thousand

Dec 31, 2010

22,926,307

33,970,702

Dec 31, 2009

32,992,970

35,819,437

Dec 31, 2008

30,046,090

34,150,941

Dec 31, 2007

17,270,057

24,452,607

Dec 31, 2006

17,654,573

19,347,830

Dec 31, 2005

9,019,072

22,990,485

Dec 31, 2004

15,134,714

22,281,870

Dec 31, 2003

14,142,429

17,223,670

Dec 31, 2002

12,064,652

15,215,910

Dec 31, 2001

13,316,287

16,065,612

Dec 31, 2000

11,404,097

25,015,454

Dec 31, 1999

11,464,513

612,925

Dec 31, 1998

9,883,621

952,248

Dec 31, 1997

9,015,142

1,057,345

Dec 31, 1996

9,425,272

1,290,642

There were reports at the turn of the century that recipients were seeking to make sales as cheap as possible, and avoiding the FMS administration fee of 3.5 per cent was one such budget measure. The hike might also reflect the recipient’s attempts to save money by upgrading existing defence systems rather than buying new ones. Nevertheless, the change is dramatic. Moreover, as Congress has less control over DCS, these licences are subject to less interrogation.

125 DSCA Fiscal Year series, 30 September 2015, 2–3. All figures include FMS agreements and FMCS [Foreign Military Construction sales] agreements, but not commercial sales agreements. Data utilised because the Security Assistance Monitor does not have a complete data set of FMS agreements. 126 Security Assistance Monitor, data created with filters for direct commercial sales, 1996–2015. At: securityassistance.org/data/country/arms/Direct%20Commercial%20Sales/1996/2018/is_all/Global. Data utilised because the DSCA series does not have a complete data set of DSC agreements.

274  Dr Joanna Spear While there are no reliable figures available between 2010 and 2017 on the DSCA website, we do know government official statistics for FY 2017 and 2018, as the following Table shows:127 Table 3  Official Statistics for FY 2017 and 2018 Fiscal Year

FMS

DCS

FY 2018

$55.66 billion

$136.6 billion

FY 2017

$41.93 billion

$128.1 billion

Clearly, the shift to DCS has accelerated, and will only continue given the export reform progress continuing to re-categorise some military systems from the USML to the CCL.

VII.  Judicial Review There is no direct judicial involvement in arms export controls unless there is a question about the legality of the particular legislation covering the issue. This has occurred a number of times vis. arms export regulations in the context of the battle over the Separation of Powers which grants the President powers in the areas of national defence and foreign relations, but explicitly gives Congress the power to create laws to regulate the commerce of the United States. Every time there has been new legislation created by Congress it has been tested in the courts. Such a challenge was made to the Arms Export Control Act in 2018 in a case heard by the Second Circuit Court of Appeal. The challenge to the legality of the AECA was in an appeal made by Mark Henry against his conviction for both violating and attempting to violate the act and transfer ‘ablative technologies’ (military-grade technologies used in missiles and rockets) and microwave amplifiers to customers in China and Taiwan. As part of his appeal Henry claimed that the AECA violates the constitutional principle of non-delegation because Congress had delegated their law-making powers to the Executive Branch. However, this delegation has been permitted by the Supreme Court when Congress has permissively authorised the Executive Branch to ‘fill up the details’ of legislation by giving them an ‘intelligible principle’ to guide their administrative rules and regulations. The Second Court ruled that in the case of the AECA there had been ‘intelligible principles’ laid out by Congress to guide the Executive Branch, and that the role of the President was limited to defining the goods on the United States Munitions List that are subject to the AECA’s criminal penalties, making the Act constitutional.128 127 Mehta (n 114). 128 This paragraph draws heavily upon: H Sandick, ‘Second Circuit Affairs Constitutionality of the Arms Export Control Act’ (Patterson Belknap Second Circuit Criminal Law Blog, 8 May 2018). At: pbwt. com/second-circuit-blog/second-circuit-affirms-constitutionality-of-arms-export-control-act.

The United States and Arms Exports  275

VIII.  Arms Trade Treaty The Obama Administration signed the Arms Trade Treaty (ATT) despite significant opposition from lobby groups such as the National Rifle Association and its global arm, the International Sports Shooting Association / Federation. In December, just prior to the Obama Administration leaving office, ‘the White House transmitted the Arms Trade Treaty to the Senate with a message from President Barack Obama recommending “that it give its advice and consent to ratification”’.129 However, this was in many ways a symbolic act of support as any international treaty needs the support of a two-thirds majority of the Senate for ratification, a tall order. On the same day that the ATT was submitted to Congress, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn) reiterated his opposition, alluding to ‘an array of concerns with Second Amendment rights’ and saying ‘it will remain dead in the water’.130 With the accession of President Trump and with Republican majorities in both Houses of Congress for his first two years, ratification of the ATT was impossible. In 2019 President Trump used a speech at the annual conference of the National Rifle Association to announce that he would revoke the status of the US as a signatory to the ATT, noting that it impinged upon US sovereignty.131 As with President Obama’s gesture, President Trump’s revocation was largely symbolic, but was wildly popular with his pro-gun rights base. The US has not signed the CIFTA (Inter-American Convention Against Illicit Manufacturing and Trafficking in Firearms). This is a particular issue for Mexico, which experiences high levels of US firearms being illegally brought across the border from US gun shows. However, the US is supportive of various arms transfer transparency measures such as the UN Register of Conventional Arms Transfers, mostly because this is information the Government publishes anyway, so they would like to see reciprocity.

IX.  Public Debate on Arms Transfers Given the de-politicisation and economisation of arms transfers that has dominated in the US since the end of the Cold War, arms exports are rarely a matter of public contention. Usually, the discourse is about how to secure more sales and streamline the decision process, as was evidenced in a discussion at the Center for Strategic and International Studies (CSIS) think tank in 2018.132 A rare salvo

129 Abramson (n 50). 130 Abramson (n 50). 131 J Colvin and LM Pane, ‘Trump Tells NRA he’s Withdrawing from Arms Trade Treaty’ (Associated Press, 26 April 2019). At: apnews.com/4520c376a08a4a6d8a269b2f37d09704. 132 CSIS (n 54).

276  Dr Joanna Spear into the issue comes from former State Department officials Andrew Miller and Richard Sokolsky writing in The American Conservative. The novelty of their approach is that it is an attack on the efficacy of US security assistance and arms transfers to the Middle East; certainly not the direction of criticism seen in other countries!133 In the one major issue that has been getting attention, that of certain arms sales to Saudi Arabia, the attention has generally come from Congress, and one or two think tanks, rather than being a point of big public debate. Even then, there has been nothing like the degree of consideration the issue has received in the United Kingdom.

X.  Scandals and the Evolution of Export Controls Of relevance here is the Foreign Corrupt Practices Act (FCPA), which is intended to prevent any US firm from paying any kind of bribe or payment in order to secure an export deal. In the 1970s, the US defence firm Lockheed spectacularly fell foul of the FCPA and was subject to an extensive investigation, public shaming and massive fine. As a consequence, Lockheed has developed itself into the industry leader in terms of ethical business practices. The FCPA certainly acts as a deterrent to US defence firms from paying bribes or irregular payments, but in practice what happens is that this is left to smaller intermediary firms. When the activities of one of the intermediaries is traced back to a US defence firm, practice has evolved to allow the firm to pay a large fine to avoid being found guilty under the FCPA, which would block them from federal contracting work for a time. US defence firms often complain at home that the US legislation surrounding arms exports and the FCPA act as ‘barriers’ to trade that firms from other countries do not have to deal with. President Trump has expressed this sentiment too.134 In particular, they cite the development by other countries of ITAR-free defence systems (ie containing no US parts covered by the ITAR rules) as a threat to the US market share. However, given the percentage of the international market controlled by US firms, this is a difficult argument to take seriously!

XI. Conclusion The US is both the dominant player in the global arms transfer market and an outlier on current attitudes to arms exports compared to other western powers considered in this volume. The US Government view arms transfers through the 133 A Miller and R Sokolsky, ‘What has $49 Billion in Foreign Military Aid Bought Us? Not Much’ (The American Conservative, 27 February 2018). At: theamericanconservative.com/articles/ what-has-49-billion-in-foreign-military-aid-bought-us-not-much/. 134 J Smialek, ‘Trump Tried to Kill Anti-Bribery Rule He Deemed “Unfair”’ New York Times, 15 ­January 2020. At: www.nytimes.com/2020/01/15/business/economy/trump-bribery-law.html.

The United States and Arms Exports  277 lenses of positive economic and political consequences, and seeks to minimise obstacles to making arms transfers that are viewed as positive. The legislative environment is generally liberal towards sales (particularly now that human rights issues have been stripped from legislation), and the executive branch is permissive in its approach to arms transfers.

APPENDICES Appendix I  Defense Articles Designated for Enhanced End Use Monitoring for all FMS-eligible Countries135 EEUM-Designated Defense Articles

Description

Advanced Medium Range Air-to- AMRAAM or other specified AMRAAM defense Air Missiles (AMRAAM) articles (Guidance Control Units (GCUs)). Air Intercept Missiles-9X (AIM-9X)

AIM-9X Missiles, Guidance Units (GU), Captive Air Training Missiles (CATM), and Special Air Training Missiles (NATM).

Communication Security (COMSEC) Equipment

COMSEC items are managed and controlled by the National Security Agency (NSA). NSA, CCMDs, and Embassy COMSEC Custodians are responsible for implementing the necessary procedures to ensure physical security and accountability measures required by the Communication Interoperability & Security Memorandum of Agreement (CISMOA).

Enhanced Targeting Data (ETD) Physical Security and Accountability Requirements

Enhanced Targeting Data (ETD) disks, external hard drives and related software.

Harpoon Block II Missiles

Harpoon Block II missile and/or other specified Harpoon Block II Missile defense articles, (Retrofit kits and GCUs).

Javelin Missiles and Command Launch Units (CLUs)

Javelin Missiles and CLUs only.

Joint Air-to-Surface Standoff Missiles (JASSM)

JASSM or other specified JASSM defense articles, (Instrument Telemetry Vehicle (ITV)).

Joint Standoff Weapons (JSOW)

JSOW or other specified JSOW defense articles, (Captive Flight Vehicles (CFV), and Missile Simulator Units (MSU)).

Large Aircraft Infrared Countermeasures (LAIRCM)

LAIRCM components as specified in the LOA note. (continued)



135 SAMM,

Chapter 8 Table C8.T4.

278  Dr Joanna Spear Appendix I  (Continued ) EEUM-Designated Defense Articles

Description

Night Vision Devices (NVDs)

For each FMS offer of NVDs, the Implementing Agency will include the DSCA NVD Approval memorandum as supporting documentation to the LOA. For NVD exports, the host nation must provide the SCO a copy of the physical security and accountability control plan (NVD Control Plan) for the protection and security of NVDs. The physical security and accountability control plan must be provided within 30 days of signing the LOA. NVDs will not be delivered until receipt of the NVD Control Plan. SCO will review and maintain a copy of the purchaser’s physical security and accountability control plan and forward a copy to DSCA.NCR.BPC.MBX.EUM-HELPDESK@mail. mil. SCOs must provide a written report to DSCA (Strategy Directorate, Weapons Division) within 30 calendar days of any reported loss, theft, or unauthorized access of any NVD provided to the host nation.

Standard Missiles-3 (SM-3)

Standard Missiles-3 (SM-3).

Standoff Land Attack Missiles Expanded Response (SLAM-ER)

SLAM-ER or other specified SLAM-ER defense articles, (Retrofit kits and Guidance Navigational Units (GNU)).

Stinger Missiles and Gripstocks

Stinger Missiles designated for EEUM may include, but are not limited to: MANPADS, AVENGER, Linebacker, and Vehicle Mounted Stinger Launch Platform (VMSLP).

Terminal High Altitude Area Defense (THAAD).

THAAD missiles or Radar systems.

Tomahawk Missiles

Tomahawk Missiles.

Tube-Launched, OpticallyTracked, Wire-Guided Missiles (TOW-2B)

TOW-2B Missiles only.

Unmanned Aircraft Systems (UAS) designated as Category I by the Missile Technology Control Regime (MTCR)

UAS components as specified in the LOA note.

Appendix II  SIPRI Arms Transfers 2005 Afghanistan

2006

19

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

22

78

280

245

520

410

144

69

94

72

282

206

2442

4

1

5

3

49

African Union** Algeria

11

11

5

Angola Australia

2 19

1

1

3

9

15

17

8

3

1

3

6

4

18

6

33

7

133

348

574

320

612

1391

996

581

140

318

836

888

1089

918

9111

0

0

0 3

Bahrain

63

1

1

2

3

26

2

68

3

4

6

12

3

2

2

0

24

Bolivia Botswana 18

4

18

19

33

3

5

60

15

56

54

2

6

2

2

1

1

1

6

84

Brunei Bulgaria

1

4

Bangladesh 3

0

1

3

111

7

19

15

269 110

4

7

1

64

2

5

60

533

8

69

17

37

31

12

15

36

36

87

3

14 (continued)

The United States and Arms Exports  279

Azerbaijan Bahamas

Brazil

2

101

Austria

Belgium

Total

2

Albania

Argentina

2018

2005 Burkina Faso

2006

2007

2008

2009

2010

2011

2012

2013

2014

10

Canada

90

68

Central African Republic

9

Chad

1

Chile Colombia

4

400

350

99

197

2 311

2

1

0

316

128

2018

181

170

202 6

254

81

27

122

16

3 186

2

14

121

2820

2

8

30

132

39

38

31

61

81

18

0

44

808

147

58

80

77

99

25

55

15

36

3

763

Congo

1

1 1

1

Croatia

2

22

Czechia

40

0

Denmark

22

8

85

14

1

3

0

2

3

2

0

32

28

Djibouti Dominican Republic

42

2

2 2

66

102

52

32

435

1 1

DR Congo

20 0

28 5

4 472

396

263

46

5

0

1

28 607

Total

9

Costa Rica

El Salvador

1

2017

3

Cameroon

Egypt

2016

3

Burundi

Ecuador

2015

28

1

10

82

249

14 160

177 2

494

182

593

226

218

197

4314 2

280  Dr Joanna Spear

Appendix II  (Continued )

Equatorial Guinea

1

2

5

10

Estonia Ethiopia 9 2

2

9

2

Gabon 51

9

Ghana Greece

2

2

11

2

51

23

39

10

19

50

44

98

65

34

76

398

55

17

17

32

52

50

342

9

2

4

262

319

1 255

2 102

20

253

5

920

1

151

25

2

2

19

6

0

0

43

46

5

5

4

18

3

2

1069

4 8

61

10 92

22

54

Honduras

0

Hungary India Iraq

Italy Jamaica

25

1772

3

3

1

4

4

18

4

2

83

2

54

203

139

985

1116

268

41

261

25

3270

0

35

85

150

82

94

246

90

828

397

340

255

285

791

888

513

40

4693

84

89

5

4

11

17

14

43

55

150

281

1

3

3

1114

1110

809

663

134

41

59

107

65

121

228

510

505

480

5945

68

22

42

43

14

30

231

161

26

88

200

410

363

241

1939

3

2

0

0

13

19

Ireland Israel

30

2

59

311

343

6

1

(continued)

The United States and Arms Exports  281

35

7

Guatemala

Indonesia

5

1

Georgia Germany

2 10

Finland France

18

Japan Jordan

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

348

412

489

671

588

358

276

197

230

272

304

307

432

675

5560

5

8

169

32

15

6

24

38

39

53

58

86

132

50

716

6

3

3

3

3

Kazakhstan

3

Kenya Kuwait

5

5

279

Latvia Lebanon

1

1

37

11

14

16

10

1

1

36

22

3 52

681

1

19

6

291

130

56

20 31

Libya

21

5

38

13

4

3

3

56

85

281 1 3

0

1

1

27

0 2

14

0 14

10

12

2 8

0

10

4

10

8

Mauritania

4

81

8

23

2

2

Mauritius

1 8

29

20

1

27

28

90

49

47

33

204

230

154

18 15

15

3

33

439

430

45

9

47

277

435

333

2069

Montenegro Namibia

11

3 3

Malta

Morocco

1650

1

Macedonia

Mexico

28 55

4

Libya HoR

Malaysia

48

20

Total

24

4

Libya GNC Lithuania

27

2018

5

936

5

282  Dr Joanna Spear

Appendix II  (Continued )

NATO** Netherlands

420 51

New Zealand

234

25

9

0

1

2

85

35

13

148

Niger 54 3

66

73

111

103

85

Oman

145

280

12

68

2

2

Pakistan

171

109

395

303

146

1027

Panama

55

81

269

2

22

12

13

13

10

0

Poland

11

346

850

481

87

41

Portugal

33

43

58

88

90

89

Qatar

43

23

5

280

428

18

824

6

144

9

11

63

7

6

5

4

139

62

19

1

123

123

330

346

1518

38

35

468

5

135

89

276

137

201

107

15

21

1

1

1279 12

3189

11

31

0

2

5

8

60

6

55

16

2 11

1

3

12

46

82

23

8

341

16

1

4

23

72

1948

89

29

1

150

280

385

83

1

4

6

529

595

520

423

2633

14

3

22

2

32

61

42

3

3

0

3

14

22

13

235

153

172

150

248

244

358

397

394

607

1411

1714

1746

3246

3353

14193

2

2

6

Senegal

2

Serbia

0

Seychelles

0 1

534

34

11

28

760

717

482

456

670

1 24

75

590

116

56

4553

(continued)

The United States and Arms Exports  283

25

Philippines

Singapore

11

15

Peru

Saudi Arabia

73

5

Paraguay

Romania

1

2

Nigeria Norway

130

8

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Slovakia Slovenia

619

14

30

11

9

13

16

9

1359

1234

1121

209

1220

1490

979

107

0

2

96

44

South Sudan Spain

5

81

Sri Lanka

22

18

48

7

2

20

58

56

Switzerland

24

9

2

2

1

2

103 346

188

599

529

612

12

11

17

5

Thailand Trinidad and Tobago Tunisia

4

20

20

2

14

14

409

54

66 0

150

185

16

1

2

9

5

517

30

16

5

2

1

1

61

31

151

37

138

424

549

1071

630

97

493

129

4736

1

50

21

54

32

27

46

29

49

334

12

12 38

39

7

13

72

46

234

6 2

3

10612 2

1 504

35 1

Syria rebels* 642

Total 1

0

Sweden

UAE

18

10

Suriname

Turkey

18 1

South Africa

Taiwan

2018

1

Somalia South Korea

2017

7

7

1

30

272

5

25

49

21

11

335

1009

363

1110

301

185

146

293

4123

1260

996

472

677

394

153

853

953

1074

542

812

660

685

799

10327

284  Dr Joanna Spear

Appendix II  (Continued )

Uganda

2

4

Ukraine United Kingdom

15

109

302

419

270

311

201

390

331

United Nations** Unknown recipient(s)

3

16

4

5

191

373

217

3

0

0

35

Venezuela

6

7523

7850

6800

12 6913

8074

9022

4 9086

Source: SIPRI Arms Transfer Database. Generated 17 June 2019. TIV of arms exports from United States, 2005–2018. Figures are SIPRI Trend Indicator Values (TIVs) expressed in millions. Figures may not add up due to the conventions of rounding. A ‘0’ indicates that the value of deliveries is less than 0.5m. For more information, see http://www.sipri.org/databases/armstransfers/sources-and-methods/.

7571

4

9931

37 6

11 9601

4029

54 36

9955

12485

10508 122090

The United States and Arms Exports  285

6772

5

194

2 54

3

21

3

Viet Nam Yemen

12

0

Uzbekistan

Total

705

22

286  Dr Joanna Spear Appendix III  Arms Transfers as a Percentage of U.S. GDP

Date

GDP Value136 billions of dollars137 (U.S. billions i.e. 1,000,000,000)

Dec 31, 2015

18,036,600,000

40,628,661

38,915,369

79,544,030

0.441

Dec 31, 2014

17,393,100,000

33,278,066

44,288,491

77,566,557

0.445

Total FMS and FMCS DCS agreements, authorizations139 thousands rounded to the of dollars138 nearest thousand

Total FMS plus DCS

Annual arms transfers as an indicative percentage of GDP

Dec 31, 2013

16,691,500,000

24,534,996

112,435,393

136,970,389

0.82

Dec 31, 2012

16,155,300,000

68,697,771

31,448,696

100,146,467

0.619

Dec 31, 2011

15,517,900,000

27,452,822

43,822,662

71,275,484

0.459

Dec 31, 2010

14,964,400,000

22,926,307

33,970,702

56,897,009

0.38

Dec 31, 2009

14,418,700,000

32,992,970

35,819,437

68,812,407

0.477

Dec 31, 2008

14,718,600,000

30,046,090

34,150,941

64,197,031

0.436

Dec 31, 2007

14,477,600,000

17,270,057

24,452,607

41,722,664

0.288

Dec 31, 2006

13,855,900,000

17,654,573

19,347,830

37,002,403

0.267

Dec 31, 2005

13,093,700,000

9,019,072

22,990,485

32,009,557

0.244

Dec 31, 2004

12,274,900,000

15,134,714

22,281,870

37,416,584

0.304

Dec 31, 2003

11,510,700,000

14,142,429

17,223,670

31,366,099

0.272

Dec 31, 2002

10,977,500,000

12,064,652

15,215,910

27,280,562

0.248

Dec 31, 2001

10,621,800,000

13,316,287

16,065,612

29,381,899

0.276

Dec 31, 2000

10,284,800,000

11,404,097

25,015,454

36,419,551

0.354

Dec 31, 1999

9,660,600,000

11,464,513

612,925

12,077,438

0.125

Dec 31, 1998

9,089,200,000

9,883,621

952,248

10,835,869

0.119

Dec 31, 1997

8,608,500,000

9,015,142

1,057,345

10,072,487

0.117

Dec 31, 1996

8,100,200,000

9,425,272

1,290,642

10,715,914

0.132

136 In current dollars, without adjustment for inflation. 137 Bureau of Economic Analysis, U.S. Department of Commerce. At: www.bea.gov/national/index. htm#gdp 138 DSCA Fiscal year series, September 30, 2015, pp. 2-3. All figures include FMS agreements and FMCS [Foreign Military Construction sales] agreements, but not commercial sales agreements. Data utilised because the Security Assistance Monitor does not have a complete data set of FMS agreements. 139 Security Assistance Monitor, data created with filters for direct commercial sales, 1996-2015. At: securityassistance.org/data/country/arms/Direct%20Commercial%20Sales/1996/2018/is_all/Global Data utilised because the DSCA series does not have a complete data set of DSC agreements.

The United States and Arms Exports  287

List of References Abramson, J, ‘Gates Outlines Export Control Overhaul’ (Arms Control Today, May 2010). At: armscontrol.org/act/2010_05/Exports 54–55. Arms Export Control Act (1976) Public Law 94–329. Associated Press, ‘Army Says No To More Tanks But Congress Insists’ (28 April 2013). At: foxnews.com/politics/2013/04/28/army-says-no-to-more-tanks-but-congress-insists.html. Buckley, JL, ‘Why the U.S. Must Strengthen Pakistan’ New York Times, 5 August 1981, A22. Center for Strategic and International Studies event ‘U.S. Arms Transfer Policy: Shaping the Way Ahead’, Washington, DC, 8 August 2018. At: csis.org/analysis/us-arms-transferpolicy-shaping-way-ahead. Colvin, J and Pane, LM, ‘Trump Tells NRA he’s Withdrawing from Arms Trade Treaty’ (Associated Press, 26 April 2019). At: apnews.com/4520c376a08a4a6d8a269b2f 37d09704. Currier, C, ‘In Big Win for Defense Industry, Obama Rolls Back Limits on Arms Exports’ (Propublica, 14 October 2013). At: propublica.org/article/in-big-win-for-defenseindustry-obama-rolls-back-limits-on-arms-export. Cyril, TA, ‘How to Win Friends and Influence People Using Security Cooperation’ (2016) 19 FAOA Journal of International Affairs 21–24. Demirjian, K, ‘Trump’s Arms Deals Benefiting Saudi Arabia to Face their First Test in Congress’ Washington Post, 11 June 2019. At: www.washingtonpost.com/world/ national-security/trumps-arms-deals-benefiting-saudi-arabia-to-face-their-first-test-incongress/2019/06/11/870fc458-8c84-11e9-adf3-f70f78c156e8_story.html. Defense Institute for Security Assistance Management (DISAM), ‘The Role of the Export Credit Agency in Supporting Arms Transfers: A Comparative Analysis’ (2014) 3 The DISAM Journal 79–92. Dillow, C, ‘Why the U.S. is About to Sell Billions in Boeing Fighter Jets to Qatar’ (Fortune. com, 20 April 2016). At: fortune.com/2016/04/20/u-s-to-sell-fighter-jets-to-qatar. Export Administration Act, 1979. US House of Representatives. Export Control Challenges Associated with Securing the Homeland (National Academies Press Open Book, 2012). Farley, PJ, ‘The Control of United States Arms Sales’ in A Platt and L Weiler (eds), Congress and Arms Control (Boulder, CO, Westview Press, 1978) 111–33. Flatley, D and Carey, G, ‘Saudi Arms Deal Languishes as a Rebuke of Trump and the Kingdom’ (Bloomberg News, 24 April 2019). At: bloomberg.com/news/articles/2019-04-24/saudiarms-deal-languishes-as-a-rebuke-of-trump-and-the-kingdom. Ford President Gerald, R, Veto of the Foreign Assistance Bill, 7 May 1976. At: www.senate. gov/legislative/vetoes/FordG.htm Franck, T and Weisband, E, Foreign Policy by Congress (Oxford, Oxford University Press, 1979). Gehrke, J, ‘Obama Waives Ban on Arming Terrorists to Allow Aid to Syrian Opposition’, Washington Examiner, 15 September 2013. At: www.washingtonexaminer. com/obama-waives-ban-on-arming-terrorists-to-allow-aid-to-syrian-opposition/ article/2535885. George, S, ‘Lawmakers Challenge Trump Official Over Saudi Arms Sales’ Associated Press, 12 June 2019. At: https://apnews.com/3d5628aa8d4d4e3a87427f784f7248da.

288  Dr Joanna Spear Gibbons-Neff, T, ‘Hezbollah has U.S. Armored Personnel Carriers. But How Did They Get Them?’ Washington Post, 16 November 2016. At: www.washingtonpost.com/news/checkpoint/ wp/2016/11/16/hezbollah-has-u-s-armored-personnel-carriers-but-how-did-they-get-them/. Gould, K, ‘FCNL Applauds 27 Senators Who Voted to Block Saudi Arms Deal’, FCNL Press Release, 21 September 2016. At: fcnl.org/updates/fcnl-applauds-27-senators-who-votedto-block-saudi-arms-deal-4. Hetherington, J, ‘What Do FAOs Do After They Retire?’ (2014) 17 FAOA Journal of International Affairs. Human Rights Watch, ‘Israel: White Phosphorous Use Evidence of War Crimes’, Press Release, 25 March 2009. At: hrw.org/news/2009/03/25/israel-white-phosphorus-useevidence-war-crimes. —— Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza, 25 March 2019. At: hrw.org/report/2009/03/25/rain-fire/israels-unlawful-use-white-phosphorus-gaza. Kheel, R, ‘Human Rights Groups Cheer Saudi Arms Sale Vote Despite Failure’ (The Hill, 12 September 2016). At: thehill.com/policy/defense/297084-human-rights-groupsapplaud-saudi-arms-sale-vote-despite-failure. Klare, MT, American Arms Supermarket (Austin, University of Texas Press, 1984). Lillis, M, ‘Pelosi: Congress Will Block Trump Arms Sales to Saudi Arabia’ (The Hill, 14 June 2019). At: thehill.com/homenews/house/448525-pelosi-congress-will-blocktrumps-arms-sales-to-saudi-arabia. LMDefense, ‘FMS vs. DCS’. At: lmdefense.com/foreign-military-sales/fms-vs-dcs/ Mahanty, DR and Eikenberry, E, ‘How the “Arms Sales Oversight Act” Could Prevent American Arms from Continuing to the next Overseas Crisis’ (Just Security blog, 5 December 2018). At: justsecurity.org/61719/arms-sales-oversight-act-prevent-americanarms-contributing-overseas-crisis/. Mehta, A, ‘America Sold $55.6 billion in Weapons Abroad in FY 2018 – a 33 Percent Jump’ Defense News, 9 October 2018. At: defensenews.com/digital-show-dailies/ ausa/2018/10/09/america-sold-556-billion-in-weapons-abroad-in-fy18/. Miller, A and Sokolsky, R, ‘What has $49 Billion in Foreign Military Aid Bought Us? Not Much’ (The American Conservative, 27 February 2018). At: theamericanconservative. com/articles/what-has-49-billion-in-foreign-military-aid-bought-us-not-much/. New York Times, ‘U.S. Said to Plan Saudi Arms Sale’, 17 August 1987. At: nytimes. com/1987/08/17/world/us-said-to-plan-saudi-arms-sale.html. Nolan, JE, ‘Report of the Presidential Board on Arms Proliferation Policy’ 1996. At: https:// fas.org/asmp/resources/govern/advisory_board.html. Pasco, B, ‘The Case for Export Control Reform and What It Means for America’ (Harvard Law School National Security Journal Blog, 2014). At: https://harvardnsj.org/2014/10/ the-case-for-export-control-reform-and-what-it-means-for-america/. Pollock, D, The Politics of Pressure: American Arms and Israeli Policy Since the Six Day War (London, Greenwood Press, 1982). Rutledge, T, ‘U.S. Defense Trade Controls and the Blue Lantern End-Use Monitoring Program’, power point presentation, 2015. At: bis.doc.gov/index.php/forms-documents/ update-2015-presentations/1375-civil-military-ddtc/file. Sandick, H, ‘Second Circuit Affairs Constitutionality of the Arms Export Control Act’ (Patterson Belknap, Second Circuit Criminal Law Blog, 8 May 2018).

The United States and Arms Exports  289 Schriever, N, ‘Ranking the Biggest Industries in the US Economy – With a Surprise #1!’ (Blue Water Credit, 18 March 2019). At: bluewatercredit.com/ranking-biggest-industriesus-economy-surprise-1/. Smith, H, ‘Reagan Delays Jets to Israel’ New York Times, 21 July 1981. At: nytimes. com/1981/07/21/world/reagan-delays-jets-israel-us-6-allies-urge-all-side-middleastcease-reprisals.html?pagewanted=all. Snyder, S, ‘A Massive US Weapons Deal with Israel Means More Weapons for its Arab Neighbors, Too’ (The World / Public Radio International, 22 September 2016). At: pri.org/ stories/2016-09-22/massive-us-weapons-deal-israel-means-more-weapons-its-arabneighbors-too. Spear, J, ‘Bigger NATO, Bigger Sales’ (1997) 53 The World Today 1–3. —— Carter and Arms Sales: Implementing the Carter Administration’s Arms Transfer Restraint Policy (Basingstoke, Macmillan, 1995). Spindel, J, ‘Yes, Trump Can Override Congress and Sell Weapons to Saudi Arabia – Even Over Republican Objections’ Monkey Cage blog, Washington Post, 30 May 2019. At: www.washingtonpost.com/politics/2019/05/30/yes-trump-can-override-congress-sellweapons-saudi-arabia-even-over-republican-objections/. Stockholm International Peace Research Institute (SIPRI), ‘Global Arms Trade: USA Increases Dominance: Arms Flows to the Middle East Surge, says SIPRI’, 11 March 2019. At: sipri.org/media/press-release/2019/global-arms-trade-usa-increases-dominancearms-flows-middle-east-surge-says-sipri. Theohary, CA, ‘Conventional Arms Transfers to Developing Nations, 2007–2014’, CRS Report R44320, Congressional Research Service, 21 December 2015. The White House, ‘National Security Presidential Memorandum Regarding U.S. Conventional Arms Transfer Policy’, 19 April 2018. At: whitehouse.gov/presidential-actions/ national-security-presidential-memorandum-regarding-u-s-conventional-armstransfer-policy/. —— ‘Presidential Policy Directive PPD-27 – United States Conventional Arms Transfer Policy’, 15 January 2014. At: obamawhitehouse.archives.gov/the-press-office/2014/01/15/ presidential-policy-directive-united-states-conventional-arms-transfer-p. —— ‘Conventional Arms Transfer Policy, National Security Decision Directive (NSDD) No. 5’, 8 July 1981. Ronald Reagan Presidential Library and Museum Archive. —— ‘Conventional Arms Transfer Policy Presidential Directive / NSC – 13’, 13 May 1977. Jimmy Carter Presidential Library and Museum Archive. Wilkinson, T and Bierman, N, ‘Trump Meets with Saudi Crown Prince “MBS” to Push Arms Deals and Challenge Iran’ Los Angeles Times, 20 March 2018. At: latimes.com/ nation/la-fg-trump-saudi-prince-20180320-story.html. US Bureau of Economic Analysis, News Release BEA 19-05, 28 February 2019. At: bea.gov/ news/2019/initial-gross-domestic-product-4th-quarter-and-annual-2018. US Code Title 22 Foreign Relations, Chapter 39 Arms Export Control. At: https://www. pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=b9a933addb7c930044f 9ff621f961932. US Congressional Research Service, ‘The U.S. Export Control System and the Export Control Reform Initiative’, R41916 (2019) At: fas.org/sgp/crs/natsec/R41916.pdf. US Congressional Research Service, Fergusson, I and Kerr, P, ‘The U.S. Export Control System and the President’s Reform Initiative’ CRS Report R41916, 13 January 2014.

290  Dr Joanna Spear US Congressional Research Service, Grimmett, RF, ‘U.S. Defense Articles and Services Supplied to Foreign Recipients: Restrictions on Their Use’, CRS Report R42385, 2012. US Defense Institute of Security Cooperation Studies, Online Training in the Golden Sentry End-Use Monitoring (EUM) Program. At: www.discs.dscu.mil/_pages/courses/online/ learning_guides/golden_sentry_end_use_monitoring_program.aspx?section=des. —— Online Training in Human Rights and Security Cooperation. At: www.discs.dscu. mil/_pages/courses/online/catalog/default.aspx?section=guides. US Defense Security Cooperation Agency, Gilman, D, and Nichols, R et al, Foreign Military Sales and Direct Commercial Sales, 30 September 2014. 39. At: dsca.mil/sites/default/ files/final-fms-dcs_30_sep.pdf. US Defense Security Cooperation Agency. At: dsca.mil. US DSCA Historical Facts Book, September 2015, III. At: dsca.mil/major-arms-sales. US Defense Security Cooperation Agency, ‘Arms Sales: Congressional Review Process’. At: dsca.mil/resources/arms-sales-congressional-review-process. US Department of Justice, ‘Summary of Major U.S. Export Enforcement, Economic Espionage, Trade Secret and Embargo-related Criminal Cases.’ Justice.gov, March 2014, justice.gov/sites/default/files/nsd/legacy/2014/07/23/export-case-fact-sheet-201403.pdf. —— ‘Summary of Major U.S. Export Enforcement and Embargo Criminal Prosecutions: 2007 to the Present.’ UFC.edu. November 2010, research.ucf.edu/documents/PDF/ summary-eaca%20Nov%202010.pdf. US Department of State, Bureau of Political-Military Affairs, ‘U.S. Arms Sales and Defense Trade’, Fact Sheet, 21 May 2019. At: state.gov/u-s-arms-sales-and-defense-trade/. —— ‘United States Conventional Arms Transfer Policy’, Fact Sheet. At: www.state.gov/ united-states-conventional-arms-transfer-policy/. —— ‘U.S. Conventional Weapons Destruction Program – Yemen’, Fact Sheet, 6 June 2019. At: state.gov/u-s-conventional-weapons-destruction-program-yemen/. US Department of State, ‘End-Use Monitoring of Defense Articles and Defense Services Commercial Exports FY 2018’, Report, Department of Defense Trade Controls, 14 May 2019. At: pmddtc.state.gov/sys_attachment.do?sysparm_referring_url=tear_ off&view=true&sys_id=d53a84efdb9177045564ff1e0f961910 (Last Accessed July 2019). —— ‘Overview of U.S. Export Control System’. —— Pompeo MR, ‘Emergency Notification of Arms Sales to Jordan, the United Arab Emirates, and Saudi Arabia’, Press statement by Secretary of State, 24 May 2019. At: www. state.gov/emergency-notification-of-arms-sales-to-jordan-the-united-arab-emiratesand-saudi-arabia/. —— ‘Public Comments Regarding Review of United States Munitions List Categories IV and XV’. At: pmddtc.state.gov/sys_attachment.do?sysparm_referring_url=tear_off& view=true&sys_id=e1b847bcdbddff805c3070808c9619d3. —— Directorate of Defense Trade Controls, website www.pmddtc.state.gov/ddtc_public. US European Command, ‘Posture Statement of General Philip Breedlove, Commander, U.S. European Command’, 25 February 2016. At: https://news.usni.org/2016/02/26/ document-2016-u-s-european-command-posture-statement. US House of Representatives, ‘Foreign Assistance Programs and Appropriations for 1982 Part 7: Proposed Airborne Warning and Control System (AWACS), F-15 Enhancement Equipment, and Sidewinder AIM-9L Missiles to Saudi Arabia’. Hearings before the Subcommittee of the Committee on Appropriations, 97th Congress, 1st Session, 11 September 1981.

The United States and Arms Exports  291 US Senate, U.S. Military Sales to Iran, Staff Report to the Subcommittee on Foreign Assistance of the Committee on Foreign Relations, 94th Congress, 2nd Session, US Government Printing Office, July 1976. At: //ia801701.us.archive.org/30/items/usmilist00unit/ usmilist00unit.pdf. —— ‘Foreign Policy Choices for the Seventies and Eighties’, Hearings before the Committee on Foreign Relations, 94th Congress, Vol 2, Parts 13–14, October 1975–March 1976. Zengerle, P, ‘U.S. Lawmaker Holds Back Support for Munitions Sale to Gulf Allies Due to Yemen’, (Reuters, 28 June 2018). At: reuters.com/article/us-usa-arms-yemen/u-s-lawmakerholds-back-support-for-munitions-sale-to-gulf-allies-due-to-yemen-idUSKBN1JO2HA.

292

10 Russian Arms Exports JULIAN COOPER

By volume of sales, the Russian Federation is the world’s second largest exporter of armaments. Since 1992, the system of arms exports inherited from the USSR has been reformed and put on a more commercial basis, with new institutions and procedures for the management and control of arms transfers rendering Russia more comparable to other major exporting nations. Gradually the number of countries buying Russian military hardware has increased, although sales are still dominated by fixed-wing aircraft and helicopters. This chapter explores the institutional arrangements for arms exports, the system for their management and control, the volume and structure of sales, and some of the problems now facing Russia in maintaining the market share established in recent years and finding new customers.

I.  A Brief Historical Introduction A.  The Soviet Arms Export System While the Soviet Union’s approach to arms exports began to change during the final perestroika1 years, the changes under Gorbachev that culminated in the collapse of the USSR, it remained predominantly political, transfers of weaponry to other countries being regarded as an instrument of foreign policy. Commercial considerations played a limited role as arms were often supplied free of charge or on credits granted with little expectation that they would ever be repaid. The aim was to win allies and counter Western influence. Only in the final years were some sales, notably those to oil-rich Middle Eastern countries, put on a more commercial basis with payment expected in ‘hard’ currencies, with some expectation that arms sales would make some contribution to export earnings. Arms exports formed a central element of ‘military-technical co-operation’, as they still do in 1 Perestroika, i.e. the final years under Mikhail Gorbachev, ending with the collapse of the USSR at the end of 1991.

294  Julian Cooper today’s Russia. This term covers a range of military-related activities including not only the export of armaments, but also the building of military installations in foreign countries, the training of personnel, the establishment of service centres, the sale of licences and military aid. Institutional arrangements for military-technical co-operation were relatively simple. The export of arms was a monopoly of the Ministry of Foreign Economic Relations (MFER), which worked in co-operation with the Ministry of Defence (MOD), the Committee for State Security (KGB), Ministry of Finance (MOF) and the Foreign Ministry. Before Gorbachev became Communist Party General Secretary, 1985, two directorates were responsible for arms transfers and militarytechnical co-operation with other countries. The Chief Engineering Directorate handled the sale and delivery of weapons to foreign clients and the Chief Technical Directorate was concerned with the sale of licences, the building of factories for the manufacture of Soviet weapons abroad, the construction of military infrastructure, the repair of supplied equipment and the sale of licences. These directorates were staffed mainly by military personnel, quite often related to political leaders, as this employment offered possibilities for foreign travel, a rare privilege in the USSR sought after by those close to power. The MFER worked with the MOF on terms of payment, while the MOD was often involved in contacts with counterparts in other countries and was involved in establishing import needs and possibilities for meeting them by supplying Soviet-built equipment. The Foreign Ministry’s role was probably rather limited as decisions about which weapons to export and the countries to which transfers would be made were probably handled by the Communist Party Secretariat and ultimately the Politburo, the small group of supreme leaders. Defence industry enterprises had little incentive to seek exports as they received payment in rouble terms and this was often inadequate to cover the additional costs of meeting the specific requirements of foreign customers. If payments were made in hard currency terms, usually dollars, most of the proceeds went to the state budget. All aspects of the arms trade were shrouded in secrecy, with hardly any official information made available on the volume of transfers, their structure and the countries concerned.2 Only in the final years of the Soviet system was some very limited information made public on the total volume of arms transfers. Soviet weapons had a number of characteristics rendering them attractive to customers in less developed countries. When compared with most weapons manufactured by the USA or other advanced countries, they tended to be rugged, of relatively simple design, quite reliable, partly because of the incorporation of duplicate, reserve, systems, and were relatively easy to use and maintain. They were also relatively cheap, often produced in large volume at a low unit cost. In addition, in wide use in third world countries, the systems often experienced considerable

2 See J Cooper, ‘Russia’ in AJ Pierre (ed), Cascade of Arms. Managing Conventional Weapons Proliferation (Brookings Institution Press/The World Peace Foundation, 1997) 173–201.

Russian Arms Exports  295 combat use which when fed back to their producers led to design improvements resulting in enhanced battle-worthiness.

B.  Developments after 1991 Following the collapse of the USSR at the end of 1991, the system of arms exports began to change. The Russian Federation took over all the relevant Soviet institutions and political control had to change with the end of the Communist Party’s leading role. For a brief period there was an attempt to pursue an aggressive export policy to partially offset a dramatic reduction in the volume of domestic arms procurement, but this had very limited success. With transition to a market economy and the rolling back of state ownership of enterprises, including many in the defence sector, it became necessary to reform the institutions and practices of the arms trade. In 1992 the Chief Engineering Directorate of MFER was transformed into ‘Oboroneksport’, the state foreign economic association for the export of military goods and services charged with assisting companies in their efforts to export, and the Chief Technical Directorate became ‘Spetsvneshtekhnika’, a state trading company for finding customers and concluding deals, working to a commission on behalf of industrial clients. Some defence companies created their own commercial structures for sales promotion and the repair and servicing of their equipment in service abroad, including MiG for aircraft and Kalashnikov for small arms. There was concern that arms exports would become too decentralised, so efforts were made to reassert central authority. In May 1992 a new law on militarytechnical co-operation and state control of arms exports and imports was adopted. This vested ultimate authority with the President, then Boris Yeltsin. He could decide on general policy, which countries could be traded with, and which weapons could be sold. All activity was to be co-ordinated by a new Interdepartmental Commission on Military-Technical Cooperation between Russia and Foreign Countries (the KVES). Also in 1992, a new regime was adopted for export control to regulate exports of equipment, materials and know-how with potential use in the manufacture of weapons, including nuclear, missile, biological and chemical systems. An Export Control Commission was formed and attached to the Ministry of the Economy.3 During the 1990s and early 2000s, the volume of Russian arms exports increased gradually. According to the Stockholm International Peace Research Institute (SIPRI), when measured in million Trend Indicator Values, they increased from approximately 2,000 in 1992, to 4,500 in 2000 and 6,100 in 2010, with Russia’s share of the world total rising from under 11 per cent in 1992 to 24 per cent in 2010.4 Gradually the number of countries with which Russia traded increased,



3 Ibid

177–84. Arms Transfers Database, www.sipri.org/databases/armstransfers.

4 SIPRI

296  Julian Cooper but difficulty was encountered in entering the markets of economically developed countries.

II.  The Institutional Framework Today Overall, leadership of arms exports is exercised by the Commission for Questions of Military-Technical Cooperation of Russia with Foreign States, chaired by the President. Membership of the Commission is by office and usually consists of the Minister of Defence, the Secretary of the Security Council, the director of the External Intelligence Service (the SVR), the director of the Federal Security Service (FSB), the Foreign Minister, the Minister of Finance, the Minister of Trade and Industry, the Deputy Prime Minister for oversight of the defence industry, the director of the Federal Service for Military-Technical Cooperation, the general director of the State Corporation ‘Rostekh’, the President’s foreign policy advisor and the leader of the Presidential Administration. Deputy chair is the Prime Minister.5 The Commission usually meets two or three times a year and a brief report is made available on the presidential website, kremlin.ru, presenting the President’s opening statement, or at least the open version of it. From these reports it is clear that meetings regularly review the volume, structure and geography of arms exports, the volume of contracts concluded, plans for future years, changes in the world arms market, hindrances to increasing sales, and in recent years the impact on exports of sanctions imposed by the United States, EU and other partners.6 Its role is advisory, establishing general policy. Between 2014 and June 2018 President Putin had an assistant in the Presidential Administration, Vladimir Kozhin, responsible for arms export issues and he was also a member of the Commission. However, with the reorganisation of government following Putin’s election to a new term of office, Kozhin retired and the post was eliminated.7 The President himself is quite often directly involved in discussion of possible arms sales to foreign countries. A good example is the Russia-Turkey high-level meeting of March 2017, at which Presidents Putin and Erdogan discussed the possibility of supplying the advanced S-400 air defence system. On this occasion Russian defence minister Sergei Shoigu was also present.8 The executive body of government responsible for arms exports is the Federal Service for Military-Technical Cooperation (FSVTS), which coordinates the activities of the various structures involved, plays an active role in promoting exports, 5 R Timur, ‘Putin obnovil sostav komissiii po voprosam voenno-tekhniceskogo sotrudnichestva’ (21 July), https://riafan.ru/1069264-putin-obnovil-sostav-komissii-po-voprosam-voennotekhnicheskogo-sotrudnichestva. 6 See, eg, reports of meetings in 2018, www.kremlin.ru/events/president/news/56981, 5 March 2018 and www.kremlin.ru/events/president/news/59047, 6 November 2018. 7 I Safronov et al, ‘Vladimir Putin otstalsya pri svoikh’ (kommersant, 14 June), www.kommersant.ru/ doc/3657535. 8 E Sozaev-Gur'ev and A Ramm, ‘Moskva i Ankara dogovorilils' prorabotat' vopros o prodazhe S-400’ (Izvestiya, 15 March 2017).

Russian Arms Exports  297 oversees government-level agreements with foreign States, and the approval of licence sales. It has been in existence since December 2000 and its leaders have usually been people with considerable experience in the arms export business. From May 2012 it was headed by Alexandr Fomin, from 2005 deputy director, then first deputy director, but in January 2017 was appointed a Deputy Minister of Defence for international military co-operation. He was succeeded by Dmitrii Shugaev, who had previously worked for many years in Russia’s main arms export company. The FSVTS has an authorised staff of 342 people.9 The principal organisation responsible for selling weapons is the ‘Rosoboroneskport’, a state-owned joint stock company, part of the vast state corporation ‘Rostekh’, headed since its foundation in 2007 by Sergei Chemezov, a close colleague of President Putin since they both worked in the 1980s in the German Democratic Republic. It accounts for approximately 85 per cent of total export sales and a very large share of the very small volume of arms imports. It also organises the production of Russian weapons under licence in other countries, undertakes the modernisation and servicing of equipment and the training of personnel.10 In addition, there are defence industry companies granted the right to independently engage in trade in armaments and military equipment, or systems, components and spares for them. As of late 2016 there were 30 such companies but since then, as a response to sanctions, details of the list of independent exporters have been removed from the website of FSVTS.11 In 2016 they include such large-scale corporations as ‘Uralvagonzavod’ (tanks and armoured vehicles), the ‘United aviation corporation’ (fixed-wing aircraft), ‘Vertolety Rossii’ (helicopters), ‘Almaz-Antei’ (air defence systems), ‘United shipbuilding corporation’ (naval ships) and ‘Tekhmash’ (munitions). ‘Rosoboroeksport’ was formed in 2000 by the merger of two state arms export companies, ‘Rosvooruzhenie’ (created in 1993) and ‘Promeskport’ (created in 1997 to sell surplus hardware of the armed forces). Since the beginning of 2017 its general director has been Aleksandr Mikheev, who worked in ‘Rosoboroneksport’ from 2001 but from 2013 headed the helicopter corporation ‘Vertolety Rossii’, a successful arms exporter.12 ‘Rosoboroneksport’ claims to trade with more than 70 countries.13 It now has quite an extensive network of representatives in armsbuying countries, almost 40 in number by the end of 2018, including seven in China and other South East Asian countries, one in India, six in the Middle East, five in Africa, seven in South and Central America, five in the Commonwealth of Independent States (CIS) and six in Europe, including four in NATO member 9 ‘Federal'naya sluzhba po voenno-tekhnicheskomu sotrudnichestvu’ Kommersant Daily, 28 August 2017. 10 See http://roe.ru/rosoboronexport/deyatelnost/. 11 The list of January 2017, ‘Perechen' sub"ektov voenno-tekhnicheskogo sootrudnichestva’ (gosobzor.ru, 29 November 2016), http://gosobzor.ru/2016/04/19/perechen-subektov-voennotexnicheskogo-sotrudnichestva. 12 S Ptichkin, ‘Aleksandr Mikheev ofitsial'no vozglavil "Rosoboroneksport”’ (10 January 2017), https://rg.ru/2017/01/10/aleksandr-miheev-oficialno-vozglavil-rosoboroneksport.html. 13 See https://rostec.ru/about/companies/659/.

298  Julian Cooper countries (Bulgaria, France, Greece and Turkey).14 Large-scale importers tend to have well-established joint commissions with Russia for military-technical co-operation. The formation of these commissions is approved by government decree, on the basis of draft proposals prepared by FSVTS. ‘Rosoboroneksport’ has also established service centres in a number of countries to maintain the equipment supplied and increasing the number of such centres is now regarded as a high priority if Russian arms are to remain competitive. Part of the activity of ‘Rosoborobeksport’ is the realisation of infrastructure projects for the armed forces of other countries, a responsibility similar to that of the Chief Technical Directorate of Soviet times. From 2001 to 2018, 11 large infrastructure projects were implemented in four countries and in late 2018 work was underway in ten countries on a further 20 special projects.15 A major participant in arm sales is the Ministry of Defence, which oversees the activities of the FSVTS. There is a deputy minister with responsibility for international affairs, including arms sales and the training of foreign servicemen in Russia. The current occupant of this post, Aleksandr Fomin, appointed in January 2017, was, as noted above, before that director of FSVTS for five years. He is sometimes directly involved in talks with potential customers for Russian weapons. For important deals the Minister, Sergei Shoigu, is also involved, notably in negotiations with such major customers as China and India. This role is also at times fulfilled by members of the Government representing the interests of producers, in particular the Deputy Prime Minister for oversight of the defence industry, from May 2018 Yurii Borisov, previously Deputy Defence Minister for arms procurement, with considerable knowledge of the export potential of weapons in production and under development.

A.  The Federal Service for Technical and Export Control One important agency involved in the arms trade is little noticed and its role is hardly ever mentioned outside Russia. This is the Federal Service for Technical and Export Control (FSTEK), like the FSVTS overseen by the MOD and answerable to the President, not the Prime Minister. It was created in 2004 on the basis of the Presidential State Technical Commission, an agency dating back to 1973 for countering foreign technical intelligence. The FSTEK has an authorised central staff of 225 and a network of territorial offices with a total staff of up to 885. For budgetary purposes much of its funding is under the sub-chapter of the budget devoted to the security services.16 The basic 14 See http://roe.ru/rosoboronexport/strany-partnery/. 15 ‘Rosoboroneksport sozdaet 20 infrastrukturnykh ob"ektov za rubezhom’ (11 October 2018) www. armstrade.org/includes/periodics/news/2018/1011/140049095/detail.shtml. 16 Ukaz Prezidenta Rossiiskoi Federatsii, ‘Voprosy Federal'noi sluzhby po tekhnicheskomu i eksportnomu kontrolyu’ (16 August 2004), www.consultant.ru; Julian Cooper, Russian Military Expenditure: Data, Analysis and Issues, FOI Report, FOI-R-3688-SE, FOI, Sweden, September 2013, 26.

Russian Arms Exports  299 law governing export control in Russia is that of July 1999, ‘On export control’, with numerous amendments since its adoption. This sets out the role of lists of controlled goods and technologies, approved by Presidential edicts, and compiled on the basis of submissions by the Government. If items on the list are to be exported, a licence or equivalent approval must be obtained.17 FSTEK is charged with ensuring that all Russian participants in foreign trade observe fully national and international legislation, including resolutions of the United Nations Security Council and the control lists of weapons and dual-use technologies overseen by the Wassenaar Arrangement, of which FSTEK is the official Russian national partner organisation.18 It has a directorate for export control with a number of departments, including ones for nuclear technology, missile technology, chemical and biological products and dual-use goods.19 FSTEK manages a unified information system on export control open to all participants, including an informative website with relevant legislation, Russian and international, details of the regime of licensing, and lists of equipment and materials that are subject to export control, including those relating to weapons of mass destruction, missile technology and dual-use items.20 It has the authority to investigate specific cases and subject requests for licenses to expertise. The Service is aided in its work by the Commission for Export Control, an inter-agency body the membership of which is determined by Presidential edicts. As of summer 2018 it was chaired by Yurii Borisov, Deputy Prime Minister for oversight of the defence industry, with the director of FSTEK, Vladimir Selin, as Deputy Chair. The members, approximately 20 in number, are usually deputy ministers or directors of government agencies, including FSVTS, the Ministry of Foreign Affairs, Ministry of Justice, Ministry of Industry, ‘Rosatom’, ‘Rostekh’ state corporation (responsible for ‘Rosoboroneksport’), the Security Council, Foreign Intelligence Agency and the FSB’s Economic Security Service.21 A central feature of the system for managing arms exports in Russia is the maintenance and update of a list of weapons and other military goods that can be transferred to foreign customers and a list of countries to which transfers can be made. As a general rule, items not on the first list cannot be exported and customers in countries not on the second list have no chance of purchasing military goods. There are strict rules for the compilation and maintenance of these lists, 17 Rossiiskaya Federatsiya, Federal'nyi zakon, ‘Ob eskportnom kontrole’ (18 July 1999), http://base. garant.ru/12116419/. 18 FSTEK’s website (https://fstec.ru) carries UN Security Council resolutions relating to arms control and has links to the Wassenaar Arrangement and other control regimes. Russia has been a member of the Wassenaar Arrangement, the voluntary export control regime, since its establishment in July 1996. It is the successor of the earlier COCOM agreement that limited the USSR’s and other communist countries’ access to the advanced technologies. Russia participates in the deliberations of the Arrangement, the decisions of which are adopted by consensus of its 42 members. 19 See https://fstec.ru/eksportnyj-kontrol/obshchaya-informatsiya. 20 See https://fstec.ru/normotvorcheskaya/eksportnyj-kontrol/. 21 Ukaz Prezidenta Rossiiskoi Federatsii,‘Ob utverzhdenii sostav Komissii po eksportnomu kontrolyu Rossiiskoi Federatsii’, http://base.garant.ru/71675002/.

300  Julian Cooper currently set out in a government decree of 2007.22 The first list is managed by FSVTS, the second by the Ministry of Foreign Affairs (MID). Producers and developers of weapons and other military goods can make proposals to FSVTS for the inclusion of their products on the list and the Service examines the proposals and draws up a draft list. Any items included must have an appropriate export specification, the approval of which is secured according to a procedure determined by the MOD. This is important because many weapons exported have features distinguishing them from those in service in the Russian armed forces, sometimes limiting their capabilities to levels inferior to those in domestic use. The draft list is then submitted by the FSVTS for agreement to the MOD and other agencies, including the foreign ministry, the intelligence services, the Ministry of Industry, ‘Rosatom’, ‘Roskosmos’ and the Federal Service for Technical and Export Control. Once it has been agreed, the FSVTS submits it to the President for approval. The list is amended at least once a year. The procedure for the second list is similar. In this case MID drafts the list and sends it for agreement by the MOD, intelligence services and FSVTS; final approval is the responsibility of the President.23 This procedure must at times encounter difficult issues and it is likely that some are only resolved at the final stage by the President. Russia, following traditional Soviet practice, has been reluctant to sell its latest, most advanced, weapons to other countries. Any decision to allow the export of such new systems is likely to generate controversy. One case may well have been the S-400 air defence system, generally regarded as the most advanced system of its kind in the world. The first customer permitted to acquire it was China and this may well have raised contentious issues because of that country’s known propensity and ability to ‘reverse engineer’ Russian weapons and a few years later manufacture Chinese variants. After all, the Soviet defence industry had the same propensity and the modern defence industry of China was established on the Soviet model. In the case of the S-400, it was already in quite wide use in Russia when the decision was taken and capacity constraints were likely to ease in the near future as new production facilities were being built. It may have been judged that it would take many years for China to build an equivalent ‘domestic’ system and by then the Russian successor system, the S-500, was likely to be in service at home. In this case there were probably overriding political considerations. Faced with tense relations with the USA and the EU and the ‘West’ in general following the annexation of Crimea, Russia was seeking to strengthen its relations with the East, with China to the fore. The decision to export the advanced S-400 and Su-35 fighters to China was probably regarded as a bargaining counter worth deploying, notwithstanding probable reservations on the part of some military and defence industry leaders. 22 Postanovlenie Pravitel'stva RF ot 1 dekabrya 2007 g. N 831 ‘Ob utverzhdenii Pravil razrabotki spiska produktsii voennogo naznacheniya, razreshennoi k peredache innostrannym zakazchikam, i Pravil razrabotki spiska gosudarstv, v kotorye razreshena peredacha produktsii voennogo nanachesniya, ukazaannoi v spiske produktsii voennogo naznacheniya, razreshennoi k peredache inostrannym zakazchikam’, http://base.garant.ru/12157604. 23 Ibid.

Russian Arms Exports  301 In late 2018, a sensitive case when a weapon system was denied to a potential customer was made public. This was a decision, apparently taken at a late stage after a contract had been drafted, not to sell Russia’s advanced coastal defence ‘Bal-E’ missile system to a member of the CIS, Azerbaijan, a regular importer of Russian arms. It was reported grounds that the MOD had objected, fearing that in some circumstances it could turn out to be a threat to Russia’s own Caspian flotilla. There was also concern that it could be used in the event that conflict with Armenia over contested Nagorno-Karabakh broke out again at some time in the future.24

B.  The Role of the Foreign Ministry in Controlling the Arms Trade According to the basic presidential edict, ‘On the military-technical cooperation of the RF with foreign states’, the MID is charged with securing the foreign interests of Russia in relation to the arms trade and ensuring that international obligations are met. The Ministry participates in the drafting of international agreements and has responsibility for proposing and maintaining amendments to the official list of countries to which Russian can export weapons, in line with resolutions of the United Nations Security Council. It also plays a role in countering attempts to sell Russian (and Soviet) origin weapons produced without licence in other countries, eg it is estimated that up to 90 per cent of Kalashnikov machine guns in circulation are pirate copies.25 MID is also involved in the monitoring of the observance of international export control agreements to which Russia subscribes, in particular the Wassenaar Arrangement and the Missile Technology Control Regime. This also involves the FSVTS, which supplies data to the UN Register of Conventional Arms, the Wassennaar Arrangement in cases when Russia delivers armaments to countries outside the Agreement, and to the Organisation for Security and Co-operation in Europe on deliveries of small arms and light weapons.26 The evidence suggests that Russia has been quite scrupulous in observing arms embargoes imposed by the United National Security Council, though not always taking notice of threats to impose them. A detailed study undertaken by SIPRI and Uppsala University of UN embargoes between 1990 and 2006 found no case when Russia had infringed such an embargo, but cases (North Korea and Iran) when countries had been threatened with one, although in both instances

24 I Safronov and A Dzhordzhevich, ‘“Bal” zdes' neumesten’ Kommersant Daily, 5 December 2018. 25 ‘“My pomogaem rossiiskim eksporteram vooruzhenii vykhodit' na novye rynki” Interv'yu Sergeya Ryabkova,zemstitelya ministra inostrannykh del RF’, Eksport vooruzhenii, 2010, no 2, March-April, 48–50. 26 FSVTS, ‘Itogi voenno-tekhnicheskogo sotrudnichesta Rossiiskoi Federatsii s inostrannymi gosudarstvami za 2014god’ (26 February 2015), www.fsvts.gov.ru/materials/FB9241BC8F6F0E1643257 E52004B6C1E.html

302  Julian Cooper the study judged that the threats lacked credibility.27 In the case of Iran, in 2007 Russia received an order for S-300 PMU-1 air defence systems but in 2010 the $800 million contract was vetoed by Russia in order to respect a sanctions regime imposed on the country. The systems were eventually delivered in 2016 after some of the international sanctions against Iran had been lifted.28 At times Russia opposes proposals to lift UN embargoes, eg in the case of Libya in November 2017.29

C.  The Role of the Security Council of Russia Although its activities are to a considerable degree non-transparent, it is likely that the Security Council plays a role in shaping policy and advising on decisions relating to arms exports. Its permanent members, who meet almost weekly, include the principal actors, not only the President and Prime Minister but also the ministers for defence and foreign affairs, the heads of the domestic and external intelligence services, and Sergei Ivanov, a former minister of defence and secretary of the Security Council. The Council has an inter-agency commission on military security, the brief of which includes policy in relation to military-technical co-operation.30 The federal law on military-technical co-operation is regarded as one of the country’s fundamental documents of national security.31 However, the only Security Council meeting specifically devoted to the issue was held in 2001, to consider measures of state support for arms exports.32 It is likely though that the President, when taking decisions on exports, consults sometimes with the Secretary of the Security Council, Nikolai Patrushev, in the post since 2008.

III.  The Role of Parliament, Independent Expertise and Public Opinion In the Russian system of arms exports there is very little role for Parliament, the Federal Assembly with its two chambers, the State Duma and the Federation 27 D Fruchart, P Holtom, ST Wezerman, D Strandow and P Wallensteen, United Nations Arms Embargoes. Their Impact on Arms Flows and Target Behaviour (SIPRI and Uppsala University, 2007) 14. 28 ‘Russia to Provide Iran with S-300 Air Defence Missiles’ (BBC News, 9 November 2015), www.bbc. co.uk/news/world-europe-34767012. 29 ‘Russia Opposes Lifting UN Arms Embargo on Libya – Envoy’ (Tass, 17 November 2017), http:// tass.com/politics/976129. 30 ‘Polozhenie o Mezhvedomstvenn komissii Soveta Bezopasnosti Rossiiskoi Federatsii po voennoi bezopasnosti’, www.scrf.gov.ru/about/commission/MVK_military/. 31 See www.scrf.gov.ru/security/military/. 32 ‘O merakh gosudarstvennoi podderzhki eksport produktsii vonennogo naznacheniya i mekhanizmakh ikh realizatsii’ (26 December 2001), www.scrf.gov.ru/council/session/2017/.

Russian Arms Exports  303 Council. Both chambers have defence committees which consider new legislation on military matters, including measures relating to the arms trade. Study of the materials of the State Duma indicates that there have been no parliamentary hearings on the topic over the 20 years and the State Duma committee in recent years has only held a round table on legislation for military-technical co-operation in November 2014, with no details available on its proceedings.33 There are two main independent centres of expertise on the arms trade, the oldest being the Centre for Analysis, Technology and Strategy (CAST), headed by Ruslan Pukhov with a small but very well informed team of specialists on the arms business and defence industry. Since 1997, the foundation year of the Centre, it has published the journal Eksport vooruzheni (Export of Armaments). The Centre for Analysis of the World Arms Trade (TsAMTO) was established in 2010, with Igor' Korotchenko, a military specialist, as director. It produces an annual statistical review, a monthly journal, Mirovaya torgovlya oruzhiem (World Armaments Trade), which reports on specific topics and undertakes analysis for clients. Some statistical data are made available free but most of the Centre’s output, including its journal, is only available to subscribers. Since its foundation its authority has steadily increased. Some national newspapers have journalists with a good knowledge of arms exports and quality papers such as Vedomosti, Kommersant, Nezavisimaya gazeta and Izvestiya regularly carry informative articles on the topic, including occasional interviews with leading personnel such as the general director of ‘Rosoboroneksport’ or the leader of the FSVTS. The reporting tends to be factual and neutral in tone, without criticism of arms trading as such. Evidence of the lack of public engagement with the issue of arms exports is provided by the fact that opinion polls on the topic are very rare. Indeed, the author has traced only two, both by one of the leading polling organisations, FOM (Public Opinion Foundation), in 2012 and November 2018. While 71 per cent of those polled considered that Russian weapons were in demand on the world market and 44 per cent thought that demand was growing, 40 per cent thought that Russia should reduce its trade in armaments, compared with 22 per cent (31 per cent of men but only14 per cent of women) who favoured an increase and 38 per cent unable to give an answer. Interestingly, those with higher education took a more balanced view: 29 per cent favoured expansion compared with 36 per cent a reduction. Two thirds of all polled were against Russia selling the most modern weapons. Seventy per cent considered that Russia should select which countries it sells arms to, but 14 per cent favoured sales to any country willing to pay. Overall, the poll showed that the Russian

33 ‘Komitet Gosudarstvennoi Dumy po oborone provel "kruglyi stol"’ (13 November 2014) www. komitet2-15.km.duma.gov.ru/Novosti-Komiteta/item/11654/.

304  Julian Cooper people support a responsible arms sales policy but on the whole see no problem in arms exports as such.34 According to the 2018 poll, 77 per cent considered that Russian arms find demand and 65 per cent thought this demand was growing. In the view of 54 per cent, arms exports made a significant contribution to the Russian budget. This time views were more equal on whether exports should be increased or reduced, the shares being 32 and 36 per cent respectively, compared with 32 per cent who didn’t know (47/21 men/women; 33/34 those with higher education). The proportion favouring a ‘responsible’ approach to arms sales was similar to the 2012 outcome. But a new question was asked with different options: six per cent thought that weapons should be sold to any customer willing to pay; 46 per cent that they could be sold only to some countries, not all; and 39 per cent took the view that weapons should not be traded at all (30 per cent of men, but 46 per cent of women; 48 per cent of those under 30, but 30 per cent of over 60s; 44 per cent of those with relatively low educational levels, but 32 per cent with higher education).35 This poll evidence suggests that there may be a larger constituency of concerned citizens with doubts about the wisdom of exporting arms than suggested by the Russian media and the policy discourse in general. But care must be taken in interpreting the poll findings as some of those opposed may well be doing so simply because they believe that the arms exported should be retained at home to strengthen Russia’s own defences. Unfortunately, the polls do not indicate whether any of the reservations are on moral grounds. In these circumstances it is not surprising that there are no public campaigning organisations relating to the arms trade. For most Russian citizens there are clearly many more important issues of concern, not least for some a lack of democracy, social issues and the environment. This situation is unlikely to change in the foreseeable future. Public accountability is not an issue with which those responsible for the arms trade need to be concerned.

IV.  The Scale and Structure of Russian Arms Exports Russian official data on arms exports are difficult to interpret as they refer to ‘military-technical co-operation’ as a whole and not just the transfer of weapons. The FSVTS regularly makes public the annual total, as does ‘Rosoboroneksport’ for its component of sales. The data for recent years are summarised in Table 1.

34 ‘Otnoshenie k torgovle oruzhiem’ (poll of 23–24 June 2012) (11 July 2012), https://fom.ru/ mir/10539. 35 ‘Mezhdunarodnaya torgovlya oruzhiem’ (poll of 20–21 October 2018) (7 November 2018), https:// fom.ru/Bezopasnost-i-pravo/14125.

Russian Arms Exports  305 Table 1  Volume of Military–Technical Co-operation, 2010–2019 ($US billion) 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Total VTS ‘Rosoboroneksport’

10.4

13.2 15.1 15.7 15.0 15.0 15.0 15.0 15.0 15.0

8.7

10.9 12.9 13.2 13.0 13.0 13.0 13.0 13.7 14.0

Source: 2017–19: A Frolov, ‘Itogi voenno-tekhnicheskogo sotrudnichestva Rossii s inostrannymi gosudarstvami v 2019 godu’ Eksport vooruzhenii, 2019, No 6, November–December, 11. 2011–16: A Frolov, ‘Itogi voenno-tekhnicheskogo sotrudnichestva Rossii s inostrannymi gosudarstvami v 2016 godu’ Eksport vooruzhenii, 2016, No 6, November–December, 6. 2010: A Frolov, ‘Russsian Arms Trade in 2014’ Moscow Defense Brief, 2015, No 1, 18.

Occasionally, FSVTS provides more information. Thus, for 2011 of the total of $13.2 billion, 58 per cent ($7.6 bn) consisted of end-product weapons and other military goods, 10 per cent spares, 17 per cent systems and components, including inputs for assembly abroad under licence, and 12 per cent took other forms, presumably military services, training, the construction of military infrastructure and licence sales.36 The best known statistics on the arms trade are those of SIPRI but unfortunately the methodology employed leads to an overstatement of the volume of Russia’s arms exports and of its role as the world’s second largest exporter after the United States. SIPRI presents its data in terms of so-called ‘trend indicator values’ (TIVs) expressed in US dollars and the aim is ‘to represent the transfer of military resources rather than the financial value of the transfer’.37 Each class of weapon is given an indicative value and account is not taken of its actual cost of production in an individual country. The valuations used tend to present an unreasonably favourable view of the position of lower cost producers such as Russia and China relative to the USA. Table 2 shows Russia’s arms export together with those of a number of other high volume exporters. This gives Russia 23.8 per cent of total world arms exports in 2010–17, compared with 33.2 per cent for the USA, 5.8 per cent for both France and Germany, 5.5 per cent for China and 4.4 per cent for the UK. A different view is presented by TsAMTO, an independent research unit which now produces extremely detailed reports of transfers of arms and other military goods valued in current US dollar terms. The methodology adopted is rigorous

36 FSVTS, ‘Itogi voenno-tekhnicheskogo sotrudnichesta Rossiiskoi Federatsii s inostrannymi ­gosudarstvami za 2011god’ (22 March 2012), www.fsvts.gov.ru/materials/15AE721AC1AE72F4442579 C900489E4A.html. 37 SIPRI Arms Transfers Database. Sources and Methods, www.sipri.org/databases/armstransfers/ sources-and-methods.

306  Julian Cooper and its data on Russian sales are probably more comprehensive than those of SIPRI. Its findings for the years 2010 to 2017 are shown in Table 3. Table 2  Arms Exports of Russia and other Major Suppliers in Million TIVs, 2010–17 Supplier

2010

2011

2012

2013

2014

2015

2016

2017

2010–17

Russia

6 091

8 568

8 283

7 805

5 224

5 608

6 937

6 148

54 664

USA

8 063

9 087

9 122

7 660

9 656 10 048 10 304 12 394

76 334

897

1 758

1 035

1 492

1 697

2 077

2 278

2 162

13 396

Germany

2 725

1 351

847

738

1 774

1 769

2 535

1 653

13 392

China

1 479

1 253

1 509

2 006

1 152

1 832

2 192

1 131

12 555

UK

1 151

1 025

899

1 580

1 645

1 149

1 365

1 214

10 026

25 691 30 006 28 289 26 954 26 780 28 522 32 262 31 106

229 609

France

World

Source: http://armstrade.sipri.org/armstrade/html/export_toplist.php.

Table 3  Actual Exports of Military Goods, 2010–17 ($mn Current Prices) Russia USA

2010

2011

2012

2013

2014

2015

2016

2017

2010–17

5 709

9 934 11 887 12 927 11 760 11 178 11 382 11 785

86 540

19 615 25 056 23 208 17 003 27 392 30 025 39 016 36 984

218 300

France

3 187

3 749

4 093

6 149

5 091

6 001

6 511

7 902

42 683

Germany

4 293

2 586

1 214

2 005

3 916

2 680

6 908

7 020

30 623

UK

3 964

2 275

1 388

3 300

2 943

3 258

3 777

5 499

26 403

Israel

2 837

2 146

1 944

1 792

2 122

2 035

2 955

2 600

18 430

China

2 114

1 204

1 948

1 657

1 546

3 202

3 677

2 882

18 229

53 327 58 741 56 886 55 472 68 087 71 662 85 991 89 659

539 825

World

Source: Tsentr analiza mirovoi torgovli oruzhiem (TsAMTO), 2018 Ezhegodnik. Statistika i analiz mirovoi torgovli oruzhinem, www.armstrade.org/files/yearly_2018_3_1.pdf.

From the above, it can be calculated that over the years 2010–17 Russia accounted for 16.0 per cent of world total arms transfers compared with 40.4 per cent for the USA, 7.9 per cent for France, 5.7 per cent for Germany, 4.9 per cent for the UK and 3.4 per cent for China, marginally behind Israel, but during the years 2012–17 China was ahead. In the author’s view, these proportions much more accurately reflect Russia’s position than the data of SIPRI. There is another source for data in current US dollar terms, namely the US State Department’s Bureau of Arms Control, Verification and Compliance, but its annual report on military expenditure and arms transfers gives extremely large figures for the exports of the United States, so much so that it is credited with no less than 80 per cent of total

Russian Arms Exports  307 world sales, 2010 to 2015, compared with Russia’s 5.3 per cent, proportions that are difficult to reconcile with the assessments of SIPRI and TsAMTO.38 The data of TsAMTO is also extremely useful in tracking the geography of Russian arms exports and its changes over time. Table 4 shows the principal customers during the years 2010 to 2016.39 Table 4  Structure of Russian Arms Exports, 2010–16 ($US Million, Current Prices) 2010

2011

2012

2013

2014

2015

2016

2010–16

India

1 384

1 357

1 916

3 920

5 314

2 712

2 593

21 592

%

25.0

23.7

19.4

33.5

41.7

22.5

23.5

27.0

Algeria

1 012

931

1 475

1 316

784

350

2 511

9 763

%

18.3

16.2

15.0

11.2

6.2

2.9

22.2

12.2

Vietnam

24

460

882

913

21

1 920

970

6 672

%

0.4

8.0

9.0

7.8

0.2

15.9

8.6

8.3

China

904

782

533

887

1 365

1 049

531

6 269

%

16.3

13.6

5.4

7.6

10.7

8.7

4.7

7.8

–

90

157

–

143

2 556

646

5 866

Iraq

–

1.6

1.6

–

1.1

31.1

5.7

7.3

Venezuela

%

513

22

585

1 244

1 063

149

62

4 143

%

9.3

0.4

5.9

10.6

8.3

1.2

0.6

5.2

Azerbaijan

75

135

680

1031

997

687

94

4 070

%

1.4

2.4

6.9

8.8

7.8

5.7

0.8

5.1

Syria

302

294

614

468

491

–

40

2 208

%

5.4

5.1

6.2

4.0

3.9

–

0.4

2.8

Egypt

97

37

371

408

153

520

474

2 059

%

1.7

0.7

3.8

3.5

1.2

4.3

4.2

2.6

Iran

195

175

15

20

20

20

1 000

1 445

%

3.5

3.1

0.1

0.1

0.2

0.2

8.8

1.8

Source: Tsentr analiza mirovoi torgovli oruzhiem.2017. Ezhegodnik. Statistika i analiz mirovoi torgovli oruzhinem, www.armstrade.org/files/yearly_2017_3_1.pdf (no longer available to non-subscribers).

India has been by far the most significant customer for Russian weapons throughout the post-Soviet period and this dominance looks like continuing during the next few years. China has also occupied an important place but with some loss

38 US Department of State, Bureau of Arms Control, Verification and Compliance, World Military Expenditures and Arms Transfers 2017, www.state.gov/t/avc/rls/rpt/wmeat/2017/index.htm. 39 At the time of writing, data for 2017 were available only to TsAMTO service subscribers.

308  Julian Cooper of prominence in the years 2012–16. However, with the same number of S-400 air defence systems and Su-35 fighters the share is set to increase once more. Sales to Middle Eastern countries have always been important but in recent years have been affected by the general turbulence in the region. Algeria, Egypt and Venezuela have been important, and remain so, with Turkey now also emerging as an important customer. In the case of Algeria, with the largest armed forces in North Africa, dependence on Russia developed strongly during the 1990s when the USA and Europe were reluctant to supply at a time when the country was struggling against Islamic terrorism, and today the ground and air forces are predominantly equipped with Russian weapons, although the Government is now showing interest in diversifying supply.40 New contracts signed in 2018 included Algeria for 16 MiG-29M fighters worth $800 million; Egypt, 24 Su-35s for $2.4 billion; Indonesia, 11 Su-25s for $1.1 billion; India, 11 divisions of S-400 air defence systems and four frigates.41 Since 2013 one country has been lost completely as a customer for Russian arms, namely Ukraine, but the volumes of deliveries were modest. For several years now, every time SIPRI issues its data on world arms exports, highly critical comment appears in the Russian media, with TsAMTO to the fore, its director Igor’ Korotchenko arguing that its valuation in terms of TIVs presents a distorted view of the volume of sales and the ranking of countries by volume, with an overstatement of Russia’s share and a serious understatement of that of the USA.42 There has also been pointed criticism by other specialists, not least Mikhail Baranov of CAST, who has also argued against the use of TIVs, the resulting ranking of exporters, and also the unsatisfactory way in which SIPRI treats licence sales.43 In 2019 ‘Rostekh’ also made some pointed criticism, observing that far from declining by 17 per cent between 2009–13 and 2014–18, as claimed in SIPRI, Russian arms exports had remained at a stable level and for ‘Rosoboroneksport’ 2018 had been an all-time record year, with sales of $13.7 billion.44 Unfortunately, in recent years information on the structure of Russian arms exports by type of hardware supplied has become increasingly sparse. Until 2015, FSVTS issued some data on armaments exported by service of the armed forces. Table 5 shows the structure of exports in military goods for 2010 and 2014.

40 Maggie Ybarra, ‘The Politics of Selling Weapons to Algeria’ (The National Interest, 7 March 2018), https://nationalinterest.org/feature/politics-selling-weapons-algeria-46362. 41 Andrei Frolov, ‘Itogi VTS Rossii v 2018 godu’, Novyi oboronnyi zakaz. Strategii, 2019, no 3, 16–17. 42 See, eg, ‘SIPRI zanizhaet dolyu SShA po stoimostnomu ob"emu postavok vooruzhenii na mirovoi rynke’ (20 February 2017), www.armstrade.org/includes/periodics/news/2017/02/20/114039657/ detail.shtml. 43 M Barabanov, ‘Ostorozhno: “statistika” SIPRI’ (Nezavisiomoe voennoe obozrenie, 4 April 2014), http://nvo.ng.ru/realty/2014-04-04/1_sipri.html. 44 ‘Rostekh oprovergaet dannye SIPRI o padeniya ob”ema roossiiskogo oruzheinogo eksporta’ (11 March 2019), www.militarynews.ru/story.asp?rid=1&nid=503713&lang=RU.

Russian Arms Exports  309 Table 5  Structure by Russian Arms Exports by Service (% Total Exports) 2010

2014

Air force

45

44

Navy

22

12

Ground forces

18

26

Air defence forces

11

15

4

3

100

100

Other Total Source: 2010: FSVTS, Itogi 2010. 2014: FSVTS, Itogi 2014.

The trends shown appear to have been maintained during more recent years. Aircraft have been the largest export earner but over time the share of air defence systems has risen and by 2018 probably reached at least one fifth to one quarter of all exports, and the share of ground forces equipment increased, then stabilised, but the share of naval equipment declined. One factor in the decline of exports of naval vessels has been the problems created for the shipbuilding industry by the ending of deliveries of power units by Ukraine (before 2014 a major supplier) and Germany, which imposed sanctions. The most frequently exported system are various Sukhoi and MiG-29 fighters, Yak-130 trainers, Mil and Kamov helicopters, T-72 and T-90 tanks, BTR armoured vehicles, Tor, Pantsir, S-300 and now S-400 air defence systems, and Kalashnikov infantry weapons. Some of the armaments exported are older systems surplus to the requirements of the MOD, sometimes delivered free of charge or for relatively low prices to poorer countries of the CIS such as Tajikistan and Kyrgyzstan, which are members of the Collective Security Organisation also including Russia, Belarus, Kazakhstan and Armenia, and more recently Syria.45 Thus in April 2019 Russia supplied Kyrgyzstan free of charge with two helicopters and nine armoured vehicles.46 As in Soviet times, Russian weapons today are still relatively robust and less complex from a technological point of view, often with simpler electronic systems, making them well-suited for use and maintenance in less developed countries by personnel less skilled than is typical in the United States, France, the UK or similar. The robust character of Russian weapons is illustrated well by the fact that according to a contract of 2011 the United States purchased a large number of 60 Mi-17 helicopters from ‘Rosoboroneksport’ for use by the Afghan armed forces,

45 A Frolov, ‘Itogi voenno-tekhnicheskogo sotrudnichestva Rossii s inostrannymi gosudarstvami v 2017 godu’, Eksport vooruzhenii, 2017, No 6, November–December, 25–26. 46 ‘Minoborony RF bezvozmezdno peredalo Kirgizii voennuyu tekhniki’ (29 April 2019), www.vpknews.ru/news/49944.

310  Julian Cooper recognising that they were durable, easy to operate and better suited to local conditions than US-built equivalents. Under heavy pressure from the US Congress they are being replaced by US-built UH-60A Black Hawks, although it will not be possible to maintain the new, more complex, helicopters using local Afghan personnel.47 But Russia faces increasing competition from another country which because of the nature of the aid it received when establishing a modern defence industry has a similar approach to the design and manufacture of weapons and the conditions of their use and maintenance, namely China. Chinese armaments are often cheaper than those offered by Russia but have comparable performance, if not always reliability. To Moscow’s concern, China has begun to become established as a supplier of other CIS member countries. Thus Uzbekistan has imported Chinese air defence systems and Tajikistan, usually a dependable customer for Russian weapons, has acquired Chinese armoured vehicles. Kazakhstan, until recently mainly supplied by Russia, in 2016 struck a deal to import 16 Chinese combat helicopters and in 2018 ordered four military transport aircraft.48 Russia supplies a report every year for the UN Register of Conventional Arms giving details of the number of arms delivered by main type of weapons, but the reports do not show the specific types of systems supplied. They are not always comprehensive, eg the reports for 2016 and 2017 fail to show arms supplied to Iraq and Syria. As Mikhail Barabanov of CAST in Moscow has observed, ‘On the whole the Russian reports to the UN Register with each year become and more fragmentary and incomplete, with the non-inclusion even of well-known deliveries.’49 But Russia still provides a report at a time when a diminishing number of countries are doing so. Whereas 82 States supplied reports for 2010, the number declined to 59 for 2012 and 51 for 2014.50 Finally, what role do arms exports play in Russia’s overall foreign trade? The share of total exports is very modest. Using the data of TsAMTO (Table 3 above), in 2010 arms sales accounted for 1.4 per cent of total exports, rising to 3.3 per cent in both 2015 and 2017.51 However, as a share of total machinery exports the

47 J Judson, ‘Afghans are Switching from Russian to US Helicopters, but Senators are Concerned over the Approach’ (DefenceNews, 27 July 2018), www.defensenews.com/land/2018/07/27/ senators-question-strategy-to-transition-afghan-air-force-from-russian-to-us-helicopter-fleet/. 48 ‘Kitaiskii zenitnyi raketnyi kompleks FD-2000 v Ubekistan’ (Livejournal, 4 December 2018), https://bmpd.livejournal.com/3438810.html; ‘Bronetekhnika kitaiskogo proizvodstva v pogranichnykh voiskakh GKNB Tadzhikistana’ (Livejournal, 8 December 2018), https://bmpd.livejournal. com/3446169.html; Olesya Zagorskaya, ‘VTS Kitaya i postsovetskikh respublik Tsentral'noi Azii’, Novyi oboronnyi zakaz. Strategii, 2019, no 3, 70–76. 49 M Barabanov, ‘Otchety Rossii i ryada drugikh gosudarstv za 2016 god v Registr obychnykh vooruzhenii OON’, Eksport vooruzhenii, 2018, No 1, January–February, 27. 50 Ibid. 51 Calculated from data of Table 3 and total exports from Federal'aya sluzhba gosudarstvennoi statistiki, Rossiya v tsifrakh – 2018 g., Moscow, 2018, Table 25.2.

Russian Arms Exports  311 contribution is more substantial. Thus in 2010 arms accounted for 27 per cent of total exports of machinery and equipment, rising to 44 per cent in 2015 and declining to 42 per cent in 2017.52 This serves to underline the fact that Russia is not very successful in exporting civilian engineering goods, a persistent weakness of the economy.

V.  Russian Arms Imports The USSR imported armaments from other Warsaw Pact member countries in Central and Eastern Europe, but this ended with the collapse of communism in the region and then in the Soviet Union itself. During the post-1991 years Russia imported hardly any military equipment apart from some systems and components from Ukraine, Belarus, Armenia and other former-Soviet neighbours. Belarus remains the largest supplier, its most significant export to Russia being the missile transporter-launch vehicle, including ones used to carry intercontinental ballistic missiles (ICBMs). It is also a major supplier of electronic components. In Soviet times Armenia developed quite a strong modern defence industry and close links with Russia are still maintained. After Anatolii Serdyukov became Defence Minister in 2007 policy began to change. Determined to improve the performance of the domestic defence industry, Serdyukov considered that some external competition would provide pressure for change. Russia began to import armoured vehicles from Italy, drones from Israel and training systems from Germany. The largest, most conspicuous, contract concluded in June 2011 for the purchase of two ‘Mistral’ class helicopter-carrying landing craft from France at a cost of €1,120 million. After the annexation of Crimea, France came under pressure to cancel the deal and this was eventually done in August 2015 after the ships had been built. France paid almost €1 billion compensation to Russia and later in 2015 the two vessels were sold to Egypt.53 Many in the Russian armed forces, and defence industry, were extremely discontented with Serdyukov’s import policy and there was little surprise when it was abandoned by his successor Sergei Shoigu, who took up office in November 2012. The leading Russian analyst of arms exports, Andrei Frolov, estimates that Russian arms imports probably reached approximately $200 million a year during the Serdyukov years, but then fell to c.$100 million in 2015.54 It is unlikely to have increased since then.

52 Ibid. Table 25.07. 53 ‘Vernula li Frantsiya Rossii den'gi za "Mistrali"?’ (Argumenty i fakty, 2 June 2017), www.aif.ru/ dontknows/actual/vernula_li_franciya_rossii_dengi_za_mistrali. 54 A Frolov, ‘Itogi voenno-tekhnicheskogo sotrudnichestva rossii s inostrannymi gosudarstvami v 2015 godu’, Eksport vooruzhenii, 2015, no 6.

312  Julian Cooper

A.  Some Features of Russian Arms Exports i. Promotion In recent years Russia has been pursuing a very active policy of promoting arms sales to current and to potential customers. A major role in this is played by the principal international exhibitions devoted to arms in general or specific technologies such as aerospace or naval equipment. For each year ahead FSVTS draws up a list of events in which Russian participation is considered worthwhile and this is sent to the Government for approval. It is then sent to ‘Rosoboroneksport’ and its parent company ‘Rostekh’, plus companies with independent export rights. The weapons that can be displayed abroad have to be approved by FSVTS. Thus in 2019 ‘Rosoboroneksport’ will participate in more than 20 international exhibitions, held abroad or within Russia, where the major events are the annual ‘Armiya’ (general), ‘MAKS’ (aerospace, 2019 which was put on jointly by Russia and China) and ‘Interpolitekh’ (systems for ensuring state security).55 Russia is especially active at events in Asia and the Middle East, but now also promotes in Latin America. Since 2014 participation in West European events such as the Farnborough air show, formally used to display a wide range of Russian military and civil aircraft, has been limited by sanctions.

ii.  Terms of Payment Gradually Russia has been moving to more flexible payment arrangements for the export of weapons, more in line with general international practice, with resort to credits, offset deals, part payment in goods and, since the imposition of sanctions, payment in national currencies rather than dollars. The sale of the S-400 air defence system to Turkey, for example, will be a combination of Russian credit, presumably in roubles, and payment in Turkish lira.56 In the case of India’s purchase of the S-400, to a contract worth $5 billion signed in October 2018, payment will be made in national currencies, not US dollars, according to FSVTS.57 As stated by Dmitrii Shugaev, director of FSVTS, interviewed in February 2019, reducing the share of dollar payments is now a high priority.58

55 ‘Rosoboroneksport gotov krabote na mirovom oruzheninom rynke v usloviyakh zhestkogo konkurentogo protivoborstva’, Natsional'naya oborona, 2018, no 7. 56 ‘Raschety s Turtsiei za postavku ERS S-400 budut provedeny v natsional'nykh valyutakh (29 November 2018), www.armstrade.org/includes/periodics/news/2018/1129/102059856/detail. shtml. 57 ‘V FSVTS soobshchili o raschetakh v natsvalyutakh po kontraktu na postavku Indii S-400’ (22 February 2019), www.militarynews.ru/story.asp?rid=1&nid=502527; ‘Denis Manturov: Rossiya uzhe nachala proizvodstvo S-400 dlya Indii’ (19 February 2019), www.militarynews.ru/story. asp?rid=1&nid=502169. 58 A Dzhordzhevich, ‘Politicheskaya situatsii v Venezuele nas ves’ma I ves’ma bespokoit’ Nesavisimaya gazeta, 6 February 2019.

Russian Arms Exports  313

B.  Russia and the UN and the Arms Trade Treaty of 2013 While Russia has been supportive of the UN Register of Conventional Arms, it decided not to participate in the UN Arms Trade Treaty (ATT; in Russia the MDTO) of 2013. It argued that the ATT was unlikely to be effective as it failed to address arms transfers to non-state parties, was unlikely to have much influence on the black market in arms, was not legally binding, and that it discriminated against Russia and its defence industry, although why it did so was not spelt out. When the General Assembly passed the Treaty in April 2013, with only Iran, North Korea and Syria voting against, Russia was one of 23 Member States which abstained.59 The Russian permanent representative, Vitalii Churkin, observed that there were problems with the Treaty such that Russia would have to study it very thoroughly, but did not rule out the possibility that it would eventually be signed.60 The ATT came into force in December 2014 and in 2015 a final decision was taken not to sign. In the words of the head of the foreign ministry’s Department for Non-proliferation and Arms Control, Mikhail Ulyanov, ‘We weighed all the pros and cons and decided it is not obligatory for us’. It was ‘too weak’, but ‘places certain burdens on its participants’.61 This was also China’s stance, meaning that two of the largest arms exporters of the world were standing aside from it, joined in April 2019 by the United States, when President Trump announced withdrawal from a treaty that it had not ratified anyway. Following this US move, the Russian foreign ministry reiterated its view that the ATT is a defective treaty and declared that Russia had no intention of signing up to it.62 There is clear official awareness of the importance of limiting illicit trading of weapons, especially in difficult conflict situations involving non-state actors. Thus in 2003 Putin signed an edict forbidding the delivery of weapons to Congolese rebel fighters. The edict was explicitly directed at all states, institutions, enterprises, firms, banks and individuals. As the military journalist Pavel Fel'gengauer observed, this was clearly aimed at stopping deliveries by ‘grey’ or ‘black’ dealers.63 While the Russian State is careful not to engage in illicit arms transfers, this has not always been true of organisations and individuals within it. In recent Soviet history there have been two major scandals. The first was the so-called ‘ANT’ affair of 1989–90, when a co-operative concern, ‘A-N-T’, was found to be trying to export 59 For a detailed consideration of Russia’s case, see JD Sorenson, ‘United Nations Arms Trade Treaty: Russia’s Justification for Abstention and the Treaty’s Effectiveness in Application’ (2015) Brigham Young University International Law & Management Review, Vol 11, Issue 2, Article 11, 237–57. 60 Yu Paniev, ‘Genassambleya OON dala dobro oruzheinym sdelkam’ Nezavisimaya gazeta, 4 April 2013. 61 ‘Russia Will Not Sign “Weak” Arms Trade Treaty’ (DefenseNews, 17 May 2015), www.defensenews. com/land/2015/05/17/russia-will-not-sign-weak-arms-trade-treaty/. Sorensen suggests that Russia may have been concerned that the ATT could prohibit some of its own arms transfers, including those to Syria and Venezuela (Sorenson (n 58)). 62 ‘Rossiya ob”yavila ushcherbnym dogovor o torgovle oruzhiem’ (Lenta.ru, 30 April 2019), https:// lenta.ru/news/2019/04/30/dogovor/. 63 ‘Oboronka. Pochem oruzhnie?’ Argumenty i fakty, 2003, no 40, 1 October.

314  Julian Cooper independently a dozen T-72 tanks built by the giant ‘Uralvagonzavod’ factory. The publicity surrounding this affair may well have forestalled any other attempts to exploit opportunities of this kind created by the then fragmenting planned economy and the spontaneous rise of market initiatives.64 In Russia the biggest scandal was the arrest in Thailand in March 2008 of Viktor Bout, Russian entrepreneur, former Soviet military translator and owner of a network of air freight companies. He was extradited to the United States and faced charges of intending to smuggle arms to the Revolutionary Armed Forces of Colombia (FARC) for use against US forces. In 2011 he was convicted of conspiracy to kill US citizens and officials, delivery of anti-aircraft systems, and providing aid to a terrorist organisation and sentenced to 25 years’ imprisonment in the United States. It emerged that Bout had led a colourful life since the early 1990s, engaged in diverse air freight operations in African countries and elsewhere, with suspected violation of several UN arms embargoes. The Russian authorities tried to stop Bout’s extradition to the USA and have pressed for Bout’s release from gaol. There have been some suggestions that Bout had links to the Russian intelligence services. While this case involved a Russian citizen, there were no charges that Russian arms had been exported, although the air defence weapons that figured in his trial were Russian ‘Igla’ portable systems.65

VI.  A New Challenge for Russian Arms Exports Following the annexation of Crimea and the incursions in South-East Ukraine, Russia has faced a steadily mounting list of sanctions imposed by the USA, EU and some other closely allied countries. One of the intentions that has come increasingly to the fore, especially in relation to sanctions imposed by the United States, has been to limit the activities of ‘Rosoboroneksport’ and restrict Russian arms exports. The company was first targeted for sanctions in the December 2014 ‘Ukraine Freedom Support Act’ adopted by the US Congress.66 Sanctions have also been imposed on individual Russian companies engaged in arms exports, including such well-known ones as ‘Almaz-Antei’ (air defence systems), ‘Kalashnikov’, ‘Uralvagonzavod’ (tanks and armoured vehicles) and NPO ‘Mashinostroeniya’ (cruise missiles).67 More recently, the US administration has been exerting firm

64 J Cooper, The Soviet Defence Industry: Conversion and Reform (Chatham House Papers, Royal Institute of International Affairs and Pinter Publishers, 1991) 66. 65 See https://en.wikipedia.org/wiki/Viktor_Bout. A colourful account is S Braun and D Farah, Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (John Wiley, Hoboken, New Jersey, 2007). 66 Public Law 113-272, 18 Dec 2014, ‘Ukraine Freedom Support Act of 2014’, Section 4, www. congress.gov/113/plaws/publ272/PLAW-113publ272.pdf. 67 Department of Treasury sanctions of 16 July 2014, www.treasury.gov/press-center/press-releases/ Pages/j12572.aspx.

Russian Arms Exports  315 pressure on a number of countries in an effort to persuade them not to purchase Russian armaments, and in relation to China in September 2018 imposed sanctions after weapon systems were actually imported (Su-35 combat aircraft and S-400 surface-to-air missiles systems).68 However, diplomatic pressure and the threat of sanctions has not deterred some countries from buying advanced systems, including Turkey and India, signing contracts in 2017 and 2018 for the purchase of S-400 air defence systems, and Saudi Arabia and Qatar showing strong interest in purchasing them. In all these cases governments may well have concluded that their relations with the United States are sufficiently close that sanctions are unlikely. But this may not apply to another country that has acquired Su-35 aircraft, Indonesia, which in February 2018 signed a contract to acquire 11 of them.69 There have also been reports of US pressure on two other important customers for Russian arms, Algeria and Vietnam.70 This situation could last for quite a long time and there is a widely held perception in Russia that sanctions under President Trump have evolved into a trade war. Notwithstanding sanctions, in 2018 Russia concluded arms export contracts to a total of $20 billion.71 This view has been strengthened by a new development in 2019, a report that the US State Department wants to expand a scheme under which countries disposing of their Russian-made arms and promising not to buy any more are offered money to facilitate the purchase of US equipment. This programme has been used to help six eastern European countries to buy new helicopters and armed vehicles and the proposal is that the scheme should be implemented more widely and also cover Chinese weaponry as well as Russian.72 One response in Russia to sanctions has been a reduction on openness with regard to arms deals. In November 2016 President Putin signed an edict extending the list of data considered a state secret to certain measures for the realisation of state policy in the field of military-technical co-operation which if revealed prematurely could impair state security.73 It was not specified what forms of information this applied to but was probably related to minimising the possibility that organisations or individuals could become targets of sanctions imposed by the United States or the EU. Since then there have been a number of official measures in the same spirit, all clearly intended to minimise sanctions and their potential impact. 68 Sanctions under Section 231of the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA) (20 September 2018), www.state.gov/r/pa/prs/ps/2018/09/286078. 69 ‘Podrobnosti kontrakta s Indoneziei na postavku istrebitelei Su-35’ (19 February 2018), www. arms-expo.ru/news/vzaimodeystvie/podrobnosti_kontrakta_s_indoneziey_na_postavku_istrebiteley_su_35/. 70 ‘“Armia-2018” – platforma prodvizheniya rossiiskikh vooruzhenii na eksport’, Novyi oboronnyi zakaz. Strategiya, 2018, no 6, 12. 71 Andrei Frolov, ‘Itogi VTS Rossii v 2018 godu’, Novyi oboronnyi zakaz. Strategii, 2019, no 3, 14. 72 Marcus Weisgerber, ‘US: We’ll Pay Countries to Ditch Russian, Chinese Arms’ (Defense One, 16 May 2019), www.defenseone.com/business/2019/05/us-countires-well-pay-you-ditch-russianchinese-arms/157084/. 73 T Zamakhina, ‘Putin zasekretil voenno-tekhnicheskoe sotrudinichestvo’ (22 November 2018), https://rg.ru/2016/11/22/putin-zasekretil-voenno-tekhnicheskoe-sotrudnichestvo.html.

316  Julian Cooper There is no doubt that by the second half of 2018 transparency in relation to arms exports was more limited than it had been a few years earlier. Data on the volume of exports, their structure and geography are less detailed and there is less information available on companies involved in arms deals, other than the principal state actor, ‘Rosoboroneksport’, and the value of individual contracts. In May 2019, the Government issued a decree amending legislation on the obligatory list of documents required for the delivery of arms abroad, to facilitate re-export or transfer to third countries in some specific instances.74 In the view of informed commentators, this measure was adopted to facilitate avoidance of sanctions and would probably apply to some small countries anxious not to incur US sanctions when acquiring Russian weapons, predominantly small arms and munitions.75

VII. Conclusion Russia possesses a well-organised and relatively centralised system for the export of armaments to foreign countries. It has steadily evolved since the collapse of the USSR and now has a stable organisational framework and mature institutions. ‘Rosoboroneksport’ is now an effective trader in arms with a steadily enlarging network of representation in customer countries throughout the world, in particular Asia and the Middle East, but with a growing presence in Africa and Latin America. However, notwithstanding serious efforts, only limited progress has been made in penetrating the markets of economically developed countries in Western Europe, North America, Japan and Australasia. Since 2014 and the imposition of sanctions, this has become even more difficult. The regulative framework is well-established, with ultimate authority in the hands of the President, who clearly takes great interest in ‘military-technical cooperation’ and plays an active role in some high-level negotiations with partners considered to have strategic importance. The MOD also has a significant role and has oversight responsibilities in relation to two of the other major actors, FSVTS and FSTEK. The Ministry of Foreign Affairs is important in determining which countries can be supplied with arms. All matters relating to arms exports are subject to detailed legislation, which appears to be observed, and when existing laws are found to be restrictive they are amended, as illustrated by the case of some relaxation of the regulation of arms re-exports in response to sanctions, rather than simply breached. Russia observes UN embargoes on arms transfers and supplies annual reports to the UN Register of Conventional Arms, although these are not

74 Pravitel'stvo Rossiiskogo Federatsii, Postanovlenie ot 10 mays 2019 g. No 586 (20 May 2019), www. garant.ru/products/ipo/prime/doc/72142322/. 75 Aleksei Niko’lskii, ‘Rossiya nashla sposob obkhoda sanktsii SShA pri prodazhe oruzhiya’ (15 May 2019), www.vedomosti.ru/politics/articles/2019/05/14/801357-rossiya-sposob-obhoda-sanktsii.

Russian Arms Exports  317 very detailed and now always comprehensive in scope. Clearly, Russia wants to be seen as a responsible actor with respect to the international arms market. Having grown quite rapidly during the 1990s and 2000s, the scale of Russia’s arms sales has now stabilised and while securely occupying second place in the world by volume of transfers, it may now be difficult to increase further the share of the total market. With the imposition of sanctions, pressures on Russia as a supplier have mounted and customer countries may now themselves face US sanctions if they decide to favour Russian suppliers. In addition, Russia faces mounting competition from other participants in the arms market such as China, France and Ukraine and from new entrants, including Turkey and soon also India. But Russia is unlikely to emerge as an arms importer on any significant scale. After a brief tentative turn to foreign suppliers, Russia turned back to its traditional policy of self-reliance, an orientation now powerfully reinforced by the pressure of sanctions. Much now depends on the ability of Russia to supply advanced new weapons attractive to current and potential customers. The significant renewal of the equipment of Russia’s own armed forces during recent years has given a new lease of life to a defence industry that was seriously weakened by being starved of funding during the difficult years of post-communist market transformation. The defence industrial base is now much more capable and competitive. Many of Russia’s weapon systems have undergone combat deployment in Syria and much experience has been gained, which should result in improved, more effective and reliable systems, with enhanced appeal to foreign customers. Russia is set to remain as one of the leading actors on the world arms market. However, a significant feature of the Russian system of arms exports is a lack of accountability. The State Duma plays a very minor role, independent expertise is relatively weak and appears to have little, if any, impact on policy. Furthermore, the topic does not appear to be one that exercises public opinion to any significant extent, although there is evident pride when Russia achieves success in the production and sale of advanced weaponry. There have been very few scandals that have attracted the attention of the media and public, apart from the above-mentioned Bout affair. In Russia the export of armaments is generally perceived to be a matter for the State, to be handled at the highest level, and to a considerable extent behind closed doors, with limited information made available. This situation is unlikely to change in the foreseeable future.

List of References Anthony, I (ed), Russia and the Arms Trade (Stockholm International Peace Research Institute (SIPRI)/Oxford University Press, 1998). Braun, S and Farah, D, Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (John Wiley, Hoboken, New Jersey, 2007). Connolly, R and Sendstad, C, Russia’s Role as an Arms Exporter. The Strategic and Economic Importance of Arms Exports for Russia, Research Paper, Russia and Eurasia Programme (Chatham House, Royal Institute for International Affairs, March 2017).

318  Julian Cooper Cooper, J, Russian Military Expenditure: Data, Analysis and Issues, FOI Report, FOI-R-3688-SE, FOI, Sweden, September 2013, 26. —— ‘Russia’ in Andrew J Pierre (ed), Cascade of Arms. Managing Conventional Weapons Proliferation (Brookings Institution Press/The World Peace Foundation, 1997) 173–201. —— ‘Soviet Arms Exports and the Conversion of the Defence Industry’ in Luciano Bozzo (ed), Exporting Conflict. International Transfers of Conventional Arms (Rome, Cultura Nuovo, 1992) 135–42. —— The Soviet Defence Industry: Conversion and Reform (Chatham House Papers, Royal Institute of International Affairs and Pinter Publishers, 1991). Department of Treasury, sanctions of 16 July 2014, www.treasury.gov/press-center/ press-releases/Pages/j12572.aspx. Fruchart, D, Holtom, P, Wezerman, ST, Strandow, D and Wallensteen, P, United Nations Arms Embargoes. Their Impact on Arms Flows and Target Behaviour (SIPRI and Uppsala University, 2007). Judson, J, ‘Afghans are Switching from Russian to US Helicopters, but Senators are Concerned over the Approach’ (DefenceNews, 27 July 2018), www.defensenews.com/ land/2018/07/27/senators-question-strategy-to-transition-afghan-air-force-fromrussian-to-us-helicopter-fleet/. Pierre, AJ and Trenin, DV (eds), Russia in the World Arms Trade (Washington DC, Carnegie Endowment for International Peace, 1997). Public Law 113-272, 18 Dec 2014, ‘Ukraine Freedom Support Act of 2014’, Section 4, www. congress.gov/113/plaws/pub1272/PLAW-113pub1272.pdf. ‘Russia Opposes Lifting UN Arms Embargo on Libya – Envoy’ (17 November 2017) http:// tass.com/politics/976129. ‘Russia to Provide Iran with S-300 Air Defence Missiles’ (BBC News, 9 November 2015), www.bbc.co.uk/news/world-europe-34767012. ‘Russia Will Not Sign “Weak” Arms Trade Treaty’ (DefenseNews, 17 May 2015), www. defensenews.com/land/2015/05/17/russia-will-not-sign-weak-arms-trade-treaty/. Sanctions under Section 231of the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA) (20 September 2018), www.state.gov/r/pa/prs/ps/2018/09/286078. ‘SIPRI Arms Transfers Database’, www.sipri.org/databases/armstransfers. Sorenson, JD, ‘United Nations Arms Trade Treaty: Russia’s Justification for Abstention and the Treaty’s Effectiveness in Application’ (2015) Brigham Young University International Law & Management Review, Vol 11, Issue 2, Article 11, 237–57. ‘Sources and Methods’, www.sipri.org/databases/armstransfers/sources-and-methods. US Department of State, Bureau of Arms Control, Verification and Compliance, World Military Expenditures and Arms Transfers 2017, www.state.gov/t/avc/rls/rpt/wmeat/2017/ index.htm. ‘Vikor Bout’, https://en.wikipedia.org/wiki/Viktor_Bout.

Russian Language Sources ‘“Armia-2018” – platforma prodvizheniya rossiiskikh vooruzhenii na eksport' Novyi oboronnyi zakaz. Strategiya, 2018, no 6, 12. Barabanov, M, ‘Otchety Rossii i ryada drugikh gosudarstv za 2016 god v Registr obychnykh vooruzhenii OON’, Eksport vooruzhenii, 2018, No 1, January–February, 27.

Russian Arms Exports  319 —— ‘Ostorozhno: “statistika” SIPRI’ (Nezavisiomoe voennoe obozrenie, 4 April 2014), http://nvo.ng.ru/realty/2014-04-04/1_sipri.html. ‘Bronetekhnika kitaiskogo proizvodstva v pogranichnykh voiskakh GKNB Tadzhikistana’ (Livejournal, 8 December 2018), https://bmpd.livejournal.com/3446169.html. ‘Denis Manturov: Rossiya uzhe nachala proizvodstvo S-400 dlya Indii’ (19 February 2019), www.militarynews.ru/story.asp?rid=1&nid=502169. Dzordzhevich, A, ‘Politicheskaya situatsii v Venezuele nas ves’ma I ves’ma bespokoit’ Nesavisimaya gazeta, 6 February 2019. Federal'aya sluzhba gosudarstvennoi statistiki, Rossiya v tsifrakh – 2018 g., Moscow, 2018. ‘Federal'naya sluzhba po voenno-tekhnicheskomu sotrudnichestvu’ Kommersant Daily, 28 August 2017. Federal'naya sluzhba po voenno-tekhnicheskomu sotrudnichestvu, ‘Itogi voennotekhnicheskogo sotrudnichesta Rossiiskoi Federatsii s inostrannymi gosudarstvami za 2014god (26 February 2015). Federal'naya sluzhba po voenno-tekhnicheskomu sotrudnichestvu, ‘Itogi voennotekhnicheskogo sotrudnichsta Rossiiskoi Federatsii s inostrannymi gosudarstvami za 2011god’ (22 March 2012). A Frolov, ‘Itogi voenno-tekhnicheskogo sotrudnichestva Rossii s inostrannymi gosudarstvami v 2019 godu’ Eksport vooruzhenii, 2019, No 6, November–December, 11. —— ‘Itogi VTS Rossii v 2018 godu’, Novyi oboronnyi zakaz. Strategii, 2019, no 3. —— ‘Itogi voenno-tekhnicheskogo sotrudnichestva Rossii s inostrannymi gosudarstvami v 2017 godu’, Eksport vooruzhenii, 2017, No 6, November–December. —— ‘Itogi voenno-tekhnicheskogo sotrudnichestva rossii s inostrannymi gosudarstvami v 2015 godu’, Eksport vooruzhenii, 2015, no 6. —— ‘Russsian Arms Trade in 2014’ (2015) Moscow Defense Brief No 1. ‘Kitaiskii zenitnyi raketnyi kompleks FD-2000 v Ubekistan’ (Livejournal, 4 December 2018), https://bmpd.livejournal.com/3438810.html. ‘Komitet Gosudarstvennoi Dumy po oborone provel “kruglyi stol”’ (13 November 2014), www.komitet2-15.km.duma.gov.ru/Novosti-Komiteta/item/11654/. ‘Mezhdunarodnaya torgovlya oruzhiem’ (poll of 20–21 October 2018) (7 November 2018), https://fom.ru/Bezopasnost-i-pravo/14125. ‘“My pomogaem rossiiskim eksporteram vooruzhenii vykhodit' na novye rynki” Interv'yu Sergeya Ryabkova,zemstitelya ministra inostrannykh del RF’, Eksport vooruzhenii, 2010, no 2, March–April, 48–50. ‘Oboronka. Pochem oruzhnie?’, Argumenty i fakty, 2003, no 40, 1 October. ‘O merakh gosudarstvennoi podderzhki eksport produktsii vonennogo naznacheniya i mekhanizmakh ikh realizatsii’ (26 December 2001), www.scrf.gov.ru/council/session/ 2017/. ‘Otnoshenie k torgovle oruzhiem’ (poll of 23–24 June 2012) (11 July 2012), https://fom.ru/ mir/10539. Paniev, Y, ‘Genassambleya OON dala dobro oruzheinym sdelkam’ Nezavisimaya gazeta, 4 April 2013. ‘Perechen' sub"ektov voenno-tekhnicheskogo sootrudnichestva’ (29 November 2016), http://gosobzor.ru/2016/04/19/perechen-subektov-voenno-texnicheskogo-sotrudn ichestva. ‘Podrobnosti kontrakta s Indoneziei na postavku istrebitelei Su-35’ (19 February 2018), www.arms-expo.ru/news/vzaimodeystvie/podrobnost_kontrakta_s_indoneziey_na_ postavku_istrebiteley_su_35/.

320  Julian Cooper ‘Polozhenie o Mezhvedomstvenn komissii Soveta Bezopasnosti Rossiiskoi Federatsii po voennoi bezopasnosti’, www.scrf.gov.ru/about/commission/MVK_military/. See www.scrf.gov.ru/security/military/. ‘Pomoshchnik prezidenta Rossii Vladimir Kozhin o voenno-tekhnicheskom sotrudnichestve Rossii’ (Livejournal, 14 March 2018), https://bmpd.livejournal.com/3122091.html. Postanovlenie Pravitel'stva RF ot 1 dekabrya 2007 g. N 831 ‘Ob utverzhdenii Pravil razrabotki spiska produktsii voennogo naznacheniya, razreshennoi k peredache innostrannym zakazchikam, i Pravil razrabotki spiska gosudarstv, v kotorye razreshena peredacha produktsii voennogo nanachesniya, ukazaannoi v spiske produktsii voennogo naznacheniya, razreshennoi k peredache inostrannym zakazchikam’, http://base.garant. ru/12157604. Ptichkin, S, ‘Aleksandr Mikheev ofitsial'no vozglavil “Rosoboroneksport”’ (10 January 2017), https://rg.ru/2017/01/10/aleksandr-miheev-oficialno-vozglavil-rosoboroneksport.html. ‘Raschety s Turtsiei za postavku ERS S-400 budut provedeny v natsional'nykh valyutakh’ (29 November 2018), www.armstrade.org/includes/periodics/news/2018/1129/102059856/ detail.shtml. ‘Rosoboroneksport gotov krabote na mirovom oruzheninom rynke v usloviyakh zhestkogo konkurentogo protivoborstva’, Natsional'naya oborona, 2018, no 7. ‘Rosoboroneksport sozdaet 20 infrastrukturnykh ob"ektov za rubezhom’ (11 October 2018), www.armstrade.org/includes/periodics/news/2018/1011/140049095/detail.shtml. Rossiiskaya Federatsiya, Federal'nyi zakon, ‘Ob eskportnom kontrole’ (18 July 1999), http:// base.garant.ru/12116419/. ‘Rostekh oprovergaet dannye SIPRI o padenii ob”ema rossiiskogo oruzheninogo eksporta’ (11 March 2019), www.militarynews.ru/story.asp?rid=1&nid=503713&lang=RU. ‘“Rostekh” v 2017 g. uvelichil vyruchku na 26%’ (18 May 2018), www.finmarket.ru/ news/4775299. Rumyantsev, T, ‘Putin obnovil sostav komissiii po voprosam voenno-tekhniceskogo sotrudnichestva’ (21 July 2018), https://riafan.ru/1069264-putin-obnovil-sostav-komissiipo-voprosam-voenno-tekhnicheskogo-sotrudnichestva. Safronov, I et al, ‘Vladimir Putin otstalsya pri svoikh (kommersant, 14 June 2018), www. kommersant.ru/doc/3657535. Safronov, I and Dzhordzhevich, A, ‘“Bal” zdes' neumesten’ Kommersant Daily, 5 December 2018. ‘SIPRI zanizhaet dolyu SShA po stoimostnomu ob"emu postavok vooruzhenii na mirovoi rynke’ (20 February 2017), www.armstrade.org/includes/periodics/news/ 2017/02/20/114039657/detail.shtml. Sozaev-Gur'ev, E and Ramm, A, ‘Moskva i Ankara dogovorilils' prorabotat' vopros o prodazhe S-400’ (Izvestiya, 15 March 2017). Tsentr analiza mirovoi torgovli oruzhiem (TsAMTO), 2018 Ezhegodnik. Statistika i analiz mirovoi torgovli oruzhinem, www.armstrade.org/files/yearly_2018_3_1.pdf. Ukaz Prezidenta Rossiiskoi Federatsii, ‘Ob utverzhdenii sostav Komissii po eksportnomu kontrolyu Rossiiskoi Federatsii’ (16 May 2017), http://base.garant.ru/71675002/. Ukaz Prezidenta Rossiiskoi Federatsii, ; Voprosy Federal'noi sluzhby po tekhnicheskomu i eksportnomu kontrolyu’ (16 August 2004), www.consultant.ru. ‘Vernula li Frantsiya Rossii den'gi za "Mistrali"?’ (Argumenty i fakty, 2 June 2017), www.aif. ru/dontknows/actual/vernula_li_franciya_rossii_dengi_za_mistrali.

Russian Arms Exports  321 ‘V FSVTS soobshchili o raschetakh v natsvalyutakh po kontraktu na postavku Indii S-400’ (22 February 2019), www.militarynews.ru/story.asp?rid=1&nid=502527. Zagorskaya, O, ‘VTS Kitaya i postsovetskikh respublik Tsentral'noi Azii’, Novyi oboronnyi zakaz. Strategii, 2019, no 3. Zamakhina, T, ‘Putin zasekretil voenno-tekhnicheskoe sotrudinichestvo’ (22 November 2018), https://rg.ru/2016/11/22/putin-zasekretil-voenno-tekhnicheskoe-sotrudnichestvo.html.

322

11 China as an Arms Exporter: The Strategic Contours of China’s Arms Transfers MICHAEL RASKA AND RICHARD A BITZINGER

China’s global geopolitical aspirations, backed up by growing economic clout, shape the direction and character of its military-technological choices, which includes China’s strategic interests to strengthen its position on global arms markets. Over the past decade, China has been able to accelerate its transition from a large arms importer into a major exporter with a potential to become one of the world’s leading arms exporters; particularly by way of low cost and affordable service, lack of geopolitical strings and upgrade packages.1 Chinese defence companies are increasingly expanding their bids for weapons contracts, which are often aligned or complement Beijing’s economic, trade and military-technical co-operation packages with select developing countries in Asia, Africa and the Middle East. Indeed, China has been able to enter new markets with next generation military technologies, including Saudi Arabia, Morocco, Venezuela, Ecuador, Peru, Mexico, Nigeria, Kenya, Thailand, Turkmenistan and Kazakhstan. In doing so, China’s arms export strategy aims to serve as an alternative to Russian arms exports, while counterbalancing the influence of Western powers. At the same time, however, China is using arms exports as an instrument of its foreign policy to project power and influence to create strategic dependencies in areas that are vital to China’s interests, for example in Southeast Asia. The increasing Chinese presence on global arms markets inherently reflects the relative progress of the Chinese defence, science, technology, innovation and industrial base in terms of developing and manufacturing new, relatively advanced military platforms and technologies. These have been evident in the gradual, dual-track military modernisation trajectory of the People’s Liberation Army (PLA), characterised by upgrading the existing arsenal of legacy weapons 1 J Lin and PW Singer, ‘The Dragon Muscles In: Growing Number of Victories in Chinese Arms Exports’ Popular Science, 9 June 2016.

324  Michael Raska and Richard A Bitzinger systems and platforms, while experimenting with the next generation of design concepts. The PLA has introduced a range of qualitatively modern weapons platforms and technologies, including reconnaissance-strike complexes comprised of advanced ballistic and cruise missiles, air defence systems, submarines, surface combat vessels, as well as experimental prototypes of unmanned aerial vehicles, hypersonic vehicles, and fifth generation multi-role combat aircraft.2 At the same time, the PLA embarked on a series of major military reforms, lauded the largest since China’s foundation in 1949, which attempt to leverage the PLA’s militarytechnological modernisation with comprehensive institutional, organisational and conceptual transformation.3 Under the Xi Jinpeng administration, the scope and magnitude of these reforms focus on resolving what is known in China as ‘two gaps’: a general lack of PLA capabilities compared to advanced global peers or technologically-superior adversaries, and the inability of the PLA to align its capabilities with China’s changing strategic requirements.4 Resolving both gaps also depends on the modernisation of the Chinese defence industry and its ability to provide weapons platforms, systems and technologies that will meet the PLA’s changing operational requirements. Only a decade ago, most Chinese weapons systems were at least a generation or two behind comparable military equipment being produced at the time in the West or in Russia, and problems with quality and reliability have been prevalent.5 In retrospect, the confluence of historical legacies of centralised planning, coupled with segmented technological, institutional and management deficiencies such as overlapping planning structures, widespread corruption, bureaucratic fragmentation, problems with quality control, manufacturing and process standardisation, and most importantly, no real internal competition, have precluded the Chinese militaryindustrial conglomerates from leaping ahead on the innovation ladder – the industry lacked sufficiently capable research and development (R&D) and capacity to develop and produce highly sophisticated conventional arms. Confronting these challenges, China has progressively introduced a series of medium-and 2 These include the introduction of the next generation of supercomputers, aviation prototypes such as the J-16, J-20, J-31, new helicopters, unmanned aerial vehicles (UAVs), to the ongoing construction of a second aircraft carrier, as well as a record number of commissioned ships such as Type 054A, 056 frigates and 052C destroyers. See: A Cordesman, A Hess, N Yarosh, Chinese Military Modernisation and Force Development (Washington DC, Centre for Strategic and International Studies, 2013). 3 Major PLA reforms, announced since 2016, include a new command structure with one Joint Staff Department under the Central Military Commission (CMC); inauguration of three new services – PLA Ground Forces (PLAGF), PLA Rocket Forces (PLARF) and PLA Strategic Support Forces (PLASSF); revamping major Chinese military commands – from the previous seven ‘Military Regions’ to five joint Theater Commands: East, South, West, North and Central; and revamping human resource management and training. For a comprehensive overview of PLA reforms, see: PC Saunders and J Wuthnow, ‘China’s Goldwater-Nichols? Assessing PLA Organizational Reforms’ (2016) 82 Joint Force Quarterly. 4 MS Chase, et al, China’s Incomplete Military Transformation Assessing the Weaknesses of the People’s Liberation Army (Washington DC, RAND Corp, 2015) 69. 5 R Bitzinger and M Raska, ‘Capacity for Innovation: Technological Drivers of China’s Future Military Modernisation’ in R Kamphausen and D Lai (eds), The Chinese People’s Liberation Army in 2025 (Carlisle, PA, US Army War College Press, 2015) 129–62.

China as an Arms Exporter  325 long-term defence industrial strategies, plans and institutional reforms that have generally set two broad strategic objectives: • to catch-up with the global military-technological state-of-the-art base by fostering indigenous innovation, mitigate foreign dependencies on technological transfers and arms imports, while leveraging civil-military integration to overcome entrenched barriers to innovation; • to provide advanced weapons platforms, systems and technologies that would enable the PLA’s transformation into a fully ‘informatised’ fighting force – one capable of conducting sustained joint operations, military operations other than war, and missions related to China’s strategic deterrence to protect China’s core national security interests beyond national borders.6

I.  China’s Defence Industrial Strategy In the twenty-first century, China’s strategy to achieve its objectives of creating a modernised defence industrial base has focused on civil and military convergence.7 In particular, since 2003, the conceptual umbrella for leveraging civil military integration (CMI) became known as Yujun Yumin – ‘locating military potential in civilian capabilities’, signifying transfer of commercial technologies to military use, and calling upon the Chinese arms industry not only to develop dual-use technologies, but also actively promote joint civil-military technology co-operation. Yujun Yumin has been prioritised in the 2004 Defence White Paper, subsequent Five-Year Defence Plans, as well as in the 2006–20 Medium- and Long-Term Defence Science and Technology Development Plan (MLP).8 Select dual-use technology development areas, for example, included microelectronics, space systems, new materials (such as composites and alloys), propulsion, missiles, computeraided manufacturing and particularly information technologies.9 Initially, China’s political establishment envisioned civil-military integration as institutional arrangements paving the way for a new round of associated management reforms for the defence industry, including allowing select civilian private sector firms to engage in defence work. These in turn would enable expanding linkages

6 Y Ji, China’s Military Transformation: Politics and War Preparation (Cambridge, Polity Press, 2016). 7 TM Cheung, ‘The Chinese Defense Economy’s Long March from Imitation to Innovation’ (2011) Journal of Strategic Studies 3, 343–44; S Kennedy, ‘Made in China 2025’ (Centre for Strategic & International Studies, 1 June 2015), available at www.csis.org/analysis/made-china-2025. 8 See: Information Office of the State Council of the People’s Republic of China, China’s National Defense in 2004 (27 December 2004), available at www.gov.cn/english/2006-02/09/content_183426. htm; E Hagt, ‘Emerging Grand Strategy for China’s Defense Industry Reform’ in R Kamphausen, D Lai, A Scobell (eds), The PLA at Home and Abroad: Assessing the Operational Capabilities of China’s Military (Carlisle, PA, US Army War College, 2010) 481–84. 9 TM Cheung (ed), Forging China’s Military Might: A New Framework for Assessing Innovation (Baltimore, Johns Hopkins University Press, 2013).

326  Michael Raska and Richard A Bitzinger and collaboration between China’s military-industrial complex and civilian hightechnology R&D sectors. In 2016, however, President Xi Jinping elevated CMI into a national-level strategy,10 noting that ‘the integration of civilian and defence development will involve multiple fields and enable economic progress to provide a “greater material foundation” for defence construction, while the latter offers security guarantees for the former’.11 In other words, CMI has been projected not only as a key enabler of the PLA’s military-technological modernisation, but more importantly, as a strategy for China’s long-term sustainable growth, efficiency and productivity gains, as well as mitigating internal socio-economic and environmental challenges. Currently, CMI as a national strategy expands the integration of state-owned defence research, development and manufacturing enterprises, government agencies under the State Council, universities and private sector firms in order to advance the PLA’s military modernisation, while supporting China’s economic growth.12 At the same time, China’s CMI places strategic importance on foreign acquisition of dual-use technologies, resources and knowledge in selected priority areas identified in recent defence science and technology plans. These include the ‘13th Defence Science and Technology (S&T) and Industry Five-Year Plan’; ‘2025 Defence Science and Technology Industry Plan’; and the ‘Made in China 2025’ advanced manufacturing plan.13 According to the 2015 China Military Strategy, China will work to establish uniform military and civilian standards for infrastructure, key technological areas and major industries, explore the ways and means for training military personnel in civilian educational institutions, developing weaponry and equipment by national defence industries, and outsourcing logistics support to civilian support systems.14

China’s long-term strategic military programmes also yield evidence of deep integration with China’s advancing civilian science and technology base, which in turn is increasingly linked to global commercial and scientific networks.15 In this context, China is continuously benchmarking emerging technologies and similar high-tech defence-related R&D programmes in the United States, Russia, India,

10 Xinhua News, ‘Xi Urges Greater Military-Civilian Cooperation for Strong Army’ (19 October 2016), available at http://news.xinhuanet.com/english/2016-10/19/c_135766754.htm. 11 Xinhua News, ‘China Focus: China Targets Better Integrated Military, Civilian Development’ (21 July 2016), available at http://news.xinhuanet.com/english/2016-07/21/c_135530920.htm. 12 G Levesque and M Stokes, Blurred Lines: Military-Civil Fusion and the ‘Going Out’ of China’s Defense Industry (Washington DC, Pointe Bello, 2016). 13 TM Cheung, et al, ‘Planning for Innovation – Understanding China’s Plans for Technological, Energy, Industrial, and Defense Development,’ report prepared for the US-China Economic and Security Review Commission, 28 July 2016, 120: www.uscc.gov/Research/planning-innovationunderstandingchina.E2%80%99s-plans-technological energy-industrial-and-defense. 14 Information Office of the State Council of the People’s Republic of China, China’s National Defense in 2015, 26 May 2015: http://eng.mod.gov.cn/Database/WhitePapers/index.htm. 15 M Raska, ‘Scientific Innovation and China’s Military Modernisation’ (2013) The Diplomat, 3 September.

China as an Arms Exporter  327 Japan, Israel and other countries.16 The key aim is to accelerate China’s ‘absorptive capacity’ to recognise, assimilate and utilise external knowledge in the development of China’s advanced technologies in both civil and military domains.17 China calls this strategy ‘Indigenous Innovation’ – first set in the ‘2006–2020 Mediumand Long-Term Defence Science and Technology Development Plan’. By pursuing Indigenous Innovation, China aims to circumvent the costs of research, overcome international political constraints and technological disadvantages, and ‘leapfrog’ China’s defence industry by leveraging the creativity of other nations. This includes exploitation of open sources, technology transfer and joint research, the return of Western-trained Chinese students, and, of course, industrial espionage, both traditional and increasingly, cyber-exploitation.18 Taken together, the evolving strategy of Indigenous Innovation in a broader context of civil-military integration constitutes a pathway for China’s long-term strategic competition.19 In doing so, China continues to seek niche technological developments that could potentially revolutionise the PLA’s military operations by providing a credible asymmetric edge in regional flashpoints in East Asia: ie anti-ship ballistic missiles (ASBMs), anti-satellite ballistic missiles (ASATs), hypersonic cruise missiles and systems converging cyber and space capabilities. Notwithstanding military-technological trajectories, China’s military effectiveness will be increasingly influenced by its ability to align its political and strategic goals with technological advancements.20 This includes China’s ability to alter strategic alliances and balance of power through international arms exports, technology transfers and military co-operation.

II.  Four Waves of Chinese Arms Exports According to data put out by the Stockholm International Peace Research Institute (SIPRI), Chinese arms exports rose by 195 per cent between the periods 2004–2008 and 2009–13, although they increased by only 2.7 per cent between the periods 2009–13 and 2014–18. During the periods 2014–18, Asia and Oceania accounted for 70 per cent of Chinese arms exports, Africa 20 per cent, and the Middle East 16 Department of Defense, Defense Science Board, Task Force Report: Resilient Military Systems and the Advanced Cyber Threat (Washington DC, Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, 2013). 17 Cheung (n 7) 343–44; S Kennedy, ‘Made in China 2025’ (Centre for Strategic & International Studies, 1 June 2015): www.csis.org/analysis/made-china-2025. 18 J Lindsay and TM Cheung, ‘From Exploitation to Innovation: Acquisition, Absorption, and Application’ In J Lindsay, TM Cheung, and D Reveron (eds), China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain (New York, Oxford University Press, 2015) 66. 19 TM Cheung, E Anderson, and F Yang, ‘Chinese Defense Industry Reforms and their Implications for US-China Military Technological Competition’ Research Brief – Study of Innovation and Technology in China (San Diego, University of California Institute on Global Conflict and Cooperation, 4 January 2017): https://escholarship.org/uc/item/43m5m3gp. 20 Bitzinger and Raska (n 5) 129–62.

328  Michael Raska and Richard A Bitzinger 6.1 per cent. This made China the world’s fifth-largest arms exporter (although several times in recent years it has reached the number three slot, after the United States and Russia). The geographic spread and number of recipients of Chinese weapons exports have also increased. During the period 2014–18, China exported arms to 53 countries, compared with 41 in 2009–13 and 32 in 2004–2008. ­Pakistan was the main recipient (37 per cent) during the period 2014–18, followed by Bangladesh (16 per cent) and Algeria (11 per cent).21 In 2014–18 China became the largest exporter in the niche market of unmanned combat aerial vehicles (UCAVs), particularly selling to Middle E ­ astern States (eg, Egypt, Iraq, the United Arab Emirates and Saudi Arabia). China has also begun to deliver major arms to ex-Soviet States for the first time, including the 2016 delivery of surface-to-air missile (SAM) systems HQ9 (FD-2000) to ­Turkmenistan. Meanwhile, China has become less dependent on arms imports, which decreased by 11 per cent during 2012–16. While China was the largest importer globally by a wide margin in the early 2000s, it dropped to fourth place in 2012–16. In this context, however, China remains dependent on imports of key weapons systems and advanced components, including aerospace engines such as the Russian Al-31FN and RD-33 engines used on the J-10 and FC-1 fighters, respectively. From 2012–16, for example, aircraft engines accounted for 30 per cent of China’s arms imports, delivered from Russia (57 per cent), Ukraine (16 per cent) and France (15 per cent).22 These figures represent an ongoing shift in China’s position on global arms markets backed by increasing technological, organisational, and financial capabilities of China’s military industrial complex, as well as China’s growing global geostrategic interests. From a historical perspective, the technological development of China’s defence industry has progressed gradually in four overlapping waves: (1) the Maoist Era (1949–78); (2) Deng’s Demilitarisation Era (1980s–90s); (3) Reform Era (1998–2012); and the current (4) Xi Jinping’s Reform Era 2.0 (2012–present).23 Each era also shaped the direction and character of Chinese arms exports. These evolved in four waves characterised by varying strategic drivers:24 • • • •

Ideological (1950s–60s); Geopolitical (early 1970s); Commercial (1980s); Competitive (2010s).

21 P Wezeman, A Fleurant, A Kuimoova, S Wezeman and N Tian, SIPRI Fact Sheet: Trends in International Arms Transfers, 2018 (Stockholm, Stockholm International Peace Research Institute, March 2019) 5–7. 22 A Fleurant, P Wezeman, S Wezeman and N Tian, SIPRI Fact Sheet: Trends in International Arms Transfer 2016 (Stockholm, Stockholm International Peace Research Institute, February 2017) 9. 23 TM Cheung, Fortifying China: The Struggle to Build a Modern Defense Economy (Ithaca, NY, Cornell University Press, 2009). 24 M Barabanov, V Kashin and K Makienko, Shooting Star: China’s Military Machine in the 21st Century (Minneapolis, East View Press, 2012) 77.

China as an Arms Exporter  329 In the first wave, the early Maoist Era, China’s defence industrial strategy and technological development reflected nearly total dependence on the Soviet assistance. At that time, China’s defence sector was at the centre of the economy, controlling heavy industrial sectors, and a principal engine driving China’s technological and industrial innovation development. The primary driver for arms exports, however, was ideological, ie China providing military assistance to Communist forces in French Indo-China (Vietnam) and to North Korea during the Korean War. From the late 1950s, China began to export its own weapons, based on acquired Soviet designs, to its allies such as Albania, North Vietnam, North Korea as well as to newly independent African nations as part of its efforts to win greater influence among developing countries. Under Mao, China’s defence economy also had two parallel technological and industrial tracks: conventional and strategic weapons development. Innovation, however, diffused primarily in the strategic sector with key programmes such as Liangdan, Yixing (two Bombs, one Satellite). With the Sino-Soviet split of the late 1960s, coupled with China’s domestic political upheavals of the Great Leap Forward (1958–62) and the Cultural Revolution (1966–72), China’s conventional base atrophied and innovation virtually disappeared.25 In the 1960s, China established close ties with Pakistan, which became the largest importer of Chinese weapons and remains so to this day. Establishing a strategic military-political alliance with a capitalist and pro-Western Pakistan marked the beginning of Beijing’s Realpolitik strategy in the early 1970s, which prioritised pragmatic geopolitical and military considerations over ideology.26 In particular, the principal assumption in Deng Xiaoping’s Four Modernisations was that China no longer faced Cold War threats, and should switch from militarisation to economic development, liberalisation, and ‘opening up’ reforms.27 Therefore, China’s defence industry should pursue concurrent development of dual-use technologies applicable to both civilian and military needs – principally under the Junmin Jiehe strategy: combining military and civilian activities, peacetime and wartime preparations prioritise military products and let the civilian sector support the military. Under Deng, China also launched the National High Technology Program (‘863’) in March 1986, aimed at developing seven strategic priority areas: laser technology, space, biotechnology, information technology, automation and manufacturing technology, energy and advanced materials. The Iran-Iraq War (1980–88) marked the third phase in China’s arms exports, driven increasingly by commercial factors. In this period, China offered large quantities of affordable conventional weapons to both Iran and Iraq. After the breakup of the Soviet Union until 2000, however, China’s arms exports fell sharply

25 Cheung (n 23). 26 Barabanov, Kashin and Makienko (n 24) 78. 27 The ‘four modernisations’ were agriculture, industry, national defence, and science and technology, implemented by Deng after the arrest of the ‘Gang of Four’, and were meant to introduce marketoriented reforms into the Chinese economy.

330  Michael Raska and Richard A Bitzinger to about $800 million a year.28 Around that time, Chinese-made weapons, based on upgrades and copies of vintage Soviet designs of the mid-1960s, became truly obsolete and China’s defence industry lacked the ability to develop a new generation of weapons systems. Beijing also faced arms import embargo from the West, following the Tiananmen Square protests in 1989. The confluence of these factors forced China to become a net arms importer during much of the 1990s, primarily acquiring a range of modern Russian weapons and defence technologies, while initiating defence industry reforms. Consequently, in the early 2000s, China’s defence industry began to export advanced military technologies, either licensed or reversed-engineered from Russia or the Commonwealth of Independent States (CIS). Moreover, the industry was able to roll out a broad range of domestic new-generation systems. For example, from 2001–2005, China sold C-801 and C-802 anti-ship missiles, man-portable SAM systems, K-8 jet trainers, PLZ-45 self-propelled howitzers, and Al-Khalid tanks (Type 90) to Pakistan and Iran.29 From 2005 onwards, the product range, technological advancement and relative quality of the catalogue of Chinese-made arms offered for exports, particularly in areas such as aerospace, have made significant progress relative to the archaic offerings of the late-1990s. China introduced two fourth-generation fighters into the mass production stage – the FC-1/JF-17 (developed jointly with Pakistan) and the J-10. It increased its presence on international aerospace and defence markets, promoting its new combat trainers (FTC-2000, L-15, K-8); fifth-generation fighter (J-31); missile systems (anti-ship, anti-tank, and man-portable); SAMs (HQ-9); radars (YLC-8B, SLC-2E); transport aircraft (MA60, Y-20); helicopters (Z-9G, Z-10, Z-11, Z-15, Z-19E); UAVs (Pterodactyl WJ-1, CH-4); new versions of the Type 90 tank (VT-3, VT-4, VT-5); a new generation of light armoured vehicles (VN-4); self-propelled and towed artillery (PLZ45, PLZ52); multiple rocket launchers (A-100); trucks (CS/VN3); ships (Type 053, 054A, 056); and submarines (S26T/Type 039A). By narrowing the technological gaps with leading Russian and Western suppliers, China has been able to enter new markets with the new generation of military technologies, including Saudi Arabia, Morocco, Venezuela, Ecuador, Peru, Mexico, Nigeria, Kenya, Thailand and Indonesia. In doing so, China’s current arms export strategy reflects varying ‘competitive’ paths: In the developing countries of Latin America, Africa, and even Central Asia, China is trying to position itself as an alternative to Russian arms exports, while counterbalancing the influence of Western powers. Chinese defence contractors compete on price, while providing greater flexibility when negotiating the financial terms of arms contracts. At the same time, however, China is using arms exports as an instrument of its foreign policy to project power and influence to create strategic dependencies in areas that are vital to China’s interests, for example in Southeast Asia. For example,



28 Barabanov, 29 Barabanov,

Kashin and Makienko (n 24) 78. Kashin and Makienko (n 24) 80.

China as an Arms Exporter  331 China’s recent major arms exports contracts with Thailand (S26T submarines) and military assistance to the Philippines may disrupt traditional linkages with the United States (although Sino-Philippines relations are still strained by overlapping claims in the South China Sea, which could constrain Chinese arms sales to Manila). In a reverse mode, countries in the region may seek Chinese defence contracts to solidify security and economic ties with China.

III.  China as an Arms Supplier in the 21st Century China has regularly been listed as being among the world’s top five arms exporters for the past 20 years, along with such traditional leading suppliers as the United States, Russia, France and the United Kingdom. The best data we have regarding China’s place in the international arms marketplace come mainly from two sources: SIPRI and the US Congressional Research Service (CRS). SIPRI data for 2014–18 shows China to be the world’s fourth largest arms exporter, with 5.2 per cent of the global market. This performance places it behind the United States (the number one arms exporter, with 36 per cent of the international arms market, and Russia with 21 per cent), and roughly even with France (6.8 per cent), Germany (6.4 per cent) and the United Kingdom (4.2 per cent).30 CRS data covers a slightly different timeframe but tells a similar story. According to CRS, China was fifth in terms of arms deliveries for the period 2012–15 (valued at US$9.6 billion); this was good for about 5 per cent of the overall international arms market. In 2015 alone, it was fourth in terms of arms deliveries, worth US$2.9 billion. In comparison, the United States accounted for nearly one third of total international arms deliveries for the period 2012–15, while Russia was second at nearly 20 per cent.31 In terms of arms sales agreements, Chinese overseas arms sales have averaged more than $3.6 billion a year for the period 2008–15; this compares quite favourably with the country’s experiences as an arms exporter during the 1990s, when Beijing averaged less than $1 billion annually in arms exports. In 2015 alone, China concluded $6 billion worth of arms sales.32 Nearly all of China’s arms transfers are to developing countries, and in this arena the Chinese defence industry has emerged as a formidable competitor to Western and Russian arms exporters. China’s main arms markets are in Asia and the Middle East, and about three-quarters of its weapons exports go to countries in these regions. In addition, China has become a leading arms supplier to Africa; in 2012–15, in fact, China was the single largest supplier to Africa, capturing nearly

30 Wezeman, Fleurant, Kuimoova, Wezeman and Tian (n 21) (Table 1) 2. 31 CA Theohary, Conventional Arms Transfers to Developing Nations, 2008–2015 (Washington DC, Congressional Research Service, 19 December 2016) 27. 32 Ibid 29.

332  Michael Raska and Richard A Bitzinger one-third of the continent’s overall arms market, drawing customers away from Europe, Russia and the United States.33 Major customers for Chinese arms include Algeria, Bangladesh, Egypt, Iran, Myanmar, Nigeria, Pakistan, Sri Lanka, Sudan, Tanzania Zimbabwe and Zambia. More recently, Venezuela has become a significant customer for Chinese arms, giving China a toehold in Latin America. Many of China’s arms deals have been done at ‘friendship prices’, that is, selling arms at a discount. Such agreements have been made either for political purposes (ie cementing alliances or promoting cordial relations) or, increasingly, to secure links with oil-and mineral-rich nations, such as Nigeria, Sudan and Zimbabwe.

A.  Recent Chinese Arms Export Activities Leading Chinese arms exports include: • Yuan-class submarine: This submarine features a modern teardrop hull and carries both torpedoes and antiship cruise missiles (ASCMs), and it may even be equipped with an as-yet unidentified system for air-independent propulsion. China recently sold eight Yuan-class submarines to Pakistan and three to Thailand. • Unmanned aerial systems and armed drones: China has quite recently become one of the world’s largest manufacturers of all kinds of unmanned aerial vehicles (UAVs), ranging from the very small, hand-held types, all the way up to very large high-altitude, long-endurance (HALE) drones. In particular, China has so far exported at least two types of armed drones, the Caihong and the Wing Loong (also called the Pterodactyl). The Wing Loong has been sold to Egypt, the United Arab Emirates and Saudi Arabia. A larger version, the Wing Loong II, is also available. The Caihong (Rainbow) has been sold to ­Nigeria, Egypt and Iraq. It has already been used in military operations in Africa against Boko Haram militants, while Iraq has employed the Caihong in attacks on ISIS targets. • JF-17 Thunder fighter jet: The JF-17, also known as the FC-1, is a lightweight multi-role combat aircraft similar in design to the US F-20 Tigershark. The JF-17 was co-developed with Pakistan, which is currently producing the fighter for its air force; estimates are that Islamabad could buy up to 250 of the aircraft. The aircraft is being specifically marketed to developing countries that need to replace aging MiG-21, F-7, or F-5 fighters. Myanmar is rumoured to be acquiring 16 JF-17 fighters, and Nigeria could buy three planes.34

33 Ibid 29. 34 ‘Myanmar First Country to Purchase JF-17 Thunder from Pakistan’ Dunya News, 9 July 2015; Jeremy Binnie, ‘Nigeria Waiting for US to Approve Super Tucano Sale’ Jane’s Defense Weekly, 7 June 2016.

China as an Arms Exporter  333 • C-801/C-802 ASCM: These missiles, also known as the YJ-8 and YJ-82 (YJ stands for Yingji: ‘Eagle Strike’), respectively, are similar to the very effective French Exocet (the C-802 version being equipped with a solid rocket booster for extended range). These ASCMs can be launched from ships, land or aircraft. Recent customers for these missiles include Algeria, Bangladesh, Indonesia, Iran, Myanmar, Pakistan and Thailand.35 • K-8 trainer jet: China has had great success in selling the K-8 lightweight trainer/attack jets, exporting over 300 of these planes since 2000. Its biggest client has been Egypt, which bought 120 K-8s, most of which were assembled locally from kits; Myanmar plans to license-assemble up to 50 of these aircraft. Other customers include Bolivia, Ghana, Namibia, Pakistan, Sri Lanka, Sudan, Tanzania, Venezuela, Zambia and Zimbabwe.36 • F-7MG fighter jet: This aircraft is the export version of the People’s Liberation Army (PLA) Air Force’s F-7E, itself an upgraded adaptation of the MiG-21. The F-7MG features a larger wing and, reportedly, a British radar [7]. China has sold more than 100 of these fighters to Bangladesh, Namibia, Nigeria, Pakistan, Sri Lanka and Tanzania, according to the SIPRI Arms Transfers database, since the mid-1990s.37 • WZ-551 armoured personnel carrier: Although not a particularly high-tech system, the WZ-551 is notable for being sold widely around the world, including countries like Argentina, Gabon, Kenya, Kuwait, Nepal, Oman, Sri Lanka, Sudan and Tanzania.38 It is also worth noting that China has sold several types of small and mediumsized transport aircraft, mostly to African States. These include the Y-12 (to Kenya, Nepal, Uganda and Zambia) and the MA-60 (to Ghana, Nepal and Zambia).39 Other military items with considerable export potential include two locally manufactured combat aircraft, the J-10 and the J-31 fighter jets. The J-10 is roughly equivalent in capability to the US F-16C. Development of the J-10 began in the mid-1980s and it entered service with the People’s Liberation Army Air Force (PLAAF) in the early 2000s. The J-31 is a putative ‘fifth-generation’ combat aircraft currently under development, closely resembling the US-designed F-35 Joint Strike Fighter. It first flew in October 2012. In fact, there has been considerable speculation that the Chinese might try and flood the global arms market with the J-10 and the J-31. Both these combat aircraft could potentially be stiff competition for Western or Russian fighter jets – especially if offered at cut-rate prices – the J-10 competing against smaller, 35 SIPRI Arms Transfers Database (Stockholm, Stockholm International Peace Research Institute) accessed 15 April 2019 (http://armstrade.sipri.org/armstrade/page/trade_register.php). 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid.

334  Michael Raska and Richard A Bitzinger single-engine aircraft such as the Swedish Gripen and the J-31 going up against the Typhoon, Rafale or the F-35. Pakistan has reportedly agreed to buy 36 J-10s, and Iran is rumoured to be interested in the fighter as well.40 Other potentially marketable products include the YJ-7/C-701 short-range ASCM (already sold to Iran and, reportedly, Hezbollah41), the FN-6 man-portable SAM (exported to Malaysia and Peru, among other countries), and the KS-1A SAM missile (sold to Myanmar and Thailand).42

B.  Chinese Armed Drones: A Special Case Study As noted previously, China has quite recently but also quite significantly become a key exporter of armed drones (also referred to as unmanned combat aerial vehicles, or UCAVs).43 This is troubling, because not only is it a potentially lucrative segment of the arms business that is likely to grow significantly over the coming decades – and therefore challenging US sales – but armed drones are also a mounting proliferation concern, seeing as they are an extremely effective offensive weapon. In the first place, only a handful of countries presently manufacture dedicated armed drones. China is one of them. Moreover, China is one of the few countries, other than the United States and Israel, perhaps, whose UCAVs have actually been bloodied in combat. In particular, the Iraqi military recently used a Chinese-built CH-4B Caihong (Rainbow) drone to attack an ISIS target, in this case, with a laserguided missile. It was, in fact, Iraq’s first-ever drone strike.44 In fact, largely unnoticed by most observers, China has become a leader in the global sale of armed drones. It has exported so far two armed drones, the Caihong and the Wing Loong (also called the Pterodactyl). Both bear a striking resemblance to two existing US UCAVs, the MQ-1B Predator and the MQ-9 Reaper. The Wing Loong, designed and built by the Chengdu Aircraft Industry Group (CAIG), is roughly the same size as the Predator, about 29 feet long, and with a wingspan of 45 feet. It carries a much smaller payload, however, about 220 pounds, compared to the Predator’s 1100 pounds. At the same time, the Pterodactyl costs about a million dollars per unit, or only one-fourth that of a Predator drone. It has been sold to Egypt, the United Arab Emirates and Saudi Arabia.

40 A Govindasamy, ‘Pakistan Signs Deal for Chinese J-10 Fighters’ Flight International, 13 November 2009; Z Keck, ‘Get Ready, Israel: China to Sell Iran Advanced Fighter Jets’ National Interest, 5 August 2015. 41 SIPRI Arms Transfers Database (n 35). 42 SIPRI Arms Transfers Database (n 35). 43 See http://thediplomat.com/2015/10/drone-wars-china-and-us-compete-on-the-global-uav-market. 44 See www.rt.com/news/318892-chinese-drone-iraq-airstrike.

China as an Arms Exporter  335 The Caihong drone was developed by the China Aerospace Science and Technology Corporation (CASC), and it is perhaps more disconcerting as a weapons platform than the Wing Loong. The original CH-3 version, which had been sold to Nigeria, appears to be relatively ineffective as a UCAV; at least one crashed in Nigeria, ostensibly during operations against the Boko Haram militants. The CH-4, however, is more or less a clone of the MQ-9 Reaper, and much more capable. It carries a relatively small payload, about 350 kilograms, but larger, improved versions are on the way. In addition to Iraq, CH-4 has been sold to Egypt. More important, there is a new, larger version of the Caihong drone, the CH-5, being readied for market. The CH-5 has a wingspan of 20 meters (66 feet) and a take-off weight of about three tons. It can carry a maximum payload of around 900 kilograms – about two and a half times more than previous UCAVs in the CASC Rainbow series. Finally, China is reportedly developing a purpose-built, low-observable drone, dubbed Lijian (Sharp Sword). Although still a proof-of-concept prototype, the Lijian first flew in 2013 and could be the precursor to a family of Chinese stealth UCAVs. More nations are acquiring armed drones, and more are building them; consequently, UCAVs are poised to become a significant proliferation concern. The United States is a major drone-producing country, but it has considerable controls over the export of these systems. China, on the other hand, has relatively few scruples when it comes to what and to whom it sells its military wares. Armed drones are one of the few areas of the global arms market where China could carve out quite a lucrative niche for itself, to the potential detriment of the US and its allies. Finally, a large chunk of Chinese arms exports includes small arms and ancillary equipment, such as trucks, uniforms and field equipment. Particularly when it comes to sub-Saharan Africa, China has become a leading supplier of assault rifles, ammunition, mortars and the like. In one case, UN inspectors found that highexplosive incendiary cartridges, ostensibly Chinese in origin, were used in Darfur in the early 2010s. At the same time, Beijing has stymied UN efforts to investigate arms flows into Africa.45

IV.  The Impact of Chinese Arms Transfers China will continue to be an important arms exporter, albeit with limitations. It is unlikely, for instance, that Chinese weaponry will constitute much of a threat to European arms manufacturers/exporters. Many of Europe’s key customers will probably remain reluctant to buy Chinese armaments, for a variety of reasons. They may have acrimonious or even hostile relations with China and so would not 45 C Lynch, ‘China’s Arms Exports Flooding into Sub-Saharan Africa’ Washington Post, 25 August 2012.

336  Michael Raska and Richard A Bitzinger wish to employ or be dependent on Chinese armaments. Conversely, ­countries may purposely acquire European armaments to strengthen political-military relations with Europe, which they may value more than similar ties with China. Arms buyers may also prefer European (or other Western or Russian) armaments because they view these weapons to be more reliable and more capable than their Chinese counterparts. The J-10, for example, may be a very good aircraft, but since its performance and reliability cannot be independently confirmed, many countries may not want to take a chance on it. Moreover, countries do not necessarily buy the cheapest weapon systems available – other attributes often count more, such as military effectiveness and after-sales support. This is especially so when it comes to military products; many countries – particularly the best customers on the global arms markets – given the choice, will still pay a premium price to get a premium product. That said, there are a few areas where more advanced Chinese weapons systems could give European arms exporters a run for their money. These include diesel-electric submarines (potentially affecting French, German and ­Swedish submarine producers), antiship, surface-to-air, and antitank tactical missile systems (potentially affecting companies like MBDA, Saab Dynamics, and Thales), and (increasingly) UAVs and armed drones (such as the Dassault nEUROn or the Airbus Barracuda) – all segments where China already has a demonstrated expertise and has scored prior export sales. Potential future areas of competition could include fighter aircraft, defence electronics (such as radar systems) and surface combatants. In this regard – and including small arms – Chinese arms-sales successes vis-à-vis their European competitors would probably lie mostly at the low end, ie, poorer countries for whom money is definitely an issue. Chinese overseas arms transfers have even begun to put a dent into Russian arms export efforts. China competes directly with Russia for arms markets in the developing world, particularly Africa, South and Southeast Asia and Latin America. Beijing has captured sales in countries that used to be major customers for the Soviet Union/Russia, such as Algeria (frigates, ASCMs, and artillery systems), Cambodia (helicopters and man-portable SAMs), Egypt (combat aircraft and UAVs), Ethiopia (armoured personnel carriers and SAMs), Iran (ASCMs and SAMs), Iraq (UAVs), and Venezuela (combat aircraft, multiple rocket launchers, SAMs). China has also scored some minor deals with Russian client States such as Kazakhstan, Syria and Turkmenistan.46 That said, Russia’s most important arms buyers remain unassailable by Chinese arms industries. Countries like India (which accounted for 27 per cent of all Russian overseas arms deliveries during the period 2014–18), South Korea and Vietnam are in inimical relationships with Beijing and thus would probably never buy arms from China (or would not purchase for political reasons). Ironically, China continues to be one of Russia’s biggest arms buyers (and the sixth largest

46 SIPRI

Arms Transfers Database (n 35).

China as an Arms Exporter  337 arms importer, overall) during the period 2014–18.47 During the period 2014–18, China accounted for 14 per cent of Russian arms transfers.48 For the most part, China’s arms industry does not seriously threaten US arms exports, at least not in terms of quantity. Again, according to SIPRI data, China garnered only 5.2 per cent of the total global arms market – only good enough to take the number five spot, but still well behind the United States. Moreover, during the period 2014–18 the bulk of China’s weapons shipments – nearly nearthirds (64 per cent) – went to just three countries, namely Pakistan, Bangladesh and Algeria.49 Finally, constraining or limiting the global transfer of conventional armaments does not appear to be a high priority for Beijing, especially when it might affect its use of arms sales as a producer of profits or a promoter of strategic influence. China does have a formalised, legal and regulatory framework for approving and overseeing arms transfers, that is, ‘The Regulations of the People’s Republic of China on the Administration of Arms Exports’ (established in 1997 and amended in 2002). According to a publication put out by Saferworld, ‘This represented a shift from an administratively based system in the form of executive decrees, to a system based on law and regulations that is more thoroughly codified and transparent.’50 In this regard, the regulations set out the three principles guiding decision-making on Chinese arms transfers: self-defence; peace security and stability; and noninterference. Moreover, China has also had a declaratory policy of not transferring weapons to non-state actors.51 Nevertheless, Beijing does not seem to strenuously advocate for arms control. China, for example, was one of 22 countries to abstain on the April 2013 UN General Assembly Resolution to adopt the Arms Trade Treaty (ATT). Moreover, it has in the past sold arms to pariah States, even after it said that it would not (eg, Iran or North Korea), and it has opposed international efforts to impose sanctions and arms embargoes. It also makes little effort to control so-called ‘third party’ re-exports of Chinese-made weaponry. Compounding all this is a decided lack of transparency in the Chinese arms export approval process.52 In 2019, the National People’s Congress Standing Committee began to draft a new law that would impose tighter controls on China’s arms and nuclear technology sales while consolidating the existing fragmented export controls. Under the new law, for example, arms exporters would have to establish an internal compliance review system, while government agencies would also have to assess buyers and take corresponding risk control measures. However, conforming to this new set 47 SIPRI Arms Transfers Database (n 35). 48 Wezeman, Fleurant, Kuimoova, Wezeman and Tian (n 21) (Table 2) 6. 49 Wezeman, Fleurant, Kuimoova, Wezeman and Tian (n 21) (Table 1) 2. 50 A Stavrianakis and H Yun, China and the Arms Trade Treaty: Prospects and Challenges (London, Saferworld, May 2014) 9. 51 Ibid 10. 52 S Byman and R Cliff, China’s Arms Sales: Motivations and Implications (Santa Monica, RAND Corp, 1999) 31–35, 37–38.

338  Michael Raska and Richard A Bitzinger of regulations would also require increased transparency in the secretive world of Chinese weapons diplomacy, which will likely face considerable internal challenges.

V. Conclusion Despite recent glowing sales figures, China’s current position in the global arms marketplace remains tenuous. In the first place, China remains pretty much a niche player in the global arms market; it sells most of its weapons to a very small number of countries, mostly Pakistan, Bangladesh, Algeria and ­Myanmar. Moreover, according to SIPRI, while China sold major arms to 53 countries during the period 2014–18, 39 of these countries each accounted for less than one per cent of total Chinese arms exports.53 In fact, China faces a continual challenge of remaining competitive in the highly cut-throat business of international arms transfers. In the first place, China continues to struggle to remain technologically competitive with the West, particularly when it comes to developing and manufacturing more advanced types of weaponry – such as supersonic combat aircraft, precision-guided weapons, airborne early warning aircraft and long-range air-defence systems. Armed drones, antiship cruise missiles, and submarines aside, China can for the most part still offer only a handful of advanced weapons systems that are competitive on the global arms market. For example, Beijing has won very few orders for its most advanced fighter jets, particularly the JF-17 and the J-10. The only definitive sale of the JF-17, for example, has been to Pakistan – and only because Pakistan is producing the plane jointly with China; not even the PLAAF has acquired the JF-17, in fact. In addition, as of 2020 no export order for the J-10 (to Pakistan or any other air force) has yet been consummated. Moreover, even when countries have purchased Chinese weapons systems, they often throw out Chinese components and replace them with Western systems. This is because China’s defence industry is still very weak when it comes to key technologies such as jet engines and electronics. For example, Algeria acquired corvettes from China but subsequently outfitted them with Western-made radar, fire-control and communications gear. Pakistani JF-17 jets use a Russian engine, while Thailand turned to Saab to upgrade its Chinese-built frigates.54 A second challenge for China is to continue expanding its customer base. For the most part, Beijing has mainly sold military equipment to countries either too poor to buy Western or Russian armaments (such as sub-Saharan African States

53 Wezeman, Fleurant, Kuimoova, Wezeman and Tian (n 21) 5. 54 R Rahmat, ‘Algeria Commissions Second Chinese-build C28A Corvette’ Jane’s Navy International, 16 March 2015; E Wong and N Clark, ‘China’s Arms Industry Makes Global Inroads’ New York Times, 20 October 2013.

China as an Arms Exporter  339 and Myanmar), or who have been subjected to arms embargoes (such as Iran and Venezuela). Few wealthy, big-spending arms importers (such as the oil-rich Gulf States) have ever been interested in Chinese arms, other than a handful of low-end items55 (notable exceptions: both the United Arab Emirates and Saudi Arabia has recently acquired armed drones from China). Iran used to be a major consumer of Chinese arms, but it has not placed a new order with Beijing in several years. Similarly, China has found relatively few takers for its arms in Latin America, Eastern Europe or Central Asia. A $3.4 billion deal to sell air defence missiles to Turkey collapsed under pressure from Ankara’s NATO allies.56 China’s position as a leading arms exporter therefore remains tenuous. It may hold the number three slot in the global arms trade, but it was still far behind the United States, which has 33 per cent of the global market, and Russia, (25 per cent). In fact, China is only slightly ahead of France (5.6 per cent), Germany (4.7 per cent) and the United Kingdom (4.5 per cent). Moreover, China’s position in the global hierarchy of arms exporters has not been consistent. For example, according to SIPRI, during the period 2006 to 2010, China won just 3.7 per cent of the total arms market, placing it sixth in overall weapons exports. Nevertheless, China’s cumulative political, economic and military rise is reshaping global as well as regional geopolitics, including strategic alliances and balance of power in East Asia in ways that are inherently detrimental to established great powers, ie U.S. interests and its regional strategic partners and allies. While the US continues to maintain superior military-technological advantages and regional presence, its ability to underwrite stability in the Asia Pacific region is increasingly challenged by China.57 The resulting Sino-US strategic competition, reflected for example in the US Third Offset Strategy, in turn compels smaller and mediumsized States in Southeast Asia to accelerate military modernisation, particularly naval and air forces, to keep vital sea lanes open, conduct intelligence missions, and perhaps most importantly, provide strategic options to respond in the SinoUS competition. These trends accelerate regional ‘arms competition’, characterised by incremental, often near-continuous, improvements of existing capabilities, as well as in a mix of co-operative and competitive pressures, continued purchases of advanced weapon platforms, including the introduction of new types of arms and, therefore, unprecedented military capabilities.58 China has a growing capability to shape the

55 Bahrain, for instance, has bought multiple rocket launchers (MRLs) from China; Kuwait, artillery systems and armored personnel carriers (APCs); and Oman, MRLs and APCs. SIPRI Arms Transfers Database (n 35). 56 K Bradsher, ‘Red Flags over Turkey-China Arms Deal’ The Hindu, 24 March 2016. 57 C Blumenthal, ‘The Power Projection Balance in Asia’ in Thomas Mahnken (ed), Competitive Strategies for the 21st Century: Theory, History, and Practice (Stanford, CA, Stanford University Press, 2012) 168. 58 R Bitzinger, ‘A New Arms Race? Explaining Recent Southeast Asian Military Acquisitions’ (2010) Contemporary Southeast Asia 1, 50–69.

340  Michael Raska and Richard A Bitzinger direction and character of the arms competition – not only through its militarytechnological development and diffusion of arms exports, but more importantly, through its strategic choices that influence the contours of strategic alliances and balance of power in different geographic areas. Accordingly, the ongoing struggle for dominance by the region’s two major powers (China and Japan); the future of the Korean Peninsula; intra-regional competition in territorial disputes in the East China Sea and South China Sea; and perhaps most importantly, the contours of long-term regional strategic competition and rivalry between China and the United States, will be inherently shaped by attendant consequences of China’s defence industrial strategies aligned with Beijing’s geopolitical and economic aspirations. In the end, while Chinese arms export may have had their beginnings in mostly economic rationales – such as profits and support for the domestic arms industry – increasingly overseas arms sales are being used as a tool to advance Beijing’s strategic interests. As such, they will also increasingly figure in the growing ­strategic competition with the United States.

List of References Barabanov, M, Kashin, V and Makienko, K, Shooting Star: China’s Military Machine in the 21st Century (Minneapolis, East View Press, 2012). Bitzinger, R, ‘A New Arms Race? Explaining Recent Southeast Asian Military Acquisitions’ (2010) Contemporary Southeast Asia 1. Bitzinger, R and Raska, M, ‘Capacity for Innovation: Technological Drivers of China’s Future Military Modernisation’ in R Kamphausen and D Lai (eds), The Chinese People’s Liberation Army in 2025 (Carlisle, PA, US Army War College Press, 2015). Blumenthal, C, ‘The Power Projection Balance in Asia’ in Thomas Mahnken (ed), Competitive Strategies for the 21st Century: Theory, History, and Practice (Stanford, CA, Stanford University Press, 2012). Bradsher, K, ‘Red Flags over Turkey-China Arms Deal’ The Hindu, 24 March 2016. Byman, S and Cliff, R, China’s Arms Sales: Motivations and Implications (Santa Monica, RAND Corp, 1999). Chase, MS, et al, China’s Incomplete Military Transformation Assessing the Weaknesses of the People’s Liberation Army (Washington DC, RAND Corp, 2015). Cheung TM (ed), Forging China’s Military Might: A New Framework for Assessing Innovation (Baltimore, Johns Hopkins University Press, 2013). —— ‘The Chinese Defence Economy’s Long March from Imitation to Innovation’ (2011) Journal of Strategic Studies 3. —— Fortifying China: The Struggle to Build a Modern Defence Economy (Ithaca, NY, Cornell University Press, 2009). Cheung TM, Anderson, E and Yang, F, ‘Chinese Defence Industry Reforms and Their Implications for US-China Military Technological Competition’ Research Brief – Study of Innovation and Technology in China, (San Diego, University of California Institute on Global Conflict and Cooperation, 2017): https://escholarship.org/uc/item/43m5m3gp.

China as an Arms Exporter  341 Cheung, TM, et al, ‘Planning for Innovation – Understanding China’s Plans for Technological, Energy, Industrial, and Defence Development,’ report prepared for the U.S.-China Economic and Security Review Commission, 2016: www.uscc.gov/Research/planninginnovation-understandingchina.E2%80%99s-plans-technological energy-industrialand-defence. Cordesman, A, Hess A and Yarosh N, Chinese Military Modernisation and Force Development (Washington DC, Centre for Strategic and International Studies, 2013). Department of Defence, Defence Science Board, Task Force Report: Resilient Military Systems and the Advanced Cyber Threat (Washington DC, Office of the Under Secretary of Defence for Acquisition, Technology, and Logistics, 2013). Fleurant, A, Wezeman, P, Wezeman, S and Tian, N, SIPRI Fact Sheet: Trends in International Arms Transfers, 2016 (Stockholm, Stockholm International Peace Research Institute, 2017). Govindasamy, A, ‘Pakistan Signs Deal for Chinese J-10 Fighters’ Flight International, 13 November 2009. Hagt, E, ‘Emerging Grand Strategy for China’s Defence Industry Reform’ in R Kamphausen, D Lai, A Scobell (eds), The PLA at Home and Abroad: Assessing the Operational Capabilities of China’s Military (Carlisle, PA, US Army War College, 2010). Information Office of the State Council of the People’s Republic of China (2015) China’s National Defence in 2015: http://eng.mod.gov.cn/Database/WhitePapers/index.htm. —— (2004) China’s National Defence in 2004: www.gov.cn/english/2006-02/09/ content_183426.htm. Ji, Y, China’s Military Transformation: Politics and War Preparation Cambridge, Polity Press, 2016). Keck, Z, ‘Get Ready, Israel: China to Sell Iran Advanced Fighter Jets’ National Interest, 5 August 2015. Kennedy, S, ‘Made in China 2025’ (Centre for Strategic & International Studies, 2015): www.csis.org/analysis/made-china-2025. Levesque, G and Stokes, M, Blurred Lines: Military-Civil Fusion and the ‘Going Out’ of China’s Defence Industry (Washington DC, Pointe Bello, 2016). Lin, J and Singer, PW, ‘The Dragon Muscles In: Growing Number of Victories in Chinese Arms Exports’ Popular Science, 9 June 2016. Lindsay, J and Cheung, TM, ‘From Exploitation to Innovation: Acquisition, Absorption, and Application’ in Lindsay, J, Cheung, TM and Reveron D (eds), China and Cybersecurity: Espionage, Strategy, and Politics in the Digital Domain (New York, NY, Oxford University Press, 2015). Lynch, C, ‘China’s Arms Exports Flooding into sub-Saharan Africa’ Washington Post, 2012. Rahmat, R, ‘Algeria Commissions Second Chinese-build C28A Corvette’ Jane’s Navy International, 16 March 2015. Raska, M, ‘Scientific Innovation and China’s Military Modernisation’ The Diplomat, 3 September 2013. Saunders, PC and Wuthnow J, ‘China’s Goldwater-Nichols? Assessing PLA Organizational Reforms’ (2016) Joint Force Quarterly 2. Stavrianakis, A and Yun, H, China and the Arms Trade Treaty: Prospects and Challenges (London, Saferworld, 2014). Theohary, CA, Conventional Arms Transfers to Developing Nations, 2008-2015 (Washington DC, Congressional Research Service, 2016).

342  Michael Raska and Richard A Bitzinger Wezeman, P, Fleurant, A, Kuimoova, A, Wezeman, S and Tian, S, SIPRI Fact Sheet: Trends in International Arms Transfers, 2018 (Stockholm, Stockholm International Peace Research Institute, 2019). Wong, E and Clark, N, ‘China’s Arms Industry Makes Global Inroads’ New York Times, 20 October 2013. Xinhua News, ‘China Focus: China Targets Better Integrated Military, Civilian Development’ (21 July 2016): http://news.xinhuanet.com/english/2016-07/21/c_135530920.htm. —— ‘Xi Urges Greater Military-Civilian Cooperation for Strong Army’ (19 October, 2016): http://news.xinhuanet.com/english/2016-10/19/c_135766754.htm.

12 India and Arms Exports1 SHASHANK JOSHI

I. Introduction India differs from the other countries in this study: it is not a major arms exporter, and indeed was the world’s largest arms importer for almost a decade after 2006. However – and in part because of this predicament – India sees it as a national priority to develop its stunted defence industrial base, expand arms exports and shape international export control regimes to its advantage. India is the world’s fastest growing major economy, an increasingly important influence on global governance, and a widely courted partner in the geopolitics of Asia. It is developing advanced indigenous or semi-indigenous arms technology and platforms, including cruise missiles, surface-to-air missiles, combat aircraft, main battle tanks, and a range of warships, all of which it hopes to export to customers across Asia, the Middle East, Africa and South America. As such, Indian attitudes and policies towards the transfer of arms, and the norms, regulations, and laws associated with those transfers, have an importance belied by the present trickle of exports. This chapter is split into five parts. After this brief Introduction, section II describes India’s defence industrial base, the pattern of Indian arms exports and notable trends. Given India’s status as an arms importer, its consequently high level of exposure to international regimes as a recipient, and issues around the re-export of previously imported arms, this first section also describes how India views arms imports and exports as connected to one another. Section III examines India’s system of export controls. It explains the three main pathways for authorising arms exports, the criteria employed by the Government, and the factors that have shaped the system over time. Section IV looks at India’s approach to the arms export control regimes, with a focus on India’s reasons for refusing to join the Arms Trade Treaty established in 2013, while section V concludes.

1 I am grateful to Laxman Behera, Rajiv Nayan, Cristina Rotaru and Robert Shaw. All errors are my own.

344  Shashank Joshi

II.  Indian Arms Exports A.  Indian Arms Exports: Summary Historical data on Indian arms exports is unreliable and uneven, while current data is limited and partial. However, nearly all sources agree that India is a minor arms exporter in global terms and relative to the size of India’s defence establishment. Figures compiled by the Stockholm International Peace Research Institute (SIPRI) suggest that, during 2000–2015, India stood below Iran, Libya and R ­ omania in the global ranking of arms exporters.2 Its exports stood at one-quarter those of Belgium, one-fifth those of Belarus, or less than three per cent those of China. According to SIPRI data, Indian arms exports appear never to have risen above $60 million.3 Exports have shown an upward trend from the early 1990s, remaining above $10 million for most of the 2000s, and reaching an all-time high of $53 million in 2014. Figure 1  Indian arms exports 1971–2015 (some data missing)

$US millions at constant (1990) prices

60 50 40 30 20 10

2015

2013

2011

2009

2007

2005

2003

2001

1999

1997

1995

1993

1991

1989

1987

1985

1983

1981

1979

1977

1975

1973

1971

0 Source: SIPRI.

The Indian Government’s own figures differ considerably, by a factor of more than three. These suggest that exports in 2015–16 were in fact $247.6 million, up from $145.4 million in 2014–15.4 Some press reports have recorded the 2015–16 figure as $309 million, although this may be affected by exchange rate fluctuations 2 SIPRI Arms Transfers Database 1950–2014, www.sipri.org/databases/armstransfers. 3 In constant (1990) prices. 4 Figures from Department of Defence Production, Ministry of Defence, Government of India, http://ddpmod.gov.in/defence-exports. Rupee figures (1693.8 and 994.04 crore respectively) converted into dollars at exchange rate prevailing on 11 January 2017.

India and Arms Exports  345 (the official figure for 2016–17 amounts to $217 million at exchange rates prevailing in April 2019).5 In January 2019, an Indian official forecast that exports would reach $1.4 billion by March that year.6 It should be noted that India has tended to include non-lethal equipment produced by the defence sector in its list of arms exports, even where these are demonstrably civilian-oriented, such as earthmoving equipment.7 Even if we take these newer figures as accurate, they represent a small sum by any standard: a miniscule fraction of India’s defence spending, a negligible source of foreign exchange, and far less than countries with similar aspirations to great power status. Why is this so? ‘We are not a significant exporter of arms mainly because we have very little exportable military equipment’, notes Amit Cowshish, a former official at India’s Ministry of Defence.8 A brief survey of India’s defence manufacturing base illustrates this point. Today, India’s defence industry is built around nine Defence Public Sector Undertakings (DPSUs), 41 Ordnance Factories (OFs), a sprawling Defence Research and Development Organisation (DRDO), as well as a number of increasingly important private firms. The DPSUs are the most active in arms exports, exporting around four to five per cent of their total sales, while the Ordnance Factory Board (OFB) exports less than one per cent.9 The Government maintains majority stakes, at a minimum, in all DPSUs, and therefore wields a high degree of control over their activities, including in terms of export. Hindustan Aeronautics Limited (HAL) is perhaps the most well-known of the DPSUs given its role in producing some of the most prominent Indian aircraft, and it is also the most export-active DPSU, with around $60.8 million of exports in 2014–15.10 For instance, HAL exported seven Advanced Light Helicopters (ALH) to Ecuador on the basis of an exceptionally competitive bid (a series of crashes and legal disputes has since coloured this sale, as discussed later in this chapter).11 Another DPSU, Garden Reach Shipbuilders & Engineers Ltd (GRSE), made India’s first-ever sale of a warship, to Mauritius for $58.5 million, in 2014.12 Such large one-off commercial sales have been rare in India’s exporting history, and the Indian defence exports continue to be dominated by items such as personal protective equipment, offshore patrol vessels and spares for helicopters and radars.13 A brief survey of India’s arms exports over time is given in the next section. 5 ‘India, the New Kid in Defense Exports, Ratchets Healthy Growth’ (Sputnik, 20 December 2016), https://sputniknews.com/asia/201612201048797487-india-defense-exports/. 6 Press Trust of India (PTI), ‘India’s Arm Export May Cross Rs 10,000 cr by End of FY19: Defence Official’ Business Standard, 18 January 2019, www.business-standard.com/article/defence/india-s-armexport-may-cross-rs-10-000-cr-by-end-of-fy19-defence-official-119011800989_1.html. 7 Amit Gupta, ‘The Indian Arms Industry: A Lumbering Giant?’ (1990) 30 Asian Survey 557–58. 8 H Siddiqui, ‘Made in India Missiles Big Hit! Countries across the Globe Show Interest in Buying BrahMos, Akash’ (Financial Express, 14 March 2019), www.financialexpress.com/defence/made-inindia-missiles-big-hit-countries-across-the-globe-show-interest-in-buying-brahmos-akash/1515779/. 9 LK Behera, Indian Defence Industry: An Agenda for Making in India (New Delhi, Institute for Defence Studies and Analysis, 2016) 31–32. 10 Ibid, 55. Note: not all of this amount would be classed as arms exports. 11 ‘Legal Tangle Hits Ecuador Dhruv Deal’ The Hindu, 5 November 2016. 12 Behera (n 9) 42. 13 S Singh, ‘Why Parrikar’s $2 billion Defence Exports Target Faces Hurdles’ Indian Express, 13 January 2017.

346  Shashank Joshi

B.  The Evolution of Indian Arms Exports i.  Arms Exports Up to the 1970s India’s earliest arms exports were of two kinds: to small neighbours viewed as de facto protectorates of India, or at least lying within its sphere of influence, and emerging post-colonial States or liberation movements, many of whom were often also beneficiaries of Indian support in terms of diplomacy, intelligence and other types of capacity-building.14 Some of the earliest examples are given in Table 1 below, although this should not be considered an exhaustive list.15 Table 1  Early Indian Arms Transfers Recipient

Export

Date

Ghana

HT-2 trainer aircraft

195916

Indonesia

HT-2 trainer aircraft

1961a

Singapore

HT-2 trainer aircraft, small arms

Nepal

Small arms

196518

South Yemen

Unspecified arms

1967a

Bhutan

Transport helicopter

196819

Egypt

Joint-produced MiG aircraft

1969a

Bangladesh

Aircraft, patrol craft, small arms

Mauritius

Patrol craft

197420

Nepal

Helicopters

197421

South Africa

Tanks

197822

1963a, 196917

1971–73a

Sources: a

Srikant Dutt, ‘Indian Aid to Co-Developing Countries’ (1980) Economic and Political Weekly Vol 15, No 14, 672–78.

14 B Raman, The Kaoboys of R&AW: Down Memory Lane (New Delhi, Lancer Publishers, 2008) 77. 15 Several of these examples are drawn from SIPRI’s database (n 2), but only where corroborating references have been found. Other examples given here, such as the cases of South Yemen of Malaysia, are not included in SIPRI’s database. 16 ‘HT-2 Aircraft for Ghana’ Times of India, 22 November 1959. 17 SK Datta-Ray, Looking East to Look West: Lee Kuan Yew’s Mission India (New Delhi, Institute of Southeast Asian Studies, 2010) 1, 113. See also Press Trust of India, ‘Malaysia Gets Arms from UK and India’ Times of India, 3 June 1969. 18 S Thapliyal, Mutual Security: The Case of India-Nepal (New Delhi, Lancer Publishers, 1998) 96; S Upadhya, Nepal and the Geo-Strategic Rivalry Between China and India (London, Routledge, 2012) 93. 19 P Singh, Aircraft of the Indian Air Force, 1933–73 (English Book Store, 1974) 130. 20 PKS Namboodiri, JP Anand and Sreedhar, Intervention in the Indian Ocean (ABC Publishing House, 1982) 13. 21 FT Jane, Jane’s All the World’s Aircraft (McGraw-Hill, 1985) 96. 22 South Africa: Time Running Out: The Report of the Study Commission on U.S. Policy Toward Southern Africa (University of California Press, 1981) 249–50. See also BK Joshi, ‘How Indian Tanks went to S. Africa’ Times of India, 16 May 1981.

India and Arms Exports  347 We should note here that India has also covertly exported arms to a number of countries. Arms were airdropped to Tibetan rebels, following the Sino-Indian war of 1962.23 In 1970–71, India provided extensive assistance, initially covert, to Bengali rebels fighting Pakistani troops.24 This included heavy mortars procured from Israel.25 It then openly armed the newly independent State of Bangladesh.26 Indian accounts also suggest that India may also have provided arms to Indonesian forces fighting the Dutch during 1945–49, to the Algerians, via Egypt, in the 1950s,27 and later to Zimbabwean and Namibian rebels.28 Perhaps the most important and controversial episode in this period involved 90–100 of India’s British-made Centurion tanks being acquired by South Africa in 1978, allegedly through the use of a Spanish intermediary, and despite India’s public opposition to the apartheid regime and the prevailing UN arms embargo. The precise circumstances of that transfer remain unclear, given India’s prior and subsequent defence trade with South Africa,29 but it was later widely cited as a reason why India ought to be cautious in exporting arms.30

ii.  Arms Exports in the 1980s and 1990s In 1982, by which time arms exports ‘had fallen to zero’, according to one probably exaggerated account,31 Indian officials listed a number of potential markets (Kenya, Uganda, Zambia, Iraq, Iran, Saudi Arabia, Kuwait, Singapore, Malaysia and Thailand), promising to expand arms exports in line with end-user certification. However, a ‘low level of production … and sophistication’ continued to limit these possibilities.32 The example was given of trials of an Indian-made light machine gun in the British city of Manchester, where crude wood and steel work put an end to hopes of foreign sales.33 Those contemporary accounts noted that Indian arms exports stood at $10 million per annum, in current prices, and that the sum had reached five times that amount but been curtailed ‘because of political

23 JW Garver, Protracted Contest: Sino-Indian Rivalry in the Twentieth Century (Seattle, University of Washington Press, 2001) 63. 24 R Sisson and LE Rose, War and Secession: Pakistan, India, and the Creation of Bangladesh (Berkeley, University of California Press, 1990) 185. 25 S Raghavan, 1971: A Global History of the Creation of Bangladesh (Cambridge, Harvard University Press, 2013) 213. 26 M Hewish, Air Forces of the World: An Illustrated Directory of All the World’s Military Air Powers (Peerage, 1984) 201. 27 However, see K Singh, India and the Maghreb Africa: A Study of India’s Relations with Libiya, Tunisia, Algeria & Morocco (New Delhi, Bahri Publications, 1993) 70. 28 S Devare, India & Southeast Asia: Towards Security Convergence (Institute of Southeast Asian Studies, 2006) 71; K Subrahmanyam, ‘Arms for Afghan Rebels’ (1981) 4 Strategic Analysis 438; D Brewster, India’s Ocean: The Story of India’s Bid for Regional Leadership (London, Routledge, 2014) 90. 29 Brewster, ibid 90. 30 Associated Press, ‘Canadian Company to Buy Indian Tank Spares Times of India, 27 August 1980. 31 Gupta (n 7). 32 KN Malik, Bid to Boost Arms Exports Times of India, 21 November 1982. 33 Ibid.

348  Shashank Joshi and international considerations’.34 A paper on defence exports was circulated in India’s cabinet in 1984.35 In 1989, India’s defence minister reiterated the importance of defence exports, and asked government-owned arms producers to fix export targets.36 As India grappled with this question, sceptical voices pointed out various challenges. K Subrahmanyam, a prominent defence analyst, warned that India, if it were serious about exports, would face a number of challenges: it would have to invest in larger production capacity, extend credit to buyers, seek Soviet permission to export some platforms, deal with resulting arms-related corruption, and accept the displeasure of countries affected by sales.37 ‘One wonders whether the country [India] which hesitates to conduct … missiles test[s] for fear of international repercussions will be selling [missiles] around the world’, asked Subrahmanyam rhetorically.38 Others noted that India would also have to consider delaying its own procurement to meet foreign orders, much as France and Britain had done. In 1990, it was noted that Bharat Electronics Limited (BEL) and Bharat Earth Movers (BEM), both DPSUs, had made ‘intensive efforts towards gaining a foothold in West Asian and Iranian markets’, while the OFB had received an order of 200 gun barrels from Yugoslavia.39 In 1991, as India suffered a major economic crisis, the issue was revived again in cyclical fashion. India ‘had long kept away’ from arms sales ‘on moral and ethical considerations’, suggested one newspaper, inaccurately, but ‘defence ministry sources feel that the time has come to shed our earlier moral considerations’.40 Officials suggested that India might focus initially on non-lethal items ‘like tents and uniforms’, or ambulances. That same year, India proposed using its excess capacity to manufacture Soviet-licenced arms for the third world, with an Indian delegation visiting Moscow in August,41 as well as selling ‘old and worn-out defence equipment’.42 In 1992, India agreed to service and maintain Malaysia’s MiG-29 fleet, and train its crews, highlighting the promise of defence services exports.43

34 Calculation based on figure of Rs. 4 crores, converted to $4.3 million at prevailing 1982 exchange rates, and adjusted for inflation using ratio of Consumer Price Index (CPI) in 2016 (128.778) to 1982 levels (96.5). Note that this is substantially different to the figure of $2 million in constant 1990 prices given by SIPRI. 35 LK Sharma, ‘Arms Export Plans – More Noise than Substance Times of India, 11 February 1989. 36 Ibid. 37 K Subrahmanyam, ‘Arms Exports Raise Tricky Questions’ Times of India, 13 February 1989. 38 India began its Integrated Guided Missile Development Programme (IGMDP) in 1982–83, but faced significant opposition from the US and other countries. See Press Trust of India, ‘U.S. Critics Unfair to Agni’ Times of India, 1 May 1989. 39 United News of India (UNI), ‘Defence Exports Noteworthy’ Times of India, 12 June 1990. 40 S Guha, ‘India to Boost Defence Sales’ Times of India, 5 July 1991. 41 S Guha, ‘Move to Raise Arms Exports’ Times of India, 17 August 1991. 42 UNI, ‘Defence Exports to Net Rs 500-cr’ Times of India, 11 November 1991. 43 S Gupta, India Redefines Its Role: An Analysis of India’s Changing Internal Dynamics and Their Impact on Foreign Relations (Oxford, Oxford University Press for the International Institute for Strategic Studies, 1995) 48. See also P Sawhney, ‘India to Aid Malayasian Army’ Times of India, 23 March 1992.

India and Arms Exports  349 With the Cold War over, and India’s non-aligned posture less relevant in a world with only one superpower, India’s foreign policy grew more ambitious. In 1993, India for the first time participated in the International Defence Exhibition (IDEX) in Abu Dhabi, with an eight-member delegation including the Minister of State for Defence.44 However, it was clear that Indian producers would fall well short of the export targets set at the beginning of the decade, because of India’s institutional inexperience with arms exports and limited understanding of the market.45 This was despite an ‘endless’ flow of inquiries, including orders for thousands of ammunition rounds by private dealers in the Middle East. In 1994, India’s Minister of State for Defence pointed to Britain, France, Belgium, Iran, Algeria and Poland as potential customers.46 The wide range, spanning NATO members, to former Warsaw Pact members, to Western adversaries, showed India’s approach to broad, diverse engagement. The next year, India hosted a major arms conference for the first time, the India International Civil and Defence Equipment and Systems Conference (IICDES), which focused on former Eastern Bloc countries, as well as Russia, the United States and South Africa.47 Although Indian defence exports failed to take off, India continued sporadic transfers to key countries through the 1990s. In this period, India sent patrol craft to Mauritius and Guinea-Bissau, armoured cars to the Maldives, light helicopters to Namibia (which had just gained full independence from South Africa), and mortars to Nepal.48 From the mid-1990s onwards, India also provided significant covert support to anti-Taliban forces in Afghanistan, in co-operation with Iran and Russia.49 This support is believed to have included high-altitude warfare equipment and helicopter technicians for Northern Alliance leader Ahmed Shah Massoud, much if not most of it provided by Farkhor Air Base in Tajikistan.50

iii.  The Last Two Decades of Arms Exports At the end of the decade, in 1999, the Indian Parliament’s standing committee on defence censured the defence ministry for failing to tap exports markets, and reiterated the longstanding suggestion that foreign embassies market Indian arms more actively.51 But in the 2000s, as India’s economic growth expanded and China began to play a larger role on India’s land and maritime periphery, New Delhi began

44 UNI, ‘India Moving towards Defence Exports’ Times of India, 12 February 1993. 45 P Sawhney, Defence Exports Unlikely to Rise, Times of India, 21 January 1992. 46 PTI, ‘Defence Exports to be Stepped Up’ Times of India, 17 March 1994. 47 ‘Delhi to Host World Defence Exhibition’ Times of India, 19 January 1995. 48 SIPRI, Arms Transfers Database (n 2). 49 S Coll, Ghost Wars: The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001 (Penguin Press, 2004) 465, 519. 50 R Bedi, ‘India Joins Anti-Taliban Coalition’ (2001) Jane’s Intelligence Review; A Paliwal, ‘India’s Taliban Dilemma: To Contain or to Engage?’ (2015) Journal of Strategic Studies (no volume). 51 NK Pant, Arms Export: Filling the Budgetary Gap (New Delhi, Institute for Peace and Conflict Studies, 1999).

350  Shashank Joshi to articulate a more active and ambitious regional role.52 This included the transfer of an armoured vehicle to Bhutan, patrol craft to the Maldives, the Seychelles and Sri Lanka, armed helicopters to Nepal, and a maritime patrol aircraft to ­Mauritius. Especially important was India’s relaxation of restrictions on arms exports to Sri Lanka in 2002.53 After 2010, this regional trend continued with further helicopters to the Maldives, Namibia, Nepal, Afghanistan and Suriname, as well as further patrol craft to Mauritius and the Seychelles. These transfers included a mixture of commercial deals, though often financed by Indian credit and aid. This period had two clear themes. The first was an effort to build up the maritime capabilities of weaker regional powers, at a time of expanding Chinese naval influence.54 The second was capacity-building in weaker, or unstable, neighbours.55 India has historically played a major role in Nepal, including during its civil war from 1996 to 2006, and this was reflected in its extensive, and almost entirely noncommercial, arms transfers within that period. India’s arms transfers to Myanmar in the mid-2000s represent an especially important and contentious case. India’s aim was primarily to secure Myanmar’s co-operation against insurgent groups straddling the India–Myanmar border in India’s Northeast, although the role of Pakistan and China in Myanmar is also likely to have factored into Indian thinking.56 These transfers were controversial because of international efforts to isolate the regime in Myanmar, European Union (EU) and American sanctions on the country, and the presence of Western components in some arms.57 Amnesty International and other European non-governmental organisations (NGOs) warned that the ALH, discussed above in the context of its sale to Ecuador, and linked with Myanmar, contained components from six EU Member States as well as the United States, and that Indian re-export would violate end-user agreements.58 According to a leaked US diplomatic cable, India also transferred 18 second-hand artillery pieces and British-made maritime patrol aircraft.59 The latter provoked strong protest but, ‘with no end-use agreement in place, the [British] High Commission felt ultimately India had control over the fate of the planes in question’. Some years later, in 2012, Swedish officials noted that Swedish-made Carl Gustav anti-tank weapons sold to India in 2003 had been used by Myanmar’s army against Kachin rebels, in violation

52 D Scott, ‘India’s “Extended Neighborhood” Concept: Power Projection for a Rising Power’ (2009) 8 India Review 107. 53 B Orland, ‘India’s Relations with Sri Lanka’ in D Scott (ed), Handbook of India’s International Relations (London, Routledge, 2011) 101. 54 CR Mohan, ‘India and the Changing Geopolitics of the Indian Ocean’ (2010) 6 Maritime Affairs: Journal of the National Maritime Foundation of India 1–12. 55 D Chanana, ‘India as an Emerging Donor’ (2009) 44 Economic and Political Weekly 11–14. 56 A Singh, ‘Emerging Trends in India–Myanmar Relations’ (2012) 8 Maritime Affairs: Journal of the National Maritime Foundation of India 25–47. 57 A Chopra, ‘Why India Is Selling Weapons to Burma’ (2007) Christian Science Monitor. 58 Indian Helicopters for Burma: Making a Mockery of Embargoes? (Amnesty International), www. amnesty.org/download/Documents/64000/asa200142007en.pdf. 59 ‘India Strongly Denies Howitzer Sales to Burma, but others Confirm’ (Wikileaks, 2 November 2006), https://wikileaks.org/plusd/cables/06NEWDELHI7514_a.html.

India and Arms Exports  351 of end-user agreements.60 India denied it had made any such sale.61 Despite the controversy, India is being sold a more advanced variant of the platform as of 2017.62 More recently, India has also exported ship-borne sonars to Myanmar.63 There is no evidence to suggest that India has been subjected to greater scrutiny in the period since these episodes, but they are likely to have been considered in internal deliberations over end-user risks. India’s most militarily significant arms exports in the last decade are probably those to Afghanistan. Over 2015–16, India delivered four Mi-25 Hind attack helicopters to the Afghan Air Force (AAF).64 With the exception of far lighter and less capable armed platforms to Nepal, these represented the first recorded cases of transfers of offensive airpower by New Delhi. They were all the more significant because India had earlier expressed considerable caution in lethal exports to Afghanistan, out of concern for Pakistan’s response, the risk of diversion, and its own limited stocks.65

C.  India’s Arms Export Ambitions India continues to set ambitious targets for defence exports that are almost certainly unrealistic. In 2016, the Government stated that it aimed at $3 billion of exports within a decade66 and $2 billion by 2018.67 India has focused on small and medium-sized powers in Asia, the Middle East and South America, including those likely to seek lower-cost alternatives to high-end European and American arms. Indian leaders have emphasised the export possibilities of a handful of platforms with significant indigenous content. These include the Tejas light fighter aircraft, the Light Combat Helicopter (LCH), the BrahMos cruise missile, the Akash surface-to-air missile (SAM) system and the Pragati short-range missile.68 • The first squadron of the inexpensive Tejas was inducted into the Indian Air Force in July 2016, despite severe delays in its development and production,

60 A Buncombe, ‘Swedish-Made Weapons Used to Crush Burma’s Ethnic Rebels Traced Back’ The Independent, 14 December 2012. 61 ‘Army Denies Selling Arms to Myanmar’ Times of India, 16 December 2012. 62 S Baruah, ‘Now, India to Make Carl-Gustaf Guns’ (The Asian Age, 10 December 2016), www.asianage.com/india/all-india/101216/now-india-to-make-carl-gustaf-guns.html. 63 ‘India to Export Home Made Advanced Sonar System for Small Naval Platforms’ (Sputnik, 18 November 2016), https://sputniknews.com/asia/201611181047604016-india-sonar-system/. 64 ‘India Gives Four Military Helicopters to Afghanistan before Key Meet’ Economic Times, 28 November 2016. 65 P Swami, ‘Upset with Delay, Kabul Shelves Request for Arms Aid from Delhi’ Indian Express, 30 October 2014, http://indianexpress.com/article/india/india-others/upset-with-delay-kabul-shelvesrequest-for-arms-aid-from-delhi/. 66 NC Bipindra, ‘India Wants to Be One of the World’s Biggest Arms Exporters’ (Bloomberg, 27 ­January 2016). 67 ‘Target to Raise India’s Defence Exports to $2 billion: Manohar Parrikar’ The Hindu, 14 May 2016. 68 PTI, ‘India Can Export Fighter Planes, Missiles: DRDO Chief ’ Deccan Chronicle, 22 June 2014.

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•

•

and considerable scepticism from Indian pilots themselves.69 It was displayed at the Bahrain International Air Show in February 2016.70 Sri Lanka and Egypt have expressed interest.71 In May 2016, Indian officials noted that they were in talks with ‘certain African countries’ for the export of the LCH, which was at the stage of weapon trials.72 In June 2016, India’s Defence Minister stated that a tenth of India’s missile capacity would be allocated for export to ‘friendly’ countries, noting that Vietnam had expressed particular interest in the BrahMos, co-developed by Russia and India.73 Negotiations with Hanoi were said to be at an ‘advanced stage’.74 (Confusingly, in 2019, a senior Indian officer indicated that ‘BrahMos was never being discussed with Vietnam’, although it is impossible to judge the ­credibility of either the initial reports or the latter ones.) The Indian Government also ordered BrahMos Aerospace (which is not a DPSU, but a joint venture between India and Russia) to ‘accelerate sales’ to Indonesia, South Africa, Chile and Brazil.75 A further 11 countries, including Malaysia, Thailand and the United Arab Emirates, had expressed interest but ‘need[ed] further discussions and analysis’, while the Philippines had reportedly made a request.76 More recently, officials have suggested that South Korea, Algeria, Greece, Egypt, Singapore and Bulgaria have all discussed possible purchases – although there is reason to think this is exaggeration on the part of officials.77 The Akash SAM system was inducted into the air force in July 2015. In January 2017, it was reported that India was discussing a possible sale to Vietnam.78 Other Association of Southeast Asian Nations (ASEAN) nations and Gulf States have also been connected with the Akash, according to Indian media reports in 2019. The Pragati missile is the export variant of the army’s 150km-range Prahaar missile, tested once in 2011 and displayed for foreign markets in 2013 at the Seoul International Aerospace & Defense Exhibition (ADEX).79 No specific customers have been suggested.

69 PTI, ‘After Three Decades, Indigenous Tejas Aircraft Inducted into IAF’ Indian Express, 1 July 2016. 70 A Shukla, ‘Air Force, DRDO, Pleased with Tejas Performance at Bahrain’ Business Standard, 22 February 2016. 71 Sri Lanka, ‘Egypt Indicate Interest In Indigenous Tejas Combat Aircraft’ (NDTV, 18 April 2016). 72 ‘India in Talks with African Countries for Exporting Light Combat Helicopter’ Economic Times, 15 May 2016. 73 ‘India to Export Missile Systems to “certain” Friendly Nations: Manohar Parrikar’ Times of India, 17 June 2016. 74 R Bedi and J Grevatt, ‘India Plans Expanded Export of BrahMos Cruise Missiles’ IHS Jane’s Defence Weekly, 14 June 2016. 75 ‘India Plans Expanded Missile Export Drive, with China on its Mind (Dawn/Reuters, 9 June 2016), www.dawn.com/news/1263750/india-plans-expanded-missile-export-drive-with-china-on-its-mind. 76 Ibid. 77 Siddiqui (n 8). 78 R Pandit, ‘Wary of China, India Offers Akash Surface-to-air Missile Systems to Vietnam Times of India, 9 January 2017; R Bedi, ‘India in Talks with Vietnam over Akash SAM system’ (IHS Jane’s 360, 10 January 2017). 79 M Somasekhar, ‘Indian Defence Products Attract Global Attention at Seoul ADEX 2013’ (The Hindu Business Line, 4 November 2013).

India and Arms Exports  353 To lesser degrees, Indian officials have also mentioned the export potential of the Astra air-to-air missile, Arjun Mark II tanks, and the airborne early warning and control (AEWC) systems developed by DRDO.80 In addition to these largely indigenous platforms, India has also sought to encourage and incentivise foreign defence manufacturers to co-operate with Indian counterparts to produce platforms for the export market. One example is the Advanced Hawk trainer jet, developed jointly by Britain’s BAE Systems and India’s HAL, which is intended, perhaps exclusively, for export.81

i.  Arms Exports and the Modi Government The election of the Hindu nationalist Bharatiya Janata Party (BJP) in 2014 accelerated some earlier trends. In September 2014, shortly after taking office, the Government of Prime Minister Narendra Modi launched an initiative to promote defence exports, including a published Strategy for Defence Exports.82 This set out the need for several steps:83 • The establishment of an export promotion body to ‘identify the suitable export markets in consultation with Ministry of External Affairs and Department of Commerce, keeping in view our foreign policy and various international export control and arms control regimes’. • The institution of a Defence Exports Steering Committee (DESC) within the Ministry of Defence, to include representatives of the armed forces, DRDO, and the foreign and commerce ministries. • The inclusion of industry delegations, including from the private sector, in bilateral defence diplomacy ‘so that the importing country gets due comfort while importing from India’. • Using lines of credit from the foreign and commerce ministries, and the Export-Import Bank of India (EXIM), to encourage arms exports. However, it should be noted that no dramatic shifts in arms export volumes, values or policy occurred in the BJP’s first term, from 2014 to 2019, despite some of the lofty rhetoric employed by party leaders.

80 R Singh, ‘India Identifies 15 Weapon Systems for Export Hindustan Times, 14 September 2014. 81 S Badri-Maharaj, ‘HAL’s Gamble – Will the “Advanced Hawk” Break into the Export market?’ (Institute for Defence Studies and Analyses, 13 February 2017). See also PR Sagar, ‘Set Back for Make in India Initiative after IAF Says No to Advanced Hawk Trainer Jets’ New Indian Express, 6 February 2017. 82 M Pubby, ‘Modi Government Notifies New Strategy for Export of Defence Products’ Indian Express, 5 September 2014, http://indiatoday.intoday.in/story/narendra-modi-defence-export-­ strategy-ndadesc-defence-ministry-indian-arms/1/381215.html. 83 Strategy for Defence Exports (New Delhi, Ministry of Defence, Government of India, September 2014), http://ddpmod.gov.in/sites/default/files/STRATEGY%20FOR%20DEFENCE%20EXPORTS.pdf.

354  Shashank Joshi

D.  India’s Arms Export Obstacles Thus far, India has failed to grow into a major arms exporter, after over 30 years of attempting to do so. A fuller understanding of this failure would require a comparative study, but a few factors may be suggested here.

i.  Moral and Ideological Constraints First, Indian and foreign observers have consistently argued that India’s selfidentity as a peaceable, non-aligned and principled State, informed by ‘Gandhian antecedents of non-violence’, has contributed to an ideological aversion to arms sales.84 This is related to the slightly broader idea that India has historically practiced a form of ‘strategic restraint’ that de-legitimises the use of force, military alliances, great power politics, and so – bound up with all of these – arms sales.85 While it is difficult to separate moral from political factors in attributing motive, it is clear that India has deliberately taken a more cautious approach than other large powers. In 1987, for instance, India reportedly refused to sell MiG-21s to Zimbabwe to avoid entanglement in Southern African conflicts86 – this despite its ‘material and technical support’ to national liberation movements in Africa.87 India also refused to sell two squadrons of Jaguar strike aircraft to Thailand, despite the production line’s imminent closure, on the grounds of Bangkok’s antagonism with Vietnam, which was friendly to India.88 However, this is a less than satisfying explanation. Major Western arms exporters  have also blocked transfers on moral grounds, even if this has been done selectively.89 Moreover, if such ideological self-restraint was operative on New Delhi, then it was never absolute – ‘if it was immoral, I wouldn’t be doing it’, noted India’s Defence Minister on the subject of arms sales in 198990 – and certainly declined after the 1980s, when successive governments emphasised economic considerations. Amit Gupta notes, ‘India will never be able to sell arms as indiscriminately as Brazil did in the 1980s; the leadership, for example, would never agree to sell arms to both Iran and Iraq as did Brazil and China’.91 This proposition has never been properly tested, because of other effectively supply-side constraints on India. 84 S Gordon, India’s Rise to Power in the Twentieth Century and Beyond (Basingstoke, Macmillan, 1995) 135. 85 SunSil Dasgupta and SP Cohen, ‘Is India Ending Its Strategic Restraint Doctrine?’ (2011) 34 The Washington Quarterly 163–77. 86 Gupta (n 7) 858. 87 JP Pham, India in Africa: Implications of an Emerging Power for AFRICOM and U.S. Strategy (Strategic Studies Institute, 2011). 88 Gupta (n 36) 48. 89 J Sislin, ‘Arms as Influence: The Determinants of Successful Influence’ (1994) 38 Journal of Conflict Resolution 665–89. 90 R Thakur and CA Thayer, Soviet Relations with India and Vietnam (Springer, 1992) 103. 91 Gupta (n 7) 861.

India and Arms Exports  355

ii.  Foreign Technology Constraints Second, India’s import-dependence means that even indigenous arms are reliant on foreign technology for important parts and sub-systems. This can give foreign suppliers the right, or the power, to restrict or veto the further export of a platform to third parties. For instance, the Soviet Union blocked India’s efforts to transfer spare parts from its MiG-21 to Egypt after the latter had broken with Moscow in the 1970s.92 India’s transfer of British-made Islander aircraft to Myanmar in 2006 was not subject to a formal restriction, as was the case with Soviet equipment, but London was able to threaten the supply of spare parts (the sale proceeded anyway).93 Similarly, Indian sales of the BrahMos will require Russian approval, given that the Russian Government has a 49.5 per cent stake in the joint venture.94 Likewise, export of the Advanced Hawk aircraft will require both Indian and British approval – but British restrictions on sales of the basic Hawk variant to Indonesia, Kenya and ­Zimbabwe forced the latter two to withdraw the platform from service, and the prospect of a shift in British policy, beyond India’s control, may deter potential customers who fear losing spares.95 Even notionally ‘Indian’ platforms suffer from this problem. The Tejas, for instance, has an indigenous content of only 59.7 per cent by value.96 Earlier Tejas variants use a General Electric 404 engine, a more advanced variant uses the company’s 414 engine, while even the Indian-designed Kaveri engine will be certified by a French company.97 The ALH, sold to Ecuador, relies on engines jointly developed with French company Turbomeca.98 France reserves the right to block armed variants or sales to particular countries. In some cases, a majority of components are imported: 55 per cent of the Arjun tank, for example.99 While India’s growing economic and political power gives it increasing leverage over foreign suppliers in negotiating the terms of re-export, only a long period of technology absorption will present a longer-term solution to this problem.100

92 ‘India Confirms Ban on Parts for Egypt’ New York Times, 18 March 1976; JE Katz, The Implications of Third World Military Industrialization: Sowing the Serpents’ Teeth (Lexington Books, 1986) 82. 93 S Unnithan, ‘Statecraft Sortie’ (India Today, 13 February 2006). 94 P Topychkanov, ‘The BrahMos Is Just Beginning’ (Russia & India Report, 3 July 2015), in.rbth.com/ blogs/2015/07/03/the_brahmos_is_just_beginning_44045; S Singh, ‘Why Parrikar’s $2 billion Defence Exports Target Faces Hurdles Indian Express, 13 January 2017. 95 Badri-Maharaj (n 74). 96 ‘Indigenous Content of Tejas 59.7% by Value & 75.5% by Numbers’ PTI/Indian Express, 18 November 2016. 97 A Peermohamed and R Krishnan, ‘DRDO Ties up with Snecma to Revive Engine for Tejas’ Business Standard, 21 November 2016. 98 A Shukla, ‘Massive Military Helicopter Buys Allow for Indigenisation’ Business Standard, 6 June 2016. 99 R Pandit, ‘Indigenous Defence Showpieces like Tejas and Arjun Continue to be Powered by Foreign Parts’ Times of India, 8 March 2016. 100 For a discussion of why this will be difficult, see AJ Tellis, ‘Beyond Buyer-Seller’ (Force, August 2015), http://carnegieendowment.org/files/Tellis_Beyond_Buyer-Seller.pdf.

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iii.  Quality and Reliability Constraints Third, India’s defence industry continues to struggle with quality, reliability and speed of development and production.101 Foreign buyers are hesitant to purchase arms that have not yet been tested and inducted into India’s own armed forces, while some platforms have performed poorly. This problem dates to the beginning of Indian arms exports. For example, when HT-2 trainer aircraft were sent to Ghana at the end of the 1950s, Israeli trainers quickly complained of their performance, resulting in a collapse of the India-Ghana agreement.102 More recently, four of the seven helicopters sold to Ecuador in 2009 and 2011 have crashed, with Ecuador planning to sell the remainder.103 Indian operators themselves have criticised Indian-made arms. Most notably, the Tejas has divided opinion, with some senior air force officers deriding its capabilities.104 Similarly, most of India’s Arjun tanks were grounded for nearly two years, with Indian officers widely pointing out shortcomings in transmission, thermal sights and accuracy.105 The DRDO-designed Excalibur rifle was rejected by the army in 2010 for being ‘operationally inadequate’, and inducted only temporarily six years later.106 While some Indian weapon systems are undoubtedly effective and lowcost, India’s reputational problem may persist until key platforms are proven in service for a sustained period, perhaps in combat, and accepted by Indian operators themselves.

iv.  Diversion, Technology Diversion and Prioritisation Fourth, India’s priority on threats from non-state armed groups makes it especially sensitive to the issue of diversion and misuse. India believes that US and Pakistani efforts to fund anti-Soviet Islamist rebels in the 1980s contributed to a large flow of weapons to Kashmir in the subsequent decade.107 India’s own involvement in training Tamil militants, before being drawn into a war against them in Sri Lanka in the 1980s, was also a formative and cautionary experience.108 Such concerns influenced India’s cautious approach to arming Afghanistan in the 2010s, despite its concerns over Afghan state weakness.109

101 Behera (n 9) 57. 102 P Dasgupta, ‘Training of Ghanaian Air Force pilots: India Withdraws from Assignment’ Times of India, 3 November 1960. 103 ‘Legal Tangle Hits Ecuador Dhruv Deal’ The Hindu, 5 November 2016. 104 B Karnad, ‘Taking Off ’ Indian Express, 15 February 2016. 105 TNN, ‘Grounded Arjun Tanks to be Operationalised Soon’ Times of India, 11 January 2017. 106 R Bedi and N Gibson, ‘IA to Induct Excalibur as Interim Assault Rifle’ IHS Jane’s Defence Weekly, 4 November 2016. 107 P Swami, India, Pakistan and the Secret Jihad: The Covert War in Kashmir, 1947–2004 (London, Routledge, 2007). 108 N DeVotta, ‘Sri Lanka’s Civil War’ in S Ganguly, A Scobell and J Liow (eds), Handbook of Asian Security Studies (London, Routledge, 2009) 158–71. 109 Paliwal (n 43) 28.

India and Arms Exports  357 Fifth, Sushant Singh has noted that India, as a policy, avoids exporting platforms currently in service with the Indian armed forces, ‘to preclude the possibility of sensitive information about critical equipment being made available to India’s adversaries’.110 This concern reportedly contributed to India turning down Bangladeshi proposals for the licenced production of artillery.111 If this has been a significant constraint on exports, however, then it no longer appears to be so, given the Government’s export drive for several platforms it does, or will, operate. Sixth, the Indian Government has made relatively little effort to make arms exports a cross-governmental or ministerial priority for foreign and defence policy. Indian ministers tend not to promote exports with the same priority as, say, their European counterparts, while the DPSUs lack the resources and experience in promotion as Western arms companies. This is gradually changing, notably with the 2014 export strategy mentioned earlier. The Defence Exhibition Organisation (DEO) has also been tasked with organising and co-ordinating defence exhibitions at home and abroad.112 However, India’s defence diplomacy clearly remains at a nascent stage.

E.  India’s Arms Export Motivations In light of these ideological and practical constraints on arms exports, why has India exported arms at all, and why has its desire to do so increased steadily since the 1980s? Have these motivations changed over time? We can divide India’s export motivations into two kinds: political and economic. While both have existed throughout India’s exporting history, the latter has become far more important since the end of the Cold War. We can also sub-divide these further. Political motivations range from the broad, such as projecting leadership, to the narrow, such as avoiding the substitution of third-party arms sales to a key state. Economic motivations may focus on profit and foreign exchange, but also relate to deeper, longer-term efforts to develop India’s defence industry and reduce import dependence.

i.  Political Motivations India’s early export of military platforms had relatively little economic rationale. These transfers were largely conducted as aid, involved small quantities or even single units of a platform, and were focused on smaller states around India’s periphery. In some cases, the recipients had little or no relevance to India’s immediate security environment. Examples include India’s aid to South Yemen or African rebel groups. In these cases, arms transfers are best understood as part of India’s 110 S Singh, ‘Why Parrikar’s $2 billion Defence Exports Target Faces Hurdles’ Indian Express, 13 ­January 2017. 111 Private information. 112 ‘Annual Report 2015–16’, Ministry of Defence, Government of India 71.

358  Shashank Joshi self-identity as a major Asian power, an anti-colonial leader, and a central actor in the non-aligned movement.113 In this sense, arms were merely one component in a broad diplomatic activism, evident in such episodes as India’s disproportionate involvement in distant crises over Korea or Suez.114 As one Indian author would reflect in 1980, ‘Indian elites perceive India as having a role on the world stage, quite different from an Israel or a Norway’.115 In other cases, India was tied to the recipients more directly. Many Indian transfers were intended to reinforce New Delhi’s relationship with de facto client states adjoining India, like Nepal and Bhutan; somewhat stronger and more independent-minded partners like Sri Lanka and Bangladesh; or more distant Southeast Asian powers like Indonesia and Singapore, which would impact India’s maritime security. In some of these cases, strengthening a relationship through arms transfers was a means of precluding the inflow of alternative arms from hostile third countries, notably China but also the superpowers and their allies. Sometimes, India had a particular stake in a fragile political status quo – as in Bangladesh after the country was formed in 1971 – and arms transfers were a military means of strengthening that status quo. In at least one case, that of South Africa, there are indications that India may also have had an interest in reciprocal arms transfers, and other types of quid pro quos are likely to have played an undocumented role. These various political rationales – from the broad to the specific: leadership, local influence, stabilisation – have persisted and indeed increased in importance over time. India’s neighbourhood has grown more unstable in places, notably in Afghanistan but also parts of Myanmar and Sri Lanka. China’s presence, particularly as a substitute arms provider, has considerably grown. Between 2011 and 2015, 71 per cent of Chinese arms exports went to just three of India’s neighbours: Pakistan, Bangladesh and Myanmar.116 And India’s own economic growth has supported its ambitions to be a leading power across the Indian Ocean region.117 India’s recent transfers of naval platforms to the Maldives, Mauritius, the Seychelles and Sri Lanka, either as gifts or on soft terms, and its $500 million line of credit to Vietnam for the same, should be seen in this light: efforts at bolstering India’s claims to leadership, preserving a favourable maritime balance of power, and limiting opportunities for China to step in as arms exporter.118 So too should India’s transfers to Myanmar and Afghanistan, both discussed above, where India seeks to deepen its influence and, respectively, secure co-operation against insurgents and strengthen a friendly government against Pakistan-backed militants.119 113 Brewster (n 21) 86. 114 R Chaudhuri, Forged in Crisis (Delhi, HarperCollins, 2014) 49–50. 115 S Dutt, ‘Indian Aid to Co-Developing Countries’ (1980) 15 Economic and Political Weekly 14, 676. 116 L Zhou, ‘China Almost Doubles Weapons Exports over Past Five Years, with Pakistan Biggest Buyer: Think Tank’ South China Morning Post, 22 February 2016. 117 S Joshi, ‘A Survey of India’s Strategic Environment’ (2016) 47 Asian Affairs 2, 234–59. 118 S Joshi, ‘The Pivot through Kabul’ The Hindu, 1 November 2016. 119 P Swami, ‘How MEA Helped Army Set Stage for Strike in Myanmar’ Indian Express, 11 June 2015, http://indianexpress.com/article/india/india-others/cross-border-operations-how-meahelped-set-stage-for-strike.

India and Arms Exports  359 Indian arms are not transforming the balance of power anywhere, but particular offensive systems – notably the BrahMos – could certainly have a major impact.

ii.  Economic Motivations Beyond these historic and present political rationales for arms transfers, a second, economic motivation has also developed over time. While India’s commercial sales were initially comprised of minor defence equipment and older weapons, a more ambitious approach clearly evolved from the 1980s onwards. At the outset, one major factor was the economic crisis beginning to roil India, which by 1991 would force the liberalisation of the Indian economy. ‘The present squeeze on resources – both in terms of rupees and foreign exchange’, noted one Indian newspaper’s editorial on arms exports in February 1989, ‘has concentrated the minds of decision-makers’.120 India’s foreign exchange reserves covered barely six weeks’ imports by the end of that year.121 Even as India’s foreign exchange position has strengthened enormously, this motivation remains operative 30 years on: in January 2017, Indian Defence Minister Manohar Parrikar expressed his confidence that ‘our state-of-the-art missiles and weapon systems will … generate foreign exchange’.122

iii.  Politico-economic Factors: Reducing Import Dependence However, India’s economic rationale for arms exports has also had a second, crucial dimension. This is the question of how such exports feed back into India’s weak defence industry and its associated reliance on imports. As Richard Bitzinger has explained, the Indian military-industrial complex is still basically a huge white elephant of highly protected, monopolistic state-owned corporations, protected by an entrenched government bureaucracy, which has largely resisted reform or pressed local arms manufacturers to pay heed to production milestones, quality, and capabilities.123

It has, therefore, largely failed to produce high-end combat platforms either for export, as discussed earlier, or domestic use.124 120 ‘Arms Exports’ Times of India, 14 February 1989. 121 ‘India: Economic Fundamentals’ (Oxford Analytica Daily Brief Service, 3 November 1989). 122 PTI, ‘India to Pitch for Defence Exports: Defence Minister Manohar Parrikar’ Indian Express, 17 January 2017, indianexpress.com/article/india/india-to-pitch-for-defence-exports-defence-ministermanohar-parrikar-4477389/. 123 R Bitzinger, ‘India’s Defense Industrial Base: Decay and Reform’ in Ganguly, N Blarel and MS Pardesi (eds), The Oxford Handbook of India’s National Security (New Delhi, Oxford University Press, 2018) 132–48. 124 Ballistic missiles are the primary exception; these have grown in quality and quantity over the past two decades. Other exceptions include a light combat aircraft, the Tejas, which despite ongoing induction is viewed sceptically by the Indian Air Force; the Arjun Main Battle Tank (MBT), which continues to have technical problems; and a new Advanced Towed Artillery Gun System (ATAGS).

360  Shashank Joshi The result is high levels of import dependence, historically on British, Soviet/ Russian, French, and more recently American weaponry.125 Indians of all political stripes agree that not only does this involve the undesirable purchase of high-cost foreign platforms, but it also affords undue leverage to foreign states.126 These states may impose onerous conditions of transfer or cut off spare parts to gain leverage in a crisis, as the United States did during India’s 1965 war with Pakistan.127 In wartime, India might also be reliant on an even smaller circle of suppliers, as it was during its 1999 conflict with Pakistan.128 This unhappy experience of dependence, coupled with India’s historical aversion to alliances, embodied in formal non-alignment during the Cold War, shapes India’s eagerness to curb arms imports – even if actually doing so is presently at odds with the imperatives of acquiring first-rate weapons.129 India’s aim is to progress in the ‘substitution cycle of external procurement through to local design and production’.130 For one thing, exports furnish the resources required for local design and production. As Indian Defence Minister KC Pant noted in 1989, ‘better export performance would increase our competitive ability and bring in additional resources, especially hard currency. This, in turn, would help in financing essential technology imports required for the modernisation of our defence production units’.131 Exports also bolster local manufacturing by a second mechanism: higher exports allow for bigger economies of scale, bringing down the cost of Indian-made arms, and in turn making them more competitive on the world market. Finally, there is a third mechanism: exports must compete on the world stage, and the resulting competition should, in theory, increase the quality of Indian arms. Retired and serving Indian officials have echoed these arguments, if in somewhat convoluted terms. Vinod Misra, a former Secretary in the Defence Finance department of the Ministry of Defence (MoD), writes that a well honed export policy would also go a long way in establishing a strong defence R&D capability in the country whereby … domestic R&D and the consequent manufacturing strengths is [sic] reflected in meeting the defence needs of foreign countries.132 125 SIPRI Arms Transfers Database (n 2). See also R Pandit, ‘US Pips Russia as Top Arms Supplier to India’ Times of India, 13 August 2014, http://timesofindia.indiatimes.com/india/US-pips-Russia-astop-arms-supplier-to-India/articleshow/40142455.cms. 126 M Pardesi and R Matthews, ‘India’s Tortuous Road to Defence-Industrial Self-Reliance’ (2007) 23 Defense & Security Analysis 4, 419–38. 127 P McGarr, The Cold War in South Asia: Britain, the United States and the Indian Subcontinent, 1945–1965 (Cambridge, Cambridge University Press, 2013) 325. 128 ‘Military Industry and Regional Defence Policy: India, Iraq, and Israel’ (Cass Military Studies, 2006) 49. 129 For the pedigree of such concerns, see ‘Towards Self-sufficiency in Defence Production’ Times of India, 15 August 1958. 130 RG Matthew, ‘The Development of India’s Defence‐Industrial Base’ (1989) 12 Journal of Strategic Studies (1989) 4, 406. 131 UNI, ‘India Plans Big Arms Exports” Times of India, 1989. See also PTI, ‘Defence Exports to be Stepped Up’ Times of India, 17 March 1994. 132 ‘Overview’ in ‘Core Concerns in Indian Defence and the Imperatives for Reforms’, Institute for Defence Studies and Analyses, 2015, xxxvi. See also the illustrative graph on p 132 of this study.

India and Arms Exports  361 Ravindra Gupta, a former Secretary in the MoD’s Department of Defence Production, writes that ‘in order to run a sustainable defence unit and to effectively contribute to the national self-reliance effort, the country must enable domestic defence industry to augment its sales effort beyond our shores’.133 This affinity between a mature defence industry, reduced arms imports, and expanded exports is also acknowledged in the Government’s published Strategy for Defence Exports: Self-reliance and indigenization in defence is important for both strategic and economic reasons and has, therefore, been an important guiding principle for the government … Since the [sic] defence technology needs long term investment, its obsolescence is high with low economies of scale. Hence, the policy of maximizing indigenous production without well supported R&D policy and export strategy may not bring desired results. Therefore, the defence industrial policy has to be supplemented by the strategy for defence exports without which the economic base of the defence industry would be difficult to sustain in the present economic competitive environment.134

In other words, expanding arms exports are both cause (through economies of scale, and resources for technology imports) and consequence (through higher quantity and quality of output) of a more mature defence industrial base, of the sort that India has been attempting to create, with limited success, for over 60 years; that, in turn, would allow for lower imports, with attendant economic and political benefits. These relationships are summarised in the diagram below. Figure 2  Relationship between arms exports and imports Mature defence industry (higher production, higher quality, lower costs)

Higher arms exports

Lower arms imports

Foreign policy aims: higher autonomy, greater influence



133 Ibid,

64.

134 Strategy

for Defence Exports (n 76) 1 (emphasis added).

362  Shashank Joshi

III.  India’s Export Controls India’s arms export control regime includes legal, political and diplomatic aspects.135 In summary, there exist three different types of arms export processes: one for military stores, one for dual-use items, and another for major items that are indigenous, strategic and sensitive. Each pathway for authorisation involves a system of cross-government committees, but with differing levels of scrutiny and evaluation. Some involve only civil servants, while others require the involvement of ministers. These arrangements are summarised in Figure 4 below. Items can also overlap: if an item falls under military stores and is dual-use, it requires both types of authorisations, as shown in Figure 3.136 However, the Ministry of External Affairs (MEA) is working to streamline the process by removing these overlaps.137 These three pathways are explained in more detail below, following a brief survey of the evolution of Indian export controls.

A.  Evolution and Legal Basis The first controls over sensitive material were instituted in 1947, with control over monazite and thorium nitrate, and the first ‘strategic’ controls came in 1995.138 ‘The Indian government largely viewed export controls within the context of the technology denial regime’, writes Rajiv Nayan, referring to the sanctions imposed on India after its 1974 nuclear test and again after the more significant tests of 1998. ‘The 1998 nuclear tests signified, on the one hand, the lowest point in India’s relationship with export controls, and, on the other, marked the beginning of a new phase in Indian engagement with its export control requirements.’139 As India sought to negotiate with the international community, and particularly the United States, from a position of strength, it found that it could obtain greater advantage by conditionally moving towards the technology denial regime rather than opposing it. India’s export control regime has therefore evolved significantly in recent years, as the country has sought to play a larger role in global governance, increase its access to foreign technology, and reinforce its non-proliferation 135 This section has benefited greatly from the detailed surveys undertaken in ‘India’s Export Controls: Current Status and Possible Changes on the Horizon’ (Securus: Strategic Trade Solutions, 10 July 2011) and LK Behera, ‘Strategic Export Control: A Primer for Indian Defence Industry (Part II)’ (2016) 5 Global Defence Offset Review 1, 21–29. 136 As the Standard Operating Procedure (SOP) explains, ‘some of the items listed above may be of dual use … depending upon their specifications and specific end uses. Hence, the exporters may also refer to SCOMET LIST … for determining whether the item requires export license from DGFT’. 137 Communication with MEA, February 2017. 138 N Tewari, ‘Indian Export Control System: Overview and Challenges’, 23rd Asian Export Control Seminar, Tokyo, February 2016, supportoffice.jp/outreach/2015/asian_ec/pdf/day1/Day1_1645_ Ms.Nidhi%20Tewari.pdf. The presenter was an Assistant Secretary in the MEA. 139 R Nayan and IJ Stewart, ‘Export Controls and India’, Centre for Science & Security Studies, King’s College London, 2013, 6.

Figure 3  India’s arms export control process (compiled by author) If no EUC from government of end-user Sensitive items and major platforms

EUC from government of end-user

Accessories, components, and less sensitive items

EUC from end-user

Non-nuclear-related items

Inter-Ministerial Working Group Chair: Additional Director General of Foreign Trade

Nuclear-related items

Department of Atomic Energy

Dual-use items (SCOMET)

Indigenously developed strategic and sensitive weapons

If no consensus

High-Powered Committee Chair: ?

If no consensus

Defence Export Steering Committee Chair: Secretary (Department of Defence Production)

Assumed?

Cabinet Cabinet Committee on Security?

As per MEA documents (Tewari 2016)

India and Arms Exports  363

Overlap

Military Stores

Committee Chair: Joint Secretary (Defence Industries Production)

364  Shashank Joshi Figure 4  Licensing procedures in case of overlap (compiled by author)

Military stores NOC from DDP

Dual-use items SCOMET licence from DGFT

Indigenous, strategic, and sensitive items NOC/clearance from DESC

credentials. Indian officials emphasise that the rationale for their export controls is in large part to facilitate the import of technology.140 Today, notes Nayan, India has ‘incorporated the key elements of the existing export control systems prevalent in the advanced industrialised countries’.141 This on-going process, described further in the next section on India’s approach to international regimes, is likely to result in tighter and wider controls. The primary legal basis for arms exports is the Foreign Trade (Development and Regulation) Act (FTDRA) of 1992, modified by the FTDRA Amendment Act of 2010. That amendment was based on the Weapons of Mass Destruction (Prohibition of Unlawful Activities) Act of 2005. Other laws relevant to conventional arms exports include the Explosive Substances Act 1908, Arms Act 1959, Customs Act 1962 and unlawful Activities (Prevention) Act 1967.142 The FTDRA 140 A Venkateswaran and K Parwal, ‘Recent Developments India’s Export Control System’, Wassenaar Arrangement Technically Focused Practical Workshop, Vienna, 27–28 June 2016, www.wassenaar. org/wp-content/uploads/2016/06/IN-Recent-Developments-in-Indias-Export-Controls.pptx, slide 3. Presenters were, respectively, Under Secretary in the MEA and Deputy Secretary (DIP) in the Department of Defence Production (DDP). 141 R Nayan, ‘Integrating India with the Global Export Controls System: Challenges Ahead’ (2011) 35 Strategic Analysis 3, 441. 142 ‘Study Report on Export Control System in India and Role of Customs Officers’, National Academy of Customs, Excise and Narcotics (NACEN), Kanpur, India, 129, www.nacenkanpur.gov.in/download3. inc.php?rid=33.

India and Arms Exports  365 authorises the Directorate General of Foreign Trade (DGFT) in the Department of Commerce and Industry (DCI) to license the export of specified items on a list known as the Indian Tariff Classification (Harmonised System) or ITC(HS). The second schedule of that list is the foundation for all the controls described below. It labels goods as prohibited (‘not permitted for Export: licence will not be given in the normal course’), restricted (‘export is permitted under a licence granted by the DGFT’), or exportable under other conditions.143 Table A of that schedule sets out goods that cut across multiple categories of the ITC(HS). One such set of goods is military stores, which are set out in detail separately by the Director General of Foreign Trade. Another is dual-use items, which are listed in Appendix 3 of the schedule. These two sets of items overlap. A third area – indigenously developed strategic and sensitive weapons – is not delineated in the schedule at all, but it is specified elsewhere. It overlaps with both of the first two categories. These three categories result in three broadly distinct pathways for export control. Each one is assessed below, in turn. Any exporter of relevant items – including government-controlled entities, like the DPSUs – requires the appropriate authorisation.144

B.  Military Stores A major part of India’s export control regime concerns what are known as military stores. This covers a large proportion of the sort of military equipment discussed in the first part of this chapter.145 Stores are sub-divided into two parts. One part covers the ‘sensitive items and major platforms’.146 This includes warships, tanks, armoured vehicles, ammunition, rifles, military training equipment, electronic warfare devices, software, bombs and torpedoes. The basis of this list, a full list of which was issued only in March 2015, is the Wassenaar Arrangement Munitions List.147 A second part represents ‘accessories, components and less sensitive items’.148 143 See ‘Schedule 2 – Export Policy, Indian Tariff Classification (Harmonized System)’ Directorate General of Foreign Trade, Ministry of Commerce and Industry, http://dgft.gov.in/Exim/2000/NOT/ itc(hs)/Eschedule2.pdf. A separate document, ‘Foreign Trade Policy 2015–20’, makes some clarifications, amendments and elaborations. It notes that while arms exports to Iraq are prohibited under the ITC(HS), they can be permitted subject to a No Objection Certificate (NOC). They also set out that the DFT can issue a Notification which imposes restrictions ‘necessary for … prevention of traffic in arms, ammunition and implements of war’. See ‘Foreign Trade Policy: 1st April, 2015–31st March 2020’, Department of Commerce, Ministry of Commerce and Industry, Department of Commerce, 30 June 2015, http://dgft.gov.in/exim/2000/Updated_FTP_2015-2020.pdf. 144 Communication with MEA, 2 February 2017. 145 The full list is not in the ITC(HS) but is available at ‘Notification No 115 (RE – 2013)/2009–2014’, Ministry of Commerce and Industry, 13 March 2015, https://web.archive.org/web/20150319002333/http:// dgft.gov.in/Exim/2000/NOT/NOT13/not11513.pdf. 146 Venkateswaran and Parwal (n 133) slide 26. 147 Venkateswaran and Parwal (n 133) slide 26. 148 Venkateswaran and Parwal (n 133) slide 26.

366  Shashank Joshi

i.  No Objection Certificates The export control procedure for military stores has five parts, A to E, depending on whether an export is in the first or second of these categories, more or less sensitive, and the reason for its export. Part A covers the export of sensitive and major items, and B the rest. Parts C to E cover exports for exhibition, testing and evaluation, and tender purposes. Apart from 50 or so minor items like tents and uniform, all stores require, for export, a No Objection Certificate (NOC) from the Ministry of Defence’s Department of Defence Production and Supplies (DDP). However, Part A – the export of sensitive items – is more complex, involving wider consultation across government, and tighter controls. It is this process that is described here. The Government publishes a Standard Operating Procedure (SOP) for the issue of NOCs.149 This was revised in July 2015.150 Exporters need to submit an End-User Certificate (EUC), signed and stamped by the government of the end-user, showing that the item: • will be used only for the specified purpose; • will not be subsequently transferred without permission; • will not be used for any purpose relating to the development of weapons of mass destruction (WMD); and • will be used to establish the chain of transmission to the end-user, and secure end-user certificates from any intermediary. If the recipient is on the ‘negative list’ maintained by India’s Ministry of External Affairs, then it must be consulted too. Sri Lanka, for example, had been on this list until 2002.151 Applications are sent to the foreign ministry, the ‘concerned’ service headquarters (ie the Air Force headquarters for aircraft exports), DRDO, the MoD, and ‘any other agency, as the case may be’, which may be a reference to the intelligence services. If no comments are received within 15 days, the case progresses. It is evaluated at a fortnightly committee convened by the Joint Secretary (Defence Industries Production, or DIP)152 including representatives from those agencies 149 ‘Standard Operating Procedure (SOP) for issue of No Objection Certificate (NOC) for Export of Military Stores by Public as well as Private Sector Units’, Department of Defence Production, Ministry of Defence, ddpmod.gov.in/sites/default/files/Standard%20Operating%20Procedure.pdf. 150 Behera (n 9) 15. 151 S Destradi, Indian Foreign and Security Policy in South Asia: Regional Power Strategies (London, Routledge, 2011) 78. 152 The hierarchy of civil servants in an Indian government department goes from high to low: Secretary– Additional Secretary–Joint Secretary–Director–Joint Director, and so on. A Joint Secretary is equivalent in rank to a Major General in the Indian Army, although it should be noted that the Indian system tends to downplay the status of military officers. See ‘Table of Precedence’, President’s Secretariat, New Delhi, 26 July 1979, https://web.archive.org/web/20171011203048/http://mha.nic.in/sites/upload_files/mha/ files/table_of_precedence.pdf. Joint secretaries from the Indian Administrative Service (IAS), an elite cadre of the civil service, reach that rank after around 16 years of service. See E Roche and M Aggarwal, ‘Govt Appoints 28 Officers, Half Non IAS, to Joint Secretary Level Posts’ (Live Mint, 14 July 2016).

India and Arms Exports  367 ‘and any other expert, as deemed necessary’ to make a recommendation. If the committee cannot make a decision ‘due to certain sensitivities’, then the matter escalates to a Defence Exports Steering Committee (DESC), which is chaired by the Secretary (Defence Production). The DESC is also empowered to issue an NOC even without an EUC ‘if plausible justification is provided’. This may be a reference to exports where the recipient is a government close to India, obviating the need for elaborate verification. The DESC was created in 2014, to ‘deliberate and decide policy and procedural issues related to defence exports’.153 However, it is not yet fully functional.154 NOCs for Part A – major – items take four weeks. If an NOC is provided, it lasts until the order is completed, for a maximum of two years, although that can be extended. It also requires that the export occur from a specified port. Part B – less sensitive – items can be approved in half that time, do not require the same consultation across government, and, most importantly, do not need the EUC to be signed by the Government of the end-user’s state. This represents a streamlined process, introduced by the Modi Government after 2014. Previously, the export of even less sensitive items, like components, required that EUCs were signed by the importing foreign entity and countersigned by that country’s government; the resulting bureaucracy placed Indian companies at a competitive disadvantage in global supply chains.155 Two-thirds of items were also removed from the list of military goods, and the issuance of NOCs was made time-bound.156 The number of NOCs issued to private sector companies has accordingly climbed from 39 in 2013–14, to 42 in 2014–15, and over five-fold to 241 in 2015–16.157

C.  Dual-Use Items i.  The SCOMET List In addition to military stores, India also maintains a separate system of controls for dual-use items that have both civilian and WMD purposes. These are listed in a separate appendix of ITC(HS) as Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET). This list grew out of a Special Materials, Equipment and Technology (SMET) list first announced in 1995, and further 153 ‘Export of Defence Equipment’, Press Information Bureau, MoD, Government of India MoD, 24 July 2015, pib.nic.in/newsite/PrintRelease.aspx?relid=123702. 154 Private information. 155 ‘Indian Defence Exports Surged in 2015, Says Report’ Hindustan Times, 28 March 2016, www. hindustantimes.com/india/indian-defence-exports-surged-in-2015-says-report/story-wl6r9 WXF6aZmDZYCZMNt9N.html. 156 SK Singh, ‘In Fact: Why Parrikar’s $2 Billion Defence Exports Target Faces Hurdles’ The Indian Express, 13 January 2017, http://indianexpress.com/article/explained/in-fact-why-parrikars-2-billiondefence-exports-target-faces-hurdles-4471455/. 157 ‘Make in India Initiative’, Press Information Bureau, MoD, Government of India, 16 December 2016, pib.nic.in/newsite/PrintRelease.aspx?relid=155534.

368  Shashank Joshi changes were driven by the US-India dialogue following India’s nuclear tests in 1998 and New Delhi’s subsequent eagerness to adhere to and eventually join the major export control regimes.158 The most recent revision came in April 2016, as the Modi Government intensified its efforts to join the Missile Technology Control Regime (MTCR), which it successfully did in June of that year, and the Nuclear Suppliers Group (NSG), where it has met with greater opposition.159 The SCOMET list is harmonised with both the MTCR and NSG annexes, although its descriptions are not identical. While SCOMET is a dual-use list, it is important to conventional arms exports. It overlaps with the list of military stores, so that some items requiring a NOC might also require a separate licence. Moreover, its Category 2 covers components for missiles and rockets, and Category 5 covers military aircraft and related technology. The list therefore includes, inter alia, explosives, rocket systems, radar and avionics.160 This would appear to cover the most sophisticated of the potential arms exports discussed in the first half of this chapter – Tejas, LCH, BrahMos, Akash and Pragati – although, as we see later, many such major platforms appear to fall under a separate, higher-level process involving ministerial approval. Here, it is also important to note that Category 6 of the SCOMET list is ‘reserved’ for military stores,161 with the expectation that it will be employed if and when India secures membership of the Wassenaar Arrangement (recall that the stores list is itself based on Wassenaar).162 This presumably means that items presently requiring a NOC, or at least the major ones, will eventually require a licence as per the process described below. On the other hand, it has been reported that some Indian companies have asked for Category 5 items – aerospace – to be transferred in the other direction, to the MoD-controlled military stores list, presumably because of its fewer restrictions.

ii.  SCOMET Licences All SCOMET items require an export licence.163 Nuclear-related SCOMET export licences are handled by the Department of Atomic Energy, and are not considered here. Non-nuclear-related items go to the DGFT, where they are assessed by an 158 Behera (n 128) 2; Nayan and Stewart (n 132) 10. 159 ‘Updation of SCOMET list’, DGFT, 29 April 2016, https://web.archive.org/web/20180417013241/ dgft.gov.in/exim/2000/NOT/NOT16/noti0516.pdf. 160 ‘Annexure to Notification No. 38, Appendix 3: Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) Export of which is Regulated’, Ministry of Commerce and Industry, Department of Commerce, Government of India, Gazette of India, 3 March 2011, http://dgft.gov.in/ exim/2000/not/not10/not3810.htm. 161 Venkateswaran and Parwal (n 133) slide 7. 162 Behera (n 128) 4. 163 Indian documents sometimes – confusingly – also refer to this as a NOC. See, for instance, the usage in the ‘Defence Exports’ section of the DDP website, http://ddpmod.gov.in/defence-exports: ‘If the items of export are listed in the SCOMET list … the exporters would be required to obtain the NOC from …’. In the interests of clarity, I use the term NOC for military stores and licence for SCOMET items.

India and Arms Exports  369 Inter-Ministerial Working Group (IMWG) in the DGFT, chaired by the Additional Director General of Foreign Trade.164 The IMWG is a standing body that meets once a month, and also includes the Ministry of External Affairs, Department of Atomic Energy, Ministry of Defence (DRDO and Defence Production), Department of Space (ISRO), Department of Biotechnology, Department of Chemicals, National Authority on CWC [Chemical Weapons Convention], and the intelligence agencies.165 It makes decisions by consensus, in the absence of which it can escalate the issue to a High Powered Committee (HPC), which is an inter-ministerial body that meets as required.166 The composition of the HPC is unclear. Indian documents and other sources suggest that the cabinet – presumably, the Cabinet Committee on Security (CCS) – may also play a role in some decisions.167 Licences are issued on a case-by-case basis. As with military stores, exporters are required to submit an EUC showing that the transferred item is: • used only for a stated purpose, which is not changed; • not modified or replicated without consent; and • not re-transferred without consent. And taking into account: • the end-user’s credentials (‘the foreign nationals’ country of origin [is a] key consideration’168); • the credibility of declarations of end-use; • the integrity of the chain of transmission; • the impact on India’s national security, foreign policy, non-proliferation and obligations under treaties and agreements; • the risk the item will fall into the hands of terrorists or non-state actors; • the recipient’s export control measures; • the capabilities and objectives of the recipient ‘relating to weapons and their delivery’.

164 This section draws from multiple documents published by the DGFT: ‘General Provisions Regarding Exports and Imports, New Foreign Trade Procedure 2010–11’, dgftcom.nic.in/exim/2000/ procedures/hbpvol1/2009-2010/chap02.htm; ‘Guidelines for Export of SCOMET Items’, https://web. archive.org/web/20170704234023/dgft.gov.in/exim/2000/scomet/scomet2011.pdf; ‘India’s Export Control System: SCOMET Guidelines and Procedures’, http://dgftcom.nic.in/exim/2000/scomet/2017/ guidelines2017.pdf. 165 VK Srivastava and A Madhavan, ‘Inter-Agency Cooperation and Coordination: Inter-Agency Cooperation and Coordination’, Presentation to the 20th Asian Export Control Seminar, Tokyo, February 2013, http://supportoffice.jp/outreach/2012/asian_ec/2-C2%20Mr%20Madhavan%20&%20 Mr%20Srivastava%20(India).pdf. The presenters were, respectively, Additional Director General at DGFT and Director at the MEA. 166 Tewari (n 131). 167 Tewari (n 131) and private information. 168 Venkateswaran and Parwal (n 133) slide 10.

370  Shashank Joshi It will be clear that these criteria are clearly wider in scope than those for military stores, reflecting the dual-use status of the items. The Government also maintains a non-public Denied Entities List (DEL), previously with the more dramatic title of Black List, under Rule 7 of the Foreign Trade (Regulation) Rules.169 In 2015, this licensing process was streamlined:170 • The validity of licences was doubled from one to two years. • Verification of EUCs was simplified if the export was an offset.171 • Authorisation for repeat orders could be granted automatically. Automatic repeat processing requires that the export is the same product, exporter, buyer, end-user, country of destination; no more than twice the original quantity; within two years of the original approval; and involves no more than two repeat orders.172 Exports of SCOMET items increased from $108.35 million in 2013–14, to $122.5 million in 2014–15, and stood at $154.69 in December 2015 for that fiscal year.173 In 2016, Indian authorities noted:174 • There were an average of ‘200+’ applications made annually. • 200 licences were issued annually (suggesting that the vast majority of applications are granted). • Licences covered exports to 30 countries. • The licencing process took an average of 45 days. In interpreting these numbers it should be remembered that this includes nondefence items with little relevance to the arms trade. The Government’s stated examples of dual-use exports include unmanned aerial vehicles (UAVs), also known as drones, and night vision devices, but also filament winding machines, graphite heat exchangers and glass crystallised vessels.175 169 ‘F.No. 18/24//HQ/99-2000/ECA II’, Directorate of Foreign Trade, Ministry of Commerce and Industry, Government of India, 31 December 2003, https://web.archive.org/web/20170619141300/dgft.gov. in/exim/2000/cir/Enfor.htm. 170 Summaries of these changes can be found in DK Agrawal, N Pati and M Jain, ‘Foreign Trade Policy 2015–2020’ (Khaitan & Co, 2 April 2015), www.lexology.com/library/detail.aspx?g=fb502595dc2f-47a7-baf9-c88c01bdf76c; ‘EY Tax Alert: Foreign Trade Policy 2015–20, (EY, 2 April 2015), copy available at www.scribd.com/document/389811304/FTP-Alert-pdf. 171 Offset refers to the Indian requirement that those exporting arms worth more than roughly $300 million to India spend 30% of the value in India. See LK Behera, ‘DPP-2016: An Analytical Overview’, Institute for Defence Studies and Analysis, 12 April 2016, www.idsa.in/specialfeature/ dpp-2016_lkbehera_120416. 172 Conditions for automatic repeat authorisation are listed in Venkateswaran and Parwal (n 133) slide 8, slide notes. 173 ‘Annual Report 2015–16’, Department of Commerce, Ministry of Commerce and Industry, Government of India, commerce.gov.in/writereaddata/uploadedfile/MOC_635986646213330230_ annual_report_15_16_eng.pdf. 174 Venkateswaran and Parwal (n 133) slide 8 and 10. 175 Venkateswaran and Parwal (n 133), slide 16.

India and Arms Exports  371

D.  Indigenous Sensitive Systems Between them, the military stores and SCOMET lists would include most military platforms. After all, the former includes tanks and warships, and the latter aircraft and missiles. However, a third export control pathway is specified – almost in throwaway fashion – in India’s Strategy for Defence Exports. For indigenously developed strategic and sensitive weapons/ platforms, the Defence Export Steering Committee [DESC] will take appropriate decisions regarding exportability of item with/ without modification or degradation. Export of such items would be considered on case to case basis and NOC/ clearance would be issued with the approval of [the defence minister] based on the recommendations of the [DESC].176

As this procedure is not spelt out in as much detail as that for military stores and dual-use items, its scope is not entirely clear. Indigenously developed can be taken to mean major platforms with significant indigenous technology. Strategic might be synonymous with nuclear-related, especially that related to potential delivery systems. Sensitive could represent the value of the technology or the potential foreign policy impact of a transfer. These criteria would seem to draw in many of the systems that would otherwise come under military stores or SCOMET. India’s various indigenous missile systems are certainly strategic and sensitive, while the Tejas may be strategic and is certainly sensitive. The wording of this provision implies that if such platforms do fall into this special category, they would not be routed through either the Joint Secretary (Defence Industries Production) or JS(DIP)-chaired committee or the IMWG, and would instead be cleared at a higher level. The role of the defence minister indicates that such major arms exports would be seen as political, and not bureaucratic, decisions. In practice, some key decisions on arms exports have gone to the Cabinet Committee on Security. This is true of the transfer of attack helicopters to Afghanistan in 2015–16, and offshore patrol vessels (OPVs) to Sri Lanka in 2014.177 The first is a complicated case, because the SCOMET list specifically exempts ‘Indian aircraft carrying a military registration number’,178 which would presumably apply to the second-hand helicopter. However, the OPVs would certainly come under military stores, and should therefore have gone from the JIS(DP)-chaired committee, to the DESC. It is not known whether they did or did not, but the fact that the decision went up to the cabinet suggests that all major decisions are likely to hinge on the decisions of ministers rather than civil servants.



176 Strategy

for Defence Exports (n 76) 4. with Indian defence journalists, January 2017. 178 Appendix 3 to Schedule 2 of ITC(HS), 50. 177 Communication

372  Shashank Joshi

E.  Export Control Monitoring and Enforcement India’s primary enforcement body is the Central Board of Customs and Excise, under the Department of Revenue in the Ministry of Finance, with violations reported to DGFT.179 Indian missions abroad and the intelligence agencies, principally the foreign-oriented Research & Analysis Wing (R&AW) and the domestic-focused Intelligence Bureau (IB), also assist in enforcing export controls. Prosecution can be conducted under various acts, including the FTDRA 1992, the Weapons of Mass Destruction Act 2005, and the Customs Act 1962. Penalties under the first of those include suspension or cancellation of the exporter’s Importerexporter Code Number, imposition of a penalty up to five times the value of the goods being exported, and criminal prosecution. The second allows fiscal penalties and a minimum of five years’ imprisonment up to life imprisonment, while the third furnishes authorities with the power to search, seize, interrogate, arrest, fine and initiate prosecution. The Indian Government educates exporters about their responsibilities in a number of ways. The DGFT and MEA hold open houses and seminars, while the ISRO, DRDO, and Department of Atomic Energy conducts outreach to its laboratories and vendors. Dual-use suppliers are required to register with customs offices, while co-operation between customs and intelligence agencies has increased.180 However, the Indian system faces a number of challenges. The MEA has itself noted a number of these: resources are geared towards the scrutiny of imports, there are over 500 exit points from India, a high level of expertise can be required in identifying some controlled goods, and it is difficult to correlate SCOMET with the ITC(HS) codes used by Indian customs (even though the former is a subset of the latter).181 Moreover, a larger number of entities are able to manufacture controlled items – and this will grow as the Government succeeds in encouraging the private sector. Larger firms in the private sector have more resources to devote to compliance.182 But as one Indian official has complained, the ‘ICP model’ – referring to the Internal Control Program established by the US Department of State – ‘involved cost, and [is] and sometimes unaffordable for Indian manufactures, exporters, [and] transporters, which are mostly [small and medium enterprises]’.183 A leaked US diplomatic cable from New Delhi in 2005, on Indian WMD export controls, notes that export lists ‘lack clarity for most potential dual-use items’; ‘the Indian system lacks the commitment and resources to enforce the spirit of

179 This section draws on SK Samal, Scomet Domestic Implementation undated slides by Government of India, Scomet – Domestic Implementation, https://idsa.in/system/files/UNSCR1540_sksamal.pdf and Tewari (n 131). 180 Nayan and Stewart (n 132) 12. 181 See the slide ‘Customs Challenges’ in Tewari (n 131). 182 Nayan and Stewart (n 132) 14. 183 Samal (n 172).

India and Arms Exports  373 catch-all controls’; the mission was ‘unaware of the denial of any export license’; and ‘Indian Customs does not, on a routine basis, randomly search export containers’.184 However, enforcement is likely to have increased substantially in the 17 years since this assessment, given the priority that India has placed on multilateral export regimes.

IV.  India and International Regimes India’s approach to international regimes on arms exports is shaped by three factors: its status as a major arms importer, its traditional focus on foreign policy autonomy and corresponding scepticism of discriminatory or exclusionary treaties and institutions, and its increasing appetite to enter and play a role in existing multilateral export control regimes on equal terms.185 Previous sections have already touched on India’s approach to the four major multilateral export control regimes, given their role in influencing India’s own export controls. This section therefore surveys those regimes briefly, before giving more extended treatment to India’s attitude towards the Arms Trade Treaty.

A.  India and Strategic Export Control Regimes As G Balachandran notes, in the pre-2005 period, most Indian analysts had approached the four export control regimes – the [NSG], the [MTCR], the [WA] and the Australia Group (AG) with suspicion, which was quite natural considering the fact that the first two … had actively worked against Indian interests.186

Consider, for instance, Brahma Chellaney writing in 1994: ‘the non-proliferation policies of Western powers are founded on a strategy of preventing Third World development of technologies that might impinge on the Western powers’ military and economic interests’. The MTCR, he argued, remains a surreptitious club of white countries, many former colonial powers that employed their superior military strength derived from industrial and technological advantage to subdue the world’s most ancient civilizations. Today, it seeks to prevent 184 ‘EXBS: Export Control System Standards for India’ (Wikileaks, 29 April 2005), https://wikileaks. org/plusd/cables/05NEWDELHI3242_a.html. 185 M Fey et al, ‘Established and Rising Great Powers: The United States, Russia, China, and India’ in H Muller and C Wunderlich (ed), Norm Dynamics in Multilateral Arms Control: Interests, Conflicts, and Justice (University of Georgia Press, 2013) 188–93. 186 G Balachandran, ‘India Should Be Wary of Additions to the 2008 Criteria’ (2016) 11 Indian Foreign Affairs Journal, 207. See for instance S Kumar, ‘The Post-Cold War International System: An Indian Perspective’ (Institute for Defence Studies and Analyses, February 2001), www.idsa-india.org/an-sep-2. html.

374  Shashank Joshi the former colonial world from acquiring even commercial technologies critical to economic development.

Chellaney described India’s response as ‘Gaullist-style resentment’.187 These perceptions changed remarkably quickly as India moved closer to the US, with both countries concerned by the rise of China, from the early 2000s. India’s nuclear tests in 1998, though tightening sanctions, also created an opportunity for India to present its nuclear-armed status as a fait accompli, persuading others that it would be better to accommodate India rather than keep it entirely outside of non-proliferation structures. From 2005, a US-India civil nuclear deal took shape. This ‘changed the global rules of the game for India’.188 In 2008, India secured an exemption from NSG rules and two years later US President Barack Obama endorsed Indian membership in all four groups ‘in a phased manner’ and ‘consistent with maintaining the core principles of these regimes’.189 This process of US-India rapprochement and nuclear normalisation had a major impact on Indian export controls, including those for conventional arms, with New Delhi realising that access to these regimes would facilitate the inward flow of technology. Indeed, India has already benefited substantially from the lifting of longstanding American technology restrictions. In 2000, one-quarter of US exports required an export licence from the Bureau of Industry and Security (BIS); after 2009, this fell to 0.3 per cent.190 These restrictions continue to loosen, as Indian export controls tighten.191 India’s integration into these regimes proceeded slowly, but accelerated in recent years. India gained MTCR membership in June 2016. India had hoped to get NSG membership the same month but was frustrated by opposition from a number of States including China.192 Some States want a ‘criteria-based approach’, which would entail drawing up objective qualifications for membership independently of India’s bid; others, like Australia, insist that membership of the Nuclear Non-Proliferation Treaty is required.193 India joined the Wassenaar Arrangement in December 2017, having earlier harmonised its military stores list with the Arrangement’s munitions list and

187 B Chellaney, ‘An Indian Critique of U.S. Export Controls’ (1994) 38 Orbis 38, 441, 443. 188 R Rajagopalan and A Biswas, ‘Wassenaar Arrangement: The Case of India’s Membership’, Observer Research Foundation, May 2016, 9. 189 Joint Statement of Prime Minister Dr. Manmohan Singh and President Barack Obama, Government of India, 8 November 2010, mea.gov.in/bilateral-documents.htm?dtl/5081/Joint+Statement+of+ Prime+Minister+Dr+Manmohan+Singh+and+President+Barack+Obama. 190 A Vishwanathan, ‘India’s Entry into the NSG: A Long-Winded Process’ (2016) 11 Indian Foreign Affairs Journal 217. 191 PE Jeydel, ‘Commerce Department Eases Certain Export Controls on India’ (Steptoe & Johnson LLP, Lexology, 18 January 2017), www.lexology.com/library/detail.aspx?g=fe9d986e-7fd4-4b9c82e1-118490a8c36e. 192 ‘New Zealand to Play “Constructive” Role in India’s NSG Entry Process The Hindu, 26 October 2016. 193 ‘India’s NSG Dream Is Becoming a Distant Mirage’ (The Wire, 29 November 2016), https://thewire. in/83355/indias-nsg-dream-is-becoming-a-distant-mirage/.

India and Arms Exports  375 reserved a SCOMET category for those items. Australia Group membership received less diplomatic attention. India became a ‘dialogue partner’ by 2015 and a full member in January 2018. Figure 5  Indian membership status in export control regimes Missile Technology Control Regime Member from 2016

Nuclear Suppliers Group Application made in 2016

Wassenaar Arrangement Member from December 2017

Australia Group Member from January 2018

B.  India and the Arms Trade Treaty The Arms Trade Treaty (ATT), which was opened for signature in 2013 and entered into force in 2014, covers many of the same items – from tanks, to warships, to light weapons – covered by India’s military stores and SCOMET lists, and by the Wassenaar Arrangement in particular.194 However, India has taken a sceptical view of the ATT and is not a signatory. India’s position is shaped by two important considerations. The first was its status as the world’s largest arms importer. The second, and more important, was its concern that the Treaty would impinge on licit arms flows, on which India depends, while failing to address illicit flows, which have had a major impact on India’s internal security.

i.  India’s Evolving Position India had supported early declarations for an arms trade treaty and an associated conventional arms registry.195 Indian writers noted the large circulation of firearms in India, and their relationship to criminal activity, insurgency and terrorism.196 But New Delhi abstained on a draft resolution in a committee of the UN General Assembly in October 2006, making the argument that ‘the absence of standards on the conventional arms trade was [not] responsible for the illicit trade’.197 India then abstained on a further resolution in the General Assembly itself in December of that year.198 In 2007, in response to the United Nations Secretary General’s request for views, India declared it was ‘premature’ to begin work on a treaty, 194 ‘The Arms Trade Treaty’, (United Nations, 2013), https://unoda-web.s3-accelerate.amazonaws. com/wp-content/uploads/2013/06/English7.pdf. 195 AM Chenoy, ‘India and the Arms Trade Treaty’ (2009) 46 International Studies 352. 196 R Hariharan, ‘Militancy and Small Arms Proliferation’ The Hindu, 28 April 2007; RP Singh, ‘An Ideal Arms Trade Treaty from India’s Perspective’ (Institute for Defence Studies and Analyses, 27 July 2012), www.idsa.in/policybrief/AnIdealArmsTradeTreatyfromIndiasPerspective. 197 International Arms Trade Treaty Aim of Draft Resolution Approved by Disarmament Committee, United Nations, GA/DIS/335, 26 October 2007, www.un.org/press/en/2006/gadis3335.doc.htm. 198 Arms Trade Treaty, ‘Nuclear-weapon-free world’, outer space arms race among issues, as General Assembly adopts 54 First Committee texts, GA/10547, United Nations, 7 December 2006.

376  Shashank Joshi because ‘it is the lack of full and effective implementation of existing obligation of states and not the lack of common international standards … that is to be blamed for illicit transfers’.199 In these views, India was part of a bloc of states including China, Cuba, India, Iran, Israel, Pakistan, Russia and the United States.200 India abstained on General Assembly resolutions on a potential ATT in 2008, 2009, and in the key resolution that brought the ATT into being in 2013. Figure 6  Indian votes at UN on ATT-related resolutions (compiled by author) Year

Resolution

India’s vote

2006

A/RES/61/89

Abstain

2008

A/RES/63/240

Abstain

2009

A/RES/64/48

Abstain

2012

A/RES/67/234 A

Yes

2013

A/RES/67/234 B

Abstain

2013

A/RES/68/31

Abstain

2014

A/RES/69/49

Abstain

ii.  Indian Objections to the ATT Why did India refuse to join the ATT? In submission, statements and declarations to the UN in 2012 and 2013, India took issue with several aspects of the draft and, once established, the Treaty.201 The main issue was one of balance: India felt that insufficient attention had been given to illicit arms flows to non-state actors, particularly terrorists, while other aspects of the Treaty were too restrictive or broad, and therefore detrimental to India’s interest as an arms importer, peacekeeping contributor and future exporter. An overriding concern with terrorism dominated Indian statements. India complained in March 2013 that: The ATT should make a real impact on illicit trafficking in conventional arms and their illicit use especially by terrorists … Without such provisions, the ATT would in fact lower the bar on obligations of all states not to support terrorists … we cannot allow such a loop hole.202 199 The submission is excerpted in B Nepram, ‘Taking Strength from the Past in Securing India’s Future’ (CBW Magazine, October–December 2009), www.idsa.in/cbwmagazine/TakingStrengthfromthePastinSecuringIndiasFuture_bnepram_1009. A small part is quoted in S Parker, ‘Analysis of States’ Views on an Arms Trade Treaty’, United Nations Institute for Disarmament Research, October 2007, www. poa-iss.org/CASAUpload/Members/Documents/13@Analysis%20of%20States%20Views%20on%20 an%20ATT.pdf. 200 H Anders, ‘The UN Process on Small Arms: All Is Not Lost’ (2007) 37 Arms Control Today. 201 Compilation of views on the elements of an arms trade treaty, United Nations Conference on the Arms Trade Treaty, May 2012, https://digitallibrary.un.org/record/729233?ln=en. 202 Statement by Ambassador Sujata Mehta, Permanent Representative to the Conference on Disarmament, Geneva at the Arms Trade Treaty Conference, New York on 18 March 2013, Government of

India and Arms Exports  377 Ten days later, India intensified this message: the provisions in the final draft on terrorism and non-state actors are weak and diffused and find no mention in the specific prohibitions of the Treaty … the final draft has the tell tale marks of behind- the- scenes carve outs of exclusive interests of a select few countries, such as egregiously excluding non-state actors or arms transfers as gifts or loans, thus seriously diminishing the value of a multilateral Treaty negotiated in the UN.203

In April, India conceded defeat and expressed its complete dissatisfaction: ‘the text … just adopted is weak on terrorism and non-State actors, and those concerns find no mention in the Treaty’s specific prohibitions’.204 A second major issue was India’s concern that the Treaty did not balance rights and obligations between arms importers, like India, and exporters.205 The criteria for transfer, argued India, ‘should not impede the full implementation of and compliance with specific contracts once they are concluded’, warning that ‘ambiguous and broad-based language such as “commitments” or “regional stability” should be avoided as it could lead to politicization and discriminatory application’.206 This reflects India’s history of being subject to embargos during moments of crisis, such as wars and nuclear tests. India recognised that the language of ‘regional stability’ has often been invoked in international discussions of India-Pakistan relations, often leading to what New Delhi views as a false equivalence between the policies of both states and consequent diplomatic pressure. More straightforwardly, India also argued that ‘importers should not be burdened with onerous documentation requirements’.207 India was especially concerned with language in Article 26 of the Treaty, which, despite being modified to clarify that the Treaty could not be used as grounds to void defence co-operation agreements, was deemed to pose too great a risk to the sorts of deal that India has relied upon. As the Treaty developed, these objections grew stronger. In March 2013, India complained that the current draft tends to tilt the balance further away from importing countries. The ATT should not be an instrument in the hands of exporting states to take unilateral force majeure measures against importing states parties without consequences. Such a loop hole in the Treaty would have the affect [sic] of strengthening the hands of a few

India, www.pminewyork.org/adminpart/uploadpdf/75607pmi17.pdf. See also ‘Compilation of views’, ibid. 203 Statement by Ambassador Sujata Mehta, Permanent Representative to the Conference on Disarmament, Geneva, on Closing Plenary of the UN Conference on Arms Trade Treaty on 28 March 2013, Government of India, www.pminewyork.org/adminpart/uploadpdf/83877pmi20.pdf. 204 UN General Assembly, 67th session, 71st plenary meeting, A/67/PV/71, 2 April 2013. 205 Statement by Ambassador Sujata Mehta, Permananent [sic] Representative to the Conference on Disarmament, Geneva at the Plenary of the Diplomatic Conference on the Arms Trade Treaty in New York on 10 July 2012, Government of India, www.pminewyork.org/adminpart/uploadpdf/76871ind2052. pdf. 206 ‘Compilation of views’ (n 194). 207 Ibid.

378  Shashank Joshi exporting states at the expense of the legitimate defence and national security interests of a large number of importing states parties.208

Ten days later, India declared that its patience had run out: There is a fundamental imbalance in the text which is flawed as the weight of obligations is tilted against importing States. As an importing state we will take measures to ensure that the treaty does not affect the stability and predictability of defence cooperation agreements and contracts entered into by India.209

A third, related issue was the scope of the Treaty. In 2011, India argued that criteria for restricting transfers – including poverty reduction, sustainable development and international human rights law – were all ‘too subjective’, and required re-thinking.210 Later, India sought the removal of language around development, crimes against women and children, and corruption, arguing that these were ‘not directly relevant’ to the Treaty’s aims.211 India presumably feared that such language could allow exporters to apply pressure through the cancellation of arms contracts or the withholding of supplies on the pretext of concern over India’s domestic policy on entirely separate issue areas. India also believed that the scope of items covered was also too broad. In 2012, India emphasised that ‘we do not support the inclusion of parts, components, technology transfer and manufacture under foreign licence as these involve complex commercial, legal (including pre-existing international legal obligations) and intellectual property issues’, noting sharply that ‘the original mandate for the arms trade treaty in the relevant General Assembly resolution referred only to the import, export and transfer of conventional arms’, rather than their parts.212 The inclusion of parts and technology would present a threat to Indian efforts, discussed above, to expand and develop the indigenous defence base.213 For similar reasons, India also argued that the list of items covered should be exhaustive, and not open-ended.214 Finally, a fourth issue was the potential intrusiveness of the Treaty. India demanded that national controls remain paramount: ‘the proposed Treaty should respect differing constitutional, legal and regulatory systems in various countries and should avoid being intrusive or prescriptive with respect to national policies 208 Statement by Ambassador Sujata Mehta, Permanent Representative to the Conference on Disarmament, Geneva at the Arms Trade Treaty Conference in New York on 18 March 2013, Government of India, www.pminewyork.org/adminpart/uploadpdf/75607pmi17.pdf. 209 Statement by Ambassador Sujata Mehta, Permanent Representative to the Conference on Disarmament, Geneva, on Closing Plenary of the UN Conference on Arms Trade Treaty on 28 March 2013, Government of India, www.pminewyork.org/adminpart/uploadpdf/83877pmi20.pdf. 210 ‘ATT 2nd Prepcom Summaries’ (Control Arms Blog, 3 March 2011), https://controlarmsblog. wordpress.com/archive-2/att-2nd-prepcom-summaries-march-3-2011-pm-session/. 211 R Prakash, ‘India’s Security Interests and the Arms Trade Treaty’, Observer Research Foundation, February 2013, 15–16, http://cf.orfonline.org/wp-content/uploads/2013/03/OccasionalPaper_38.pdf. 212 ‘Compilation of views’ (n 194). 213 P Dikshit, ‘Fate of the Arms Trade Treaty’, Institute for Peace and Conflict Studies, 2 October 2012. 214 Prakash (n 204) 15–16.

India and Arms Exports  379 and procedures’.215 This, too, reflects India’s longstanding sensitivity to foreign infringements on policy autonomy. India’s ultimate scepticism over the Treaty was bolstered by the abstentions of Russia and China, as well as the knowledge that the United States Congress would not ratify it. India continues to keep the ATT formally ‘under review’, but there is no indication that the Modi Government will look upon it any more favourably than its predecessor.216

C.  India and Autonomous Weapons As technology changes conventional arms, new issues arise with existing export and arms control arrangements. One illustrative example is autonomous weapons, which are likely to grow in importance as Artificial Intelligence (AI) technology improves and proliferates. In December, India was made chair of the first group of governmental experts (GGE) to consider Lethal Autonomous Weapons Systems (LAWS), an area that has pit sceptical developing countries – including Pakistan – against advanced states, which are further ahead in, and favour maximum freedom of manoeuvre for, such technology.217 At the Informal Meeting of Experts on Lethal Autonomous Weapons held in April 2016, India’s representative emphasised that ‘systemic controls on international armed conflict in a manner that does not widen the technology gap amongst states or encourage the increased resort to military force in the expectation of lesser casualties’.218 This position is cautious, balanced and perhaps indeterminate. Most non-governmental Indian analysts have gone further. Deba Mohanty argues that India should ‘help create an enabling international regime that permits the transfer of key LAWS technologies’.219 Shashank Reddy suggests that ‘autonomous weapons will augment the country’s defences and may in fact be better able than human soldiers to achieve some strategic objectives, including checking crossborder infiltration’.220 Both of these would point to India favouring looser controls

215 Statement by Ambassador Sujata Mehta (n 198). 216 ‘Stand United against Nuclear Threat: India to International Community’, PTI/Indian Express, 7 October 2016. 217 AM Sukumar, ‘India to Chair UN Group on “Killer Robots”, Open New Page on Arms Control Diplomacy’ (The Wire, 19 December 2016), https://thewire.in/87890/india-chair-un-group-killer-robotsopen-new-page-arms-control-diplomacy/. 218 Statement by Ambassador DB Venkatesh Barma, Permanent Mission of India to the CD, CCW Informal Meeting of Experts on Lethal Autonomous Weapons, 11 April 2016, www.unog. ch/80256EDD006B8954/(httpAssets)/2BE1A62650F95B8AC1257F920057AEED/$file/2016_ LAWS+MX_GeneralExchange_Statements_India.pdf. 219 B Mohanty, ‘Command and Ctrl: India’s Place in the Lethal Autonomous Weapons Regime’, Observer Research Foundation, May 2016, www.orfonline.org/wp-content/uploads/2016/05/ORF_ Issue_Brief_143_Mohanty.pdf. 220 RS Reddy, ‘India and the Challenges of Autonomous Weapons, Carnegie India, June 2016, 3http:// carnegieendowment.org/files/CEIP_CP275_Reddy_final.pdf.

380  Shashank Joshi on technology transfer for and use of LAWS. India’s chairmanship of the GGE was widely seen to have indicated its preference for avoiding any strong constraints on its future military options.

V. Conclusion This chapter has surveyed India’s experience with arms exports and the controls placed upon them. India’s post-independence arms transfers were modest, shaped by strategic rather than commercial factors, and focused on Asia and Africa in line with India’s support for anti-colonial movements and governments and limited capacity to compete in more mature defence markets. As the Indian economy and foreign exchange reserves were squeezed in the late 1980s and early 1990s, successive governments explored the possibility of expanding arms exports, but met with little success. Most of India’s major arms were manufactured on licence, largely from the Soviet Union and then Russia, constraining opportunities for commercial export. Many politically sensitive transfers were conducted by Indian intelligence agencies, although these were largely confined to smaller arms. Scandals over exports were few and far between – the tanks to South Africa in the 1970s are a rare exception – and their political impact was far outweighed by much larger controversies over imports. Indian arms export has shown meaningful growth over the past decade, but remains at relatively low levels: less than one per cent of defence spending, and less than two per cent of overall manufacturing.221 More recently, India has continued to use largely non-commercial arms transfers to shape the regional balance of power and consolidate relationships. The transfer of attack helicopters to Afghanistan during 2015–16 was a landmark in this regard. However, arms exports have also acquired a new economic importance. A generation of arms with significant indigenous content, some long delayed, is coming to fruition, and is even being inducted into the Indian armed forces. While quality and reliability issues persist, India is hopeful that these products may find customers throughout the world. India views expanded arms exports as crucial to supporting a large and advanced domestic defence industry. This in turn would not only support growth, but also reduce India’s arms import dependence and so increase foreign policy autonomy. The private sector, supported by foreign investment, is viewed as an important part of this effort. India’s legal, regulatory, and political framework for controlling arms exports has developed very rapidly in the past decade. The executive branch of the Government maintains a high level of control and imposes stringent requirements. 221 This calculation is based on the most ‘optimistic’ figures: self-declared arms exports of $250 million, a defence budget of $34–40 billion, and manufacturing of slightly over $16 billion. For the latter figure, see ‘Indian Manufacturing: Overview and Prospects’, India Brand Equity Foundation, 2012, 5, www.ibef.org/download/Indian-Manufacturing-110512.pdf.

India and Arms Exports  381 Authorisation is granted either by the Directorate General of Foreign Trade or the Ministry of Defence, depending on the type of item, with a newly formed Defence Export Steering Committee playing a central role in the process, especially for the most sensitive arms. Most salient exports have significant political involvement, including the powerful Cabinet Committee on Security. It was political considerations – n ­ otably concern over the possible Pakistani response – and not regulatory ones that slowed Indian arms transfers to Afghanistan during 2013–14, for instance. The export control process, and particularly tension between its licensing criteria and the commercial motive, will be tested more severely if India succeeds in finding customers for its most advanced platforms, including cruise missiles. India’s export control institutions, which are still evolving, have been powerfully shaped by broader diplomatic factors. India has believed that most ad hoc and multilateral arms export control regimes established by great powers have come at its cost, denying it access to technology and weapons both in peacetime and, more seriously, in moments of crisis and war. But India’s traditional hostility to such export control regimes has given way to increasing harmonisation with, and in many cases membership of, those regimes. This shift has been driven by India’s rapprochement with the United States, the ensuing opportunity to join those regimes, and the consequent ease of access to foreign defence and dual-use technology. Export controls are a means to facilitate technology imports. At the same time, India’s sensitivities around discrimination, sovereignty, and autonomy kept it away from joining the ATT agreed in 2013 and have led it to take a cautious approach to debates over the restriction of emerging technology such as autonomous weapons.

List of References Anders, H, ‘The UN Process on Small Arms: All Is Not Lost’ (2007) 37 Arms Control Today, 17–21. ‘Annexure to Notification No. 38, Appendix 3: Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) Export of which is Regulated’, Ministry of Commerce and Industry, Department of Commerce, Government of India, Gazette of India, 3 March 2011. ‘Annual Report 2015–16’, Department of Commerce, Ministry of Commerce and Industry, Government of India. Balachandran, G, ‘India Should Be Wary of Additions to the 2008 Criteria’ (2016) 11 Indian Foreign Affairs Journal 207. Behera, LK, Indian Defence Industry: An Agenda for Making in India (New Delhi, Institute for Defence Studies and Analysis, 2016) 31–32. —— ‘Strategic Export Control: A Primer for Indian Defence Industry (Part II)’ (2016) 5 Global Defence Offset Review 1, 21–29. —— ‘DPP-2016: An Analytical Overview’, Institute for Defence Studies and Analysis, 12 April 2016.

382  Shashank Joshi Bitzinger, R, ‘India’s Defense Industrial Base: Decay and Reform’ in Ganguly, N Blarel and MS Pardesi (eds), The Oxford Handbook of India’s National Security (New Delhi, Oxford University Press, 2018) 132–48. Brewster, D, India’s Ocean: The Story of India’s Bid for Regional Leadership (London, Routledge, 2014). Chanana, D, ‘India as an Emerging Donor’ (2009) 44 Economic and Political Weekly 11–14. Chaudhuri, R, Forged in Crisis (Delhi, HarperCollins, 2014). Chellaney, B, ‘An Indian Critique of U.S. Export Controls’ (1994) 38 Orbis 38. Chenoy, AM, ‘India and the Arms Trade Treaty’ (2009) 46 International Studies 352. Coll, S, Ghost Wars: The Secret History of the CIA, Afghanistan, and Bin Laden, from the Soviet Invasion to September 10, 2001 (Penguin Press, 2004). Compilation of views on the elements of an arms trade treaty, United Nations Conference on the Arms Trade Treaty, May 2012. Dasgupta, S and Cohen, SP, ‘Is India Ending Its Strategic Restraint Doctrine?’ (2011) 34 The Washington Quarterly 163–77. Datta-Ray, SK, Looking East to Look West: Lee Kuan Yew’s Mission India (New Delhi, Institute of Southeast Asian Studies, 2010). Destradi, S, Indian Foreign and Security Policy in South Asia: Regional Power Strategies (London, Routledge, 2011). Devare, S, India & Southeast Asia: Towards Security Convergence (Institute of Southeast Asian Studies, 2006). DeVotta, N, ‘Sri Lanka’s Civil War’ in S Ganguly, A Scobell and J Liow (eds), Handbook of Asian Security Studies (London, Routledge, 2009) 158–71. Dikshit, P, ‘Fate of the Arms Trade Treaty’, Institute for Peace and Conflict Studies, 2 October 2012. Dutt, S, ‘Indian Aid to Co-Developing Countries’ (1980) 15 Economic and Political Weekly 14. Fey, M, et al, ‘Established and Rising Great Powers: The United States, Russia, China, and India’ in H Muller and C Wunderlich (ed), Norm Dynamics in Multilateral Arms Control: Interests, Conflicts, and Justice (University of Georgia Press, 2013) 188–93. ‘Foreign Trade Policy: 1st April, 2015–31st March 2020’, Department of Commerce, Ministry of Commerce and Industry, Department of Commerce, 30 June 2015. Garver, JW, Protracted Contest: Sino-Indian Rivalry in the Twentieth Century (Seattle, University of Washington Press, 2001). Gordon, S, India’s Rise to Power in the Twentieth Century and Beyond (Basingstoke, Macmillan, 1995). Gupta, A, ‘The Indian Arms Industry: A Lumbering Giant?’ (1990) 30 Asian Survey 557–58. Gupta, S, India Redefines Its Role: An Analysis of India’s Changing Internal Dynamics and Their Impact on Foreign Relations (Oxford, Oxford University Press for the International Institute for Strategic Studies, 1995). Hewish, M, Air Forces of the World: An Illustrated Directory of All the World’s Military Air Powers (Peerage, 1984). Joshi, S, ‘A Survey of India’s Strategic Environment’ (2016) 47 Asian Affairs 2, 234–59. Katz, JE, The Implications of Third World Military Industrialization: Sowing the Serpents’ Teeth (Lexington Books, 1986). Matthew, RG, ‘The Development of India’s Defence‐Industrial Base’ (1989) 12 Journal of Strategic Studies.

India and Arms Exports  383 McGarr, P, The Cold War in South Asia: Britain, the United States and the Indian Subcontinent, 1945–1965 (Cambridge, Cambridge University Press, 2013). Mohan, CR, ‘India and the Changing Geopolitics of the Indian Ocean’ (2010) 6 Maritime Affairs: Journal of the National Maritime Foundation of India 1–12. Mohanty, B, ‘Command and Ctrl: India’s Place in the Lethal Autonomous Weapons Regime’, Observer Research Foundation, May 2016. Namboodiri, PKS, Anand, JP and Sreedhar, Intervention in the Indian Ocean (ABC Pub. House, 1982). Nayan, R, ‘Integrating India with the Global Export Controls System: Challenges Ahead’ (2011) 35 Strategic Analysis 3. Nayan, R and Stewart, IJ, ‘Export Controls and India’, Centre for Science & Security Studies, King’s College London, 2013. Nepram, B, ‘Taking Strength from the Past in Securing India’s Future’ (CBW Magazine, October–December 2009). ‘Notification No 115 (RE – 2013)/2009–2014’, Ministry of Commerce and Industry, 13 March 2015. Orland, B, ‘India’s Relations with Sri Lanka’ in D Scott (ed), Handbook of India’s International Relations (London, Routledge, 2011). ‘Overview’ in ‘Core Concerns in Indian Defence and the Imperatives for Reforms’, Institute for Defence Studies and Analyses, 2015. Paliwal, A, India’s Taliban Dilemma: To Contain or to Engage? (2015) Journal of Strategic Studies (no volume). Pant, NK, Arms Export: Filling the Budgetary Gap (New Dehli, Institute for Peace and Conflict Studies, 1999). Pardesi, M and Matthews, R, ‘India’s Tortuous Road to Defence-Industrial Self-Reliance’ (2007) 23 Defense & Security Analysis 4, 419–38. Parker, S, ‘Analysis of States’ Views on an Arms Trade Treaty’, United Nations Institute for Disarmament Research, October 2007. Pham, JP, India in Africa: Implications of an Emerging Power for AFRICOM and U.S. Strategy (Strategic Studies Institute, 2011). Prakash, R, ‘India’s Security Interests and the Arms Trade Treaty’, Observer Research Foundation, February 2013. Raghavan, S, 1971: A Global History of the Creation of Bangladesh (Cambridge, Harvard University Press, 2013). Raman, B, The Kaoboys of R&AW: Down Memory Lane (New Delhi, Lancer Publishers, 2008). Reddy, RS, ‘India and the Challenges of Autonomous Weapons’, Carnegie India, June 2016. ‘Schedule 2 – Export Policy, Indian Tariff Classification (Harmonized System)’, Directorate General of Foreign Trade, Ministry of Commerce and Industry. Scott, D, ‘India’s “Extended Neighborhood” Concept: Power Projection for a Rising Power’ (2009) 8 India Review. Singh, A, ‘Emerging Trends in India–Myanmar Relations’ (2012) 8 Maritime Affairs: Journal of the National Maritime Foundation of India 25–47. Singh, K, India and the Maghreb Africa: A Study of India’s Relations with Libiya, Tunisia, Algeria & Morocco (New Delhi, Bahri Publications, 1993). Singh, P, Aircraft of the Indian Air Force, 1933–73 (New Delhi, English Book Store, 1974) 130.

384  Shashank Joshi Singh, RP, ‘An Ideal Arms Trade Treaty from India’s Perspective’ (Institute for Defence Studies and Analyses, 27 July 2012). Sislin, J, ‘Arms as Influence: The Determinants of Successful Influence’ (1994) 38 Journal of Conflict Resolution. Sisson, R and Rose, LE, War and Secession: Pakistan, India, and the Creation of Bangladesh (Berkeley, University of California Press, 1990). South Africa: Time Running Out: The Report of the Study Commission on U.S. Policy Toward Southern Africa (University of California Press, 1981). Srivastava, VK and Madhavan, A, ‘Inter-Agency Cooperation and Coordination: InterAgency Cooperation and Coordination’, Presentation to the 20th Asian Export Control Seminar, Tokyo, February 2013. ‘Standard Operating Procedure (SOP) for issue of No Objection Certificate (NOC) for Export of Military Stores by Public as well as Private Sector Units’, Department of Defence Production, Ministry of Defence. ‘Strategy for Defence Exports’ (New Delhi, Ministry of Defence, Government of India, September 2014). ‘Study Report on Export Control System in India and Role of Customs Officers’, National Academy of Customs, Excise and Narcotics (NACEN), Kanpur, India, 129, www. nacenkanpur.gov.in/download3.inc.php?rid=33. Swami, P, India, Pakistan and the Secret Jihad: The Covert War in Kashmir, 1947–2004 (London, Routledge, 2007). ‘Table of Precedence’, President’s Secretariat, New Delhi, 26 July 1979. Tellis, AJ, ‘Beyond Buyer-Seller’ (Force, August 2015). Tewari, N, ‘Indian Export Control System: Overview and Challenges’, 23rd Asian Export Control Seminar, Tokyo, February 2016. Thakur, R and Thayer, CA, Soviet Relations with India and Vietnam (New York, St. Martin’s Press, 1992). Thapliyal, S, Mutual Security: The Case of India-Nepal (New Delhi, Lancer Publishers, 1998). Upadhya, S, Nepal and the Geo-Strategic Rivalry Between China and India (London, Routledge, 2012). Venkateswaran, A and Parwal, K, ‘Recent Developments India’s Export Control System’, Wassenaar Arrangement Technically Focused Practical Workshop, Vienna, 27–28 June 2016. Vishwanathan, A, ‘India’s Entry into the NSG: A Long-Winded Process’ (2016) 11 Indian Foreign Affairs Journal 217.

part iv International Law

386

13 Arms Transfer Regulation beyond National Borders The paramount place of State sovereignty and the corollary that States must be free to protect their security interests, has meant that international law generally has imposed very few restrictions on the possession of military equipment. The specialist instruments mentioned in the Preface1 have each been separately and laboriously negotiated, and stand as exceptions to the rule, ‘valid for all States without exception’, that ‘There are no rules, other than such rules as may be accepted by the State concerned, whereby the level of armaments of a Sovereign State can be limited …’2 What is true of possession has been equally true of transfer, despite tentative and unsuccessful efforts undertaken after the First World War.3 Yet the increasingly obvious devastation wreaked by imported equipment, particularly on civilian populations, has led concerned scholars and commentators to investigate creative new ways to employ certain general principles of international law that might serve to restrict States from making materiel available to other States engaged in violations of international human rights law (HRL) or international humanitarian law (IHL). In addition, innovative applications of both long-recognised and relatively new principles of both international and domestic law to deter and/or punish private actors – individual or corporate – whose actions contribute to the carnage have also been explored. However, in this book consideration is restricted to international law restraints as they may apply to States.4 This limitation requires some explanation. It is essentially based on my view that the potential for international criminal law to play a significant role is extremely limited, and that the use of private law civil actions against companies or individuals in domestic courts is also unlikely to meet with much success, unless – in either case – material has been exported illegally. This argument needs some elaboration.

1 The Conventions outlawing various ‘pariah weapons’ listed at p ix, n 4. 2 Military and Paramilitary Activities Against Nicaragua (Merits), ICJ Judgment of 27 June 1986, para 269. 3 See M Bromley, N Cooper and P Holtom, ‘The UN Arms Trade Treaty: Arms Export Controls, the Human Security Agenda and the Lessons of History’ (2012) 88 International Affairs 1029, 1031–34; and D Stone, ‘Imperialism and Sovereignty: The League of Nations Drive to Control the Global Arms Trade’ (2000) 35 Journal of Contemporary History 218. 4 It should be noted that international law may go beyond restraints and impose positive obligations on States to criminalise certain conduct as a matter of domestic law.

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I.  The International Law Background: Individual and Corporate Liability A.  Criminal Law In practical terms criminal prosecutions will, on any realistic view of the future, remain a matter of domestic law. Although in principle the seller of arms to someone engaged in war crimes could be brought before the International Criminal Court (ICC) as an accessory,5 that body is under such political and financial constraint that the possibility remains remote. Moreover, as Cryer et al have pointed out, the ICC’s very restrictive interpretation of the knowledge requirement in Art 25(3)(c), the ‘ancillary’ liability provision of the Rome Statute, ‘will certainly complicate prosecuting those who sell or otherwise supply arms or other war materiel which is used for international crimes’.6 There remains the possibility of prosecutions under particular national laws.7 In the UK, the Government’s Annual Reports on Strategic Export Controls detail enforcement practices, including occasional instances of convictions for evading export controls, falsifying documents, or fraud.8 This does not mean that international criminal law (ICL) is irrelevant, for in so-called ‘monist’ States – those in which international law is directly part of domestic law, without need of specific legislative enactment – acts regarded as international crimes may be prosecuted as domestic violations.9 And some common law countries, including 5 The application of international criminal law (ICL) to accessories has recently received an unusual degree of attention. The area is one of daunting doctrinal complexity. See N Jain, Perpetrators and Accessories in International Criminal Law (Oxford, Hart Publishing, 2014); M Aksenova, Complicity in International Law (Oxford, Hart Publishing, 2016); also G Werle and B Burghardt, ‘Establishing Degrees of Responsibility’ in E van Sliedregt and S Vasiliev (eds), Pluralism in International Criminal Law (Oxford, Oxford University Press, 2014). 6 R Cryer et al, An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge, Cambridge University Press, 2013) 374. The difficulty with the knowledge requirement as interpreted is that the dealer would escape liability if his sole purpose in selling the items was to make a profit, rather than to facilitate an international crime. This interpretation firmly slams the door shut, since profit is what drives commercial entities, any atrocity being an irritating by-product. It is however in line with the approach taken by the English Court of Appeal in R (on Application of Khan) v Secretary of State for Foreign and Commonwealth Affairs, [2014] EWCA 24, which was content to assume without deciding that a person who supplies information to another must know and intend that the recipient will use it to commit a war crime (para 50) (emphasis added). This interpretation would apply a fortiori if weaponry, rather than mere information (the issue in the Khan case), was being conveyed. 7 For a general overview of the issues in the UK context, see K Grady, ‘International Crimes in the Courts of England and Wales’ [2014] Criminal Law Review 693. 8 It is clear from these Reports that the authorities much prefer to seize goods whose exports would breach licence conditions or violate an embargo, rather than invoke the full criminal process. 9 Two rare successful prosecutions have occurred in the Netherlands, a monist jurisdiction. The first – which became notorious because the defendant, known as ‘Chemical Frans’, was the sole supplier of the key chemical component of mustard gas to Saddam Hussein – was Prosecutor v van Anraat, Case No B64822, whose conviction and sentence exceeding 15 years’ imprisonment was upheld by the

The International Law Background  389 the UK, have enacted the provisions of the Rome Statute (which established the ICC) so that offences set out therein may be prosecuted in national courts.10 It is therefore conceivable that a charge of ‘ancillary’ liability11 could be brought against an arms dealer, but in the UK at least, no such prosecution had been mounted by the end of 2019.12 The importance of recognising the specific features of national legal systems is highlighted in this context by the fact that some do not provide for corporate liability in their criminal codes.13 Even in those jurisdictions which would permit prosecutions of a company, corporate criminal liability is a conceptual and practical minefield that would complicate an already difficult enterprise. Moreover, these limitations arise in the context of recognised offences in both national and international criminal law. In important respects export control standards and criminal law may not fit together at all well, or indeed at all. For example, the phrase ‘internal repression’, fundamental to restrictions on exports in all European States using the wording of the Common Position,14 is unknown to criminal law. Translating it into a criminal offence could of course be attempted, but it is a term designed to guide administrative decision- making, and the translation into something sufficiently precise to achieve the fair notice required of a criminal offence would be extremely difficult. The possibilities for exhaustive legal argumentation over its precise meaning, involving delays lasting years, are obvious and daunting. One can only conclude with regret that at best, criminal prosecution of arms manufacturers, dealers or brokers for supplying weapons will remain a rare occurrence, largely restricted to cases in which provisions of a domestic export control regime has been violated.

Dutch Supreme Court in 2009 – more than 20 years after the massacre at Halabja. He was convicted of complicity in war crimes (though acquitted of complicity in genocide for lack of knowledge of Saddam’s intent), and his complaint to the European Court of Human Rights was declared inadmissible: van Anraat v Netherlands App No 65389/03, 20 July 2010. The second, which spanned more than a decade, and concerned sales of arms to Charles Taylor which was used to commit atrocities, is the Kouwenhoven case, decided 21 April 2017 and available in English online here: uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHSHE:2017:2650. These appear to be the only successful European prosecutions of arms dealers for international criminal law violations. 10 International Criminal Court Act (ICCA) 2001 ss 50–51, which criminalises genocide, crimes against humanity, and war crimes, as defined in the relevant sections of the Rome Statute. The Act applies extraterritorially to UK nationals and persons resident in the UK. In two places, s 50(5) and s 66(4), it mandates that the English court ‘shall take into account’ relevant ICC judgments. 11 The term used to cover conduct a very wide range of preparatory offices relating to the s.50 offences: ICCA 2001, s 55. 12 Prosecution of any of the primary or ancillary offences under the Act requires the consent of the Attorney General: s 53(3), which may restrict that possibility. However, the knowledge requirement as interpreted by the International Criminal Court (see n 5 above) will always be a severe limit. 13 Two such are Germany and Spain. 14 See above, chapter four.

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B.  Civil Liability Over the past 15 years there have been a number of attempts to explore potential grounds of liability of corporations and/or their directors for the violence or property destruction suffered by people who have resisted their operations. Most of the cases have involved mining or oil companies operating in the Global South – far removed from their corporate headquarters – often accused of assisting, if not actively enlisting, the local ‘security’ forces in suppressing the opposition.15 Perhaps the best known is Kiobel v Royal Dutch Petroleum Company16 in which the US Supreme Court rejected an attempt by victims of police violence against people of the Ogoni region of Nigeria, whose organised resistance to despoliation of their lands by Shell’s drilling operations led to numerous deaths. The Court held that the action, brought under the Alien Tort Claims Act of 1789, could not be heard in a US forum. For divergent reasons, all members of the Court found that there was insufficient territorial or other US interest necessary to ground jurisdiction in a US court – the events had occurred outside the country, the plaintiffs (claimants) were not US citizens, nor were the defendants except in so far that the parent company had established an office in New York.17 There remains the question of whether civil liability might be imposed on manufacturers or sellers of weaponry whose products have been used to commit human rights or IHL violations. Kiobel exemplifies a fundamental jurisdictional obstacle: tort liability generally derives from the place of the conduct, so the question of why an action should be heard, for example in England rather than where the bombing or repression occurred, would require resolution before any issues of substance could even be considered. Putting that to one side, however,18 the possibility of tort liability would meet a number of doctrinal obstacles, which either separately or in combination appear insuperable. These need only to be listed, and discussed very briefly. It should be noted however that the analysis is limited to English tort law, with no opinion expressed about the position in the law of delict, as found in civil law jurisdictions. 1. Liability would depend on a finding of negligence – essentially, behaviour regarded as falling below generally recognised standards of reasonable conduct. Since exports, to be lawful, require a government licence, the fact of official approval would negate any claim of unreasonableness. 15 For an extensive overview of the cases, see S Baughen, Human Rights and Corporate Wrongs ­(Cheltenham, Edward Elgar, 2015). A broader view, also covering international documents and other forms of soft law is P Simons and A Macklin, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Abingdon, Routledge, 2014). Some of the arguments offered derive from international lawyers’ attempts to locate State responsibility for the actions of resident corporations. 16 (2013) 133 S Ct 1659 (US S Ct). 17 The Kiobel ruling was reinforced by the 5–4 decision in Jesner v Arab Bank (2018), available at www.supremecourt.gov/opinions/17pdf/16-499_1a7d.pdf. 18 The matter might be very different if the seller of weapons exercised ultimate control of the actions of the purchasing State – see Vedanta Resources Plc v Longowe and others [2019] UKSC 20, but that is plainly not the case in arms transactions.

The International Law Background  391 2. Even in the case of an unlawful export – criminal conduct – civil liability would not inevitably follow. The problem is one of intervening conduct, or liability for the acts of a third party – in this case the agents of the foreign State employing the weaponry. As a general principle, to quote the leading case, ‘English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T)’.19 It is also firmly established that this principle applies equally to a public authority,20 thus foreclosing the argument that the government department which approved the export had acted negligently. 3. Another general restrictive principle is that tort law generally does not impose liability for omissions – there is no duty to prevent the occurrence of harm. This principle applies equally to private persons and public bodies.21 Thus, apart from the previous points, neither the manufacturer/exporter nor the government department could be liable for preventing the purchasing body from misusing the weapons. In the result, despite the strong moral appeal of imposing obligations on arms manufacturers and traders to prevent the misuse of their wares, the scope for use of existing principles of tort law to achieve this is essentially non-existent. That does not foreclose active legislative intervention – a matter discussed in the concluding chapter – but it reflects the current state of English common law when confronted with wrongs committed by third parties outside the country. Therefore, it is to international law that we now turn.

II.  The International Law Background: State Responsibility? Despite the intricate doctrinal issues involved, a remarkably large literature has been produced in the past decade concerning complicity in international wrongdoing as part of the law of State responsibility.22 This built on the work of the 19 Michael v CC of South Wales [2015] UKSC 2, para 97, citing Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL Sc). The recognised exceptions (paras 98–100), where D either has direct control over T’s actions, or has assumed special responsibility to protect C, do not apply in this context (in which ‘C’ would be the victim of violence and ‘T’ the State employing it). 20 Mitchell v Glasgow City Council [2009] UKHL 11, [2009] AC 874, as affirmed in Michael, ibid, para 101. 21 Robinson v CC West Yorkshire [2018] UKHL 4, para 34. 22 It should be noted that the concerns addressed in this literature go well beyond arms transfers. See generally H Moynihan, Aiding and Assisting: Challenges in Armed Conflict and Counter-Terrorism (London, Chatham House, 2014) 6–25, a comprehensive and cogent treatment of the interpretive issues surrounding Art 16; HP Aust, Complicity and the Law of International Responsibility (Cambridge, Cambridge University Press, 2011); M Jackson, Complicity in International Law (Oxford, Oxford University Press, 2015). Within the broader discussion suggested by its title, the essay by A Bellal, ‘Arms Transfers and International Human Rights Law’ in S Casey-Maslen (ed), Weapons Under International Human Rights Law (Cambridge, Cambridge University Press, 2013) Ch 15, engages with the same issue in considerable depth.

392  Arms Transfer Regulation beyond National Borders International Law Commission (ILC), spanning decades, which in 2001 produced the Articles on State Responsibility, Article 16 of which the International Court of Justice (ICJ) has declared to be part of customary international law and therefore binding on all States.23 Article 16 holds ‘internationally responsible’ a State which assists another State in the commission of an internationally wrongful act if ‘(a) that State does so with knowledge of the circumstances of the internationally wrongful act …’ The key question is what ‘knowledge’ entails. The Rapporteur at the concluding phase of the drafting, Professor James Crawford, addresses this question directly in his Commentary. He avers that for responsibility to be established, the assisting State A must have ‘a view to facilitating’ the commission of the wrongful act by State B. Further, if the wrongful act ‘would clearly have occurred in the event’ (which may be called a ‘but-for’ test), State A cannot be held responsible for making compensation.24 These two limitations are nowhere to be found in the language of the Article, but it should be remembered that the ILC adopted the Commentary along with the text. The Rapporteur responded to criticism of his narrow interpretation by arguing that it was inherent in the process of achieving international agreement: the new Articles had to be ‘acceptable generally to governments’ which a broader principle – in particular, one not including the ‘facilitation’ requirement – would not have been, because it would have been regarded as ‘potentially detrimental to State sovereignty’.25 Accepting this view as authoritative,26 the implications for the possibility of imposing responsibility upon supplier State A are daunting. The facilitation requirement would mean State A would not merely have known that its customer was committing or about to commit27 a wrongful act, but that its decision to approve supply was done with a view to helping State B commit that act.28 23 Adopted by the UN General Assembly, A/ RES/56/83 (28 January 2002). The ICJ statement appears in the Bosnian Genocide Case, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) (2007) ICJ Rep 43, para 417. 24 J Crawford, The ILC’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 148 (commentary para 2). 25 J Crawford, State Responsibility: The General Part (Cambridge, Cambridge University Press, 2013) 64. 26 It is also expressed by Aust (n 22) 232–49. 27 Or was likely to commit – another possibility for more expansive liability that is in practice foreclosed for reasons offered in the text. 28 Debates about near-metaphysical distinctions and overlaps between ‘wilful blindness’, ‘constructive knowledge’ and a requirement of ‘due diligence’ – all terms appearing in the academic literature but not found in Art 16 – then emerge. For example, UK soldiers, and civilians under contracts considered export of services requiring approval by the UK Government, have been engaged in servicing planes and training pilots who over many years have been bombing civilian sites in Yemen. What inquiries must the UK Government make, or protestations to the Saudi Government must it present, before it finds itself in breach of its obligation not to assist violations of IHL? There is no clear, or even murky, answer to this question. cf the discussion in Jackson (n 22) 150–62, using the example of somewhat less direct assistance provided by development aid to a regime violating the human rights of its own citizens (IHRL).

The International Law Background  393 Since it must be a very rare occasion when a State actively wants to assist another State in violating the laws of war or even violently suppressing domestic dissent,29 this requirement effectively removes the possibility of international responsibility of States supplying military equipment to oppressive and violent regimes. This conclusion is reinforced by the ‘but-for’ test, since unless a formal arms embargo is in place, in many cases30 an alternative supplier can be found, anchoring the argument that ‘they would have done it anyway’. The customary international law (CIL) on State responsibility is therefore of little use in imposing restrictions on the supply of materiel.31 A single general Article would in any case have been quite inadequate to address the complexities of regulating international transfers of arms. The same may be said of the broad principle, found in Common Article 1 of the four Geneva Conventions (also recognised as CIL), binding the Contracting Parties to ‘respect and ensure respect’ for the rules governing the conduct of warfare. The International Committee of the Red Cross (ICRC) Commentary on the provision suggests that this implies an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in the event that they have already occurred.32 This would be a more demanding standard than that imposed by Article 16; however, that interpretation is not universally accepted33 and its practical implications of the general duty are unclear, controversial and would take years to be worked through.34

A.  European Human Rights Law One other attempt to hold a State responsible for the damage caused by the export of its weaponry came before the European Convention judicial machinery 29 This latter possibility might arise if State A believed that a significant change of policy, or a full regime change, in State B would prejudice its own security or foreign policy goals. One example is that of a government faced with a restive ethnic minority, which might equip a neighbouring government to forcibly put down similar opposition to pre-empt greater trouble on its own soil. Saudi Arabian assistance to the Government of Bahrain to forcibly suppress demonstrations for equal rights of its Shia majority, most recently in 2011, is such a case. 30 Though not all. Some components, or particular weapons designed to be launched from a purposebuilt platform, may be so specific to the final product that a like-for-like replacement would not be immediately available. 31 Moynihan (n 22) presents a far more sophisticated and extensive analysis of the issues than is presented here, and her conclusions (24–25), which emphasise the limited effectiveness of Art 16 in the present context have shaped the analysis presented here. V Lanovoy, Complicity and its Limits in the Law of International Responsibility (Oxford, Hart Publishing, 2016) fn 22, takes a similar sceptical view. 32 International Committee of the Red Cross, 2016 Commentary to the First Geneva Convention, para 164. 33 Moynihan (n 22) 26. 34 It is a matter of great regret that the wider interpretation of Article 16 suggested some years ago by Professor Lowe remains a minority view. See V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) 101 Kokusaiho Gaiko Zassi 1, 14. However, even if it were the prevailing view, liability would still require the resolution of several complex questions including the degree of knowledge, the duty of inquiry of the assisting State, as well as when the presumption of legality of the action of the purchasing State is to be regarded as overcome.

394  Arms Transfer Regulation beyond National Borders in 1993.35 Rasheed Tugar was a trained de-miner, working for a non-governmental organisation clearing landmines in Iraq, which had been laid by the Saddam Hussein regime during the Iran-Iraq War. These mines were not fitted with any triggering inhibitors, and were therefore rightly described as ‘indiscriminate’. Mr Tugar inadvertently stepped on a mine, and the resulting injury required a leg amputation. The mines had been exported from Italy, at a time when that country had only a very rudimentary export control system. He alleged that the Italian Government had violated his right of life under Article 2 of the European Convention on Human Rights (ECHR) due to the inadequacy of its export control regime which allowed indiscriminate landmines to be employed by Iraq – the purchaser – or, in the alternative, that it knowingly allowed the export of such weapons to a State that was likely to lay the mines in a manner that would produce indiscriminate casualties. He accepted that the Italian State was not directly responsible for the use of its mines, but argued that it failed in its positive obligation under Article 2 by allowing them to be exported in these circumstances. His case came before the European Commission on Human Rights, which at that time was responsible for determining whether a complaint was admissible, and therefore could subsequently be considered on the merits. The Commission unanimously rejected the application. It distinguished Mr Tugar’s relationship to Italy from that of the claimant in Soering v United Kingdom,36 in which a man whose extradition was sought by the USA for trial in a state where he faced the possibility of the death penalty argued successfully that permitting extradition in that circumstance would make the UK responsible for placing him in this peril, thus violating its positive obligation under Article 3 ECHR. The Commission rejected the analogy: expelling a specific individual to a location where he personally would clearly face a significant risk of execution was quite different from Mr Tugar’s case. It stated, ‘There is no immediate relationship between the mere supply, even if not properly regulated, of weapons and the possible “indiscriminate” use thereof in a third country’. It was that use which constituted ‘the direct and decisive cause’ of his injury, and the application was declared inadmissible on grounds that the common law of tort would readily recognise as one of remoteness. As a Commission Admissibility Decision delivered more than 20 years ago, Tugar lacks the authority of a recent court judgment on the merits. Nonetheless, it is striking that no court judgment37 since that time has cast any doubt on its reasoning. What might have been a fruitful approach – yielding concrete results before an authoritative regional court – to holding European States responsible for

35 Rasheed Tugar v Italy, Decision on Admissibility App No 2869/93, 18 October 1995. 36 (1989) 11 EHRR 439. 37 The Commission was abolished in 1998, when its functions were taken over by the European Court of Human Rights under Protocol 11 of the Convention.

The International Law Background  395 the uses made of products whose export they authorised, was tightly closed off in Tugar, and has remained shut.38 The exploration of various strands of both certain general principles of international law, and of European human rights law, yields a firm conclusion: a lex specialis, negotiated carefully and painfully by all States as they determined their priorities, ‘redlines’ and ultimate interests, was required. This inevitably political and highly imperfect process produced the Arms Trade Treaty, the primary focus of this Part of the book, to which we now turn in the following chapter.

List of References Aksenova, M, Complicity in International Law (Oxford, Hart Publishing, 2016). Aust, HP, Complicity and the Law of International Responsibility (Cambridge, Cambridge University Press, 2011). Baughen, S, Human Rights and Corporate Wrongs (Cheltenham, Edward Elgar, 2015). Bellal, A, ‘Arms Transfers and International Human Rights Law’ in S Casey-Maslen (ed), Weapons Under International Human Rights Law (Cambridge, Cambridge University Press, 2013). Bromley, M, Cooper, N and Holtom, P, ‘The UN Arms Trade Treaty: Arms Export Controls, the Human Security Agenda and the Lessons of History’ (2012) 88 International Affairs 1029. Crawford, J, State Responsibility: The General Part (Cambridge, Cambridge University Press, 2013). —— The ILC’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002). Cryer, R, et al, An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge, Cambridge University Press, 2013). Grady, K, ‘International Crimes in the Courts of England and Wales’ (2014) Criminal Law Review 693. Jackson, M, ‘Freeing Soering: The ECHR, State Complicity in Torture, and Jurisdiction’ (2016) 27 European Journal of International Law 817.

38 For an imaginative attempt to transcend this limitation, see M Jackson, ‘Freeing Soering: The ECHR, State Complicity in Torture, and Jurisdiction’ (2016) 27 European Journal of International Law 817. Although the argument is presented in the context of torture, a universally acknowledged evil, it could readily be applied to war crimes committed with weapons whose export has been approved by a State, and at least plausibly expanded to violence directed against peaceful political opponents. However, there is as yet no instance of Dr Jackson’s theory gaining acceptance in Strasbourg. Whilst several recent Grand Chamber cases, notably Al-Jedda v United Kingdom App No 27021/08 and Al-Skeini v United Kingdom App No 55721/07, both decided 7 July 2011, and Jaloud v N ­ etherlands App No 47708/08, 20 November 2014, have widened the responsibilities of Convention States by expanding the concept of ‘jurisdiction’ under Art 1 ECHR, they all involved instances of the exercise of control or power exercised over a specific claimant in the custody of the military forces of the State. The remoteness objection either did not arise or was overcome on the facts.

396  Arms Transfer Regulation beyond National Borders —— Complicity in International Law (Oxford, Oxford University Press, 2015). Jain, N, Perpetrators and Accessories in International Criminal Law (Oxford, Hart Publishing, 2014). Lanovoy, V, Complicity and its Limits in the Law of International Responsibility (Oxford, Hart Publishing, 2016). Lowe, V, ‘Responsibility for the Conduct of Other States’ (2002) 101 Kokusaiho Gaiko Zassi 1. McCorquodale, R and Simons, P, ‘Responsibility beyond Borders: State Responsibility for Extra-Territorial Violations by Corporations of International Human Rights Law’ (2007) 70 Modern Law Review 598. Moynihan, H, Aiding and Assisting: Challenges in Armed Conflict and Counter-Terrorism (London, Chatham House, 2016). Simons, P and Macklin, A, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (Abingdon, Routledge, 2014). Stone, D, ‘Imperialism and Sovereignty: The League of Nations Drive to Control the Global Arms Trade’ (2000) 35 Journal of Contemporary History 218. Werle, G and Burghardt, B, ‘Establishing Degrees of Responsibility’ in E van Sliedregt and S Vasiliev (eds), Pluralism in International Criminal Law (Oxford, Oxford University Press, 2014).

14 The Arms Trade Treaty: A Measure of Global Governance On the 2nd of April 2013, an overwhelming majority of the UN General Assembly – 154 states – voted to accept a Resolution approving the text of an Arms Trade Treaty (ATT).1 Only three States – Iran, North Korea and Syria – opposed acceptance.2 This apparent overwhelming support was tempered by the abstention of 23 States, including some of the most important actors on the global stage.3 Nonetheless, it was an impressive moment: the first time in world history that a truly global agreement restricting the transfer of conventional weapons had been realised. These weapons are held by every state, a possession intimately connected to the inherent right of self-defence, long recognised in international law and enshrined in Art 51 of the UN Charter. And as we have seen, commerce in them is extensive, lucrative, and energetically encouraged by the governments of States in which they are manufactured. Thus the mere fact of a formal agreement, even if accompanied occasionally by extravagant rhetoric, is more than worthy of note. So too is the extremely rapid movement towards making it operational; within 18 months, more than the requisite 50 States4 had formally ratified, and it came into force on 24th December 2014.5 It is certainly possible that even a limited treaty can set in motion a ‘cascade effect’ which eventually produces national or international norms.6 Yet once the undoubted normative significance of the mere existence of the ATT is acknowledged, the hard questions arise: What are its main purposes? How did it take the shape it did, and what are its strengths and weaknesses? And most important, what practical effect is it likely to produce? This chapter concentrates on the core of the Treaty: its coverage – described in Article 2 as its ‘scope’ – and the obligations it imposes on States Parties which 1 The Resolution is A/67/L.58 (2013). 2 The same three States blocked the adoption of the Treaty by consensus at the Final UN Conference on the Arms Trade Treaty which finished its deliberations the previous week. 3 See below, p 390. 4 Arms Trade Treaty (ATT), Art 22. 5 As of the end of 2018, this figure had precisely doubled when Mozambique acceded and thus 100 States in total became signatories. By September 2019 that figure had reached 105. 6 The notion of a ‘cascade effect’ derives from M Finnemore and K Sikkink, ‘International norm dynamics and political change’ (1998) 52 International Organization 887. They used it in the context of diffusion of the acceptance of human rights norms, in a way that now seems overly optimistic.

398  The Arms Trade Treaty export weaponry. It also examines some other provisions, notably that relating to diversion; the (substantially weaker) obligations imposed on importers; and those relating to enforcement (or lack of it) and implementation.7 It also examines the primary objections put forward by the significant number of States which refused to sign the Treaty. A critical examination of the main Articles of the Treaty can only be undertaken in light of the reasons for its existence, ie, whether and how effectively it addresses those problems that led to its creation. Those grounds of attack on the arms trade were described and analysed in chapter one, and the textual analysis and critique of the Treaty will draw upon that discussion. The question of the likely impact can at this point receive only tentative answers, but the critique should identify inadequacies and omissions that will require further attention in future. The limits to future possible change in light of the objections put forward by critical States will also be assessed.

I.  The Historical Background The evolution of the Treaty, covering its political and diplomatic background over a period of 15 years, including the role of several Nobel laureates and civil society groups, has been well chronicled in several readily available sources.8 It is thus unnecessary to recount that history in detail here. For present purposes it will be sufficient to offer a skeletal description of some key developments. In December 2006, the UN General Assembly passed a Resolution in favour of an international arms trade treaty.9 The USA was the sole State to vote against but – foreshadowing the outcome of the process in 2013 – important States like Russia, China and India abstained.10 The Resolution directed the UN Secretary-General to establish a Committee of Government Experts to take the effort forward. This met in three sessions in 2008, and was chaired by Roberto Garcia ­Moritan, a lawyer and career diplomat from Argentina. He continued in this role through

7 For an almost line-by-line analysis of the entire Treaty, running to nearly 500 pages, see S Casey-Maslen et al, The Arms Trade Treaty: A Commentary (Oxford, Oxford University Press, 2016) [hereafter ATT Commentary]. 8 See especially D Garcia, Disarmament Diplomacy and Human Security (London, Routledge, 2011) Ch 2, for a valuable general account. The important role of non-governmental organisations (NGOs) is described in a background paper for an EU-UNIDIR [United Nations Institute for Disarmament Research] project: D Mack and B Wood, ‘Civil Society and the Drive towards an Arms Trade Treaty’, UNIDIR, 2010, www.unidir.org. The views of nearly 100 States involved in the extensive discussions in the mid-2000s were collated and analysed in two reports for UNIDIR prepared by Sarah Parker, ‘Analysis of States’ Views on an Arms Trade Treaty’, (October 2007) and ‘Implications of States’ Views on an Arms Trade Treaty (January 2008), www.unidir.org. 9 UN General Assembly (GA) 61/89, 6th December 2006. 10 See below, p 390.

The Historical Background  399 three P ­ reparatory Committee sessions in 2009–2011. For the last, in July 2011 he produced a Paper which formed the basis of the negotiations involving all UN Member States11 which took place in New York in July 2012.12 These were undertaken on the basis that the result had to be agreed by ‘consensus’ – ­international law’s term of art meaning unanimity. They went on for three weeks under Ambassador Moritan’s leadership and it appeared that a compromise text had been agreed. However, on the last day the USA, supported by the strangest of bedfellows,13 announced that further negotiations were necessary. This was regarded at the time by many proponents as almost an act of sabotage, although there has been general agreement that the text eventually produced represents a considerable improvement. The American demarche was also entirely predictable, given that the Presidential elections were scheduled for November; the Obama ­Administration – which had to reverse its predecessor’s stance in 2009 to agree to participate at all in the negotiations – was vulnerable politically on the issue and did not need to highlight a controversy which could only cost it votes.14 The second Negotiation Conference was convened in March 2013, this time under the Chairmanship of Peter Woolcott, the Australian Permanent Representative to the UN.15 It also lasted three weeks, and produced a document which managed to gain widespread acquiescence, but could not achieve consensus. However, within a week of the closing of the Conference on 27th March, the Treaty had been approved by General Assembly Resolution, where consensus is not required. This is the document that has come into force. The historical background illuminates both how particular Articles took their final shape, and also the limitations of support for the Treaty. Although there were

11 The first two days of the Conference were sidetracked by controversy over the presence of Palestinian representatives, who were eventually granted observer status. The Vatican, though not a UN member, did participate in the discussions but did not vote. The same was true of the European Union. 12 The UN has published no official record of either Negotiation Conference, which consisted of both open and closed sessions. This account of the positions taken by various States or regional groups draws extensively from two sources. Most extensive, covering both 2012 and 2013 both with daily blogs and extreme comprehensive analysis, is the material available on the website of Reaching Critical Will, an NGO devoted to disarmament. A complete archive is available at www.reachingcriticalwill. org/disarmament-fora/att. A second important source is the account issued by the UN Department of Public Information on 2 April 2013, GA/11354, summarising statements made by scores of Member States in the run-up to the Assembly’s approval of the Treaty. 13 Russia, Cuba, Venezuela and DPR Korea. 14 The politics of the American role require special attention because of its preeminent global power and its role as the world’s largest arms exporter. The internal opposition is based on exaggerated claims about danger to the Second Amendment’s constitutional ‘right to bear arms’. In fact the Treaty recognises in three separate places ‘the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system’ (ATT Preamble, para 5); ‘the legitimate trade and law ownership, and use of certain conventional arms’ for diverse purposes (ibid, para 13) and reiterates, in the prefatory statement of Principles, ‘Non-intervention in matters which are essentially with the domestic jurisdiction of any State in accordance with Article 2(7)’ of the UN Charter. 15 The reasons for the replacement of Robert Garcia Moritan were never made public.

400  The Arms Trade Treaty only three recorded opponents, the abstainers represent nearly half the world’s population,16 most of the Arab world including nearly all the oil-rich States,17 and all the Latin American States with left-wing governments.18 Thus, the claim that the Treaty expresses overwhelming international opinion is something of an illusion. Russia is the world’s second largest arms exporter and China has rapidly emerged as a major one.19 India, which for many years was the world’s leading importer, was displaced by Saudi Arabia in 2014–18 at the top of that particular league table.20 Thus key States on both sides of the trade in weapons remain unenthusiastic at best. There were also notable divisions between exporting and importing States, discussed further below, but also significant differences in the importance various States and regional groups attached to the different contentious issues that emerged during the negotiations. Some States – the USA most publicly and explicitly – had ‘redlines’ which they would not allow to be crossed if they were to sign the Treaty.21 Many others wanted the Treaty to go further in various ways, but were forced to accept more modest measures if the key States were to be kept on board.22 No one, State or NGO, was fully satisfied with the compromises that emerged. Whether acceptance of half (or perhaps even a lesser portion) a loaf was the mark of good judgement or an abandonment of principle, is something that can only be properly assessed in perhaps the mid-2020s, when the Treaty will have had a reasonable time to make its mark.

II.  General Treaty Provisions The first set of essential questions to be addressed are definitional:

A.  What is the Arms ‘Trade’? The ATT does not regulate the arms ‘trade’ as such: it governs arms ‘transfers’. This is one of the few terms specifically defined within the text, and includes ‘export, 16 China, India, Indonesia, Russia and Egypt were the most populous of this group. 17 In addition to Egypt and Yemen, Saudi Arabia, Oman, Bahrain, Kuwait and Qatar all abstained. Venezuela was recorded as ‘absent’, but later stated it wished to abstain. Of the oil sheikdoms, only United Arab Emirates voted in support. 18 Bolivia, Cuba, Ecuador and Nicaragua, in addition to Venezuela. 19 See chapters ten and 11 respectively. 20 See chapter 12 and Stockholm International Peace Research Institute (SIPRI), ‘Trends in International Arms Transfers, 2018’, www.sipri.org/publications/2019/sipri-fact-sheets/trendsinternational-arms-transfers-2018. 21 US Department of State, ‘Elements of an Arms Trade Treaty’, Fact Sheet issued 4 June 2010, (hereafter ‘USA Redlines’) which included a bullet point listing of key US objectives, policies and ‘redlines’. As the only superpower and also the world’s largest arms exporter, the USA is powerful enough to ensure that its ‘redlines’ were respected. Other States were forced to compromise. 22 This is true particularly of the controversy over the treatment of ammunition; see below p 396–98.

General Treaty Provisions  401 import, transit, trans-shipment, and brokering’, all brought within the portmanteau category of ‘transfer’.23 Obviously this covers much more than the sale of weapons from A to B, and there are some important questions surrounding its exact extent. There are two explicit exclusions. One is that weapons moved internationally by a State Party which retains ownership of them are outside the scope.24 This would exempt transport of weapons by a State to its armies25 stationed or actively engaged in military activities outside its borders; the same would be true of States whose forces were engaged in UN peacekeeping operations. More important was an issue that occasioned considerable concern as diplomatic discussions proceeded, namely whether a ‘transfer’ had to be of a commercial nature in order to be included. The bare language certainly does not command this interpretation, which could create a significant loophole since some countries, notably the USA but others as well, give weapons as gifts to allies, particularly if they are surplus to present requirements.26 However, in its ‘Redlines’ document, the US State Department was quite clear that the scope of an ATT should be extremely comprehensive, including ‘international transfers, export, import, transit, transhipment or brokering of conventional arms, whether the transfers are state-to-state, state-to-private end-user, commercial sales, leases, or loans/gifts’.27 As the State most influential throughout the negotiations, the US interpretation of the nature of ‘transfer’ can properly be given considerable weight, especially as it accords with the widely-shared objectives of the Treaty by supporting the broadest reasonable interpretation. There is no call for any arbitrary restriction.28

23 ATT, Art 2.2. Neither transit nor trans-shipment are specifically legal terms. The former is generally understood to mean the export of equipment from one country through the territory of one or more intermediary country to reach the ultimate recipient country. ‘Trans-shipment’ is the physical process of unloading the goods at the initial destination then reloading them, usually via another form of transport (eg from ship to lorries) for trafficking to the final recipient. 24 ATT, Art 2.3. 25 There is no loophole here allowing a State to lend equipment to an ally whilst retaining ownership; Art 2.3. requires that the movement of arms be for ‘its’ – ie the State’s–own use. 26 Particularly during the Cold War, the USA operated several programmes involving noncommercial sales to ‘deserving’ countries; until the 1980s this was the predominant method of its arms transfers. This approach now operates particularly as part of ‘counter-terrorism’ policy; particularly important at present is the so-called ‘sec. 1206 authority’ for training and equipping foreign military forces for this purpose. For details, see NM Serafino, ‘Security Assistance Reform: “sec. 1206”: Background and Issues for Congress’ (Washington, Congressional Research Service, 4 April 2014). The UK acts similarly, albeit on a smaller scale. The UK Government’s Annual Reports on Strategic Export Controls (cited repeatedly in chapter five), contain a section ‘on Gifted Equipment’ detailing which nations have received what largesse from the UK during the previous year. 27 See USA Redlines (n 21). 28 The US view is in fact widely shared; see, eg, the view of the German Government, produced by the Federal Foreign Office, ‘Memorandum of the Federal Government on the Arms Trade Treaty’, unofficial translation of 1 March 2014, 6. China, however, has rejected it.

402  The Arms Trade Treaty

B. Scope What then of the ‘conventional arms’ element of the Arms Trade Treaty? Put another way, what weapons and equipment, or materiel, are subject to the range of regulations within it? Here the result is disappointing, as early in the evolution of the Treaty its scope was significantly narrowed. The Chairman’s Draft of 14 July 2011 was broad-ranging in this respect. It sought to include all ‘conventional arms’, which were defined as everything within the following categories: a. Tanks; b. Military Vehicles; c. Artillery Systems; d. Military Aircraft (armed or unarmed); e. Military Helicopters (armed or unarmed); f. Naval Vessels (surface and submarine vessels armed or equipped for military use); g. Missiles and Missile Systems (guided or unguided); h. Small Arms; i. Light Weapons; j. Ammunition for use with weapons defined in subparagraphs (a)–(i); k. Parts or Components specially and exclusively designed for any of the categories in subparagraphs (a)–(j); and l. Technology and Equipment specially and exclusively designed and used to develop, manufacture or maintain any of the categories in subparagraphs (a)–(k). In its final form of April 2013 the list is both shorter and narrower: This Treaty shall apply to all conventional arms within the following categories:29 a. Battle tanks; b. Armoured combat vehicles; c. Large-calibre Artillery systems; d. Combat aircraft; e. Attack helicopters; f. Warships; g. Missiles and missile launchers; and h. Small Arms and Light Weapons

The truncation of this list occurred during the July 2012 Conference; what emerged then is identical to ATT, Art 2.1. As we have seen in chapter one, the inclusion of small arms and light weapons (SALW) (Categories h and i in the Draft) was

29 The July 2012 text included the phrase ‘at a minimum’ at this precise point. This caused confusion and controversy, and was omitted from the final document.

General Treaty Provisions  403 the fundamental consideration for many African and Caribbean Community (CARICOM) States, and it is doubtful that they would have signed the Treaty had SALW not come within its scope. The eight categories of ‘conventional arms’ in the final version have a clear origin: they are the seven found in the UN Register of Conventional Arms (UNROCA), with the addition of SALW.30 The Register was established in 1991 and, reflecting the concerns of that era which did not highlight conventional arms control, is limited to heavy weaponry.31 It also reflects the state of technology of a generation ago, even though weapons development has since progressed rapidly. This provenance contributes significantly to the major shortcomings of the list. Three may be identified, in order of rising importance:

i. Size The most important and controversial issue here concerns the line of demarcation between small arms and ammunition: how small must a weapon be before it ceases to count as a ‘conventional’ armament? The question of classification is of extreme practical importance because, as will be seen, SALW and ammunition are treated differently in the ATT, with exports of ‘non-SALW’ subject to lesser controls. The transfer of landmines was already prohibited by the Ottawa Convention, which has achieved a greater number of signatories than the ATT,32 so the only significant weapon too small to qualify as SALW is the grenade.33 The size issue arises because the term SALW is not defined in the Treaty, and the most widely-used definition of SALW is that found in the 1997 UN Experts Report34 which puts grenades in the category of ammunition. This is likely to be adopted by States.

ii.  Character or Nature In place of all ‘military’ vehicles, helicopters and aircraft, as Chairman Moritan had proposed, the Treaty covers only ‘armoured’, ‘combat’ and ‘attack’ versions of

30 In the Working Group discussions in the years preceding the 2012 Conference they become known as ‘7 + 1’. 31 The UNROCA list may be found at www.un.org/disarmament/convarms/register/. For a critique, see P Holtom, ‘Nothing to Report: The Lost Promise of the UN Register of Conventional Arms’ (2010) 31 Contemporary Security Policy 61. 32 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, concluded in 1997. As of January 2018, 164 States had ratified or acceded to it. 33 Naval mines would also be excluded, but they have not been the subject of much concern in this context. 34 Report of the Panel of Governmental Experts on Small Arms, A/52/298, presented to the UN General Assembly on 27 August 1997. A less important example of the size exclusion is that boats such as those used by Special Forces for deployment would not be large enough to count as warships (Category f). Weapons experts could doubtless cite other examples of light, mobile equipment that remains outside Art 2.1.

404  The Arms Trade Treaty this equipment. The most obvious result is to exclude anything used for training. Since helicopters bought as training equipment can without great difficultly be re-fitted to engage in combat, this is a significant loophole: helicopter gunships have featured prominently in attacks on civilians in conflicts like the drive for independence in East Timor. Excluding vehicles that are not ‘armoured’ allows transfers of transport vehicles, readily used to move troops to a battle area or to centres of political opposition where issues of human rights abuses readily occur, to remain unregulated and undocumented. And although drones and other planes capable of releasing bombs would count as ‘combat’ aircraft – the weapons would be used to attack human or physical targets – their increasingly common use as unarmed vehicles for the surveillance of target populations and the gathering of intelligence of all kinds would fall outside the Treaty. This is a particularly acute example of the most serious weakness of the character limitation: it completely excludes whole classes of equipment whose impact, particularly on internal dissent, advances the repression and violence caused by actual weaponry. This is seen most clearly in relation to surveillance equipment. The problem of the use by dictatorial regimes of various forms of sophisticated technology to track individuals and intercept communications came to the fore when regimes in Tunisia, Egypt and Libya employed them against opposition movements during the ‘Arab Spring’. The UK Committee on Arms Export Controls (CAEC), the parliamentary body which oversees UK arms exports, issued a Report which criticised the granting of UK export licences for surveillance equipment to Arab regimes.35 Its Chairman, Conservative MP (and former Defence M ­ inister) Sir John Stanley, subsequently went further, arguing in interview that the UK Government must review the range of equipment requiring export licences, which have not been required for new technology that was not ‘arms’ in the strict sense. He was particularly concerned about their use by repressive regimes.36 Shortly thereafter, the Wassenaar Arrangement – a group of 42 nations37 founded in 1994 to control arms proliferation by establishing a list of recommended equipment that should require export approval by national authorities – held its annual meeting and added intrusion software and IP network surveillance systems to its list of regulated equipment.38 35 House of Commons, CAEC, ‘Scrutiny of Arms Export Controls, First Joint Report of Session 2010-2011’ HC Paper 686 (2011). 36 N Hopkins and M Taylor, ‘Trade in Spy Systems Must be Reviewed says Committee Chair’ The Guardian, 19 November 2013. 37 The membership, reflecting its origins in the 1990s, has historically been very US-and Euro-centric. South Africa has joined, but newer arms exporting States, most notably China but also Brazil, have not. However, India joined in December 2017, possibly foreshadowing a widening of focus. 38 For details, see the summary produced by the Stanford Law School Center for Internet and Society, 15 January 2014: http://cyberlaw.stanford.edu/publications/changes-export-control-arrangement-applycomputer-exploits-and-more. It should be noted that the UK, like all EU Member States, regulates the export of dual-use goods pursuant to Regulation (EC) 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items [2009] OJ L134/1 (Dual-Use Regulation). The categories of controlled materiel are periodically updated.

General Treaty Provisions  405 The CAEC and Wassenaar could speak and act in this manner because, unlike the ATT, their remit is not limited to the category of ‘conventional arms’. Surveillance equipment, because it has both civilian and military uses, is classified as ‘dual-use goods’. This makes possible, with varying degrees of difficulty, the conversion of originally, or ostensibly, civilian equipment to military use. As UK readers may recall, the so-called ‘Arms to Iraq’ scandal of the 1990s grew out of exports of dual-use machine tools to the Saddam regime, which quite effectively adapted them for military purposes.39 Yet dual-use goods and technology have always been outside the intended scope of all proposed global regulation of the arms trade: a self-imposed limitation that has curtailed at the outset its ability to protect people and advance human security. The limitation of the ATT to specified categories of ‘conventional arms’ plainly fails to cover surveillance equipment. At present this is perhaps its most serious omission of scope, but looking towards the future, greater ones can be identified. Technology per se is outside the Treaty entirely. As has been seen, Chairman M ­ oritan was at least partly aware of the problem, and included some technology in his list of matters to come within its scope.40 However that proposal was quashed at a very early stage, and Category l vanished from all subsequent drafts. There was some support for its reinstatement in the March 2013 negotiations, notably from the CARICOM States, but it was not a high-profile issue, no other significant States or groups took it up, and the matter was dropped.41 In the result all guidance systems for weapons unquestionably coming under the ATT, eg submarines and combat aircraft, are now excluded. Equally important, if a State imports technology which it then incorporates into equipment locally produced, or separately purchased in kit form for local assembly, that transfer – which provides the brain, if not the heart, of the weaponry – also lies outside the Treaty. Moreover, on the near horizon, if not indeed already with us, technology for cyberwarfare – in which the technology is itself the weapon – falls wholly outside it. So too – on a further horizon – does the technology guiding autonomous weapons (AW). Inevitably with any Treaty, or indeed any form of legal regulation, there is always the likelihood that technological change will make some of its categories outmoded. However, technological development moves particularly rapidly in the military field, and since amendments cannot be proposed until at the earliest six years after the Treaty comes into force,42 there is the likelihood – it is more than a possibility – that possession of internationally uncontrolled items may proliferate in the coming decade. The one practical restriction is that much of the cyber and AW technology is classified as highly secret by governments which possess them,

39 See chapter five, pp 108–109. 40 See above p 392. 41 In an echo of the more prominent resistance to inclusion of consideration of ‘sustainable development’ (see below p 409) some States objected that inclusion of technology would hamper their economic development, thus leaving them vulnerable to the power of Northern exporting States. 42 ATT, Art 20.1.

406  The Arms Trade Treaty so no ‘transfers’ will take place, strictly for reasons of national self-interest. But this point does not apply to surveillance equipment, and the need to go beyond the current definition of ‘conventional arms’ is inescapable if the Treaty’s stated concerns about human rights43 are to be given practical effect.

iii. Ammunition The matters canvassed in the preceding analysis were not however the focus of controversy over scope. Perhaps the single most contentious issue in the entire negotiations was whether ammunition would come within the definition of scope in Article 2.44 Its appearance in the Chairman’s July 2011 Paper was as close as it came to inclusion. Yet the overwhelming number of States participating in both Conferences were strongly, in many cases fervently, in favour. On the opening day of the March 2013 Conference, Mexico delivered a Joint Statement on behalf of 108 States which identified the addition of ammunition as one of the four key aspects which required strengthening. During the second day, which focussed on issues of scope, Ghana spoke for 69 States – including all the African States which had suffered most from low-technology but high-lethality violence – in a Joint Statement reiterating the necessity for its inclusion. A clear majority of participating States – the CARICOM States, most of Latin America and most members of the EU,45 consistently took this position. However, they encountered unmoving opposition from Russia, China, India and Malaysia, but most vocally from the USA, supported by one or two of its allies.46 The US stance was the target of the greatest anger by proponents of a stronger Treaty but in public relations terms, criticism of the other opponents was deflected as they took shelter under its umbrella. As so often happens in major international negotiations, the US position prevailed, though only in part. Given the decision very early in the negotiating process to proceed by consensus, some compromise was inevitable. At first blush, exclusion of ammunition whilst including the weapons that fire it seems absurd. Guns do not kill; bullets do.47 The American stance, though obviously adopted with one eye to domestic politics, was not however wholly irrational. At the time, the number of guns in civilian ownership in the United States was approximately equivalent to the total population: slightly greater than 300,000,000.48 With domestic manufacturers unable to satisfy an apparently insatiable demand for ammunition, in 2012 the USA imported approximately two 43 Stated repeatedly, in both the Preamble and the Principles in the chapeau, and in Art 7.1.ii. 44 The treatment of parts and components of conventional arms was debated and determined alongside ammunition; the latter however was the focus of the bitter controversy. Therefore all discussion of the former in this Article applies equally to parts and components. 45 As well as the EU itself, which had separate representation and participated fully. 46 And also Syria and the Sudan, not the most sought-after supporters. 47 A Ghanaian diplomat described the treatment of ammunition as including the football player but not the ball. 48 This figure does not include any hardware held by the armed forces or police. Its source is a Report prepared by the Congressional Research Service, ‘Gun Control Legislation’, 14 November 2012, 8.

General Treaty Provisions  407 and one quarter billion cartridges and shotgun shells.49 Were domestic sources sufficient, this would not have been an issue for the ATT but as it is, the Treaty’s requirements of recordkeeping – and proposals for provisions on marking and tracing that were not accepted for inclusion – would have been a significant burden on the Government of the world’s largest importer.50 Moreover the conscientious recording of all ammunition imports would necessitate vastly expanding requirements of registration and reporting for thousands of American importers and dealers – raising precisely the kind of domestic political storm that the Obama Administration, having moved some way from its predecessor’s intense hostility to the whole enterprise, was determined to avoid. Hence its list of ‘Key Redlines’ stated bluntly: ‘There will be no requirement for reporting on or marking and tracing of ammunition or explosives.’51 A related issue is that diversion, always a significant problem in relation to arms transactions, is even harder to control with respect to ammunition than to SALW, the smallest category of weaponry included. In so far as American importers can, under American law, resell items they have received, they are no longer the end-user and therefore the resale becomes, under the general understanding of the term, a form of diversion.52 The Treaty’s provision on controlling diversion53 would therefore mandate government tracking of the final destination of all imported ammunition – again, a measure guaranteed to cause enormous political furore.54 Some sort of compromise was essential if the USA was not to walk away from the Treaty entirely,55 and the result is somewhat better than might have been expected. Ammunition has its own dedicated provision, Article 3, which enjoins each State Party to regulate its export by means of a national control system and – vitally – to ‘apply the provisions of Article 6 and Article 7 prior to ­authorizing 49 These figures, drawn from US Department of Commerce data, appeared in an on-line commentary from a conservative political website: M Bastasch, ‘Foreign Ammo Imports Doubled in 2013 to Meet Exploding US Demand’ (The Daily Caller, 8 May 2013). Although the publishers are a political group opposed to gun control, the article was not concerned with public policy, but rather with the scarcity of ammunition for American gun-owners. 50 The weight of the burden can be exaggerated. The recordkeeping requirements of Art 12 are more demanding with respect to exports: ‘Each State Party shall maintain national records … of its issuance of export authorizations or its actual exports …’ (Art 12.1) whereas State Party importers are only ‘encouraged’ to keep records on conventional arms transferred to its territory or trans-shipped across it (Art 12.2). This appears to give great leeway with respect to both the enactment and specific measures of compliance. 51 USA Redlines (n 21). 52 The Treaty does not contain a definitional section, so the commonly accepted meaning of the term must apply. Diversion is understood to mean that the initial purchaser does not have permanent possession of the item, which is transferred to a third party. 53 Art 11; see below, pp 411–12. 54 The American negotiators laid particular emphasis on the practical difficulties of monitoring the end-use of ammunition exports. See the remarks reported at www.armscontrol.org/act/2012_05/ Hurdles_for_Arms_Trade_Treaty_Underscored. 55 There was never any serious likelihood that the constitutional requirement that two-thirds of the Senate would approval ratification of the Treaty; the major question has always been whether the US would even sign it. It did so in September 2013, but withdrew its signature in 2019; see below n 172.

408  The Arms Trade Treaty the export of such ammunition/munitions’.56 This means that the central elements of the Treaty, laying down rules and criteria for the authorisation of the export of conventional arms, apply to ammunition to precisely the same extent. So does Article 5.5, part of the requirement of ‘General Implementation’, which mandates establishing ‘an effective and transparent national control system’ to encompass equally the transfer of conventional arms and of ammunition. The compromise – clearly designed to satisfy the USA – is that Articles 8–15 concerning imports, brokering, diversion and record-keeping apply only to ‘conventional arms’ but exclude ammunition. The majority of participating States were left disappointed, but the key issue is to judge the practical importance of these exclusions. As will be seen in great detail below, Articles 6 and 7 are core provisions of the Treaty, imposing absolute prohibitions on certain exports, and the obligation to make certain judgements in other circumstances where the equipment will be put to unacceptable uses. Ammunition is unquestionably encompassed within them. The exclusions apply most importantly to imports.57 And the effect of these limitations is tempered by the possibility of voluntary co-operation and the fact that the Treaty provisions are only a baseline. This is made clear in the Preamble: ‘Emphasizing that nothing in this Treaty prevents States from maintaining and adopting additional effective measures to further the object and purpose of this Treaty’58 – which allows exporters to apply their own, more rigorous, rules. Many do: the EU Common Position, for example, applies to equipment appearing on its Military List, which specifically includes ammunition along with arms.59 Those States genuinely concerned about effective Treaty implementation may, for example, provide importers with information about licences they have approved, and maintain and share records of all exports, including those of ammunition. Assistance of this kind would not threaten important interests, for ammunition is not a high-value item and its production is not of significant economic importance.

iv.  Assessment of Scope The treatment of ammunition certainly falls short of what the majority of States wanted. It introduces potential loopholes, and handicaps fully effective controls on 56 Parts and components of weaponry are treated identically to ammunition throughout the Treaty, though initially mentioned separately in Art 4. Therefore everything stated herein about ammunition applies across the board to parts and components, which will not be mentioned further. 57 Ammunition is also excluded from the rather weak provision on brokering, found in Art 10, which adjures States Parties to regulate brokering but leaves specific measures entirely to their discretion. The same is true of Art 9 on transit and trans-shipment (see below p 409). This merely illustrates the strange compromise that the Treaty negotiations produced. 58 ATT, Preamble, para 12, original italics. 59 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99 and Common Military List of the European Union, OJ C95/1, 18 February 2019. Both are discussed at length in chapter three.

The Substantive Obligations Imposed on States  409 the traffic. However the most important substantive duties created by the Treaty do apply to it; and it may be that less has been sacrificed than has been feared. The refusal to include training and transport equipment such as helicopters that are readily used for military or repressive purposes is a serious defect. Overall, however, the most unsatisfactory limitation on the scope of the Treaty is the failure to include weapons technology and surveillance equipment.

III.  The Substantive Obligations Imposed on States The crux of the Treaty is found in the obligations it imposes on exporting States. These are subject to a sharp division: those that are peremptory, expressed as prohibitions, in Article 6, and those which require judgement or ‘assessment’, leaving great scope for political and/or administrative discretion, found in Article 7. These will be explored in sequence. It is worth reiterating that both apply as fully to ammunition and components, as to ‘conventional arms’.

A. Prohibitions First, Article 6.1 forbids authorisation of transfers that would violate measures adopted by the UN Security Council acting under Chapter VII, ‘in particular arms embargoes’. The latter have been adopted with increasing frequency over the past two decades, usually though not always unanimously. The new provision would forbid transfers by any State even though it voted against or (if one of the five Permanent Members of the Security Council [P5]) abstained in the vote. Whether the result will affect the likelihood of any of the P5 vetoing a proposed embargo is academic at present: it would require that Russia and China, in particular, sign the Treaty, which they have given no indication of doing, at least in the near future. Should that change, however, the issue will inevitably arise. Second, Article 6.2 bars authorisation of any transfer that would violate ‘its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms’. Beneath this rather anodyne phrasing lies an interpretive complexity: the violation must relate to international agreements, specifically entered into by a State. This would exclude customary international law, including peremptory norms. That lacuna is at least partly closed later in Article 6, in a manner discussed below.60 It would also exclude, plainly, international instruments which a State

60 See below p 403, discussing prohibitions relating to genocide and crimes and against humanity. These are now regarded as part of customary international law, as their inclusion among the offences in the Rome Statute of the International Criminal Court (ICC) indicates.

410  The Arms Trade Treaty has chosen not to sign or otherwise adhere to. The instrument most relevant to arms transfers is the Firearms Protocol of 2001, a supplement to the UN Convention Against Transnational Organised Crime.61 This is primarily concerned with preventing criminals from obtaining weapons illegally and, as its title suggests, its scope is limited to firearms. Moreover, some of the major firearms manufacturing States – notably the USA, Russia, France and Ukraine – have refused to sign at all. And of those which have, China, India, and the great majority of the EU States, including Germany and the UK, have never ratified it.62 Thus one of the few apparently relevant global instruments, itself of quite limited scope, will not ground an obligation to prohibit transfers under the ATT for most key States. However, this paragraph clearly comprehends regional agreements, of which there are several.63 Moreover, it remains for each State to determine what it considers ‘relevant’, so that UN instruments relating to controls on SALWs which are not, strictly speaking, ‘agreements’64 could be used to guide domestic law or policy. So too could human rights obligations, and there was strong support for such application: at the UN General Assembly Session which approved the Treaty, Mexico made a political declaration on behalf of no less than 98 States, that violations of International Human Rights Law (IHRL) would fall within the absolute prohibitions of Art 6. However this declaration has no legal force, and the world’s main exporters, as their practices have made clear, have without exception refused to accept this interpretation. The most controversial part of Article 6 is found in sub-para 3, which forbids transfers by a State Party: if it 1) has knowledge 2) at the time of the authorization that the arms or item would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a party [emphasis and numbering added].

61 ‘Protocol against the illicit manufacturing of and trafficking in firearms’ (2001), treaties.un.org. 62 The list of signatories and adherents to the Protocol may be found at www.unodc.org/unodc/ en/treaties/CTOC/countrylist-firearmsprotocol.html. This overwhelming lack of adherence makes it appropriate to describe the ATT as the first truly global attempt at conventional arms trade control, but the Protocol served as a useful stepping stone. 63 The Nairobi Protocol signed by 11 States in the Great Lakes Region and the Horn of Africa entered into force in 2005; the Kinshasa Convention, also signed by 11 States, entered into force in 2017; both are concerned with control and reduction of SALW. A more limited instrument, signed by 33 States in the Western Hemisphere, excludes SALW but does cover ‘illicit manufacturing and trafficking’ of firearms and ammunition. Strangely, the USA is a signatory. The text of these instruments may be found on the website of the UN Office for Disarmament Affairs [UNODA], www.un.org/disarmament/searc h/?cx=017879155571300835259%3Aszhio91zphq&ie=UTF-8&q=treaties&q=treaties. 64 Two are mentioned explicitly in the Preamble, para 8: the UN Programme of Action against ‘illicit’ trade in SALW, adopted in 2001, and the International Tracing Instrument adopted by the General Assembly on 8 December 2005 to facilitate tracing illicit SALW.

The Substantive Obligations Imposed on States  411 There are several issues within this, and notwithstanding the critique to be presented, it is unquestionably true that the present form of Article 6.3 is a distinct improvement over its equivalent (Article 3.3) in the 2012 version.65 First, the least satisfactory element is that found in the italicised language: the requirement of contemporaneous knowledge that the equipment would be used for barbaric purposes. In criminal law, the knowledge or scienter issue is always informed by the realisation that a purely subjective test would permit ignorance, wilful or inadvertent, to be the escape route from liability.66 The problem is often addressed by a formulation such as D ‘knows or ought to have known’ or ‘knows or has reasonable cause to believe’, which are variants on the concept of constructive knowledge. In English criminal law, ‘wilful blindness’ has long been treated as satisfying the requirement of constructive knowledge.67 These expressions introduce an element of objective or external judgement, but do not impose an excessively demanding standard. Given that the Treaty does not impose criminal sanctions – or indeed even any form of direct civil liability – an objective standard, rather than one based on intent or requiring demonstration of actual knowledge or true belief, would not have been excessively demanding. (Another way to express this is that the focus should be on what is ‘reasonably foreseeable’ rather than what was actually foreseen.) In this context there is no question of liability for negligence: the goal is to place States under an obligation to inquire diligently about what uses weapons whose export they have approved are likely to be put, thus reinforcing and making explicit in this context the obligation to prevent the occurrence of harms that international law generally imposes on all States.68 A formulation such as ‘knows or has reasonable cause to believe’ is not excessively rigorous and would have been preferable. Virtually all States devote considerable resources to obtaining foreign intelligence, if only from open source material, and the larger and wealthier ones, which includes almost all significant exporters, have dedicated intelligence agencies for this purpose. It would have been more than reasonable to impose upon them some responsibility to be aware of violent conflict in States or areas to which approval of a sale is requested, and 65 The sole prohibited transfers under that provision were those ‘for the purpose of facilitating’ enumerated major violations. This would have in effect required that the supplier of equipment be an active accomplice, and would have made the ban virtually inapplicable. 66 The Rome Statute on the ICC does not avoid this problem. Its treatment of the ‘mental element’ in Art 30.3 defines knowledge as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. ‘Awareness’ implies a subjective test. The decision of Pre-Trial Chamber I in the Lubanga Case, 29 January 2007, merely adds to the complexity and confusion. 67 D Ormerod and K Laird, Smith and Hogan’s Criminal Law, 14th edn (Oxford, Oxford University Press, 2015) 143-44. An apposite example of ‘knew or should have known’ may be found in the International Criminal Court Act 2001, s 65 (2) (a). This section, part of the UK statute importing the Rome Statute into UK domestic criminal law, imposes liability on commanders and other superiors for crimes committed by forces under their effective control. 68 The due diligence obligation has been subject to considerable scholarship: see the sources cited in M Jackson, Complicity in International Law (Oxford, Oxford University Press, 2015) 4-6, 129–31.

412  The Arms Trade Treaty to insist that they take some steps to satisfy themselves that the transfer would not contribute to grave evils. An additional serious shortcoming is that the danger has to be direct and immediate: ‘at the time of the authorization the arms or items would be used’. This literally means that so long as the recipient is not clearly about to commit some great atrocity, the prohibition can be avoided, even if the recipient’s intention is clear and the capacity is being built up. This point seems to have got lost in the more intense debate at both Conference sessions about the degree of awareness to be required,69 but it is a major hole in what should be the heart of the Treaty. The prohibition should have been expressed in terms of looking to the future, and to require a presumption that the ban be imposed unless use for the forbidden purpose was judged to be highly improbable.70 Such judgement would be based on information available at the time of authorisation. There is no mention of a Party’s obligation when information indicating possible misuse is obtained thereafter. At present, it is common practice for export authorisations to be suspended or revoked in light of developments. Thus EU Ministers meet in response to various crises to decide whether they merit revocation of licences by Member States;71 and to take one national example, from January 2012 until mid-2014 the UK suspended 209 licences for export to 17 countries, and revoked 109 licences to three more, all in response to changed circumstances relating to internal repression.72 In relation to the less severe restrictions in Article 7 governing ‘assessments’ (discussed below), this issue is specifically addressed. Where an exporter ‘becomes aware of new relevant information it is encouraged to reassess the authorization’, though it may consult with the importing State before taking the decision.73 Strangely, in Article 6 cases where the most serious concerns exist – strong enough to justify an outright ban – the point is not addressed at all. There is no apparent reason of policy to explain the omission, which is clearly at odds with the objects and entire structure of the Treaty. It seems to have been a drafting oversight, perhaps based on the assumption that regular practice made it unnecessary; one can only hope that assumption proves correct.

69 The discussion was cast in terms of knowledge versus intent, and the present language is an advance on the ‘for the purpose of ’ formulation that appeared in the First Draft (see n 65 above); but with the focus on this issue, the ambiguities of ‘knowledge’ itself were not considered. 70 This would require officials considering licence approval to scrutinise intensively and intensely the political circumstances in which the purchaser would find the equipment useful in the short or medium term. 71 To take only one example, in 2013 the European Council met in response to the crisis in Egypt and agreed that Member States would suspend exports licences to that country for materiel that might be used for internal repression. 72 House of Commons [UK], Committees on Armed Export Controls, First Report, ‘Scrutiny of Arms Exports and Arms Controls’ (2014), para 167, www.publications.parliament.uk/pa/cm201415/ cmselect/cmquad/186/18605.htm#note3. 73 ATT, Art 7.7.

The Substantive Obligations Imposed on States  413 Third, the evils singled out in Article 6.3 for particular avoidance are reasonably well defined and understood.74 Genocide is addressed in the Convention of 1948.75 ‘Crimes against humanity’, first given legal expression at the Nuremburg Trials, has been part of the jurisdiction of several ad hoc International Criminal Tribunals,76 and is defined in great detail in the Rome Statute of the ICC.77 Its inclusion ensures that severe brutality against a State’s own citizens comes within the prohibited sphere. ‘Grave breaches’ of the 1949 Geneva Conventions are defined at several points within tacks directed against protected civilians and civilian objects. Whilst Common Article 3 of the 1949 Conventions does offer some protections to civilians in cases of non-international armed conflicts, these are supplemented considerably by Additional Protocol II of 1977. Thus the Treaty absolutely prohibits all transfers, to governments or non-state actors, which have attacked civilians or civilian objects (eg schools, refugee camps) in civil wars or other internal conflicts. This is a major advance for international law. And the expanded definitions of what are considered protected civilians and civilian objects in international armed conflicts, found in Additional Protocol I, are now reinforced and enforced via the ATT, in that exporters are banned from transferring weapons to States which do not respect them. Yet since the contours and content of those definitions have proven extraordinarily controversial, States which reject the International Committee of the Red Cross’s (ICRC) interpretation of those who may legitimately be targeted (and therefore should not be regarded as ‘civilians’ for this purpose) will presumably also construe their Treaty obligations accordingly.78 Finally, the ‘sweeper up’ category of ‘other war crimes’ is a clear allusion to Article 8 of the ICC Statute, which contains an exhaustive definition of war crimes. However, a State implementing the ATT need only take account of war crimes defined in ‘international instruments to which it is a party’, which means that the very large number of important States which have either not signed or ratified the Rome Statute – a list which includes China, Egypt, India, Israel, Pakistan, Russia, the USA and virtually every Arab State – need not do so. A fortiori this would apply to Art 8 bis, the newly added crime of aggression which has even fewer adherents.

B.  Export Assessment under Article 7 The prohibitions are welcome, but much more frequent will be decisions where the actions engaged in by the prospective purchaser are less obviously repugnant. 74 For an extended discussion of all the terms found in Art 6.3, see ATT Commentary (n 7), paras 6.102–6.184. 75 Convention on the Prevention and Punishment of the Crime of Genocide 1948 76 E.g. the International Criminal Tribunal for the Former Yugoslavia (ICTY). 77 ICC Statute, Art 7(1). 78 The United States and Israel, in particular, have not signed the 1977 Additional Protocols, and have stated that they reject the ICRC interpretation of civilian status and do not regard the Additional Protocols as an accurate statement of customary international law. Their understanding of civilian status is much narrower. (Other non-signatories include India, Pakistan and Sri Lanka.)

414  The Arms Trade Treaty The Treaty commands a two-stage process of decision for approval of exports. The first is determination of whether any of the Article 6 prohibitions apply. If they do not, a more complex and rather malleable set of factors set out in Article 7 are to be applied. Unlike the judgements under Article 6, these are expressed in terms of balance or overall ‘assessment’. This leaves wide latitude for decisions based on political, economic and other factors that are irrelevant, and may well be contrary, to the objects and purposes of the Treaty. So great is that opening that it formed the basis of the most frequently-voiced criticism of the Treaty offered by States that refused to sign it. The paramount importance of this issue requires extensive discussion, and this is taken up later on in the chapter.

i.  The Assessment Exporting States are required to ‘assess the potential’ that the weaponry ‘would contribute to or undermine international peace and security’ (Article 7.1.a), or ‘could be used to commit or facilitate’ any of the four enumerated things (Article 7.1.b).79 The language of ‘potential’ alerts one to the reality that the decision is one of prediction, of judgement about likely effect. It will be convenient to consider the sub-sections separately. a.  Article 7.1.a The maintenance of ‘international peace and security’ (IPS) is the first of the Purposes listed in Article 1 of the Charter of the United Nations. This is to be done by ‘tak[ing] collective measures for the prevention and removal of threats to peace, and for suppression of acts of aggression’. Article 7.1.a goes wider, referring to ‘peace and security’ (P&S), which would therefore encompass internal or domestic P&S. It is unclear precisely what this means, and how it fits coherently with the remainder of Article 7. P&S remain juridically undefined, and the interpretations of IPS have been entirely political – undertaken by the organs of the UN when exercising their



79 The

key provisions of Article 7.1 read, in relevant part, as follows:

‘If the export is not prohibited under Article 6, [exporting States] prior to authorization of the export of [conventional arms or ammunition] shall, in an objective and non-discriminatory manner, taking into account relevant factors … assess the potential that the [equipment] (a) would contribute to or undermine peace and security; (b) could be used to [commit or facilitate the following acts]: (i) a serious violation of international humanitarian law; (ii) a serious violation of international human rights law; (iii) an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or (iv) an act constituting an offence under international conventions or protocols relating to transnational organised crime to which the exporting State is a Party’.

The Substantive Obligations Imposed on States  415 powers under the Charter. The breadth of P&S is potentially very wide, and therefore equally dangerous. Arriving at an acceptable interpretation of the term is important, because whether the transfer of arms ‘would contribute to or undermine P&S’ is the first criterion that Article 7 directs exporters to apply. Situations in which acquisition of arms can reasonably be said to contribute to P&S can readily be envisaged. One example would be that of a State whose citizens are being attacked by a group which ignores international humanitarian law80 (IHL) or IHRL, as with Boko Haram in Northern Nigeria. Another is where a State’s enforcement agencies need augmenting to combat well-armed criminal forces. In both instances the provision of military equipment would ‘contribute’ to internal security-strengthening institutions, but first and foremost, increasing the security of citizens. What needs to be rejected is the argument that any provision of any equipment to security institutions must per se contribute to P&S: it must be specifically tailored to the immediate security needs of the recipient. Whether such a transfer would contribute to peace is more questionable, since the equipment is presumably intended for ‘kinetic’ purposes. This exposes the inherent tension – if not contradiction – between peace and security, at any rate in the short term. In so far as the issue is one of international P&S, very different considerations apply. The manifest failure of the UN machinery to achieve IPS, or to develop the means and the stature to exert important influence in this direction independently of the P5 and above all of the USA, has ensured that States continue to look to their own arsenals and alliances for protection. The notion that a ‘balance of terror’ kept the peace between the USA and USSR during the Cold War stimulated the idea that if hostile States could be equally well armed, actual warfare might not break out. Thus arms sales have repeatedly been justified by the argument that they are necessary to enable one’s ally to match the capabilities of its potential enemy, thus deterring aggression. Examples are too numerous to require exhaustive mention.81 Empirically, as suggested earlier, the available evidence neither establishes nor conclusively refutes the proposition that equality of armament prevents war.82 But in the mouths of would-be arms sellers it is so obviously self-interested that it should instinctively be discounted. It is so clearly a convenient get-out for any State seeking political influence or economic gain that its inclusion in the Treaty, without significant debate,83 is simply bizarre. However, a significant mitigation is that ‘would’ commands something more definite, or with greater likelihood, than ‘could’, which is the verb used in the remainder of Article 7.1. Thus a higher threshold has been set for any State wishing to invoke this justification.

80 See above in chapter one at p 19 for the definition of IHL. 81 Israel (in relation to Arab States), Saudi Arabia (v Iran), Pakistan (v India), India (v China) are but a few, all of which refer to US arms sales. In many cases Russia and other arms suppliers have offered precisely the same justification for sales to the other side. 82 See the discussion in chapter one, at pp 11–15. 83 It appeared in Art 4.1 of the 2012 Draft and remained throughout, with no reported attempt by any State to remove or alter it.

416  The Arms Trade Treaty Yet even giving due recognition to the ‘inherent right of self-defence’ enjoyed by all States, along with the right to arm themselves for that purpose,84 the width of this potential loophole makes this a dangerous provision which should have been resisted. Half of it should in any case be unnecessary: if an exporter believes a transfer would undermine P&S, approval would never be justified, if even lip service is to be given to the responsibilities of UN membership. Indeed there is a strong argument that this possible consequence should have been included among the prohibitions found in Article 6. b.  Article 7.1.b Of the four consequences to be assessed under Art 7.1.b, the two that stir the greatest controversy is the potential that the weapons ‘could be used’ to commit or facilitate a ‘serious violation’ of IHL or of IHRL. The reference to IHRL85 is particularly welcome in light of the use of imported weapons for repression of dissent by authoritarian governments. Taken seriously it would bar sales to virtually every Arab State. Inclusion of IHL is also a potential flashpoint, making sales to Israel equally dubious in light of its response to Hamas rockets in July 2014, to take just one of many examples.86 These highly contentious examples show both the radical implications of requiring exporters to assess these issues, and also the political difficulty, and perhaps unreality, of expecting rigorous application.

C.  The ‘Balancing’ Process Having considered these possible ‘risks’, the exporter should then consider whether there are ‘measures’ that could ‘mitigate’ them, ‘such as confidence-building measures or joint programmes agreed with the importing State.87 This was not a controversial paragraph, and received little discussion in either Session. Examples of risk mitigation measures include insisting that end-user certificates require that re-export is forbidden without approval of the exporting State’s authorities; capacity-building measures could include demonstrable improvements in physical 84 Art 51 Charter, cited in Principle 1 of the Treaty; Principle 8 recognises the right to acquire conventional arms for that purpose and for peacekeeping operations. 85 Which at a minimum must include the International Covenant on Civil and Political Rights, 1966 and the Torture Convention, 1984. More controversial applications might include the Conventions on the Elimination of all Forms of Racial Discrimination, 1965, and of Discrimination Against Women, 1979. 86 The head of the UN Human Rights Council, Navi Pillay, a former South African Supreme Court Judge, stated in a Council Debate of 23 July 2014 that in its failure to protect Gaza civilians, the Israel response to Hamas ‘indiscriminate attacks’ may have violated IHL in a manner that could amount to war crimes. See ‘UN’s Navi Pillay Warns of Israel Gaza ‘War Crimes’ (BBC News, 23 July 2014), www.bbc.co.uk/news/world-middle-east-28437626. The Gaza civilian death toll increased greatly in the ensuing weeks. 87 Art 7.2.

The Substantive Obligations Imposed on States  417 security and management of stockpiles of the imported weaponry. It seems desirable to allow exporters to take into account genuine efforts by the importer to curb some of the abuses the Treaty is designed to address, though confidence-building measures may well take considerable time to produce demonstrable results. But what should not be counted as an acceptable measure of ‘confidence building’ is a generalised improvement in diplomatic relations. An example of the dangers is the case of Gaddafi’s Libya, which after genuinely renouncing attempts to build up a nuclear weapons capability in 2004, was able to purchase large amounts of conventional weapons from a range of European States. Whilst Libya may have become less of a threat to those States and perhaps less aggressive towards some of its neighbours, the regime continued to torture and supress internal political opposition, and it was only by ignoring the existing EU Criteria and invoking the value of better relations that Member States could approve arms sales.88 Having assessed the potential for evil effects and considered ‘available mitigating measures’, the fundamental decision must be taken: Article 7.3 commands that if the exporting State ‘determines that there is an overriding risk of any of [those] negative consequences, it shall not authorise the export’ (emphasis added). One initial point, too easily overlooked, is the import of the word ‘any’. It means that even if the exporting State considers that the transfer would ‘contribute’ to P&S, the transfer should nonetheless be prohibited if it would also result in, for example, a serious violation of IHLR. A government which seeks to combat an indisputably terrorist group should not receive weapons if its methods of operations involves indiscriminate killing, arrests and beatings of ‘suspects’ – an only too common practice. However, the critical language is ‘overriding risk’ – perhaps the most intensely debated phrase throughout the entire negotiations. The crux of the controversy was over the degree of probability required before a transfer should be prohibited. It was not, or at any rate should not have been understood to be, about the gravity of result: that is addressed in the preceding paragraphs – eg ‘serious’ breach of IHL or IHRL. If the likelihood – ‘could’ is the word used – is not sufficiently reduced by the mitigating measures properly taken into account, then the transfer should be forbidden. To say that there is an ‘overriding risk’ of such likelihood reads rather awkwardly as a simple matter of English grammar.89 The word that approximates most closely to what was apparently intended is ‘overwhelming’ – one which indicates that, even with mitigation, there is a very high likelihood that one of the evil effects will ensue. Most States considered this threshold to be too high. Over two days numerous States90 argued for an alteration to ‘significant’ risk. They were opposed strenuously by the USA, which received very little vocal support.91 Russia and China were conspicuously silent. In the end the Americans, who apparently

88 For

details, see chapter three, above p 52. French text uses ‘preponderant’, which may not in this respect clarify the issue. 90 These included some significant exporters like Germany and the UK, and the EU itself. 91 The Philippines followed in the US wake, on this as on most issues. 89 The

418  The Arms Trade Treaty dug in their heels, once again prevailed. This sends entirely the wrong message to States now embarking on establishing domestic standards for export controls. ‘Overriding risk’ makes it far too easy for a State to approve a transfer whilst claiming compliance with the Treaty because the risk of some evil, though undeniably present, is not of the great magnitude required. For this reason some States have indicated that they will interpret ‘overriding’ to mean significant.92 It is an issue to which future Conferences of States Parties will need to return.

D.  The Special Case Having established requirements and conditions for forbidding transfers in Articles 6 and 7.1–7.3, the Treaty then adds a paragraph highlighting an issue of particular concern. This requires exporters, when making their assessment under the preceding paragraphs, to ‘take into account’ the ‘risk’ – there is no qualifying adjective – of the weapons ‘being used to commit or facilitate serious acts of gender-based violence [GBV] or serious acts of violence against women and children’. This provision, Article 7.4, is very welcome, since whilst women and children are in all but the rarest instances non-combatants,93 their inability to protect themselves has made them the overwhelming majority of forcibly displaced persons and refugees from conflict zones.94 There was an extended debate about whether the phrase ‘violence against women and children’ or ‘GBV’ should be used. Fortunately both were included, which should remove any doubts, both that sexual violence is covered, and that it encompasses attacks on male as well as female children. That is particularly important because abductions of young boys for use as child soldiers is a widespread practice (not limited to paramilitary groups) and not sufficiently recognised as a form of violence against them. What is less satisfactory is that exporters are only required to ‘take account’ of the possibility of this kind of violence. There is no guidance as to the weight to be given to that prospect. It clearly means something stronger than the wording of the July 2012 text, which would only have required exporters to ‘consider taking feasible measures’ to avoid that possible use.95 This upgrade should reinforce the importance of the consideration of serious violations of IHRL already required by Art 7.1.a – it would require prohibiting the export of weapons where there existed a reasonable possibility that soldiers equipped with those weapons might commit 92 These include Norway and New Zealand; none of the States taking this view are significant exporters however. 93 The exception to this is the case of child soldiers, coerced into fighting for various paramilitary bodies. This practice of forced conscription, a severe human rights violation, should itself be regarded as violence against children. 94 Slightly more than half of these are children, a substantial number of whom are unaccompanied by an adult. See UNHCR, ‘Global Trends: Forced Displacement in 2017’, www.unhcr.org/uk/statistics/ unhcrstats/5b27be547/unhcr-global-trends-2017.html. 95 The former Art 4.6.

The Substantive Obligations Imposed on States  419 these forms of violence. That at any rate is a defensible, if optimistic, reading of the effect of paragraph 4. Numerous States attempted to include other considerations in paragraph 4. The July 2012 version also addressed ‘corrupt practices’ and ‘adversely impacting the development of the importing State’ – references to the corruption and sustainable development issues discussed earlier.96 These too would have been subject only to the weaker duty to consider taking feasible measures. Yet even that proved too much for other States. Sustainable development in particular aroused intense opposition.97 Although Costa Rica on behalf of 41 States delivered a joint statement calling for strong development criteria, that was forcefully opposed by several ‘big hitters’, most notably all four BRIC (Brazil, Russia, India and China) States. The dispute was not about ‘neo-colonialism’, though some States tried to portray it that way. Certainly there was strong support among EU Member States, but the majority of proponents included several Economic Community of West African States (ECOWAS) members, several East African, Pacific Island and smaller Latin American States, and Bangladesh. If anything, the proposal embodied the reverse of colonialism, neo- or otherwise, for acceptance would have involved no possible economic or political gains, and very possibly short-term losses. The ‘interference’ in States’ sovereignty would only have been felt by authoritarian regimes determined to shore up their rule by force. However, the extensive opposition forced the proposal off the table; and the proposed inclusion of corruption, which had even less vocal support,98 quietly followed it.

E. Diversion Unlike the transfers governed by Articles 6 and 7, diverted shipments of conventional arms are marked out by their illegality. All States are required to establish an ‘effective and transparent national control system’ governing both exports and imports of conventional arms, including designating ‘competent national authorities’ to regulate them.99 A fundamental element of any such system is that exporting authorities know the destination of every shipment, the recipient, and its likely use. Importing States equally need to know these details, and approve the receipt of such shipment. For them the key issue is whether the goods are destined for their State or whether they are then to be further transited or trans-shipped across their territory to another destination.

96 See above, chapter one, at pp 8–10 and 15–19 respectively. 97 For an illustration of how a sustainable development criterion might be implemented, see Oxfam, ‘Practical Guide: Applying Sustainable Development of Arms-Transfer Decisions’ (Oxfam International Technical Brief, April 2009). 98 And, apparently, was explicitly opposed by several (unnamed) States: ATT Commentary (n 7) para 15.65–75. 99 ATT, Art 5.5.

420  The Arms Trade Treaty Two possibilities for diversion arise: the first, that weapons purportedly destined for a government body ‘leak’ to another recipient whilst remaining within the importer’s territory. The second is that after transit and no longer within that territory they end up in other hands, and/or are put to uses other than those declared in the export licence. The true recipient in certain regions, notably sub-Saharan Africa, is most likely to be an armed non-state actor (NSA) operating either internally or in a nearby State, but in any region it could equally be a State subject to an arms embargo. Indeed perhaps the most immediate result of imposition of an embargo is the attempt by the targeted State to evade it. This will generally involve falsifying end-user certificates (stating that the weapons are destined elsewhere) and the use of intermediary individuals and companies – arms brokers – to disguise both the origin and destination. There is thus an intimate connection between diversion and brokering – the latter subject to a very brief provision which mandates States to ‘take measures’ to regulate it. However, apart from offering some obvious suggestions, it leaves the matter entirely to each State.100 There is also a tight connection between the Article 6.1 ban on transfers to States subject to arms embargoes101 and the provisions governing diversion found in Article 11. Whatever form the diversion takes, the Treaty imposes responsibilities on both exporters and importers. For the latter, the provisions of Article 9, requiring each State to ‘take appropriate measures to regulate, where necessary and feasible’ the transit and trans-shipment102 of arms is particularly important. It is however weak and open-ended, leaving actual implementation entirely to the State’s discretion. Its importance lies in the fact that many small States have limited capability and knowledge in matters like customs control and stockpile security, and research has shown that, particularly in Africa, deficient stockpile security has contributed significantly to the arming of rebel groups.103 This problem is intimately connected with corruption – poorly paid port officials who turn a blind eye to the handling of a shipment can earn more than many months’, if not years’, salary from arms smugglers, whilst highly placed public officials can gain much more through signing false certifications of the nature of a shipment or its destination. The failure, highlighted above, explicitly to include possible corruption among the factors to be taken into account in the Article 7 risk assessment, risks undermining the effectiveness of efforts to control diversion under the Treaty.104 100 ATT, Art 8. The provision occupies precisely four lines. For further discussion, see ATT Commentary (n 7), paras 10.10–10.28. 101 Above p 399. 102 These terms were defined in n 23 above. 103 See especially T Jackson, ‘From Under Their Noses: Rebel Groups’ Arms Acquisitions and the Importance of Leakages from State Stockpiles’ (2010) 11 International Studies Perspectives 131. 104 It has been argued that Art 7.1.iv – which requires assessment of whether the conventional arms for which export is sought ‘could be used’ to commit or facilitate offences against various international agreements relating to Transnational Organised Crime (TOC) – should be interpreted to include corruption, because most States have adhered to the Palermo Convention on TOC of 2001: see ATT Commentary (n 7) paras 6.68ff and 15.61 ff. (The Convention had 188 States Parties as of 11 July 2017.)

The Substantive Obligations Imposed on States  421 To an unusual degree, the interests of exporting and importing States overlap in relation to diversion. For exporters, the danger is blowback. This can be direct, as when UK troops faced UK weaponry in the hands of the Iraqi forces in 1991, equipment which had found its way to Baghdad via the ostensible purchaser in Jordan, Or it can be indirect, when armed groups destabilise regimes or regions, producing political conflicts and eventual spillover effects, such as attacks on civilians within the exporter’s territory, which may properly be called ‘terrorism’. For importers, the threat is more immediate and direct: weapons diverted to internal enemies of the government could destabilise it or lead to its overthrow; or if they are acquired by an armed group in a neighbouring State, the internal battles might produce unsettling effects ranging from armed incursions to a large influx of refugees. Thus there was a wide consensus among States that diversion should be addressed.105 Indeed it is mentioned as part of one of the two objects of the Treaty in its first Article.106 (It should be emphasised, however, that ‘diversion’ does not encompass deliberate covert shipments to intended recipients, as was undertaken by virtually every player from the early days of the Syrian civil war.107 Secrecy and/or illegality under international law often overlap with diversion, but are not identical.) But the manner in which this was accomplished technically is rather odd. Initially the risk of diversion was included in the Article 7 assessment, but was removed therefrom when the various references to it were gathered together in one self-contained Article. This was part of the compromise between some States, like Mexico, which wanted very detailed provisions, and others which argued that ‘diversion’ is not a sufficiently ‘objective’ concept. Article 11 requires all parties engaging in a transfer to ‘take measures’ to prevent diversion. The first measures mentioned are using their national control systems to assess the risk of diversion, and ‘consider’ establishing mitigation measures or ‘jointly developed and agreed programmes’ between the parties.108 Only subsequently are other measures

Purely as a matter of language, this seems a misreading of the Treaty: what must be ‘used’ are the ‘conventional arms’, so the circumstances of their export or import is another matter entirely. Moreover, the same Commentary explains clearly (para 15.04) that corruption was excluded from Article 7 because of opposition from several States, so despite the authors’ understandable regret at the result (and my own), it would be wrong to stretch the interpretation of the provision as they suggest. 105 With considerable and doubtless unintended irony, the same word is used in two distinct ways in successive paragraphs of the Preamble. In para 2, the Treaty ‘recalls’ Art 26 of the UN Charter, ‘which seeks to promote the establishment and maintenance of [IPS] with the least diversion for armaments of the world’s human and economic resources’ (emphasis added) – a recollection that did not extend to requiring that considerations of the economic impact of a proposed sale be included in Art 7 (above pp 403–409). Paragraph 3 uses the term more conventionally, ‘underlining’ the need to prevent diversion of arms to the illicit market, or for unauthorised uses or users. 106 ATT, Art 1, para 2. 107 See the comprehensive BBC Report, ‘Who is Supplying Weapons to the Warring sides in Syria?’ (BBC News, 14 June 2013), www.bbc.co.uk/news/world-middle-east-22906965, which identified no less than 11 States involved. 108 ATT, Art 11.1 and 11.2.

422  The Arms Trade Treaty suggested, which ‘may’ include among other things more rigorous demand for assurances and examination of documents and, ultimately, ‘not authorising the export or other appropriate measures’. This is much weaker than the requirement of Article 7, which requires a State, once it has determined the existence of an ‘overriding risk’ of any of the specified consequences, to forbid the export. However, Article 11 merely speaks of ‘the risk’ – not an ‘overriding’ risk. In principle therefore a lesser likelihood of diversion can justify a ban than is required for the risk of, eg violation of human rights or the laws of war. Moreover this provision applies to the State on whose territory the equipment first appears – the transit State becomes an ‘exporter’ for the purposes of Article 11. Thus Article 11 is best described as a mixed bag: it imposes a less rigorous requirement on exporters for prohibitions, but it permits prohibitions where there is a lower level of risk than under Article 7. The difference can perhaps be explained by a greater emphasis on collective action – combined efforts between and among exporting and importing States to manage shipments so as to ensure that they go where they are intended and are used only for permitted purposes. There are two dimensions to control of diversion. The first is pre-transfer, and centres round proper certification and verifiable assurances that goods, once delivered, remain in the possession of approved recipients. The second, post-transfer, is more complex: it involves follow-up of the possession and use of the materiel. Some States refuse to undertake this: the UK attitude, for example, has always been ‘once it’s gone, it’s gone’.109 If the exporter does go down this route, questions arise about intrusion on sovereignty of the recipient State; the process also involves considerable commitment of resources over an extended period of time. The USA, which has both the resources and the benefit of the sheer size of its exports, has developed a sophisticated programme known as Blue Lantern, discussed in chapter nine. Its ability to impose subject to post-sales oversight has no doubt been aided by its political predominance, but it is not alone, as Switzerland began a similar effort in 2016, as has Germany.110 Although not limited to diversion, several Articles of the Treaty are devoted to the process of co-operation and information exchange between States that would be particularly important for efforts to combat it. Article 15.1 ‘requires’ co-operation, leaving the details open-ended but ‘encouraging’ a range of activities, including information sharing and exchange and the ‘widest measure’ of assistance in criminal proceedings (Art 15.5). States are steered towards seeking assistance from other Parties in relation to ‘institutional capacity building and technical material

109 However, and importantly, this expression, which emerged in an interview with a UK Government official, was proceeded by, ‘If in doubt, don’t let it out’: ie, those deciding whether to approve an export licence should determine whether the Criteria are met, and if that is not clear, approval should be denied. 110 See further the excellent study by A Vrancx, ‘Containing Diversion: Arms End-Use and Post-Delivery Controls’ (Brussels, GRIP, 2016), also discussed in chapter four, at p 110.

The Substantive Obligations Imposed on States  423 or financial assistance’, and also from the UN or regional organisations.111 The EU responded quickly: as the Treaty came into force, it established an implementation support programme as part of the European Security Strategy. The importance of the bland phrase ‘capacity building’ can hardly be overstated. Consider the following hypothetical scenario: a shipment of light weapons arrives in a port in Cameroun, with a document stating a Camerounian purchaser, but the funding for the purchase is a source in the Congo (DRC), the site of decades of horrible local wars and where various armed groups continue to operate. There needs to be a sufficient number of port officials, not only with the knowledge of how to find expertly-concealed material, but also with the time to keep the cargo under surveillance as many shipments of all kinds arrive in port and arms traffickers await the opportunity to remove the weapons. If the latter succeed, transit to an armed group in the DRC could readily be accomplished: African borders are notoriously porous, due to their sheer size, the limited number of manned posts and vulnerability to corruption. The most effective means of prevention is, in the phrase made famous by All The President’s Men, to ‘follow the money’. This would require checking the bona fides of the source of finance in the DRC, as well as the purported Camerounian purchaser. Since there may well be shell companies or other forms of legal manipulation involved, a great deal of financial and legal sophistication would be needed. This hypothetical scenario demonstrates that among the capacities that require building are training in searching, surveillance and understanding various forms of legal instruments. Several of the larger exporting States have officials experienced in these skills, and can offer training, and some do. Strictly speaking that assistance does not require the existence of the ATT, but its enactment should focus minds on the necessity to offer help. However, unless the recipients also receive significant financial support, manpower shortage and low salaries, plus the lack of surveillance equipment, will render assistance efforts largely worthless. Supplementing assistance, the Treaty also requires States to maintain a national record of exports112 though importers, including transit States, are only ‘encouraged’ to do so.113 Moreover, States are required to furnish an initial report of their implementation measures, as well as any subsequent measures adopted and further, to submit annual reports detailing exports and imports undertaken or authorised.114 These are to be received by the Secretariat, established under Article 18, which is also to function as a distribution centre for information on reported measures that States believe have proven effective in implementation.115 (This body has received scant finance, and it is questionable whether it can carry out all these tasks effectively.)

111 Arts

16.1 and 16.2. 12.1. These records shall be maintained for at least ten years: Art 12.4. 113 Art 12.2. 114 Art 13.1 and 13.3. 115 Art 13.2. 112 Art

424  The Arms Trade Treaty All these provisions are examples of what may be called ‘soft’ or permissive implementation. Notably lacking are any provisions for tougher enforcement, either through civil process or criminal sanctions. There were proposals for such measures, but they met overriding opposition, led by the USA, which insisted that administrative and criminal enforcement rest purely with national authorities.116 Though the question of enforcement covers all Treaty provisions, its particular importance in relation to diversion makes discussion of it appropriate at this point.

F.  Enforcement of the Treaty There are three dimensions to the enforcement or implementation of any legal instrument: administrative, judicial, and criminal or penal. However, an international agreement may also contain specifically created international modes of enforcement. In relation to the ATT, administrative implementation has remained purely a matter of domestic law. Most clearly, the requirement that an export control system be established117 implies national legislation and an administrative apparatus to carry it out. The precise form, language, and structure are left entirely to the State’s choosing; the nearest parallel perhaps is that of Directives under EU law.118 Treaty provisions will be fitted into existing administrative processes, as is true with most international agreements. Certain prescriptive measures that had been suggested in a 2011 Draft Paper by Chairman Moritan119 were dropped during the course of negotiations. Most striking, however, is the road not taken. There was never a serious possibility that, for example, powers analogous to those available under various international and bilateral agreements to stop and board ships in search of drugs be adapted to illegal conventional arms shipments.120 Nor was it ever suggested that the provisions of the International Maritime Organisation’s so-called SUA Protocol of 2005, an anti-terrorism measure which among other things requires criminalisation of the transfer of chemical and biological weapons (CBW) or nuclear weapons by ship,121 be used as a template for the treatment of at least some prohibited traffic in conventional arms, notably those covered by Article 6 of

116 B Kellman, ‘Controlling the Arms Trade: One Important Stride for Humankind’ (2014) 37 Fordham International Law Journal 687, 726. 117 ATT, Art 5.1. 118 Art 288 of the Treaty of the Functioning of the European Union. 119 For details, see Kellman (n 116) at 726. 120 Some of these derive from the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, rev ed 2013, https://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=VI-19&chapter=6, Arts 4, 5 and 17 especially. For details see E Papastavridis, The Interception of Vessels on the High Seas (Oxford, Hart Publishing, 2013) Ch 7. 121 For details, see ibid 130–36, 157–60 and D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, Cambridge University Press, 2009) 254–59.

The Substantive Obligations Imposed on States  425 the Treaty. Moreover, the most active mechanism directed at preventing shipment of contraband weapons – the US-designed Proliferation Security Initiative – remained entirely outside the range of the Treaty negotiations. This programme, geared towards weapons of mass destruction (WMD), permits pre-emptive boarding of ships – known as interdiction – suspected of transporting CBW or nuclear material. Very firmly directed by the USA although participation is purportedly voluntary, it now involves more than 100 States and although it does not fit entirely easily into customary international law, it is an example of ‘a la carte multilateralism’ which has demonstrated some value. Most importantly, its creation is a measure of the seriousness with which the WMD threat is seen.122 There would certainly be numerous legal, political and practical difficulties attending such provisions, not least the fact that since most conventional arms transfers are legal, determining in advance which would be sufficiently suspect to intrude on traditional international law principles such as innocent passage, flag state jurisdiction, or territorial waters jurisdiction would be seriously difficult. Intelligence on such transfers would need to be much more widely gathered than at present, and then freely shared. States would have to regard transfers clearly unlawful under the Treaty123 as of sufficient concern to accept the expansion of international policing powers and devote resources to the task; this is particularly true of the USA, possessor of by far the world’s largest navy. Practical difficulties acknowledged, the complete absence of any ‘muscular’ or kinetic measures of enforcement indicates that control of ‘the real weapons of mass destruction’124 is ultimately a matter of relatively low priority for the major Powers in world politics. And whilst it is also true that ships are only one means of transport, they are the predominant means with respect to large-scale shipments of contraband; and in any case no consideration was ever given to adapting the provisions of the Beijing Convention of 2010 which – though primarily concerned with preventing attacks on aircraft – also requires States Parties to criminalise the unlawful transport by aircraft of CBW or nuclear material.125 Judicially, we have seen that there are a number of ambiguous terms within the text of the Treaty.126 These could have been interpreted by a tribunal established under the Treaty, or jurisdiction to resolve interpretive disputes could have been specifically conferred on the International Court of Justice (ICJ). However this was never a serious possibility; indeed the last of the USA ‘Redlines’ was that 122 The official US presentation of the scheme is found at www.state.gov/t/isn/c10390.html. For commentary, see M Byers, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 American Journal of International Law 526 and Guilfoyle (n 121) 246–54, which draws upon several earlier academic analyses. 123 This would in practice have to be limited to those coming under Art 6; even those which might well be diverted would most likely be carrying some sort of documentation which naval officers cannot be expected to assess. 124 Recall the comment by Kofi Annan in chapter one, at p 5. 125 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, Art 1(i), www.icao.int/secretariat/legal/pages/treatycollection.aspx. 126 Notably in the context of Art 7, especially ‘overriding risk’; above pp 407–408.

426  The Arms Trade Treaty ‘There will be no mandate for an international body to enforce an ATT’127 – a restriction applying equally to judicial as to administrative enforcement.128 In this respect the USA was merely being more open and blunt in stating a widely-shared view. Any challenge to a particular government’s action or inaction in light of the ATT will have to be raised in domestic courts, and will be subject to normal public law principles of administrative judicial review peculiar to each State. As has been seen at various points in this book,129 prevailing principles and practice suggest that significant judicial restriction on administrative discretion in this politicallycharged field is highly unlikely.

G.  Evaluation of Enforcement The Treaty thus establishes no administrative authority, policing body, or adjudicative forum. Nor does it require any specific form of enforcement – neither enactment of criminal penalties nor civil liability for violation. Given the close connection between SALW especially and severe violence, and the primacy accorded by the Treaty to terrorism and transnational organised crime (TOC),130 this is a major failing of both institutional imagination and political will. Significant ambiguities surrounding key terms are left without the possibility of authoritative interpretation. This is not peculiar to the ATT: deliberate and ‘creative ambiguity’, to use Henry Kissinger’s phrase, is often a feature of treaty-making when significant disagreements divide the negotiating parties, with clarity and specificity sacrificed to the need to achieve consensus.131 Yet this temporary resolution either serves to weaken the force of the agreement, or kick the problems down the road requiring re-visiting at a later time.

H.  The Objectors’ Tale As noted at the beginning of this chapter, many of the world’s most populous and powerful States refused to sign, let alone ratify, the Treaty. There may well have 127 Above p 390. 128 This effectively blocked the inclusion of any compromissory clause granting jurisdiction to the ICJ. There remains the possibility that if a State which has accepted the ICJ’s compulsory jurisdiction [under Art 36 (2) of the founding Statute] is thought to be in violation of the ATT by another State, the latter might bring an action before the Court. However, the list of States which have accepted ICJ compulsory jurisdiction is much shorter (73 States) than the number of which have adhered to the ATT, and excludes notable ATT adherents such as France. Moreover, even if the jurisdiction hurdle could be overcome, the question of admissibility would remain, and the contentious political nature of the issues likely to arise makes it doubtful that the Court would agree to hear any such case. 129 Especially in the chapters covering each of the European States, and the EU itself. 130 Notably in Arts 7.1.iii and 7.1.iv. 131 See generally GR Berridge and A James, Constructive Ambiguity (Basingstoke, Palgrave Macmillan, 2003).

The Substantive Obligations Imposed on States  427 been unspoken strategic and economic reasons for the reluctance of individual abstainers.132 However, objector States offered fully articulated reasons of policy and principle for their position, and those objections should be examined on their merits. They were voiced throughout the negotiations, but are most readily accessible from the reported statements by representatives of various States during the discussion preceding the General Assembly vote approving the Resolution in favour of the Treaty.133

i.  Evaluating the Arguments a.  Imbalance and ‘Discrimination’ Perhaps the most fundamental objection, frequently repeated, is that the Treaty lacks ‘fair balance’. An alternative expression of this point was that it is an ‘exporter’s treaty’ which ignores the legitimate interests of importing States. Central to this view was the criticism that the criteria in the Treaty which exporters are supposed to follow are too ‘subjective’, thus allowing ‘discriminatory application’. Objections expressed in terms of ‘lack of clarity’ raised the same issue in perhaps a less overtly political form.134 The core of this critique is that the Treaty is too permissive: it does not adequately or sufficiently restrict how exporters take their decisions under it. The key provision here is Article 7, with its multi-factor balancing ‘assessment’ process and open-ended or open-textured language, such as the ‘likelihood’ of misuse of weapons or the ‘seriousness’ of possible violations of IHRL.135 Far too easily can exporters apply Treaty provisions selectively – approving transfers to their political allies or those they seek as friends, or to longstanding profitable customers, whilst denying supplies to another State whose conduct in reality has been little different. We have seen how erratically and selectively EU Member States have applied the more demanding standards to which they supposedly are bound136 and US practice, which includes statutes granting the President vast discretion to ‘waive’ export restrictions if he deems the ‘national interest’ requires it, have been

132 Some of the major objectors, such as China and India, have been the subject of US and EU arms embargoes and are particularly sensitive to what they regard as the use of arms sales restrictions for political purposes. For a brief summary of the Indian position, see chapter 12. 133 United Nations, Press Release, ‘Overwhelming Majority of States in General Assembly Say “Yes” to Arms Trade Treaty to Stave off Irresponsible Transfers that Perpetuate Conflict, Human Suffering’ (GA/11354, 2 April 2013), www.un.org/press/en/2013/ga11354.doc.htm. This runs to 35 printed pages. I have taken the statements reported in this document as the bases of States’ positions. 134 A total of 12 States, more than half the abstainers, offered some or all of these points when explaining their abstention in the General Assembly Resolution vote on the Treaty. 135 Above, pp 406–408. Article 6, which ties bans on exports to violation of specific legal provisions, provides much less scope for manoeuvre. 136 Notably in relation to IHL violations, see above chapter four, pp 75–80.

428  The Arms Trade Treaty ­ anipulated for political purposes even more blatantly.137 There is thus ample m evidence of the reality of selective use by exporters of purportedly humanitarianinspired restrictions.138 The framers of the Treaty were well aware of the issue and sought to respond: the principle of ‘non-discrimination’ in the application of its standards is proclaimed in no less than three places, in each case preceded by the word ‘objective’.139 Including the adjective is clearly an attempt to emphasis the legal nature of the process. Yet this wording will do little to control decision-making. At one level – that removed from raw power – the issue is a matter of textual interpretation, involving difficulties inherent in the ambiguity of language: inescapable and in no way peculiar to the reading of legal material.140 Terms like ‘potential’ impact, or ‘serious’ violations of IHRL and IHL, or even the kind of ‘knowledge’ required, are predictive, indeterminate, highly political, or a combination of all three. Use of terminology of this kind, regardless of the particular words used, is inevitable in any negotiated document, perhaps especially one of international law. What was not inevitable was the refusal to create any body, administrative or judicial, to develop authoritative and consistent interpretation of ambiguous terms. At some point ambiguity ceases to be ‘creative’ and becomes a fount of manipulation – real or perceived – and discontent. Under these circumstances, it is hard to imagine that States which have thus far resisted accession to the ATT will soon change their mind. However, whether those States which have voiced this critique most vociferously would be willing to accept legal or administrative controls on their decision-making in analogous areas is very doubtful. Insistence on protecting the traditional prerogatives of State sovereignty is a hallmark of the diplomacy of States of the South as much as those of the North. There is a sub-text to this critique. It is a resentment, sometimes unspoken, sometimes voiced, among States of the South that they are being judged in matters of human rights by Northern States, at least some of which are their former colonial masters. This is regarded as belittling their sovereignty and independence and, as such, insulting. Those with a deeper historical memory recall the often brutal, and certainly arbitrary, treatment of activists in the independence movements that made the existence of these States possible.141 The emotion is understandable, as 137 An example is the Child Soldiers Protection Act of 2008, which prohibits sales of arms to States engaging in this practice. However, s 404(a) of the statute allows ‘waiver’ of the ban by means of a ‘Presidential Determination’. President Obama did so with respect to Libya, South Sudan and Yemen on 28 September 2012. 138 See n 133 above. 139 In the opening statement of Principles; in Art 5.1 concerning ‘General Implementation’; and in Art 7.1 itself, before setting out the process of export assessment. 140 See above, chapter two, at pp 29–30. Hermeneutics is a problem of legal texts as much as Biblical ones. 141 The UK for one was extremely careful to make it impossible for the treatment of those in the Colonies to be judged under the European Convention on Human Rights. Its rejection of the right of individual petition during the early years of the Convention was done largely for this reason. Only after the process of decolonisation was completed did the UK permit individuals to bring cases against

The Substantive Obligations Imposed on States  429 is the implication of hypocrisy. The latter is reinforced by the fact that the focus of regulation of exports has been entirely upon transfers from North to South: transfers within the EU, or from the USA to other Northern States, have never been queried on existing legal grounds.142 Yet some are clearly questionable, not least the huge volume of tanks sold to Greece (largely by Germany), which have been a heavy burden on the Greek economy and a significant contributor to its current travails.143 But the standards incorporated into the Treaty are those of international human rights law and humanitarian law, virtually all of which have been accepted by the States of the South; examples include the Torture Convention or the International Covenant on Civil and Political Rights (part of IHRL) or the ban on killing captured combatants or using certain ‘pariah weapons’ (part of IHL). Global politics and relations among States have moved on since the 1950s and 1960s, and in the contemporary world ‘serious violations’ of these norms, to use ATT terminology, are all too often committed by States of the South against their own citizens. Nonetheless the critique has force in so far as it highlights not only the hypocrisy in selective application of human rights or similar standards, but equally the moral if not legal responsibility of Northern exporting States for international law violations carried out by means of the weapons they have agreed to supply. Some scholars have argued that Northern exporters claiming to be guided by ethical principles in their licensing approval decisions are engaged in ‘organised hypocrisy’.144 This phrase characterises the cross-fire in which many Northern governments find themselves caught: they seek strategic and/or economic gain from arms sales, but also seek to satisfy important domestic political constituencies that they are committed to the furtherance of human rights and democracy throughout the world. This puts them in a position of fundamental contradiction, which they try to resolve (or perhaps escape from) by talking the talk of compliance with moral norms but in practice ignoring purportedly restrictive regulations to authorise sales when the political or financial gains are considered great enough. It may also be true that the ‘ambiguity’ and ‘flexibility’ of key Treaty language serves the material – economic and/or strategic – interests of the major exporting States, for it maximises their ability to further those interests whilst formally complying with their Treaty obligations.145 A yet more trenchant argument that

it before the Court in Strasbourg. See the two articles by A Lester, ‘Fundamental Rights: The United Kingdom Isolated?’ [1984] Public Law 46, and ‘UK Acceptance of the Strasbourg Jurisdiction: What Really went on in Whitehall in 1965’ [1998] Public Law 237. 142 A point made by A Stavrianakis, ‘Legitimizing Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) 37 Third World Quarterly 840, 850–52. 143 In 2015 Greece had nearly 2,000 tanks (1913 to be precise) – more than the UK, Germany, France and Italy combined. Even after another year of severe economic contraction, it had (un)comfortably more than any three of those four nations, www.globalfirepower.com/countries-listing.asp. 144 See above chapter two, at pp 28–29. 145 ST Hansen, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the EU Arms Export Control Regime’ (2016) 22 European Journal or International Relations 192, presents this argument very

430  The Arms Trade Treaty the legal approach ‘depoliticises what is inherently and unavoidably political’.146 The latter may be called a ‘knockout’ argument, in that it would doom any attempt at calibrated regulation – as distinct from outright prohibitions – in the current world order. To the extent that either is correct, the chances of securing agreement to tighten and clarify certain terms in future negotiations can only be regarded as slight. Both proponents of these arguments are social scientists; the task of the lawyer, however quixotic some may see it, is to attempt to constrain the political impulses as tightly as is humanly possible. b.  The Problem of Non-State Actors The other major objection pressed by States which refused to sign the ATT is that is imposes no restrictions on transfers to non-state actors (NSAs). At least a dozen States cited this point, including several major and influential ones147 and two – Cuba and Nicaragua – which have been on the receiving end of US-supported NSA attacks. This is fundamentally a question of political choice; but as a significant argument has been presented that a ban on such transfers is as it were implicit in the Treaty, the issue requires extended discussion. Some ground can quickly be cleared. First, there is no question that if an NSA is subject to an UN embargo,148 any transfer is forbidden: there is no suggestion that NSAs should be in a more favourable position in this respect. Second, NSAs are subject in the same manner as States to the prohibitions of Article 6.3, which are directed at the uses to which the equipment may be put, not the identity of the perpetrator.149 The contentious question is whether the provisions of Article 6.2 can be said to extend to them. The distinguished legal scholar Andrew Clapham has argued that they do.150 His position may be summarised skeletally as follows: transfers to armed NSAs are ‘tacitly’ prohibited by the reference in Article 6.2 to ‘international agreements to which [the exporter] is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms’ (emphasis added). One such international

persuasively in relation to the EU Common Position (n 59), which as we have seen is more restrictive than analogous provisions of the ATT. 146 Stavrianakis (n 142) 848. 147 Most notably Russia, India and Brazil. See the summaries of the position of these and other objectors on this issue in the UN press release (n 133). 148 As have been imposed on ISIL, al-Qaida and some Islamist groups in Syria. For details, see www. sipri.org/databases/embargoes. 149 The same would be true of the application of Art 7, as a matter of the structure of the Article. For a detailed elaboration of the argument, see ATT Commentary (n 7), paras 7.70–7.76. 150 ATT Commentary (n 7), paras 6.54–6.64. The Commentary is a collective endeavour, but Professor Clapham is listed as the author of these particular paragraphs.

The Substantive Obligations Imposed on States  431 a­ greement is of course the UN Charter, one of the fundamental principles of which is the prohibition on the use of force in Article 2(4). The Nicaragua case held clearly that arming a rebel group constituted an illegal use of force.151 Therefore arming an NSA becomes unlawful under Article 6.2.152 This argument is logically dependent on the view that NSAs can be bearers of rights and obligations in international law,153 which can be accepted for present purposes. However, it passes over the significance of the phrase italicised in the preceding paragraph, which clearly signals that the drafters were concerned primarily with other international agreements restricting arms transfers – in other words, not general provisions or constitutive instruments such as the UN Charter. A number of existing regional agreements – the EU Common Position and equally several conventions and agreements in Latin America and Africa154 – fit most clearly within this phrase; so too does the Firearms Protocol, though as has been seen that has limited adherence.155 It stretches the Treaty language to breaking point to include the UN Charter within this provision. More fundamentally, the argument ignores the clear message emerging during the negotiations and from the statements recorded in the General Assembly debates: a significant number of States did not believe that the Treaty forbade transfers to NSAs, and this omission was, for many though not all,156 the most important reason that they refused to sign it. To this must be added the fact that the State with paramount influence, the USA, fiercely opposed any ban on transfers to NSAs, consistent with its longtime position in various international negotiations. This confluence of interpretation, whereby States diametrically opposed on policy grounds shared the same view, convincingly refutes any expansive interpretation of Article 6.2. 151 Nicaragua v United States, ICJ Reports 1986, 14 para 195. The facts before the Court clearly involved arming and training of the Contras, but nothing in the judgment suggests that in the absence of training, arming would not by itself constitute a threat or use of force – ie the fact of training was additional, not critical. 152 A rather tangled supplementary argument is offered in ATT Commentary (n 7), para 6.63, to the effect that although the principle of non-intervention in the internal affairs of another State is not found in the UN Charter (which for jurisdictional reasons was not the subject of construction in the Nicaragua case), it is implicit in various sub-paragraphs of Article 2, especially 2.1 and 2.7. Several commentators are cited in support of this view: see above nn 98–99. However, non-intervention can be better understood as a rule of customary international law, which as Professor Clapham notes (ATT Commentary (n 7), para 6.62), was rejected for inclusion in the ATT because it was seen as too open-ended. For the customary international law sources of the nonintervention principle, see C Gray, International Law and the Use of Force (Oxford, Oxford University Press, 2018) 75–76 and 103–17 and chapter three generally. 153 A position Professor Clapham has consistently and persuasively advanced. See A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006); also the collection of essays, A Clapham (ed), Human Rights and Non-State Actors (Cheltenham, Edward Elgar, 2013). 154 Notably those cited in n 63 above. 155 See above pp 409–10. 156 Some States objected more to failure to control ‘discrimination’; others prioritised failure to ban transfers to NSAs, though in several instances a State offered both reasons to support non-signing.

432  The Arms Trade Treaty It may be added that any such interpretation flies in the face of State practice over decades, which has been to aid NSAs whose cause they favour. Syria, where ‘democratic rebels’ and Kurdish forces received plentiful Western aid, is only the most recent example, but as has been pointed out,157 just about every major power or group of States supports or has supported military insurgencies. Arab States and Iran have armed Palestinian groups; many African States armed and otherwise assisted anti-colonial forces; China supported the Vietcong for decades. And although the USA has been the prime mover in international condemnation of ‘terrorism’, in the 1980s it was the main supporter of the Mujahideen in Afghanistan and the Contras in Nicaragua.158 It would have taken a startling level of hypocrisy, organised or otherwise, to have included a ban on transfers to NSAs in light of what States actually do. The legal arguments also mask ones of politics, even ultimately of ethics. This is not the place to examine the latter – a difficult terrain not sufficiently explored by scholars.159 But the practical difficulties are clear enough. NSAs can range from the African National Congress or South West Africa People’s Organisation (SWAPO) fighting apartheid and colonial rule, to the Nicaraguan Contras, to the Lord’s Resistance Army or al-Qaida.160 An absolute ban on transfers to NSAs would not allow States to distinguish among NSAs fighting what many regard as morally justified battles, as opposed to those which may be more or less covert agents of sponsoring States, or which would universally be regarded as terrorists. Like ‘terrorism’ itself, which has eluded international agreement on its meaning despite literally decades of attempts,161 there is no international agreement on what circumstances or for what reasons NSAs may properly take up arms against existing States. Nor, as the actual behaviour of States described above would suggest, is there any likelihood that such an agreement will be reached anytime soon. So long as this impasse remains, one consequence is that numerous States will continue to find the Treaty acceptable.

157 D Garcia, ‘Arms Transfers Beyond the State-to-State Realm’ (2009) 10 International Studies Perspectives 151, 152–56. 158 Nor is it wholly clear what constitutes an NSA. For decades the USA has proclaimed it would defend, and supplied billions of dollars of weapons, to Taiwan, which is seen by China as part of its territory over which it has been prevented by a more powerful State from exercising its sovereign control. Given that only a few States accord full diplomatic recognition to Taiwan, from the Chinese perspective the Government of the latter looks like a particularly well-armed NSA. This point is made with some deliberate overstatement, but it does illustrate the complexities involved. 159 The best treatment is by a political philosopher: M Gross, The Ethics of Insurgency (Cambridge, Cambridge University Press, 2015). See also J Patterson, ‘The Ethics of Arming Rebels’ (2015) 29 Ethics and International Affairs 455. 160 ‘NSA’ is a political or academic term, rather than a legal one. For present purposes, it would include any organisation or individual which exercises political influence and acts in large measure independently of any governmental body. 161 B Saul, Defining Terrorism in International Law (Oxford, Oxford University Press, 2006) is a definitive account of the efforts undertaken.

Conclusion   433

IV. Conclusion It is best to begin by highlighting what the Arms Trade Treaty is not, and does not purport to be. It is not a disarmament agreement: it has no effect on the volume or kind of weapons in the possession of any State, nor upon research and development of future forms of military equipment. Nor of course does it address purely internal sales of weaponry. Its aims are much more limited – to restrict access to weapons by particular States or NSAs which engage in conduct regarded as especially abhorrent, to weapons they cannot manufacture themselves. This can be seen as an exercise in ‘legitimating liberal militarism’, which leaves the USA and EU States free to continue their export practices whilst reinforcing their global power to define acceptable and unacceptable practices of warfare.162 One’s evaluation will therefore in part depend on whether one believes those restricted aims, and the international power relations they reflect, were nonetheless worth pursuing. And a fundamental element of that assessment must be an empirical judgement of who is likely to benefit. In particular, the very strong support for the Treaty from CARICOM States and those of sub-Saharan Africa suggests that they too shared the Northern perception of what key issues needed to be addressed, and believed that their citizens would benefit. Whether they were correct is a matter of fact, which will require some years’ accumulation before an adequate judgement can be even tentatively made. It may therefore be accepted at the outset that the ATT is a document of limited ambition, but which nonetheless breaks new ground in international legal regulation. It was the product of diplomatic negotiation, and is the first ever successful effort, achieving (incomplete) world-wide affiliations, to agree legal restrictions on the transfer of conventional arms.163 Its achievements and failings, as detailed in this chapter, are the result of the compromises inevitable in normal multilateral negotiations which require unanimity to achieve a result. States’ views of their important national security interests will always constrain the reach and strength of any international agreement. It would certainly have been possible to have produced a much stronger Treaty which would have commanded a clear majority in the UN General Assembly. Such a document, however, would probably have lost the support of many of the more active proponents among European States and also the USA,164 as well as triggering outright opposition from many of the 162 This is one aspect of the argument presented by Stavrianakis (n 142). This article is a valuable alternative overarching interpretation of the Treaty from a perspective that differs from the analysis presented here both in many of its conclusions and in the disciplinary tools it employs. 163 For an account of earlier attempts, involving many fewer States, see M Bromley, N Cooper and P Holtom, ‘The UN Arms Trade Treaty: Arms Export Controls, the Human Security Agenda and the Lessons of History’ (2012) 88 International Affairs 1029, 1031–34. For a study of League of Nations efforts, see DR Stone, ‘Imperialism and Sovereignty: The League of Nations Drive to Control the Global Arms Trade’ (2000) 35 Journal of Contemporary History 218. 164 Which insisted on’ consensus decision making to allow us to protect US equities’ consensus as one of its ‘redlines’; see n 21 above.

434  The Arms Trade Treaty abstainers, for the consensus principle exerts strong force in international law and relations, particularly among smaller and relatively weak States.165 What emerged would have had much reduced moral force, and even less practical value. It is worth emphasising that for EU Member States at least none of the export restrictions found in the Treaty are as demanding as those found in the EU Common Position. Whatever the actual motivations driving some leaders and diplomats – they were undoubtedly mixed – the ATT can realistically be seen as a means of preventing unfair competition, preventing States seeking to establish an arms export industry from gaining a foothold by selling to regimes from which EU manufacturers are permanently or temporarily barred. There is no way to calculate the volume of such forbidden fruit – particularly because, as we have seen in chapter four, EU Member States have often interpreted their own versions of the Common Position very weakly – but moral and economic considerations have certainly coincided. On the positive side, the creation and widespread acceptance of the Treaty is itself perhaps the most important accomplishment of the whole process. Regulation of arms transfers via a global legal instrument accepted by a majority of sovereign States is unprecedented. The key question is whether this achievement of 2013 is the beginning or end of a process – will a ‘norm cascade’ follow, bringing with it a growing number of acceding States, and a broader global acceptance that certain forms of behaviour disqualify a State from receiving armaments? Or will the process end here – with a flawed document lacking acceptance from a significant number of important States, whilst the attention of influential political and intellectual actors moves elsewhere in an increasingly fractious international political environment? These are presently unanswerable questions, but it is inarguable that the ground has shifted somewhat because the ATT now exists. More specifically, certain positive features of the Treaty stand out: 1. It addresses the predominant concern of the majority of States of the South, by including SALW fully within its scope (Article 2). This provision was of central importance for sub-Saharan African and CARICOM States, which would not have signed and ratified without it. 2. The definition of ‘transfer’ is broad enough to capture almost all forms of passage of materiel from one State to another. 3. The lengthy debates over the treatment of ammunition produced a compromise that is likely to ensure that the Treaty covers virtually all exports – the central point of the transfer process. Strong resistance to US counter-pressure was required to achieve this result. 4. Some loopholes that would have significantly weakened the Treaty, and were found in the initial draft of 2012, have been eliminated. Most importantly, the 165 At least ten States referred to the abandonment of consensus as a strong objection in their General Assembly statements on 2nd April 2013, n 134 above. China gave particular emphasis to this, decrying the abandonment of universality as a principle of multilateral treaty making.

Conclusion   435 exemption for ‘defence co-operation agreements’, which would have excluded transfers agreed under bilateral arrangements enjoying this title and thus given enormous scope for political friendships and strategic relationships to override the Treaty, was finally rejected.166 The price paid for consensus is sacrifice of the best, or dilution of the desirable. In this instance there remain several major defects, consisting either of inadequate provisions or of major gaps in the scope of the Treaty and the obligations it imposes: 1) Excessive narrowness of scope.167 Surveillance equipment, and military technology generally, remain entirely outside the Treaty. The regulation of trade in ammunition and components remains incomplete; the importance of the omissions remains to be seen. 2) The circumstances required before an outright ban is imposed are too narrow. In particular, a transfer that has reasonable potential for undermining peace and security – national or international – or of being used to commit or facilitate serious violations of IHRL or IHL, should have been added to the three that are currently found in Article 6.168 3) The assessment process of Article 7, applying to the great majority of cases not subject to the outright ban, is weak in several respects. It suffers from three substantial defects: a) the excessively high threshold for the ‘risk’ that must be avoided; b) the ‘knowledge’ that is required before a transfer should be disapproved; and c) the failure to include reasonable suspicion that the sale involved corruption, or that it would significantly distort or hamper sustainable development of the recipient State’s economy, as part of the balancing exercise under Article 7. 4) Finally, the Treaty gives excessive latitude to exporters to allow them to ‘pick and choose’ among potential recipients on grounds of economic self-interest or double standards based on political advantage. Purely as a technical legal matter this is very difficult to correct: Article 7.1 already commands that its assessment be conducted in ‘an objective and non-discriminatory manner’, and it is unlikely that any reformulation of the factors set out therein would ensure consistency. In terms of realpolitik the problem is even greater: as we have seen, creation of an international enforcement body with powers of authoritative interpretation was and is simply unacceptable to key States, and

166 The present provision is Art 26; for a detailed account, see ATT Commentary (n 7), paras 26.01–15. 167 Art 2; see above pp 392–399. The omission of dual-use goods is of great practical importance, but since it was never intended to include them, it would be unfair to criticise the Treaty on this ground. 168 See above, pp 399–406.

436  The Arms Trade Treaty perhaps most States, as an incursion on their sovereignty.169 Moreover, so long as powerful States, the USA above all, see arms sales and gifts as a tool of foreign policy, this block will remain. It may be the most intractable problem of all. One can only hope that the amendment process – which permits alteration of the Treaty if, after attempts at achieving consensus ‘have been exhausted’, three-quarters of the States present and voting at a Conference of States Parties agree170 – will address at least some of these defects effectively. This remains a purely political matter, and States Parties that do not formally accept any particular amendment would not be bound by it.171 The ATT imposes binding obligations in international law upon those who ratify it, and lesser ones on those who merely sign it.172 Yet international law is not the level at which an effective Treaty will have its greatest impact. The baton has now been passed from international lawyers and diplomats to administrative lawyers and public officials. What matters most is how its provisions are translated into domestic policy and administrative law and practice. That depends in part on a range of institutional and technical matters common to implementation of all international agreements, notably the general quality of the national civil service, including the legal support and advice it can draw upon. However, factors particular to ATT implementation will enhance the difficulties. These concern the calibre and training of the customs authorities and the police, especially with respect to techniques of detection of contraband, their understanding of some of the aspects unique to arms sales such as end-user certificates – and above all, their immunity from corruption. International co-operation measures, including training and other aspects of capacity-building,173 will certainly be of value. These are specifically encouraged by the Treaty, with anti-corruption measures singled out for special attention.174 Yet it would require an inordinate degree of optimism to believe that corruption at this level will end anytime soon. 169 Compare the jealous retention by EU Member States of unrestricted control of their arms exports, free from any regulation by EU institutions, discussed in chapter three. 170 ATT, Art 20.3. The amendment process becomes operational six years after the Treaty came into force, in December 2020. 171 ATT, Art 20.4. 172 On 27 April 2019, Donald Trump announced that the USA would withdraw its signature from the Treaty. Among other implications, this relieves the USA of the obligation imposed on a signatory to a treaty which it does not then ratify to act so as not to frustrate the objects of that treaty: see Vienna Convention on the Law of Treaties 1969, Art 18. 173 Described in the Treaty as ‘confidence-building measures or jointly developed and agreed programmes by the exporting and importing States’: Art 7.3. A particularly critical one is destruction and disposal of surplus weaponry after the end of internal conflicts. Practical suggestions for international assistance in implementation are presented detailed in two papers by M Bromley and P Holtom: ‘Arms Trade Treaty Assistance: Identifying a Role for the European Union’, EU Non-Proliferation Consortium Discussion Paper (SIPRI, February 2014) and more broadly, ‘Implementing an Arms Trade Treaty: Mapping Assistance to Strengthen Arms Transfer Controls’, SIPRI Insights on Peace and Security No 2012/2 (Stockholm, SIPRI, July 2012). 174 ATT, Art 15.6.

Conclusion   437 Having leapt the first barrier and agreed a set of norms, the next and in some respects higher hurdle is that of national implementation. This will require international assistance in the form of expertise and finance for training and monitoring, which can only be provided by the wealthier, mostly exporting, States. The really hard work began upon ratification or accession, and must take place within the public administrations of poor States with limited governmental capacity; this is of much lower visibility but without it the Treaty will remain largely a paper exercise.

List of References Bastasch, M, ‘Foreign Ammo Imports Doubled in 2013 to Meet Exploding US Demand’ (The Daily Caller, 8 May 2013). Berridge, GR and James, A, Constructive Ambiguity (Basingstoke, Palgrave Macmillan, 2003). Bromley, M, Cooper, N and Holtom, P, ‘The UN Arms Trade Treaty: Arms Export Controls, the Human Security Agenda and the Lessons of History’ (2012) 88 International Affairs 1029. Byers, M, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 American Journal of International Law 526. Casey-Maslen, S, et al, The Arms Trade Treaty: A Commentary (Oxford, Oxford University Press, 2016). Clapham, A, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006). Finnemore, M and Sikkink, K, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887. Garcia, D, Disarmament Diplomacy and Human Security (London, Routledge, 2011). —— ‘Arms Transfers Beyond the State-to-State Realm’ (2009) 10 International Studies Perspectives 151. Gray, C, International Law and the Use of Force (Oxford, Oxford University Press, 2018). Gross, M, The Ethics of Insurgency (Cambridge, Cambridge University Press, 2015). Guilfoyle, D, Shipping Interdiction and the Law of the Sea (Cambridge, Cambridge University Press, 2009). Hansen, ST, ‘Taking Ambiguity Seriously: Explaining the Indeterminacy of the EU Arms Export Control Regime’ (2016) 22 European Journal for International Relations 192. Holtom, P, ‘Nothing to Report: The Lost Promise of the UN Register of Conventional Arms’ (2010) 31 Contemporary Security Policy 61. Hopkins, N and Taylor, M, ‘Trade in Spy Systems Must be Reviewed says Committee Chair’ The Guardian, 19 November 2013. Jackson, M, Complicity in International Law (Oxford, Oxford University Press, 2015). Jackson, T, ‘From Under Their Noses: Rebel Groups’ Arms Acquisitions and the Importance of Leakages from State Stockpiles’ (2010) 11 International Studies Perspectives 131. Kellman, B, ‘Controlling the Arms Trade: One Important Stride for Humankind’ (2014) 37 Fordham International Law Journal 687. Lester, A, ‘UK Acceptance of the Strasbourg Jurisdiction: What Really went on in Whitehall in 1965’ (1998) Public Law 237.

438  The Arms Trade Treaty Lester, A, ‘Fundamental Rights: The United Kingdom Isolated?’ (1984) Public Law 46. Ormerod, D and Laird, K, Smith and Hogan’s Criminal Law, 14th edn (Oxford, Oxford University Press, 2015). Papastavridis, E, The Interception of Vessels on the High Seas (Oxford, Hart Publishing, 2013). Patterson, J, ‘The Ethics of Arming Rebels’ (2015) 29 Ethics and International Affairs 455. Saul, B, Defining Terrorism in International Law (Oxford, Oxford, University Press, 2006). Stavrianakis, A, ‘Legitimizing Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) 37 Third World Quarterly 840. Stone, DR, ‘Imperialism and Sovereignty: The League of Nations Drive to Control the Global Arms Trade’ (2000) 35 Journal of Contemporary History 218.

Other Publications BBC, ‘Who is Ssupplying Weapons to the Warring Sides in Syria?’ (BBC News, 14 June 2013). Bromley, M and Holtom, P, ‘Arms Trade Treaty Assistance: Identifying a Role for the European Union’, EU Non-Proliferation Consortium Discussion Paper (Stockholm, SIPRI, February 2014). Bromley, M and Holtom, P, ‘Implementing an Arms Trade Treaty: Mapping Assistance to Strengthen Arms Transfer Controls’, SIPRI Insights on Peace and Security No 2012/2 (Stockholm, SIPRI, July 2012). House of Commons [UK], Committees on Armed Export Controls, First Report, ‘Scrutiny of Arms Exports and Arms Controls’ (2014) United Nations, ‘Overwhelming Majority of States in General Assembly Say “Yes” to Arms Trade Treaty to Stave off Irresponsible Transfers that Perpetuate Conflict, Human Suffering’, Press Release (2 April 2013). US Congregational Research Service, ‘Gun Control Legislation’ (Washington, DC, 14 November 2012). Vrancx, A, ‘Containing Diversion: Arms End-Use and Post-Delivery Controls’ (Brussels, GRIP, 2016).

part v Conclusion

440

15 Future Directions I. Introduction This final chapter begins with a distillation of some key empirical points emerging from the eight national chapters. This sets the stage for an avowedly normative presentation, consisting of two dimensions. The first is that of basic precepts, and the specific criteria or standards which will most effectively carry them out. The second is that of institutions specifically devoted to ensuring that the substantive provisions do truly govern weapons export decisions. As the eight national chapters reveal, States sell arms in pursuit of different predominant goals.1 Economic motivations are the dominant force for the European States and, perhaps surprisingly, for the USA as well. On the other hand China, as an emerging world power, uses arms sales to achieve political and strategic aims, one of which is to free itself from its perceived vulnerability as a major importer of weapons. India, after years of being the world’s largest importer, has begun to go down the same path. Both have been subject over the past two decades to arms embargoes, imposed for different reasons and applying to different kinds of weaponry, but in both cases European States and the US were seen to be employing their technological superiority to achieve political goals at their expense. The reaction – to escape dependency by developing greater self-sufficiency by means of a domestic arms industry – spurred the drive for exports as political and economic interests formed a synergy. Russia, also subject to an embargo since the annexation of Crimea in 2014, has traced a wholly different trajectory. It lost considerable productive capacity with the separation from Ukraine and Armenia after the breakup of the Soviet Union, and during the 1990s sharply reduced both military expenditures and exports. However, as its ambitions on the world stage rekindled under Vladimir Putin, that policy was reversed and it has again become a major actor in the global arms market. None of the three has shown, or even pretended to show, any concern about the uses that purchasers might make of their equipment (although Russia has respected UN arms embargoes). Arms sales are treated as a matter of national

1 The analysis in this section is based on material presented in each of the national chapters, without specific page citation.

442  Future Directions interest in the traditional sense of power and wealth maximisation. Allied if not inseparable to that approach is a distrust of legal restrictions on the exercise of sovereign power, whether from internal or external sources. Concerns about violations of international humanitarian law (IHL) or suppression of domestic dissent therefore remain excluded from arms export decisions. Rejection of outsider critiques in the name of international law is mirrored by a lack of interest in conditioning sales on compliance with that law. The USA has arguably reached the same point by a roundabout route. For about a decade beginning with the late 1960s, human rights and even sustainable development considerations had a strong imprint on the export policy of what, since the beginning of the Cold War, has always been the world’s single largest exporter. However, as that conflict reheated, ‘human rights’ was removed from the governing legislation (in 1981) and never re-instated, even during the 1990s, years of almost unrivalled US supremacy. There remains interest and activism among some legislators and non-governmental organisations (NGOs), and it is possible at some point in the indeterminate future that will reassert itself. Whatever influence they may have in the near term, those voices will continue to be heard but will have no counterparts in Russia, China or even in India, more democratic but increasingly stridently nationalistic.

II.  Towards an Ethically-Grounded Arms Trade Policy Thus, the maximising of power and wealth is the exclusive guide for arms export policy in several very powerful States. Yet others, notably but not at all exclusively located in northern Europe, have taken a different path. EU States in particular, including until recently the UK, have proclaimed attachment to normative principles, including but going beyond international law, as guides to foreign policy. This is partly a response to influential pressures within civil society asserting that governments have some degree of moral responsibility for the international impact of their actions. As that vocabulary became normalised, some implications became apparent: notably that governments should not contribute to, or even actively oppose, inhuman treatment or political oppression overseas.2 This outlook has had practical application in many arenas far removed from arms sales.3 2 This outlook has deeper historical antecedents, and had influence long before the emergence of twentieth century ideas about universal human rights. In the nineteenth century, Britain – or at any rate influential elements within it – was often sympathetic to independence movements on the Continent, such as the Greek war of independence in the 1820s, or the unification of Italy several decades later. The anti-slavery movement in which Britain played a significant, if belated, role was similarly grounded in normative, often religious, views. Further, anti-colonial movements within the Empire attracted increasing support at home after the First World War. 3 Eg, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal, in force since 1992.

Towards an Ethically-Grounded Arms Trade Policy  443 Moreover, States which have proclaimed adherence and accepted international law obligations relating to norms of democracy have thereby deprived themselves of the luxury of ignoring ethical principles. Many of them, in their international aid programmes and support for various embargoes on pariah regimes,4 have insisted upon observance of human rights norms and democratic practices, backed up by threats or actual termination of assistance or trade relations.5 Short of openly embracing hypocrisy,6 they are at the least morally obliged themselves to respect these norms. At a minimum this would require those States, when their activities have impact overseas, not to actively subvert them. Related, though somewhat different, considerations apply when considering compliance with the rules of international law. These divide into what is sometimes called the law against war,7 (jus ad bellum) and rules governing the conduct of warfare – IHL (jus in bello). Most of the latter are grounded in self-interest, developed originally by soldiers and diplomats to protect their forces against illtreatment during the conduct of war or in captivity.8 However the four Geneva Conventions of 1949 extended their application to wars ‘not of an international character’, and their Protocols of the 1970s incorporate protections of civilians into IHL.9 These are, in reality, far more likely to apply to conflicts in the South than to anything which citizens of the exporting States may experience. Adherence to these rules is virtually universal.10 Taken seriously, one corollary is that States 4 For eg, those imposed and renewed on Myanmar or Belarus (the latter renewed annually since 2004) or the EU’s exclusion of Sri Lanka from its preferential trade programme [GSP Plus] (above, chapter three, at p 53). 5 In 2000 the EU entered into the Cotonou Agreement with 79 States of the South (ACP-EU Partnership Agreement [2000] OJ L 317/3, revised 2010/C 305 E/01), which requires respect for certain principles of democracy and the rule of law. It is by no means strongly enforced: ‘dialogue’ is the preferred response to non-compliance, with suspension of the Agreement with the offending State a remedy of last resort. See further L Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005) and U Khaliq, Ethical Dimensions of the Foreign Policy of the European Union (Cambridge, Cambridge University Press, 2008). A more recent overview of EU conditionality with respect to both human rights and environmental policies, which yields rather depressing conclusions, is found in E Reid, Balancing Human Rights, Environmental Protection and International Trade (Oxford, Hart Publishing, 2015) 148–87. However, the EU does monitor trade agreements made with third countries, which include matters such as observance of labour standards. If the monitoring reveals systematic non-compliance, it has in some cases activated dispute settlement procedures. An example is the reference to an expert panel of South Korea’s failure to enact International Labour Organisation (ILO) Conventions as required by the EU-South Korea Trade Agreement of 2011. See http://trade.ec.europa.eu/doclib/press/index. cfm?id=2044, statement of 5 July 2019. I am grateful to Professor Reid for this reference. 6 Organised hypocrisy (see above, chapter two, at p 29) always purports to comply with ethical norms. One recalls Oscar Wilde’s definition of hypocrisy as ‘the tribute vice pays to virtue’. 7 O Corten, The Law Against War (Oxford, Hart Publishing, 2010). 8 Though they contained some provisions protecting civilians, this generalisation is broadly true of the various Conventions adopted from the nineteenth century through the end of the Second World War. 9 See above chapter 14. 10 196 States – a number that exceeds UN membership – are signatories to the four 1949 Conventions and even the USA has signed, though not ratified, the Additional Protocols of 1977. Those aspects of the latter about which a number of States have offered a different interpretation from the majority view are not relevant to the present discussion.

444  Future Directions which export arms have assumed a particular responsibility to ensure that their products are not used to violate IHL. Equally universally, all UN Member States have committed themselves to ‘refrain[ing] … from the threat or use of force against the territorial integrity or political independence of any State …’11 Commitment to the paramount UN principle of peaceful settlement of international disputes also entails refraining from assisting other States engaged in acts of aggression, or actively undermining the integrity and independence of third States.

III.  Some Fundamental Changes To apply these precepts it is not necessary to reinvent the wheel. The general structure developed by the EU and UK, using criteria (standards) setting out the policies and relevant factors to be considered as evidence when taking a decision, provides a workable model for any State. Carrying over in full some of the current EU-based Criteria, and parts of others would make good sense.12 A number of them are either relatively uncontroversial or are really matters of strategic selfinterest and may be adopted with slight alteration. This applies particularly to Criterion One, and to the extensive provisions on diversion found in Criteria Two and Seven. It also bears repeating that Criterion Six, which specifically highlights the recipient’s ‘commitment to non-proliferation … and disarmament conventions referred to in point (b) of Criterion One’13 thereby makes specific reference to the Nuclear Non-Proliferation Treaty. It has been blatantly ignored, presumably because the politics and economics of sales to India, Pakistan and Israel – the three relevant non-signatory States14 – have overridden legal considerations. The contradiction should be confronted head-on, and this Criterion, which in its terms is satisfactory, should either be adhered to or abandoned. The other Criteria need refinement in varying degrees, and the proposals draw upon, and draw together, the analysis of each presented individually in chapter four (some repetition is inevitable). However, before those are discussed, more 11 United Nations Charter, Art 2(4). 12 Some of the EU Criteria are reinforced by other Articles in the Common Position [Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99] (eg the Article Five provision on verifying likely end use, links tightly with Criterion Seven). As this chapter is concerned only with strengthening the substantive Criteria and is not meant to be restricted to European States, other Articles of the Common Position are not discussed. 13 Criterion 6 (c); discussed above in chapter four, above, at pp 92–93. 14 In 2014–18, India bought the great bulk of its weaponry from Russia (58%) and the USA (12%), though not for want of trying by France and the UK; Pakistan was overwhelmingly (70%) supplied by China; Israel received 64% of its imports from the USA, but also a very important percentage (27%) from Germany. Other non-signatory States like North Korea, Iran and Syria are subject to UN and/or EU embargoes. These figures are taken from Stockholm International Peace Research Institute (SIPRI), ‘Trends in international Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019) 6 (Table 2).

Some Fundamental Changes  445 fundamental changes should be explored because the Criteria are not sufficiently comprehensive and require several significant additions of substance.

A.  Eliminating Selective Application of the Criteria An important feature of the Arms Trade Treaty (ATT) is its insistence, in three separate provisions, that its provisions be applied ‘without discrimination’.15 It must be expected that States will use their ability to supply weapons and other equipment to assist their allies or other friendly States. However, the substantive Criteria relate to fundamental values which should not be compromised by applying looser standards to friends than to others. States should apply the same standards in the same manner – for example, by treating comparable evidence of repression or atrocities in the same way, regardless of who the purchaser may be. The principle of non-discrimination should apply across the board to all export applications. Since decisions relating to different potential purchasers are not made together, indeed may well be separated by years, ensuring equal application of standards requires an overview which a body other than the initial decisionmaker is far better equipped to provide. Thus, issues of substance are inseparable from institutional questions of review, a matter taken up below.

B.  Barring Sales Achieved by Corrupt Means To recall some of the discussion in chapter one, whether or not corruption is the lifeblood of the arms trade, it has been central to numerous, highly-publicised scandals over decades,16 and clearly has been responsible for billions of dollars being diverted to the covert enrichment of officials and intermediaries. Public funds have been drained, often in developing countries most of whose citizens have desperate subsistence, health and educational needs. It is equally clear that whilst the impact may be particularly devastating for those countries, the phenomenon is not peculiar to them. Sales between EU Member States have not been exempt.17 Indeed the sums involved, and therefore the rewards to be gained, are far greater where expensive high tech weapons and systems are involved. Sales to Saudi Arabia and the Middle East oil economy States, collectively the world’s biggest market, have proven to be the most lucrative field of corrupt practice. A new Criterion requiring rejection of a licence where there is a reasonable likelihood that the transaction involves any form of corrupt practice would therefore serve several important purposes. It would be fundamental to any serious attempt to limit arms sales to genuine security needs of recipient nations, 15 See above, chapter fourteen, at pp 417–418. 16 See above, pp 8–10. 17 Two former Greek Defence Ministers were convicted in the past decade of accepting bribes and/or money laundering in connection with the sale of weapons sold by German companies.

446  Future Directions as opposed to enriching those involved in arranging and approving the contracts. It therefore is in practical terms inseparable from the concerns that led to the inclusion of Criterion Eight, with its concern for ‘sustainable development’.18 It would reinforce the movement at international level to control corruption, manifest with the drafting of the Organisation for Economic Co-operation and Development (OECD) Convention Against Corruption in 1997, which has now been ratified by all the major European arms exporters, Russia, and the USA.19 The ratifying State is obliged to enact criminal penalties, which may have a deterrent effect but can only be applied after the fact and generally involve a tortuous process of fact-finding and a difficult burden of proof for the prosecution,20 whereas an anticorruption Criterion is designed to have an immediate deterrent impact. Any attempt to put anti-corruption standards at the centre of arms trade regulation must confront the reality that in many countries payments to officials are not only the accepted, but expected, way of doing business. The arms trade may be an extreme case, but open and properly competitive procurement transactions are seldom the norm.21 This is so deeply engrained, and Northern arms companies have been so long acculturated to accept it, that it will require a tightly co-ordinated effort among OECD States, ideally in close collaboration with China and Russia, to strip corruption out of arms sales. Adoption of an anti-corruption Criterion would be central to any attempt to ensure that no exporter achieved a competitive advantage through corrupt practices. Preventing cheating is of course a key element in any concept of a Common Position, but the need is even greater when dealing with corruption. Widespread killing of dissidents, fear of weapons ‘falling into the hands of terrorists’, and atrocities committed against civilians are all high profile activities which are widely regarded as unacceptable. Hidden corruption in relation to business that may support local employment has much less salience and opposition. More active leadership will be demanded of politicians, and a tough line against corruption will be much easier to sell if it can be shown that competitors are all toeing the same line. And with respect to poorer purchasing States, continuance of sales could be made conditional on adherence to anti-corruption practices. The Resolution of the Netherlands Parliament, passed on 5 March 2019, which calls upon the Government to advocate that the EU adopt an anti-corruption Criterion, is the first small official step in this direction.22 18 See above, chapter one at 10–15, and below, pp 437–438. 19 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, November 1997. Indeed all EU States bar Cyprus, Malta and Romania have ratified, according to the OECD website, www.oecd.org. 20 It will also depend on the precise provisions of the domestic legislation whether the prohibition on bribery would extend to ‘commissions’ and other payments to third parties which are not themselves public officials. 21 Movement for adoption of the OECD Convention was by no means exclusively based on concerns about the arms trade. 22 22 054 Arms export policy Nr. 307 Resolution of the MP Karabulut (SP), adopted 5 March 2019. I am indebted to Martin Broek, a Dutch journalist specialising in arms trade issues, for notice of this development.

Some Fundamental Changes  447 Less authoritatively but considerably earlier, a 2011 Report of the UK Committee on Arms Export Controls (CAEC) recommended consideration of a new Criterion requiring refusal of sales where order were achieved through corruption.23

C.  Strengthen the Provisions on Misuse of Resources As we have seen, the present Criterion Eight, supposedly ensuring ‘the least diversion of human and economic resources for armaments … which would seriously hamper sustainable development’ is virtually a dead letter.24 One problem, which no alteration of formal rules can overcome, is that there may be a reluctance on the part of exporting States to be seen as judging the necessity of an arms purchase or the purchaser’s decision on priorities. If this is the governing view, then it should be acknowledged and the Criterion simply scrapped. However, it should be noted that this policy is not restricted to European former colonial powers: the USA has had similar legislation in effect since the 1960s, and purportedly strengthened it over the years.25 One specific justification, currently adverted to in the Criterion, is that if a country is receiving international aid, that aid has been given in response to a belief that the population should be helped to raise their living standards, not to purchase foreign weapons.26 More broadly, the policy is a response to the observable fact that governments of too many poor countries have created ‘security’ apparatuses well in excess of levels in equivalent States; the suspicion is that these purchases are undertaken to enable politicians to receive kickbacks, or are a preparation for repression of future opposition. There are thus strong though indirect links with both internal repression and corruption as grounds for restriction. In practical terms, the standards used to identify resource diversion for armaments should be far simpler and easier to understand and apply than the current elaborate ‘methodology’. This might be done by a) banning sales over a certain cumulative total amount, set fairly low, to any country whose population contains a specified percentage – also low, such as 20 or 25 per cent – of persons living in poverty; and

23 HC 686, 5 April 2011, paras 109–16. See https://publications.parliament.uk/pa/cm201011/cmselect/ cmquad/686/68613.htm#a14. 24 Above, chapter four, at p 96. 25 The current version is found at 22 USC s 2775, entitled ‘Foreign military sales to less developed countries’. The total absence of mention of this provision in Professor Spear’s Chapter is mute but compelling testimony to its minimal practical importance. 26 An important corollary is that the money should be used to benefit the people in the recipient country, not the manufacturers of weaponry in the North. This is one variant of the broader decadesold critique of overseas aid: that far too much of it is an indirect subsidy to companies in the donor State.

448  Future Directions b) strengthening the methodology by setting the present ‘trigger points’ at an earlier stage. These ‘trigger points’ are ratios of certain economic indicators. These should include: i) military expenditure relative to social service and welfare expenditure; ii) total overseas aid received relative to GDP; and iii) government debt relative to public revenue. The choice of any particular number or proportion is ultimately arbitrary, but the guiding principle should be that they err on the low side. The policy underpinning this Criterion is an important one, and its effectiveness depends on adoption of rigorous standards. At the moment, depending on one’s metaphor of choice, it may be described as mere window dressing, or a dead letter.

D.  Violence against Vulnerable Groups It is now uncontroversial that certain groups are particularly vulnerable to violence during armed conflicts, internal or external, and therefore deserve special protection. This is most notable in regard to women and sexual violence, historically regarded as an inevitable by-product of war. Embodying the understanding that rape and sexual slavery are used as deliberate tactics, the Rome Statute recognises these as crimes against humanity and war crimes.27 However, though women are numerically the largest group of potential victims, they are not alone. Men may frequently suffer sexual violence as well, though less frequently. More broadly, children are subject to a range of abhorrent non-sexual practices, including slavery and brutal initiation and service as child soldiers. A recent UN Security Council Resolution has recognised these manifold abuses.28 Moreover – as was recognised in the Preamble to the ATT – women and children, overwhelming non-combatant civilians, ‘account for the vast majority of those adversely affected by armed conflict and armed violence’.29 Furthermore, elderly or disabled people, regardless of gender, may be targeted as ‘unproductive’ or ‘an unnecessary burden’, and starved or killed by militias or other occupying forces in a particular area. These forms of discriminatory victimisation are among the most severe human rights violations, and deserve specific mention as a ground for denying approval of weapons export. There is an overlap with ‘attitude towards international human rights instruments’ covered by Criterion Two, but it would be an important statement to include an additional paragraph requiring denial of a licence where – to use the language that will be proposed below – there is a reasonable possibility that

27 In Art 7(1)(g) and Art 8(2)(b) (xxii), respectively. UN Security Council Resolution 1820, S/RES/1820, approved 19 June 2008, formally recognised sexual violence as a weapon and tactic of war. 28 UNSC Res 2427, S/RES/2427, adopted 9 July 2018, on ‘Children and Armed Conflict’. 29 Arms Trade Treaty (ATT) Preamble, para 10.

Enhancing Existing Criteria  449 the equipment will be used to facilitate or carry out acts of serious violence against members of any vulnerable group, or sexual violence against anyone.

E.  Adding ‘Facilitation’ There is a slight but important variation in the language used in the ATT and in the EU Common Position. The latter, in various parts of Criterion Two, requires licence denial if the material might be ‘used for’ or ‘used in the commission of ’ certain acts. The ATT speaks of equipment being ‘used to commit or facilitate’ certain acts. The latter is preferable: it is broader, encompassing the sale of equipment which may help sustain various serious IHL or international human rights law (IHRL) violations. Maintenance equipment and spare parts essential to enable planes to fly bombing missions, or to keep in operation vehicles been used to transport soldiers who have shot down protestors, are particularly pertinent examples. They are not technically ‘used’ to commit the violations – though they would certainly ‘facilitate’ them – and, on a grindingly literal interpretation of the present Criteria, could be approved. ‘Facilitation’ is a well-established legal term expressing the idea of ‘enabling’, and what both seek to capture is banning export of materiel which makes possible the carrying out of prohibited acts, but not by the direct use of that equipment.30

IV.  Enhancing Existing Criteria A.  Criterion Two Judgements concerning internal repression or serious violations of human rights, and about IHL, should continue to be made through the identical process of assessment. Whether it assists clarity to continue to call that a ‘case-by-case’ approach is a moot point. The critical question is what use the purchaser may make of the equipment. The assessment is predictive, and the purpose is preventative. That judgement can only be made by considering each application individually. Thus even where the buyer’s own human rights and IHL compliance records are of no cause for concern, it must still be established that the equipment will be used by that State, and not be included in a product manufactured in its factories but sold to a third, suspect, destination. This is a particularly important question in relation

30 Thus, weapons not fired in battle but used to intimidate civilians so they are herded into a restricted area which may then be set on fire, or where some are subject to sexual violence, have ‘facilitated’ those atrocities.

450  Future Directions to components, and what is known as ‘incorporation’ has proven controversial on several occasions.31 A primary element of a more rigorous approach is that States should be differentiated according to the character of their regime. In the great majority of controversial cases (which are numerically small), this will be the determining factor. Tools are readily to hand, such as the list of ‘countries of concern’ with respect to human rights maintained by the UK Foreign and Commonwealth Office.32 Application for sales to countries on this list ought to receive more detailed scrutiny than proposals for sales elsewhere. This need not entail a total embargo. As suggested earlier,33 with such countries a precautionary principle should operate. This may be described as a presumption of denial, but it can also be understood as a risk assessment level of ‘genuine possibility’ of misuse. It is impossible to quantify this judgement precisely, but its intention is to identify a probability significantly below 50 per cent. One advantage of adopting this approach is that as a particular State improves its treatment of its citizens (or demonstrates in a legitimate conflict that it has moved to comply with IHL), future purchase applications should be treated in the same way as those from ‘untainted’ States. Another is that there is an unavoidable element of subjectivity in the assessment of ‘clear risk’, which lays it open to charges of discrimination. By contrast, the character of a regime can be assessed on more solid factual bases, as are used currently by various governments and NGOs.34 This approach involves widening the focus beyond the immediate future. Criterion Two currently requires the exporter to assess the would-be purchaser’s

31 In the UK, a key instance has been the issue of ‘Head UP Display Units’ (HDUs). These are visual and guidance mechanisms used to pilot aircraft, and have been incorporated into US F-16 fighter jets. These are exported by the USA in significant quantities to Israel. Concern about this third country use led to a Statement in 2002 by the then Foreign Secretary setting out a policy on incorporated exports which seemed designed to allow continued exports of HDUs to the USA: HC 8 July 2002, col 652–52, WA. A similar issue arose early in 2019, almost contemporaneously with the signing on 22 January of the Aachen Treaty between France and Germany, which promises a common approach to arms exports in joint projects and establishes the Franco-German Defence and Security Council as the political governing body (for a translated version, see https://de.ambafrance.org/Text-des-AachenerVertrags). A portent of the problems this Council may encounter is the dispute between the two countries over whether missiles containing essential components made in Germany but manufactured in France could be sold to Saudi Arabia; the German Government blocked the sale, despite the French wish to proceed, due to concerns about both the conduct of the war in Yemen and the murder of Jamal Khashoggi. See the report at www.defenseworld.net/news/24221/ France_Upset_as_Germany_Blocks_Meteor_Missile_Export_to_Saudi. The multi-national character of European weapon production makes divergence of policy a critical area of political conflict. 32 Above, chapter five, at p 111. Several NGOs maintain similar lists, as does the US State Department. 33 In analysis of Critique 2 in chapter four, above, at p 88. 34 In addition to ‘countries of concern’ lists, there are known criteria that have long been employed by those monitoring the fairness of elections (on which see below, p 442).

Enhancing Existing Criteria  451 ‘attitude’ towards the ‘principles’ of IHRL and IHL. This involves more than a prediction of immediate future conduct: it encompasses a more rounded assessment of the regime’s acceptance of fundamental principles. It can only be done by evaluating the character of the regime itself, its current leadership, and likely future successors. This is the bread and butter of the work of political attaches, and should be central to judging whether the equipment will serve primarily to suppress peaceful opposition should such a movement arise, even in the absence of any immediate prospect of that occurring.35 The emphasis on a regime‘s ‘attitude’ would go a long way to resolve what was noted as the ‘paradox of lockdown’ – the focus on immediate use which ignores the attempt by a dictatorial regime to stock up on equipment in the event future dissent becomes substantial.36 This language is of course already present in Criterion Two, but appears to have been lightly passed over. In a strengthened export control regime, it would serve a vital function in preventing future serious human rights violations. A practical point of great importance is that when considering the genuine possibility of human rights violations, the decision-maker should not be limited to formal findings of international organisations whose primary purpose is quite different and whose attention and capacity for assessing these may be severely limited.37 These bodies rarely send monitors to war zones or centres of opposition to dictatorial regimes to assess over any extended period of time the conduct of those wielding weapons. NGOs, sometimes at great personal risk to those involved, do so more frequently. Of course their reports should not be taken as irrebuttable evidence, but they should be considered seriously and if the relevant State cannot convincingly refute the findings, should be accepted.

B.  The Importance of History A final point about the Criterion Two assessment is that whilst attempting to prevent abuses, an essential element in the judgement of the character of the regime is its past behaviour.38 The question is how far back one should look. Unless there has been fundamental regime change,39 a period of five to seven years, which ­corresponds

35 To recall a point made earlier: smaller States may well not have the personnel on the ground to inform themselves sufficiently. This is one of the many reasons, within Europe, that sharing information is fundamental to effective common policy and practice. 36 See above, chapter four, at p 85. Sir John Stanley made a similar point when interviewed, criticising current practice of permitting sales in ‘quiescent situations’ when a regime may merely be retooling its repressive capacities for later use. 37 As is now the case in relation to Criterion 2 (b), which says that the serious violations of human rights should have been established by agencies of the UN, EU or Council of Europe. However, the User’s Guide recognises the importance of material gathered by NGOs. 38 Recall the importance given to this factor in the CAAT judgment, discussed in chapter five above. 39 Not merely a change of leader; if the governing party or family has retained its grip on power there is little reason to expect policy change.

452  Future Directions to the terms of office of most leaders, seems appropriate. A substantially longer period, perhaps double, would be warranted where the government is not elected. The point is worth stressing because, as pointed out earlier,40 States which continued to arm Saudi Arabia throughout the mid-2010s failed to give proper weight to its bombing of civilians in Yemen at the end of the previous decade.

C.  Criterion Three Almost uniquely this Criterion, read literally, is somewhat too restrictive. A legitimate government – one which has come to power by means of elections that meet the internationally well-recognised standards for free and fair elections41 – should not be denied the means to defend itself against violent attempts at its overthrow, especially if they are supported by a foreign government or involve deliberate attacks on civilians. The means of accession to power is crucial, because it serves to distinguish governments that deserve support because they embody democratic practice from autocratic regimes which regularly adopt the tactic of branding significant opposition movements as ‘terrorists’. Thus an exception to Criterion Three’s prohibition on supplying weapons where their use may ‘prolong armed conflicts’ should be created to permit such provision to a government which has gained office by means of free and fair elections and is fighting armed opposition.

D.  Criterion Four As noted, the current form of this Criterion has been usefully supplemented by an extensive listing of relevant factors in the UK Government’s implementation,42 which should be more generally adopted. Particular emphasis should be directed to that part of the final paragraph concerning not upsetting regional stability.43 This could play a vital role in forestalling defensive arms build-up, in situations where one State only wants to acquire the latest weaponry if there is a reasonable chance that its adversary will. If it can be credibly established that neither side will be able to do so, the proposed sale should be disapproved. Such preventative effect can only work if supplier States act in concert according to the same standards and if so, the impact may never be visible: the lives and prosperity preserved by avoidance of conflict can never be proven. 40 See above chapter four. 41 For a comprehensive overview of these standards and their implementation which recognises both their utility and limitations, see J Kelley, Monitoring Democracy (Princeton, Princeton University Press, 2012). 42 See above chapter four, at pp 78–79. 43 This seems to have been overshadowed in UK decision-making by the accompanying phrase concerning the need to prevent aggressive use. This is important, but that is equally true of maintaining regional stability. In fact if the latter is upset, aggression may be encouraged.

Enhancing Existing Criteria  453

E.  Criterion Five Finally, this rarely-used Criterion is largely concerned with strategic considerations, notably guarding against jeopardising the security interests of other EU States and their overseas territories, and their allies. As such it reinforces the Common Foreign, Security and Defence policies that the EU began to adopt early in this century. However, its opening paragraph currently states in effect that aiding friendly parties should not be done at the expense of ignoring issues such as human rights and regional stability. This is seriously incomplete in failing to mention adherence to IHL. It also ignores diversion, which otherwise occupies a prominent place throughout the Criteria. It would be both simpler and more comprehensive to amend the language to read that taking account of others’ security interests ‘cannot affect consideration of the other Criteria’.

F.  Criterion Six As stated earlier,44 the language and intent of this Criterion are more than satisfactory. That it has largely been ignored is testimony to the other influences at work, which emphasises the point that underlying the reforms suggested here must be a political commitment of conscientiously applying them with full vigour.

G. Summary The proposals here build upon the policy analysis presented throughout this book, and draw heavily upon the critique of the existing EU Criteria found in chapter four. They are intended to widen and strengthen the standards now in force within the EU (and, currently, the UK), and provide a model for adoption by any exporting State, not merely a European one. In addition, although they have been expressed within the framework of the EU Criteria, their substance could readily be integrated into amendments of the ATT – particularly in relation to the risk assessment process in Article 745 – if momentum for strengthening the Treaty develops in future. In brief, it is suggested that within a structure that resembles the present EU Criteria: a) several new Criteria be added; b) the current Criteria One and Seven be adopted in full; and c) the current Criteria Two through Six and Eight be either altered in substance or in their precise language.

44 See 45 See

above, chapter four, at pp 92–93. above, chapter 14, at pp 417–418.

454  Future Directions Substantive rules are only part of the story, however. It is necessary to consider administrative and even constitutional matters that in practice are equally important in determining the effectiveness of the policies the rules are designed to implement. International institutions also have a role to play. It is to these that we now turn.

V.  Institutional Change A.  Domestic Accountability: Ending Undue Executive Influence One theme emerging from all the national studies is the near-total dominance of the Executive branch in decisions concerning arms sales. In part this flows from the connection with foreign policy, where the Executive historically occupied a similar position. Yet in many democratic countries it has had to yield some of its supremacy, allowing the legislature a greater role.46 In relation to arms sales, Sweden has gone furthest in involving other institutions, but in all cases the final word remains with the Executive. The results have not been good. Statutory standards have been enacted based on domestic, regional and international law, but although governments have cited them as evidence of commitment to fundamental values, their application has often been more honoured in the breach than in the observance. The counterpressures of economic and strategic or political advantage have mostly outweighed moral or ethical values. And the influence of the latter has demonstrably varied depending on the character of the political regime: the change in the frequency of Criterion Two denials shows a close connection with the party affiliation of the relevant Cabinet Minister in the UK, and there was a clear difference between the approach of Social Democrat and Christian Democrat Ministers within the German Coalition.47 If the option of simply following immediate material interest is rejected,48 the question then becomes, what institutional structures might better ensure that formal and verbal commitments are effectively realised?

46 Of the nations discussed here, Sweden, the UK and Germany have perhaps seen the greatest movement, whilst the USA has experienced several sharp movements in a recurring tug of war between the two branches, acted out within the unique framework of constitutionally-crafted separation of powers. Examples of UK developments are discussed in chapter five, above p 118. 47 See above chapter six. 48 There are longer term realpolitik arguments for refusal to sell arms to certain States in certain circumstances. Where the recipient may engage in war that results in political instability with spill-over effects such as formation of ‘terrorist’ groups and/or creation of a large number of potential refugees, self-interest of the seller may dictate refusal. In such situations strategic interest and moral concerns stand together; only when they conflict are self-limiting rules and institutions required.

Institutional Change  455 The guiding principle behind such structures is insulation from political influence. In UK terms, that would imply that the door would be firmly closed to the Chairman of BAE.49 The purpose is to ensure that the rules, as written, are applied properly. It has long been recognised that certain activities need to be placed beyond immediate political influence even as overall policy remains in the hands of the Executive. For this reason, to offer three disparate examples, the requirement of independence of the Parole Board, the Security Service and the Bank of England is accepted.50 The key questions surrounding any body established for this purpose are: What are its precise functions? What is its membership, and how is that selected? What are its powers? How will it function, and what or who determines what decisions come before it? Finally, how would it relate to Parliament, especially CAEC, and the Executive, and to whom would it be accountable? A sketch on what such a body might look like will be undertaken within the particular framework of UK public administration. It may be adaptable to other parliamentary systems, but these will have different administrative structures and cultures so that its final form may look substantially different. The new body would have the status of an independent agency, whose purpose is to decide on applications for export licences to which there may be objections. Since in reality the number of such cases is a tiny proportion of the whole, the general run of export applications should continue to be handled in the same manner as before – that is, by a designated government department taking advice from other affected departments. Only the controversial cases need be taken out of these hands and remitted to the agency. Perhaps the most important factor identifying such cases is where the purchaser is part of, or connected with,51 a country whose human rights record has led to its appearance on the Government’s list of countries of concern. All of them would come before the agency. In addition, a petition by a number of MPs large enough to indicate that there is serious public concern about a particular application outside this category – perhaps 10 per cent – would have the same result.52 For such a system to work, all applications would have to be publicly listed on the Government website, with an adequate period of time allowed for public discussion and collection of signatures to take place. In considering applications, the agency would circulate them to relevant government departments and receive, but not be bound by, their advice. That

49 Recall the statement of former Defence Secretary Michael Portillo: chapter five, above, at p106. 50 The arrangement for the Security Service was formally set out by the Maxwell-Fyfe Directive of 1952; see L Lustgarten and I Leigh, In From the Cold: National Security and Parliamentary Democracy (Oxford, Oxford University Press, 1994) 375–78; the last was announced within days of Gordon Brown becoming Chancellor in May 1997. 51 This phrase is meant to cover instances involving brokerage by someone outside the purchasing State, or any other form of intermediary dealing: the focus must be firmly on the end user and use. 52 Any figure is inevitably somewhat arbitrary, but 10% seems be a sufficient proportion to indicate concern. It is among other things the level of support among members of the National Assembly required under the French Constitution (Art 61) to refer a proposed statute for a ruling on constitutionality.

456  Future Directions advice would, as now, remain secret as there are several kinds of information whose substance, and especially whose source, it would be wrong to disclose.53 Subject to what is said below, the agency would grant or deny the application but unlike present practice, would be required to give public and detailed reasons for any denial. It would also be required to hold public hearings in which the MP who organised the petition in opposition would be permitted to present evidence of the reasons, and be subject to questioning by the agency members. The membership of the agency would be critical. Its work would probably be too time-consuming and specialist for any MP, unless they chose it as an alternative to Select Committee participation. Ideally, members would bring to the work different kinds of relevant experience and expertise, which might range from aeronautical engineering to NGO field work, civil service policy development to academia. Even more ideally, it would be highly desirable that they be chosen by agreement among the major parties (five per cent representation) in Parliament, to avoid the perception that potentially politically contentious decisions were the expression of one point of view. There are attractive arguments for restricting the role of the political branches to laying down policy as clearly as possible, and leaving its application entirely to an independent body, subject only to judicial review. There are equally attractive arguments for leaving the final decision in matters that might have long-term foreign policy or even international security implications to those branches,54 which should also (again, ideally) have a longer term continuity of personnel and institutional capacity to deal with these issues.55 If it is felt necessary that the Executive have the final say in contentious cases, there could be a power of ‘call in’, whereby a designated Secretary of State could decide to take over the matter after the agency had made its determination. The Minister would have the power to reverse the decision, but only on the basis of reasons set out publicly, and in prescribed detail. In so far as those reasons rely on classified material, a summary of that material sufficient to explain its relevance and importance to the decision should be included in the public document. Such an institutional structure would still leave considerable room for a parliamentary select committee to have oversight of policy and decisions of both government and the agency itself; it is not suggested that accountability to Parliament be displaced. Indeed that accountability should strengthen as the contentious decisions would, being separated from the great majority, have a higher salience and therefore be more readily identifiable and probed by the select committee. 53 Most obviously, material gained by UK espionage activities in foreign countries, as to military capabilities and especially violations of international obligations; assessment of potential aggression, and, more generally, disparaging evaluations of various governments and rulers. 54 In some constitutional systems, notably that of Germany, there may be inherent limits, derived from the controlling conception of division of powers, to the extent to which such decisions may be devolved or delegated by the Executive. See Professor Hanschel’s discussion in chapter six. 55 This may be more theoretical than real in the UK, in light of the greatly reduced capacity imposed by a decade of financial stringency and the retirement and churn of officials that has accompanied it.

Institutional Change  457 Moreover, the agency, like the government department, would be taking decisions on export applications, whereas the parliamentary committee would be able to assess the results of any approvals. One would hope that critical evaluations would feed into future agency determinations – a feedback loop that appears to be absent in present practice. Adding this new element to the oversight structure should not displace the scope of judicial review, as undertaken by the English Court of Appeal in the CAAT case.56

B.  International Oversight: A First Step As has been seen, the ATT – the only legal instrument directly regulating the international arms trade – was created devoid of any judicial or other form of enforcement.57 Its only institutional structure is a Secretariat, created as a ‘minimized (sic) structure’,58 which functions as a sort of clearing house for State Parties to send and receive information through its office about measures taken in furtherance of the Treaty. Putting aside the question whether opening the Treaty to any form of judicial interpretation and implementation is desirable, it is nowhere near on the horizon. A more immediately practical means of furthering compliance deserves serious consideration. There is need for an institution wholly independent of all States, reporting regularly to them via the Security Council and General Assembly of the United Nations. In these respects it would conform to the model of the International Atomic Energy Agency (IAEA). It would not have the IAEA’s broad functions, but would exist to investigate the factual basis of alleged Treaty violations, and issue reports of its findings. It would be allowed unfettered access to any areas of materials it deemed relevant to its inquiries. It would not possess any power of sanction, but would serve to alert State Parties and their citizens to any failure of compliance. Its reports may also serve to inform domestic debate within exporting States. Publicity by an institution known to be independent and seen to be authoritative is perhaps the most effective form of accountability possible in an area of operations where States zealously resist incursion into their sovereign powers.

List of References Bartels, L, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005). Corten, O, The Law Against War (Oxford, Hart Publishing, 2010). Kelley, J, Monitoring Democracy (Princeton, Princeton University Press, 2012).

56 See

above chapter five, at pp 127–130. above, chapter 14, at pp 414–416. 58 ATT, Art 18.3. 57 See

458  Future Directions Khaliq, U, Ethical Dimensions of the Foreign Policy of the European Union (Cambridge, Cambridge University Press, 2008). Lustgarten, L and Leigh, I, In From the Cold: National Security and Parliamentary Democracy (Oxford, Oxford University Press, 1994). Reid, E, Balancing Human Rights, Environmental Protection and International Trade (Oxford, Hart Publishing, 2015).Other Publications Stockholm International Peace Research Institute (SIPRI), ‘Trends in international Arms Transfers, 2018’ (Stockholm, SIPRI, March 2019).

INDEX Aggression and instability armaments as deterrence to, 12 blowback, 15 continuation or intensification of war, 13–14 contribution to— conflicting studies, 12–13 generally, 11–15 curbing means of causing, 12 inter-State rivalries, 13 self-defence, aggression as, 12 Allies damage to, 12 Ammunition Arms Trade Treaty, exclusion from see under Arms Trade Treaty EU Common Position, 408 US as world’s largest importer, 407 Arms industry difficulties establishing, 3 Arms supplier effect on— corruption, secrecy and, 20–1 executive decision-making and, 21 generally, 20 freedom of information legislation, benefits, 21 Arms Trade Treaty acceptance, 397 aims, limited, 433 amendment process, 436 ammunition— control system, establishment, 408 diversion, difficulties controlling, 407 failed attempts to include, 406 generally, 406–8 provisions, 407–8 States’ individual controls over, 408 US objections to inclusion, 406–7 application without discrimination, 445 arms transfer— commercial nature, whether, 401 meaning, 400–1 assessment see export assessment below China’s refusal to adopt, 337

compromises to achieve, 433 control system, need for, 419 conventional arms— character or nature, 403–6 exclusions see exclusions below final list, 402–3 grenade, 403 original list, 402 size, importance, 403 corruption, problems caused by, 436 critique see opposition below cyberwarfare technology, 405 defects, 435–6, 457 diversion— assistance— criminal proceedings, in, 422 financial, 423 institutional capacity building, 422, 423 technical material, as to, 422 brokering, and, 420 control system, 419, 422 co-operation and information exchange, 422 duties, 420, 421–2 embargo, where, 420 European Security Strategy, support under, 423 finance sources, checking bona fides, 423 following the money, 423 generally, 11, 419–24 hypothetical scenario, 423 illegal nature, 419 implementation measures, report as to, 423 lack of tough enforcement provisions, 424 methods to deal with, 421–2 national record of exports, duty to keep, 423 overlapping interests of States, 421 possibilities for, 420 post-transfer, control, 422 pre-transfer, control, 422 secrecy and illegality overlapping with, 421 soft or permissive implementation control methods, 424

460  Index enforcement— administrative, 424 control system, establishment, 424 defects, 457 difficulties, 425 dimensions to, 424 evaluation, 426 generally, 424–6 interdiction, no power, 425 international body, no mandate for, 426 judicial, 425–6 methods omitted, 424–5 need for new international body, 457 Secretariat, 423, 457 EU Member States, benefits for, 434 exclusions— ammunition see ammunition above defects in drafting, 404 drones, 404 generally, 401 grenade, 403 guidance systems, 405 helicopters, 404, 409 non-armoured equipment, 404 surveillance equipment, 404, 405, 406, 409 technology, 405, 409 training and transport equipment, 404, 409 export assessment— balancing process, 416–18 difficulties inherent in, 416 generally, 413–14 nature of— Article 7.1.a, under, 414–16 Article 7.1.b, under, 416 generally, 414 humans rights violation, 416 inherent right of self-defence, and, 416 peace and security, potential effect on, 414–16 negative consequences— assessing potential, 414–16 dealing with, 416–18 overriding risk: interpretation of meaning, 417, 418 two-stage process, 414 France, 202 future developments see Future developments generally, 397–8, 433–7 global governance, as measure, 397–8 historical background, 398–400 human rights, and, 406

implementation, difficulties in, 436, 437 India see under India liberal militarism, legitimating, 433 limited ambition, document of, 433 non-discrimination principle, 445 non-State actors, transfers to— Article 6.3, applicability, 430 Article 6.2, whether applicable, 430–1 examples of non-State actors, 432 Firearms Protocol, and, 431 forbidden, where, 430 generally, 432 international agreements, relevance, 430–1 legal argument, 430–2 no restrictions on, 430 objectors see opposition below obligations— available mitigating measures, consideration, 417 balancing process, 416–18 confidence-building measures, 416, 417 diversion, prevention see diversion above export assessment see export assessment above generally, 409, 436 joint programmes agreed with importing State, 416 opposition to Treaty see opposition below prohibitions see prohibitions below omissions, 426 opposition— ambiguity, as fount of manipulation, 428 difficulties in addressing criticisms, 430 exporter’s treaty, viewed as, 427 evaluation— imbalance and discrimination, 427–30 non-State actors, problem of, 430 generally, 397, 426–7 human rights law etc, international nature of, 429 hypocrisy, implication, 428, 429 importing State’s interests ignored, 427 lack of interpretive body, 428 major exporters, interests served by Treaty, 429 non-State actors, transfers to see non-State actors, transfers to above permissive nature of Treaty, 427, 428 resentment among States of the South, 428 selective application of provisions, 427–8 positive features, 434–5

Index  461 prohibitions— corrupt practices, 419 crimes against humanity etc, transfer to commit, 410–13 development of importing State, adverse impact on, 419 diversion see diversion above embargo, violation, 409 gender-based violence, risk, 418 generally, 409–13 Geneva Conventions, transfer to commit breach, 410–13 genocide etc, transfer to commit, 410–13 human rights obligations, 410 international obligations, breach, 409 overriding risk of negative consequences, effect, 417, 418 regional agreements, breach, 410 UN Security Council rulings, 409 war crimes etc, transfer to commit, 410–13 women and children, risk of violence against, 418, 448 ratification, 397 Russia’s refusal to adopt, 313 scope— ammunition see ammunition above assessment, 408–9 conventional arms see conventional arms above exclusions see exclusions above generally, 402–3 list of arms covered, 402–3 US approach to, 401 Sweden’s role in negotiating, 218 United States, 275 Arms transfer advantages for States, 3 ‘balance of terror’ argument, 415 continuation or intensification of war, 13–14 delivery not for profit, reasons for, 4 destabilising effect, 13 deterrence argument, 415 equipment covered by term, 4 ethically-grounded arms trade policy, towards see under Future developments EU Member States, between, 63–4 future developments see Future developments generally, 3–4, 23, 441–2 government promotion of see Government promotion

inevitability and desirability, 4 lucrative nature of trade, 63 need for, 4 political context, importance, 14–15 private dealers, sales to, 56 reasons for, 3, 441 strategic or political factors influencing, 79 supplier see Arms supplier Blowback constitutional, 22 domestic, effect on supplier— corruption, secrecy and, 20–1 executive decision-making and, 21 generally, 20 undermining illegality, 21–2 freedom of information legislation, benefits, 21 generally, 15 result of diversion, 15 Brazil rate of gun deaths in, 5 China Africa, sales to, 331–2, 333, 335 armed drones— case study, 334–5 generally, 332, 334–5 proliferation concern, as, 334, 335 Sharp Sword, 335 types, 334–5 Arms Trade Treaty, refusal to adopt, 337 C-801/C-802 ASCM missiles, 333 customer base, difficulties expanding, 338–9 defence industrial strategy— China Military Strategy, 326 civil military integration— leveraging, 325 national-level strategy, as, 326 Five-Year Defence Plans, 325 generally, 325–7 global networks, linked to, 326–7 Indigenous Innovation, 327 MLP, 325 niche technological developments— political and strategic goals, alignment, 327 search for, 327 Plans, 325, 326, 327 Yujun Yumin, prioritisation, 325 exports— acceleration of sales, 323

462  Index approval— arms control, lack of interest in, 337 lack of regulatory framework, 337 lack of transparency, 337–8 tighter controls, initial draft, 337 armed drones, 332, 334–5 CRS data, 331 dependencies, creation, 323 economic value, 331 foreign policy instrument, 323 impact, 335–8 modernisation of China, 323–4 new markets, development, 323 niche nature of markets, 338 People Liberation Army’s role, 323–4 periods of increase, 327 recent activities, 332–4 recipients, 327–8, 330–2 scruples as to sales, lack of, 335 SIPRI data, 331 statistics, 327–8 strategy— flooding the market, 333 generally, 323, 325 see also defence industrial strategy above tenuous nature of China’s market position, 338, 339 third party re-exports, reluctance to control, 337 threat to other exporters see threat to other exporters, whether posing below ties with China, countries seeking to cement, 331 types, 332–4 unmanned combat aerial vehicles, 328 waves see waves of exports below F-7MG fighter jet, 333 generally, 323–5, 331–2, 338–40 geopolitical and economic aspirations, effect, 340 goals, 441 imports— decrease, 328 ranking, 336–7 types, 328 international arms control, lack of interest in, 337 JF-17 Thunder fighter jet, 332 K-8 trainer jet, 333 Pakistan, sales to, 329, 330, 338 ranking, 305, 306, 328, 331, 339

regional arms competition, acceleration, 339–40 reverse-engineering, reputation for, 300, 330 S-400 air defence system, purchase from Russia, 300 Su-35 fighters, purchase from Russia, 300 technological competitiveness, difficulties, 338 threat to other exporters, whether posing— European exporters, 335–6 Russia, 336–7 US, 337 unmanned aerial systems and armed drones, 332 US, challenges to, 339, 340 waves of exports— commercial, 329–30 competitive, 330–1 Four Modernisations, 329 generally, 327–31 geopolitical, 329 ideological, 329 military considerations, importance, 329 National High Technology Program, 329 WZ-551 armoured personnel carrier, 333 Yuan-class submarine, 332 Colony former see Former colonial territory Common Position adoption, 69 ammunition, 408 annual arms data report— contents, 97 difficulties in analysing, 98–9 dual-use goods, exclusion, 98 duty to submit, 97 generally, 97–9 arms export data, complexities, 97–9 case-by-case decision making, 34 characteristics, 49 denial of sale under, 12 economic and social impact, attempt to alleviate, 16 EU legal enforcement measures not affecting, 48–9 failure to follow, no sanction following, 145 France, implementation in, 203 generally, 7, 48, 64–5, 69 information to be circulated under, 55 judicial review, exclusion, 48 legal vacuum of non-enforceable norms resulting from, 49

Index  463 structural ambivalence underpinning, 70 variation and inconsistency, 54–9 Corruption areas of corruption, 445 barring sales achieved by, 445–7 Criteria— Criterion Eight, 96, 446 new Criterion, need for, 445–6 diversion, use of see Diversion EU Member States— in, 55 sales between, 9 generally, 8–10 Middle East, sales to, 9–10, 445 normal way of doing business, where, 446 purpose of transactions, as, 8 Saudi Arabia— exports from UK to see UK (corruption, exports to Saudi Arabia) lucrative area, 445 secrecy, effect, 20–1 South Africa, sales to, 17–18 Criteria approval, scales weighted in favour, 71 arms export data, complexities, 97–9 case-by-case decision-making, 31–2 Common Position see Common Position constitutional framework— generally, 44–50 see also Common Position corruption in Member States, 55 Criterion— One— future developments, potential for, 444 international obligations, avoiding conflict with, 72–3 procedural obligation, as, 73 Yemen, export of arms to, 72–3 Two— assessment, need for, 450–2 enhancing, 449–52 ‘facilitation’, advantages of adding term, 449 future developments, potential for, 444, 448–9, 449–52 generally, 73–5 human rights violations see human rights below internal repression see internal repression below predicate conditions, satisfying, 76

Three— accession to power, relevance of means used, 452 exception to prohibition, need for, 452 fairly elected government, where, 452 future developments, potential, 452 generally, 88–90 provocation or prolonging of conflicts, 88–90 restrictive nature, 452 Four— aggressive use, risk, 91 future developments, potential, 452 preservation of regional peace, security and stability, 90–1, 452 Five— blowback, addressing, 92 defects, 453 future developments, potential, 453 generally, 453 matters for consideration, 91 national security, protection of, 91–2 rare use, 91 Six— behaviour of buyer country, need to consider, 92–3 failed nature of, 93 future developments, potential for, 444, 453 matters for consideration, 92 Seven— diversion or re-export, risk of, 93–5 end use, relevance, 94 end user, relevance, 94 future developments, potential for, 444 illicit markets, arms reaching, 94 matters for consideration, 93, 95 rare use, 95 Eight— compatibility test, 96 contents, 96, 447 defects, 447, 448 future developments, 447–8 matters for consideration, 96 rare use, 96 critique by European Parliament, 49 differing processes among States, 71 diversion, risk, 55–6, 93–5 effectiveness— defects, 50 differing interpretations, 54

464  Index Egypt, sales to, 52 generally, 50 Gulf States, sales to, 52 ignoring Criteria, 50–4 Libya, sale of arms to, 50–2, 56 mixed signals, governments sending out, 52 monetary gain, importance, 53 Sri Lanka, sales to, 53–4 terrorism, 53 Tunisia, sales to, 52 enhancement, possibilities— Criterion Two, 449–52 Criterion Three, 452 Criterion Four, 452 Criterion Five, 453 Criterion Six, 453 generally, 453–4 France, 203 future developments— anti-corruption Criterion, suggested adoption, 446, 447 corrupt means, barring sales achieved by, 445–7 Criteria, eliminating selective application, 445 eliminating selective application, 445 enhancement of Criteria see enhancement, possibilities above generally, 444–5 misuse of resources, addressing, 447–8 non-discrimination, eliminating selective application, 445 generally, 7, 43, 69–70, 71, 97 human rights— competent bodies’ findings, 88 co-operative approach, need for, 80 countries of concern, 450 differentiating States, 450 diversion of arms, risk, 449 evidence gathering, 451 internal repression see internal repression below misuse of equipment, genuine possibility, 450 need to respect, 73–4 serious violation— assessment, 449, 451–2 ‘clear risk’ test, 76–7 conditions to be satisfied, 76 difficulties defining, 75

EU governments’ failure to apply correct test, 76 evidence of NGOs, 451 generally, 75–80 Yemen, in, 77–9 internal repression— arms for, 73–4, 80–4 assessment, 449 case-by-case approach, limits, 85 ‘clear risk’ test— application, 77 generally, 449 removal, 87 complexities, 84–8 danger of misuse, 88 economic and strategic considerations, 83–4 end uses and end users, differentiation between, 85–6 examples, 84–5 human rights conditionality, 86 meaning, 84 moral considerations, 80–3 non-intervention principle, 81–2 paradox of lockdown, 85 presumption of denial, 86–7 prevention, 87–8 procedure and evidence, critical importance, 88 realpolitik approach, 81, 83 reverse burden of proof, 86–7 sovereignty problem, 80–4 weapons not used for, 85 ‘Westphalian’ view, 81 legally binding nature of, 48 lucrative nature of trade, where Criteria met, 63 national security, protection of, 91–2 policy underpinning, 70–1 predictive and preventative nature, 71 private dealers, sales to, 56 provocation or prolonging of conflicts, avoidance, 88–90 re-export, risk, 93–5 regional peace, security and stability, preservation, 90–1 risk, role of, 32 structural ambivalence underpinning, 70 UK Statement, 70 use in other countries see future developments above User’s Guide, 57–8, 64

Index  465 Defence-related products lucrative nature of trade, 63 Developing nations countries constituting, 17 economic aid used to purchase arms, 17 important market for arms exports, as, 16–17 Diversion ammunition, difficulties controlling, 407 Arms to Iraq scandal, and, 11 Arms Trade Treaty, and see under Arms Trade Treaty blowback following, 15 capacity building, 11 Criterion Seven, and, 93–5 denial of export approval, 11 dimensions, 94 embargo, in case of, 11 example, 10 frequent use to refuse export licence, 95 generally, 10–11 means of combatting, 11 risk, 55–6 Domestic security maintenance, 3 Economic and social impact attempts to address problem, 16–17 developing nations as important market for arms, 16 EU laws to alleviate, 16 generally, 15–19 sacrifices by Northern States, need for, 19 specious arguments in addressing, 18 US laws to alleviate, 16 Embargo diversion see Diversion EU, imposition by, 59–60, 65 German compliance with, matters affecting, 60 timing, 14 use, 11, 31 Uzbekistan, against, 59–60 European exporting states activities undertaken by EU, 43–4 Cold War, effect of end of, 46 Common Position see Common Position Criteria see Criteria size of exports, 43 unity when imposing embargo, need for, 65

European Union see also European exporting states activities undertaken by, in connection with exports, 43–4 ancillary machinery, establishment, 57 annual arms data reports, submission by Member States, 97–9 arms sales within Union— exempted items, 63 facilitating, 63–4 forum shopping, 63 Code of Conduct, adoption and development, 47–8 constitutional development, 45 Court of Justice, deference to national sovereignty, 46 Criteria see Criteria dual-use exports, regulation, 61–2 embargo, imposition— Commission’s oversight of, 60 generally, 59–60 German compliance, matters affecting, 60 studies, 59–60 unity, need for, 65 Uzbekistan, against, 59–60 European Parliament’s role, 49–50 generally, 64–5 goals, 441 harmonised approach, search for, 47 moral considerations etc, effect of inclusion, 47–8 original nature, 45 public and parliamentary transparency, improvements in, 58–9 restrictive measures, 59 TFEU— Article 346, 44–6 consensus, decision by, 48 majority voting, 48 torture or ill-treatment, prohibition where, 62–3 User’s Guide, 57–8 whether approach valueless, 57 yearly reports, States’ duty to publish, 58 Export approval decision case-by-case decision making, 31–2 contracts, fall-back of honouring, 36 Export Control Order 2008, 36 generally, 27–30 licence, power to revoke, 36–7

466  Index risk assessment— force majeure clause, 37n42 future behaviour, predicting, 33–4 generally, 32–7 information, importance, 33, 35 judgments involved in, 32–3 monitoring procedures, 35–6 past conduct, inadequate weighting to, 34 present-centred approach, weaknesses, 35 risk: meaning, 33n25 theoretical risk, 35 UK’s approach to, 34–5, 36 suspension— Arab Spring, 125 whether human rights infringed, 125 Force majeure clause inclusion, 37n42, 125 Foreign policy see also Government promotion effect on exporter’s, 22–3 export approval decision see Export approval decision international social reputation concerns, lip-service to, 29 judicial review of decisions, 28 parliamentary involvement, increasing, 28 Former colonial territory difficulties in restricting sales to, 18 purchase of arms by, 8, 18 France annual report on benefits of exports, 186 Australia, exports to, 187, 190 Brazil, co-operation with, 193 Common Position, implementation, 203 control over exports— administrative, 193–4 foreign affairs, 196 Government’s power to suspend or cancel, 197 judicial review, 196–7 legal provisions see legal provisions below Ministerial, 194–5 Parliamentary, 194–6 types, 193 Criteria, use of, 203 economic benefits— employment benefits, 189 examples, 187–8 firms involved in, 188 generally, 187–90 growing contribution, 190–1

imports, 189 ITBD, 189 prime purpose of exports, 187 ranking of orders to companies, 188 SANDIE directory, 189 State as major shareholder, 189–90 State protectionism, 189–90 Egypt, exports to, 181, 187, 190, 197, 198 EU countries, exports to, 182 executive, legislative and judicial powers— generally, 193–7 see also control over exports above generally, 179 imports, 189 India, exports to, 187, 198 international regulations— Arms Trade Treaty, 202 generally, 202–3 nuclear and chemical weapons, as to, 202 UN regulations, 202 Wassenaar Arrangement, 202 leading exporter, as, 179 legal provisions— Common Position, 203 Constitution, 179–81 Criteria, 203 Decree 2016-361, 182 Defence Code, 182 domaine réservé, 180, 181, 193 embargo violations no regulations as to, 202–3 generally, 179–82 Interior Security Code, 182 international regulations, 202–3 parliamentary powers, 180, 181, 193 Presidential powers, 180, 181, 193 Procurement Law, 182 licensing process— conditions or restrictions, 185 cross-ministerial process, 184–5 End-Use Certificate, 185–6 export licence, 182 general licences, 183–4 generally, 183–6 global licences, 184 good faith and reliability of purchasing state, need for, 186 individual licences, 184 NRC authentication, exemption from, 185–6 transfer licence, 182 main customers, 187

Index  467 media attention and public debate— condemnation of end destination, 198 economic issues, focus on, 198 generally, 197–9 Le Figaro, purchase by arms manufacturer, 198 limited discussion, 199 Luchaire-gate, 199–200, 201 Yemen, situation in, 198 non-EU countries, exports to, 182 political and economic factors influencing exports, 186–7 prohibited exports, 182 public attention and media debate see media attention and public debate above public regulation of industry, 190 Qatar, exports to, 181, 187, 190, 198 ranking, 305, 306, 339 Russia, cancellation of contract with, 197 scandals— Angola-gate, 200 Argentina, sales to, 199 generally, 199–201 industrial compensation, 200–1 Iran, exports to, 201 Karachi terrorist attack, 200, 201 kickbacks, 201 Luchaire-gate, 199–200, 201 offset agreement, 200–1 political parties’ funding, 201 Rafale contract, 200–1 Taiwan frigates, 200 technology transfer, 192–3 Freedom of information legislation, advantages for arms suppliers, 21 Future developments corruption, barring sales achieved by, 445–7 Criteria, use in other countries see Criteria (future developments) enforcement procedures, new body required, 457 ethically-grounded arms trade policy— EU, in, 442 generally, 442–4 Geneva Conventions, effect, 443 human rights, non-violation, 444 international law obligations, acceptance, 443 jus ad bellum, application, 443 jus in bello, application, 443

peaceful settlement of international disputes, commitment to, 444 UN Member States’ commitments, 444 generally, 441–2 human rights, 442 institutional change— domestic accountability, strengthening, 456 international oversight, 457 political influence, need to avoid, 455 undue Executive influence, ending, 454–7 UK, in see UK (institutional change, need for) international oversight, 457 misuse of resources, addressing, 447–8 UK, in see UK (institutional change, need for) violence against vulnerable groups, addressing, 448–9 Germany arms control, legal framework— balancing of human rights and national security, 157 Basic Law, 158–60, 163–4, 167 Code of Conduct on Arms Exports, 156 Common Military List of the EU, 156, 157 Common Position, 156 Constitution, 158–60 embargoes, 154–5 European law, influence, 155–8 Federal Constitutional Court’s analysis, 160 Franco-German co-operation, 157–8 generally, 152 relevant standards of international law, 152–5 suggested developments, 175 TFEU, 155–6 tight legal control regime, 173 declining number of exports, 169–70 economic value of exports, 151, 173 EU or NATO countries, exports to, 174 generally, 149, 173–6 historical and political background, 150 human rights violations, limited checks, 170 interconnected nature of world, 176 judicial scrutiny, 163, 173–4 Kurds, exports to, 171 legislation see arms control, legal framework above

468  Index licensing— discretionary decision-making, 175 generally, 173 institutions— competence, transfer, 164 Federal Constitutional Court’s ruling over exports, effect, 164–7 Federal Security Council, 164, 165, 166, 167, 171, 174, 175 generally, 164–7 Parliamentary Control Body, 166, 175 parliamentary oversight, 165–6, 173, 175 policy see policy level below reporting, 175 system see statutory export licensing system below litigation— court cases, 163 locus standi, need for, 164 markets, 151 ministerial control, 151–2 policy level— arguments to restrict exports, 170–1 generally, 167 guiding principles, 167–8 human rights violations, limited checks, 170 Kurds, exports to, 171 pacifism, and, 173 political practice, 168–73 reduction of arms exports, deliberate, 170 Saudi Arabia, exports to, 171–2 US pressure, effect, 173 ranking, 149, 305, 306, 339 restrictions, 151–2 Saudi Arabia, exports to, 163, 171–2, 174 scrutiny in general, 149 statutory export licensing system— denial of licence, reasons, 162 Dual Use Regulation, 163 exports from EU, 163 items covered by, 162–3 judicial decision-making practice, 161 legislation, 161 licensing institutions see under licensing above litigation see litigation above ordinances relevant to, 163 Political Principles, 161, 163 procedures, 161–4 required licences, 161–2

revocation of licence, 162 trade restrictions, justification for, 162–3 technological benefits, 174 trade restrictions, justification for, 162–3 Turkey, exports to, 171 Government promotion ambiguous morality etc, 29 ambiguous use of language, 29–30 case-by-case decision-making, 31–2 considerations driving, 27–30 Criteria see Criteria export approval decision see Export approval decision generally, 27–30, 37–8 judicial review of decisions, 28 legal restraints— need for, 37 oversight, 37–8 public policy, purpose, 30 risk assessment see under Export approval decision Human rights see generally under names of individual countries Arms Trade Treaty, 406, 410 EU Criteria, and see under Criteria exclusion from export decisions, 442 generally, 442 United States see under United States India AEWC systems, 353 Akash SAM missile system— induction into air force, 352 possible sales, 352 ambitions— financial targets, 351 generally, 351–3 joint ventures, 353 potential recipients, 352 strategy see Strategy for Defence Exports below types of weapons, 351, 352, 353 unrealistic nature, 351 Arjun Mark II tanks— export potential, 353 unreliability, 356 Arms Trade Treaty— defence co-operation agreements, whether voidable, 377 domestic policy, effects on, 378 entry into force, 375

Index  469 generally, 375, 381 illicit arms flows, concerns over, 376 importing countries’ rights, concerns over, 377–8 India’s evolving position, 375–6 national polices, effect on, 378–9 objections to, 376–9 onerous documentation requirements, objection to, 377 potential intrusiveness, 378–9 refusal to sign, reasons for, 375–6 rights and obligations, whether balanced, 377 scope, 375, 378 terrorism, concerns over, 376–7 UN votes on, India’s record, 376 ‘under review’, currently, 379 autonomous weapons, 379–80 control— aspects, 362 authorisation, grant, 381 dual-use items see SCOMET below evolution, 362–5, 381 executive’s powers, 380–1 generally, 362 indigenous sensitive systems, 371 legal basis, 362, 364–5 licensing system see licensing system below military stores see military stores below monitoring and enforcement, 372–3 process, 363 rational behind, 364 technology imports, facilitation, 381 defence industry– attempts to improve, 361 nature of, 345 dual-use items see SCOMET below enforcement and monitoring, 372–3 exports— Afghanistan, to, 351, 356, 380, 381 ambitions see ambitions above controls see controls above covert, 347 economic importance, 380 evolution— generally, 380 International Defence Exhibition, participation in, 349 non-lethal items, 348 poor quality, 347 potential customers, identifying, 349 service and maintenance of aircraft, 348

Table of early sales, 346 targets, setting, 348 1970s, up to, 346–7 1980s and 1990s, in, 347–9 1990s onward, 349–51 generally, 344–5 motivations see motivations for exports below Myanmar, to, 350–1, 355 non-commercial, 380 non-lethal equipment, 345 obstacles see obstacles to export growth below process, types, 362 relationship with imports, 361 South Africa, to, 347 statistics, 344–5 strategy see Strategy for Defence Exports below types, 345, 346, 349, 350, 351 unreliable and limited nature of data, 344 foreign technology, increased access to, 362–3 generally, 343, 380–1 goals, 441 importer, as— consequences, 355 generally, 343 joint ventures, 355 relationship between exports and imports, 361 sources, 360 third party sales, effect on, 355 international regimes— Arms Trade Treaty see Arms Trade Treaty above Australia Group membership, 375 autonomous weapons, 379–80 factors shaping India’s approach, 373 generally, 373 increasing harmonisation with, 381 MTCR membership, 374, 375 Nuclear Suppliers Group membership, 374, 375 strategic export control regimes, 373–5 Wassenaar Arrangement membership, 374, 375 legal framework— development, 380 generally, 362, 364–5

470  Index international regimes see international regimes above see also controls above licensing system— FTDRA, under, 364–5 generally, 365 list of specified items, 365 military stores see military stores below procedures in case of overlap, 364 military stores— DESC involvement, 367 End-User Certificate, 366 examples, 365 generally, 365 No Objection Certificate, 366–7 parts of control procedure, 366 recipient on ‘negative list’, 366 SCOMET list, overlap, 368 Wassenaar Arrangement Munitions List, 365 minor exporting role, 343, 344 motivations for exports— competitiveness, improvement, 360 defence capability, improvements in, 360–1 economic, 359 generally, 357 import dependence, reduction, 359–61 local manufacturing, boost for, 360 political, 357–9 politico-economic factors, 359–61 resources for local design etc, as means of acquiring, 360 self-reliance and indigenisation, maximising, 361 non-proliferation credentials, reinforcement, 362–3 obstacles to export growth— diversion and misuse, 356–7 foreign technology constraints, 355 generally, 354 import-dependence, effect, 355 moral and ideological constraints, 354 prioritisation, 357 quality constraints, 356 reliability constraints, 356 technology diversion, 357 Pragati missile, 352 ranking, 344 refusal to sell weapons, 354 SCOMET— increased exports, 370

licences— Denied Entities List, 370 End-User Certificate, submission, 369 generally, 368–70 issue on case-by-case basis, 369 non-nuclear-related, 368–9 nuclear-related, 368 statistics, 370 streamlining of process, 370 list— conventional arms exports, and, 368 generally, 367–8 harmonisation with MTCR and NSG annexes, 368 items covered by, 368 overlap with military stores, 368 revision, 368 Strategy for Defence Exports— indigenous sensitive systems, 371 Modi’s initiative, as part of, 353 self-reliance and indigenisation, maximising, 361 steps within, 353 technology denial regime, advantages of moving towards, 362 Tejas— indigenous content, effect, 355 induction into air force, 351 interest shown in, 352 United States, effect of rapprochement with, 381 Internal repression examples, 6 generally, 6–8 Northern supplier countries, attitudes in, 7 Responsibility to Protect, 7 International humanitarian law violations, 19–20 Yemen, war in see under Yemen International law Arms Trade Treaty see Arms Trade Treaty Articles on State Responsibility, 392–3 ‘but-for’ test, 393 complicity in international wrongdoing, 391 European human rights law, 393–5 facilitation requirement, 392–3 generally, 387 Geneva Conventions humanitarian— violations, 19–20 Yemen, war in see under Yemen knowledge of wrongful act, need for, 392

Index  471 landmines, indiscriminate, 394 liability in general see Liability Ottawa Convention, 403 remoteness, in ECHR decision, 394–5 state responsibility, 391–3 Wassenaar Arrangement see Wassenaar Arrangement Landmine Ottawa Convention, 403 ratification, 403n32 Liability civil— delict, 390 doctrinal obstacles, 390–1 generally, 390–1 human rights violations, 390 intervening conduct, effect, 391 jurisdictional obstacle, 390 negligence, need for, 390 omissions, no tortious liability for, 391 third party’s acts, liability for, 391 unreasonableness, difficulties proving, 390 use of security forces to suppress opposition, 390 criminal— ancillary liability, 389 Annual Reports on Strategic Export Controls (UK), 388 corporate liability, difficulties, 389 domestic law, as matter of, 388 generally, 388–9 ‘internal repression’, difficulties in use of term, 389 International Criminal Court, limited use, 388 monist states, prosecutions in, 388 national laws, prosecutions under, 388 rare use, 389 Rome Statute, 388–9, 448 Light weapons see Small arms and light weapons References and publications arms trade— future developments, 457–8 generally, 23–5 governing, 38 regulation beyond national borders, 395–6 Arms Trade Treaty, 437–8 China, 340–2 EU legislation, 65–7, 99–100

France, 204–5 future developments, 457–8 Germany, 176–7 India, 381–4 international law, limits on effectiveness, 395–6 Russia, 317–21 State responsibility, 395–6 Sweden, 234–5 UK, 147–8 United States, 287–91 Responsibility to Protect implementation etc, 7 Risk assessment see under Export approval decision Rule of law subversion in UK, investigation into BAE, 21–2 Russia accountability, lack of, 317 Arms Trade Treaty, non-participation, 313 Azerbaijan, refusal to sell arms to, 301 basic law on exports, 298–9 CAST’s role, 303 China— competition from, 310, 317 importance of exports to, 307–8 combat deployment, benefits from, 317 controls— Foreign Ministry’s role, 301–2 institutional framework for see institutional framework below lists of weapons and countries see lists of weapons and countries below defence industrial base, strengths, 317 exports— competition, growing, 310, 317 controls see controls above lists of weapons and countries see lists of weapons and countries below promotion, 312 sanctions to deter, 314 scale and structure see scale and structure of exports below terms of payment, 312 US pressure to deter, 314–15 Federal Assembly’s role, 302–3 Federation Council’s role, 302–3 FSTEK— answerable to President, 298 Commission for Export Control, and, 299 directorate within, 299

472  Index duties, 299 funding, 298 generally, 298–301, 316 offices, 298 powers, 299 staff, 298 unified information system, 299 FSVTS— annual report on sales, 304 creation, 297 generally, 296–7, 316 membership and staff, 297 oversight of activities, 298 role, 296–7 submission of draft list to, 300 generally, 293, 316–17 goals, 441 historical background— developments post-1991, 295–6 Soviet Union arms export system, 293–5 illicit trading of weapons— ANT affair, 313–14 Congolese rebel fighters, Presidential edict, 313 FARC fighters, 314 moves to prevent, 313 scandals, 313–14 Victor Bout’s arrest and trial, 314 imports, 311 India— importance of exports to, 307 S-400 air defence system, 312, 315 institutional framework— Commission overseeing exports, 296 Foreign Ministry, 301–2, 316 FSTEK see FSTEK above FSVTS see FSVTS above generally, 296–8 Ministry of Defence’s role and structure, 298, 316 President’s involvement, 296, 316 regulative framework, nature of, 316 responsibility for sales, 297 Rosoboroeksport’s role and structure, 297–8, 304, 312 Security Council’s role, 302 less complex nature of weaponry, 309–10 Libya, opposition to lifting of embargo, 302 licensing system, relevant items, 299

lists of weapons and countries— export specification for included items, 300 FSVTS, management by, 300 generally, 299–300 MID, management by, 300 Presidential approval, need for, 300 proposals for inclusion on, 300 media’s approach, 303 opinion polls, 303–4 Parliament’s role, 302 public accountability, 304 public engagement, limits to, 303–4 ranking, 293, 305, 306 regulative framework, nature of— generally, 316 see also institutional framework above robust nature of weaponry, 309–10 Rosoboroeksport— creation, 297 official data published by, 304, 305 role and structure, 297–8, 304, 312 sanctions to limit activities, 314 sanctions imposed on— effect on customer countries, 317 effect on Russian openness, 315–16 Russian response, 315–16 US and EU, by, 314 S-400 air defence system— China, sale to, 300 India, to, 312, 315 Turkey, sale to, 312 scale and structure of exports— air defence systems, importance, 309 aircraft as leading export, 309 changing geography of exports, 307–8 criticism of SIPRI statistics, 308 foreign trade, as share of, 310–11 generally, 304–11, 316, 317 ground forces equipment, 309 naval vessels, decline, 309 official data— difficulties interpreting, 304 FSVTS, provision by, 304, 305 increasingly sparse nature of, 308 Rosoboroneksport, by, 304, 305 SIPRI’s statistics, 305 Tables see Tables below UN Register of Conventional Arms, report to, 310 well-organised and centralised system, 316 self-reliance, as policy approach, 317

Index  473 State Duma’s role, 302, 303, 317 Su-35 fighters, sale to China, 300 Tables— arms exports, 306 structure by service, 309 structure of arms exports, 307 volume of military-technical co-operation, 305 TsAMTO’s role, 303, 305–6 Turkey, sale of S-400 air defence system to, 312, 315 UN embargoes— opposition to proposals to lift, 302 scrupulous observation, 301, 316 threatened embargoes, approach to, 301–2 UN Register of Conventional Arms— report to, 310, 316 support for, 313 Sanctions embargo, use of, 10 Saudi Arabia condemnation by French media, 198–9 EU Parliament request for embargo, 203 Khashoggi murder, effect on arms sales, 78, 219 sale of arms to, 77, 78 self-defence, whether weapons used in, 267–8 UK sales see under UK United States’ sales see under United States Yemen, atrocities in see Yemen (war in) Scott inquiry generally, 21 Self-defence aggression as, 12 States’ right to, 3 South Africa sales to, corruption, 17–18 Small arms and light weapons advantages, 5 areas prevalent in, 5 conflict diamonds, payment via, 5 generally, 4–6 organised criminal violence, 6 payment for, 5 right to bear arms, 6 victims, 5 weapons of mass destruction, as, 5 Spain financial importance of arms trade to, 23 Saudi Arabia, sales to, 78n42

Surveillance equipment dual-use goods, as, 405 Wassenaar Arrangement, regulation under, 404 Sweden arms producers, 213 Arms Trade Treaty, role in negotiating, 218 Botswana, sales to, 212 Brazil, sales to, 214 controls— annual report from ISP, 226 challenges, difficulties in raising, 227 changes to system, 225 consensus among stakeholders, 225 control list, 223–4 criteria see under licensing system below foreign and security policy see foreign and security policy below framework, 223–5 generally, 207–9, 233–4 ISP, role, 223, 225, 226 judiciary’s role, 226 licensing system see licensing system below Military Equipment Act, calls for, 225 national narratives, 233 opposing views, attempts to balance, 233–4 opposition to exports see opposition to exports below process, 226–9 prohibitive nature of legislation, 223, 227 regulatory framework, 223 transparency, 226 depoliticisation of exports, 225 employment statistics, 212–13 foreign and security policy— Defence and Security Export Agency, 212 defence industry, exports supporting, 212 Euro-Atlantic partnership Council membership, 210 exports to pay for imports, 212 generally, 209–13 government support for exports, 212 Gripen-E combat aircraft, 211–12 inter-operability of armed forces, 211 NATO membership, 210 non-alignment see non-alignment policy below Partnership for Peace membership, 210 purchases from European suppliers, 211 reductions in defence budget etc, 210–11 foreign ownership of arms firms, 210

474  Index generally, 207–9 India, sales to, 212, 214 licensing system— consensus approach, 228 criteria— armed conflict, avoidance, 229, 232 assessment, 229, 232 commitments from importers, 230–1 Common Position, 230 follow-on deliveries, 230 future developments, 232 generally, 229–32 human rights, protection, 229, 232 identity of product, effect, 231 inspections controls, 232 international agreements, contravention, 229 joint development etc with foreign partner, 231 Military Equipment Act, 229 overriding principles, 229, 232 restrictions, 230 depoliticisation, 228 duties, 224 Export Control Council’s role, 227–8 information-sharing with EU etc, 225 ISP oversight, 223–5, 226, 227 pre-application process, 224 rarity of licence denials, 225 revocation of licence, 224 submission of reports, 224 non-alignment policy— Cold War, during, 209–10 departure from, 208, 210 historical background, 217 post-Cold War, 209, 210, 218 restrictive approach, leading to, 217 see also opposition to exports below opposition to exports— Arms Trade Treaty negotiations, 218 Cold War debate, 217 difficulties in challenging decisions, 227 end-use controls, need for, 218 historical background, 217 non-alignment policy, departure from, 218 Parliament’s role, 227 political and public, 217–20 political parties’ views, 220 public opinion survey, 220 review of controls see review of controls below Saudi Agreement, 219, 220

scandals, 217, 218, 220 sensitive destinations, exports to, 219 stricter standards, need for, 218 see also non-alignment policy above ‘organised hypocrisy’, 209, 233 Pakistan, sales to, 214 political debate, 207–8 ranking, 207 review of controls— generally, 220–2 inquiry chair, appointment and role, 232 parliamentary inquiry— appointment etc, 221 legislation following, 222, 228–9, 232 Military Equipment Act, calls for, 225 recommendations and responses, 221–2, 225, 228–9, 232 report, 221 scandals, following, 220 Saudi Arabia, exports to, 219–20 size and composition of exports— charts— exports by recipient country, 216 value of exports and export licences, 214 conservative approach to arms sales, 215 decreasing nature of exports, 215 generally, 213–16 main arms producers, 213 recipient countries, 215 sources of data on arms exports, 213, 214 types of weapons produced, 213 value of exports, 213–14 types of weapons produced, 213 UAE, sales to, 214, 219–20 United States, sales to, 214 Transit meaning, UK aerospace sector, predominance, 106 Annual Reports on Strategic Export Controls, 388 BAE— bribery see corruption, exports to Saudi Arabia below dominant nature of, 106 investigation into, 21–2 political influence, 106 Saudi Arabia, shipments to see corruption, exports to Saudi Arabia below

Index  475 Brexit, likely impact, 144–6 bribery see corruption below Code of Conduct, role in EU introducing, 111 corruption, exports to Saudi Arabia— abandonment of investigation, 133 amount of bribes, 131n137 forensic analysis of abandoned case, 133–5 generally, 131–5 international politics, need to consider realities, 133 national interest, whether investigation posing threat, 132 Prime Ministerial representations, 132, 133 public interest dimension, consideration, 132 rule of law, flouting, 133 terrorism risks, 132–3 UK constitution, damage to, 135 widespread nature of corruption, 135 employment generated by arms exports— approach to estimating jobs— calculation method, 142–3 generally, 139–40, 143–4 industrial groupings, 141 size of UK arms trade, information sources, 140–1 uncertainties, 143 difficulties in estimating, 137 existing information, 137–9 figures from 2006–2007, 137 generally, 136–7 percentage of numbers employed, 144 enforcement practices, details, 388 exports, percentage contribution to, 143–4 features of arms trade, 103–5 future developments see institutional change, need for below GDP, total contribution to, 143 generally, 103–5, 136 history of UK arms exports— ‘Arms to Iraq’ affair, 108–9 Coalition, under, 112 Criteria, frequency of invoking, 113–14 decline, 106–7 dominance, 106 ethical foreign policy approach, 110–11 foreign policy considerations, 107 generally, 106–14 Matrix Churchill trial, 108–9 prosperity agenda, prioritising, 112

resistance to arms sales, 107–8 Robin Cook, changes effected by, 110–12 Saudi Arabia, sales to, 109–10 SDSR, 113 South African embargo controversy, 108 human rights situations, annual review, 111 institutional change, need for— arms manufacturer lacking power to influence, 455 call in by Secretary of State, 456 domestic accountability, strengthening, 456 ending undue Executive influence, 454–7 Executive’s say in contentious cases, 456 independent body— cases to be handled by, 455 membership, 456 nature of, 455 need for, 455 procedure adopted by, 455–6 status, 455 judicial review, 457 oversight by parliamentary select committee, 456, 457 proper application of rules, 455 judicial review— corruption see corruption above export licence approvals— absence of reported cases, 124 Arms Trade Treaty, exclusion, 124 Closed Material Procedure, 128, 129 Courts’ residual role, 131 Criteria and User’s Guide, importance, 130 evidential issues, 127 generally, 123–30 irrationality as high threshold to cross, 127 judicial approach to deciding case, 127–9, 130–1 judicial intervention, limited scope for, 130 lack of proceedings for, 125 limited grounds for, 123–4 past conduct, evaluation of, 129 prima facie case, need for, 127 procedural changes, non-disclosure, 130 public interest case, bringing, 125 review of past approvals, 129 right to mount challenge, 125

476  Index Saudi Arabia, shipments to, 127–30 secrecy, difficulties posed by, 126 Tameside duty, 128 use, 457 legal challenges— generally, 136 judicial review see judicial review above licensing system— administrative structure, 114–16 applications— numbers, 116 submission, 116 Arms Control Unit’s role, 115 consensus, premium placed on, 115 Criteria, use of, 117 decision-making, responsibility for, 117, 122 delay or pre-delivery review mechanism, need for, 117–18 FCO advice, 115 judicial review see judicial review above legal structure, 116–18 matters for consideration, 115 reactive role of retrospective scrutiny, 118 ‘red flag’ cases, rarity, 115 suspension— Arab Spring, 125 whether exporter’s human rights infringed, 125 types of licence, 116 Parliament’s role— CAEC Reports etc, 119–23 Committees, 118–19 generally, 118–23 reasoned criticism, offering, 122 ranking, 103, 305, 306, 339 role of arms trade in UK economy, 105–6 Saudi Arabia— bribery see corruption, exports to Saudi Arabia above dependence on, 136 largest customer, 103 subversion of rule of law, investigation into BAE, 21–2 transit: meaning, 11n33 United Nations embargo, imposition after outbreak of violence, 14 purpose, 12 Register of Conventional Arms Transfers, 275

United States annual report, submission by defence firms, 254 Arms Export Control Act— amendments, 244–7 background, 243 changes brought about by, 243 Congress’s powers, 245, 248 controls effected by see controls below executive’s role, 244, 245 generally, 243–6 human rights, importance, 244, 247 judicial challenge, 274 legislation prior to, 240–2 legitimate uses for arms transfers, 243 monetary ceiling, 243 non-delegation principle, whether violating, 274 sanctions, criteria justifying, 244–5 US Munitions List, 244 Arms Trade Treaty, 275 arms transfers see exports below Blue Lantern program— basic EUM, 266 bureaucratic limitations, 267 checks— examples, 266 post-shipment, 266 responsibility for performing, 266 staffing levels, 267 statistics, 266 generally, 266–8 legitimate military target: meaning, 268 responsibility for running, 266 self-defence, use for, 267–8 unfavourable result— classification, 267 responses, 267 bribes etc, legislation to prevent, 276 CIFTA, failure to sign, 275 civilian ownership of guns, 406 controls— Congress’ role, 241, 242, 245, 246, 248 conventional weapons to discourage nuclear, 240 consequences, need to consider, 243 corruption, legislation to prevent, 276 decision-making process see decisionmaking process below economic and social development of recipient country, importance, 244 evolution, 276

Index  477 executive’s role, 240, 244, 248 extraordinary circumstances overriding, 244 human rights see human rights below lack of legislative oversight, 239–40 Obama administration, under, 239, 248 permissive nature, 239 post-Cold War approach, 240 President Carter, changes effected by, 245, 248, 250 President Obama’s approach, 248, 255–6 President Trump’s approach, 249–50 presidential powers, 248 waiver, examples, 247 decision-making process— Congress’s role, 257–9 executive’s role— Australia, special terms for, 254–5 blocking deals, difficulties, 254 decisions to be made by purchaser, 251 Direct Commercial Sales, purchase through, 252, 253 end-use monitoring see end-use monitoring below Export Administration Review Board, 254 first stage, 251 Foreign Military Financing, 253 Foreign Military Sales route, 251, 252–4 generally, 250–5 hybrid procurement, 251 interagency processes for considering requests, 254 interest from foreign government etc, 251 Letter of Request, 251 licensing agency, 252 route chosen, consequences, 252 routine paperwork, decisions made through, 254 scrutiny of arms deals, 254 Security Corporation Offices, 250–1 UK, special terms for, 254–5 Export Control Reform programme, 255–6 Export Enforcement Coordinating Center, 256 generally, 248 human rights criteria, 249, 250 legislative activism, 259–61 legislative branch’s role— formal notification, 258

generally, 257–9 hearings to discuss deal, 258–9 informal reporting of deal to Congress, 257 Letter of Offer and Acceptance, 259 NATO countries, sales to, 257 notification of licences, need for, 257 opposition to sale, 258 pre-notification period, questions during, 257 Saudi Arabia, attempted veto on sale of arms to, 258–61 tiered review system, 257 NATO countries, sales to, 257 President Trump’s Memorandum, 249 presidential arms transfer policies, 248–50 priorities, 249 see also controls above defence industrial base, benefits to, 269 dominant player, as, 276 economic benefits— contribution to economy, 269 critical labour skills, maintenance, 270 defence industrial base, support for, 270 domestic procurement, offsetting depression in, 268 employment figures, 269, 270 European sales, 269 generally, 239, 269–70 importance in policy-making, 276–7 statistics, 269–70 US GDP, exports as percentage, 286 end-use monitoring— Blue Lantern program see Blue Lantern program above enhanced— defence articles designated for FMS-eligible countries, 277–8 generally, 262, 264–5 generally, 261–2 Golden Sentry program see Golden Sentry program below self-defence, use of weapons for, 267–8 exports— balance between FMS and DCS sales, chart, 273, 274 decision-making process see decisionmaking process above direct commercial sales, rise in, 273 economic benefits see economic benefits above

478  Index Export Control Reform programme, 255–6 human rights see human rights below Israel, need to protect, 272 judicial review, 274 justification, 243 patterns see patterns of exports below policies, considerations shaping, 268–9 post-Cold War, 246 post-Soviet invasion of Afghanistan, 246 President Carter’s approach, 245 President Clinton’s approach, 246 President Reagan’s administration, during, 246 President’s Advisory Board, 246 public debate, 275–6 recipients, 271–2 scandals and evolution of controls, 276 security alliances, cementing, 268 SIPRI list, 279–85, 305 terrorist support, as reason for denying, 247 types of weapons, 271 US GDP, as percentage, 286 volume, 271 Foreign Corrupt Practices Act, 276 foreign policy tool, exports as, 239 generally, 239–40, 276–7 goals, 441 Golden Sentry program— compliance assessment visits, 265 defence articles designated for FMS-eligible countries, 277–8 enhanced, 262, 264–5 familiarisation and assistance visits, 265 generally, 262–5 human rights and security cooperation, 263 investigation visits, 265 problems, types, 265 restrictions on specific countries, 262 routine, 262, 263–4 Standard Terms and Conditions, 262–3 summary report, 263–4 unauthorised use of articles, 262 white phosphorous and cluster munitions, 264 human rights— Arms Export Control Act, 244 DISCS training module, 263 domain of executive branch, 249

legislation, removal from, 247, 263, 277, 442 policy Memorandum as to, 249–50 impact statement, 243–4 Israel, maintenance of military edge, 272 ITAR-free defence systems, complaints about, 276 judicial review, 274 legislation— Arms Export Control Act see Arms Export Control Act above Arms Trade Treaty, 275 CIFTA, failure to sign, 275 Export Administration Act 1979, 247 Foreign Corrupt Practices Act, 276 generally, 246–8 historical background, 240–2 human rights provisions, absence, 247, 277 liberal attitude to sales, 277 UN Register of Conventional Arms Transfers, 275 management of sales over restraint, importance, 269 National Security Strategy, serving priorities, 269 offset agreements, disclosure, 254 patterns of exports— content, 271 recipients, 271–2 routing, 273–4 volume, 271 positive approach to exports, 239 ranking, 305, 306 Saudi Arabia, arms sale to— attempted veto on sale of arms to— Reagan era, in, 258–9 Trump era, in, 259–61 controversial nature, 272 Khashoggi murder, following, 260 Yemen, attacks on, 259–61, 272 security alliances, exports cementing, 268 security concerns underpinning arms trade, 239 Third Offset Strategy, 339 UN Register of Conventional Arms Transfers, 275 Vulnerable groups Arms Trade Treaty, protection in, 418 children, 448 elderly or disabled people, 448

Index  479 rape and sexual slavery, 448 violence against, addressing, 448–9 Wassenaar Arrangement establishment, 404 France, 202 India, 374, 375 intrusion software, 404 Munitions List, 365 purpose, 404 regulated equipment under, 404 surveillance equipment, 404

Weapons excessive quantities, possession, 4 Yemen war in— arms sales, effect, 219 Congress’s concerns as to weapon use, 268 generally, 19–20 human rights violations, 77–9 US arms sales to Saudi Arabia, 259–61

480