Memorandum submitted by the World Development
The World Development Movement (WDM) campaigns
to end poverty. Established nearly 30 years ago, it now has over
20,000 supporters. With all-party support, it campaigns for changes
in Britain and Europe's policies towards poor countries on aid,
debt, trade (including the activities of multinational companies)
and the arms trade.
WDM's concern about the arms trade developed
from a recognition that all too often economic and social development
is thwarted by conflicts which are fuelled by arms purchases from
countries including Britain, and by the debts accumulated by purchasing
WDM has researched and campaigned on several
aspects of Britain's arms trade with developing countries including:
the use of taxpayers' money by the Export Credit Guarantee Department
(ECGD) to back weapons sales; the need for stricter UK and Europe-wide
controls over arms sales to countries which abuse human rights,
have excessive military spending or are in regions of conflict.
WDM also took a keen interest in the Scott Report
and submitted evidence to the July 1996 "Consultation on
Strategic Export Controls", "Your Right to Know: Proposals
for a Freedom of Information Act" and the White Paper on
Strategic Export Controls. This submission focuses on the White
Paper and the recently agreed EU Code of Conduct on Arms Exports.
1. THE WHITE
1.1 OverviewThe Legacy of the Scott
WDM welcomes the Government's proposal to introduce
new legislation to provide for parliamentary scrutiny of arms
exports, but believes that the proposals contained in the White
Paper need to be strengthened if they are to provide effective
scrutiny and the greater accountability and transparency that
the White Paper sets out to provide.
Although world military expenditure has declined
by an average of 4.5 per cent per year since 1988, it has increased
by 9 per cent in the Middle East and Asia.i Over the last 10 years,
those two regions have bought two-thirds of Britain's arms exports.
ii The sale of arms to these regions of instability, where many
states have poor democratic credentials and human rights records,
will provide the test of the effectiveness of the "purposes
of strategic export controls" proposed in the White Paper,
and the new EU Code.
1.2 Parliamentary Scrutiny
The Scott Report revealed a widespread determination,
especially in the Department of Trade and Industry (DTI) and the
Ministry of Defence (MoD) to sell arms to Iraq regardless of Government
policy and Britain's international obligations. The White Paper's
proposal for legislation will make such actions more difficult.
But, WDM is concerned by the White Paper's inadequate proposals
for parliamentary scrutiny, which will not satisfy Sir Richard
Scott's call for greater accountability, "A denial of
information to the public denies the public the ability to make
an informed judgment on the Government's record . . . (and) .
. . undermines, in my opinion, the democratic process".iii
Export of Goods Control Orders: WDM welcomes
the Government's decision that the new legislation should provide
for parliamentary scrutiny of Export of Goods Control Orders (EGCOs).
However, the negative procedure proposed in the White Paper may
not allow for effective scrutiny as it places undue emphasis on
individual MPs' monitoring the Government's actions in this important
area and does not guarantee MPs an opportunity to debate orders.
The White Paper records few EGCO amendments
(12 in four years and six Dual-Use amendments since 1996), so
the option of providing parliament with an opportunity to approve
the continuation of an order after a specified period, should
not add significantly to the pressure on parliamentary time especially
if, as the White Paper says, "most of these [amendments]
Individual Export Licence Applications: Of
much greater concern to WDM is the White Paper's rejection of
proposals to allow scrutiny of individual licences. Without the
right of parliament (or at least an expert committee of parliament)
to scrutinise individual export licences, the new legislation
will still not meet Sir Richard Scott's concern that the 1939
Act lacks "the provisions for Parliamentary supervision and
control that would be expected and are requisite in a modern Parliamentary
It is disappointing that the Government proposes
to refuse scrutiny of individual export licences on the grounds
that business might be lost. This is particularly so when the
recently agreed EU Code of Conduct on Arms Sales offers a mechanism
for greater co-operation between major exporters.
Another of the grounds for refusal to allow
parliamentary scrutiny is that companies could be identified and
their competitive position harmed. There is no need, though, for
the name of the potential exporter to be revealed in any documents
that might be made public. It must also be remembered that Sweden
and the USA, by far the largest exporter, do allow for parliamentary
scrutiny.v In the UK that could be achieved by a new inter-departmental
parliamentary committee which should be allowed to question Ministers
on all aspects of arms export policy and which would have the
authority to review, and if necessary veto, all arms sales with
a value above a certain threshold, say £5 million, as happens
in the USA.
Annual Report and Debate: The White Paper
proposal for an annual report is, therefore, a welcome step forward
as is the proposal to "list by country of destination the
numbers of export licences issues in each equipment category and
give details of the military equipment for which licences have
been granted. It will also set out the value of defence exports
to reach country." vi That report and the creation of more
meaningful equipment categories may be a critical step towards
meeting Sir Richard Scott's challenge to the Government's obsession
with secrecy, "Is it any longer satisfactory that Parliament
and the British public are not entitled to be told to which countries
and in what quantities goods such as artillery shells, land mines
and cluster bombs have been licensed for export? vii
But WDM is concerned that it will be retrospective
and so will not provide effective parliamentary scrutiny of arms
sales. An annual report would not have prevented any of the excesses
revealed by the Scott Report and it will not, for example, improve
the transparency of the use of export credits to support arms
sales, raised in the Scott Report, "I do not, however, accept
that information about the size of the defence allocation for
Iraq or about ECGD's actual exposure to individual countries needed
to be kept secret from the public for any justifiable reasons
of commercial confidence".viii
It is also to be hoped that the new report on
strategic export controls does not gloss over uncomfortable information
unlike the Foreign and Commonwealth Office's new Human Rights
Report. Arms sales to countries abusing human rights and with
internal conflicts such as Indonesia and Turkey have continued
unabated despite the Government's ethical foreign policy. A few
small contracts for the security forces have been refused licenses,
but the majority have gone through. So, it was particularly disappointing
that even though there is a report on the Foreign Secretary's
visit to Indonesia in August 1997 in the Human Rights Report,
ix no mention was made of the controversy surrounding arms sales
to that country.
Although the introduction to the White Paper
states the Government's intention to increase `the transparency
and accountability of decision on export licenses for arms',x
its defence of the need to protect the security interests of the
purchasing government and commercial confidentiality indicates
that the accountability gains will be minimal. The White Paper
leans heavily towards maintaining the tradition of withholding
information about arms exports. How the proposals affect the Government's
willingness to answer parliamentary questions remans to be seen.
1.3 Purposes of Strategic Export Controls
WDM welcomes the Government's proposal to set
out the purposes of strategic export controls in legislation.
But, in addition to the eight purposes for strategic export controls
proposed, WDM believes that two further purposes should be added:
1. Given the evidence provided in the Scott
Report of the role of other countries, especially Jordan, in circumventing
end-use certificates, xi any identifiable risk that equipment
will be diverted within the buyer country or re-exported to countries
which are subject to a national or international arms embargo
should be made an additional purpose.
2. As well as the UK Government's international
obligations, the purchasing Government's observations of other
international obligations such as adherence to United Nation's
Resolutions and the United Nations Register of Conventional Arms
should be made an additional purpose.
Setting out the purposes in legislation clearly
marks an important step forward, but the interpretation placed
on it will be critical. For example, `avoid seriously undermining
the economy of the recipient country', xii requires careful interpretation.
One measure that could be applied is the United Nations Development
Programme's recommendation that countries should not spend more
on defence than they do on social spending and that any military
expenditure above four per cent of GNP should be regarded as excessive.
xiii Unproductive military expenditure is a major contributor
to the debt crisisxiv so this particular purpose requires clear
guidelines and the need for policy coherence between government
departmens if a measure such as the UNDP recommendation is not
set out in the legislation.
1.4 Possible Extensions of Scope of Export
The Government's proposal to extend the provisions
of The Chemical Weapons Act 1996 and to make them applicable to
other weapons of mass destruction (nuclear and biological) appear
sound. Any actions that restrict the spread of these weapons and
technologies must be welcome. WDM also believes that it is timely
for the Government to legislate "to control the transfer
of technology, whatever the means of transfer" as the White
The Government's intention to extend the right
of the UK Government to control trafficking and brokering is also
very welcome. This may reduce the frequency of controversies about
UK arms exports, such as Rwanda and Sierra Leone, which have arisen
because of the activities of UK persons in Britain and abroad
trafficking in arms between overseas countries. But the proposal
that the UK controls on trafficking and brokering should be more
limited than on actual exports from the UK needs reviewing. The
controls should be set at the same level regardless of the export
control laws of the exporting country as traffickers and brokers
are likely to operate from the countries which have the least
stringent export controls. It is disappointing that the EU code
of Conduct does not contain any proposals to control brokering
at a Europena level.
The Government should also consider extending
the scope of its export licensing powers to include the provision
of services such as training and personnel, especially the operations
of companies that include direct involvement in conflict and the
provision of mercenaries.
1.5 Export Licensing Procedures
Once again, WDM welcomes the Government's proposal
to set out the basic elements of the licensing process in primary
legislation. The White Paper proposal to require arms exporters
to provide information that will enable the UK to meet its international
obligations is very welcome.
The Government's proposal for a formal appeals
procedure is also a step in the right direction. The proposal
to establish an appeals committee of civil servants from the relevant
departments may well enable the Government to respond to any appeal
quickly. But, it is not clear that the time-scale would be any
greater if the appeal was to be made to an ombudsman or regulator
who would be seen to provide greater independence from the departmental
pressures so clearly at the heart of the arms to Iraq affair.
WDM would also urge the Government to think
again on the proposal to deny third parties a right to appeal
against the licence being granted. Whilst an appeal may extend
the time taken to reach a decision, that must be balanced by a
right to raise legitimate concerns held by third parties.
1.6 Other Issues
End Use Monitoring: The Government's commitment
to strengthen monitoring of the end-use of arms exports is welcome.
But, it is disappointing that there appears to be no intention
to act quickly. Given the evidence in the Scott Report of the
diversion of arms from Jordan and other countries to Iraq and
in other high profile arms enquiries, such as BMARC, the White
Paper could be expected to contain more concrete proposals. Earlier
in this submission, WDM has proposed that any identifiable risk
that equipment will be diverted should be made an additional purpose
for strategic export control.
In the White Paper, the Government commits itself
to seeking co-operation to build a common approach on effective
monitoring of end-use within the European Union. It can be difficult
for the Government to show that the end-use is not legitimate.
So, the burden of proof should be placed on the exporter. WDM
proposes that nay identifiable risk that equipment will be diverted
within the buyer country or re-exported should be made an additional
purpose for export control.
Location of the export licensing authority:
The Government's rejection of Sir Richard Scott's proposal that
the MoD should be given a stronger role in export licensing is
welcome. xv However, the DTI, which the Government is now proposing
retains responsibility, was the Department resonsible for the
arms to Iraq and other arms export controversies.
Those controversies may well arise again as
the White Paper, with its promise of support for a strong UK defence
industry, does not address the inherent conflict between commercial
opportunities for British firms and Britain's foreign policy objectives
and obligations. For the legislation to have any effect, the latter
imperative must be strengthened, probably at the expense of British
exporters, who post-Scott and despite the Government's Ethical
Foreign Policy, have continued to sell arms to regimes which should
fail on more than one of the proposed purposes of strategic export
control. The problems that remain are well documented in Amnesty
International's 1998 Human Rights Audit. xvi
WDM asks for further consideration being given
to the recommendation of the Trade and Industry Committee's BMARC
report that "the FCO is in some ways the most appropriate
department, given its knowledge of other countries . . . and the
fact that in the current international climate, the main reasons
for rejecting ELAs are likely to be . . . [issues] . . . which
are primarily the responsiblity of the FCO." xvii
2. EUROPEAN CODE
The European Code of Conduct on Arms Exports
agreed in May 1998, is another measure which, although flawed,
brings the prospect of a more ethical and effective arms export
policy nearer. WDM strongly supports the Council's determination
to "prevent the export of equipment which might be used for
internal repression or international aggression or contribute
to regional instability, xviii but is concerned that the measure"
set out in the Code will require further tightening and co-ordination
before that aim can be achieved.
WDM's concerns about the effectiveness of this
new Code are broadly similar to those already outlined for the
White Paper: parliamentary scrutiny; annual debate and review;
and end-use monitoring. Though there is also particular concern
that the Code will still allow sales of equipment to countries
which abuse human rights.
2.1 Human Rights
The EU Code requires member states "not
to issue an export licence if there is a clear risk that the proposed
export might be used for internal repression" and to "exercise
special caution and vigilance in issuing licences, on a case-by-case
basis . . . ".xix Even though, the Code does set out a definition
of internal repression, the effectiveness of these criteria in
tightening controls will depend on the interpretation of "clear
risk" and that, in the words of the Code will remain at the
national discretion of each Member State.
The Code's exhortation to "special caution
and vigilance" falls far short of the complete ban on arms
sales to countries that should be required against a state which
engages in the types of internal repression outlined in the Code
"torture, summary or arbitrary executions, disappearances"
etc. Caution and vigilance cannot provide assurances that regimes
with a past record of repressing their civilians will not use
weapons exported by European countries to do so in future.
There is also widespread concern that the consultation
mechanism agreed is also too limited to be truly effective. The
Code must be strengthened to ensure that a Member State wishing
to take up an export that another has already refused because
of concerns about human rights, has to inform all 15 EU states
and not just the country that originally refused.
2.2 Annual Review and Report
The EU Code is intended to "strengthen
the exchange of relevant information with a view to achieving
greater transparency", but the Code actually provides no
mechanism for achieving that welcome aim. The annual national
reports will not be published and will not be debated by either
national or European Parliaments. Even the Council of Ministers
will only receive a consolidated report. xx
This agreement, which is weaker than the inadequate
proposals made in the UK White Paper, will do nothing to satisfy
the people of the EU states that there will be effective controls
on the export of weapons and torture equipment to states with
poor human rights records. Although the stated intention of some
EU Governments to use the annual review process to tighten the
Code is welcome, the Member States should also agree as quickly
as possible to allow publication of the national reports and debate
by the national parliaments. The EU consolidated report should
be presented to the European Parliament for debate.
Given that the UK Government is now committed
to the publication of an annual report on arms exports, will that
report include any information relating to the EU Code? Of particular
interest would be release of information concerning export licences
refused by the UK, but granted by another Member State or of an
export from the UK following refusal by another Member State.
A number of Member States, including the UK,
the Netherlands, Belgium and Sweden appear to be in favour of
greater openness and Italy already has an annual debate on arms
sales. So, there is some possibility that parliamentary and public
scrutiny will be strengthened in forthcoming reviews of the working
of the Code.
2.3 Arms Brokering Licensed Production and
Arms Brokering is one important area where the
Code contains no provision for action. Weapons sales can be arranged
from third countries without entering an EU State or requiring
an export licence. Controls on arms brokering was one of the demands
put forward by the ACP-EU Joint Assembly in April 1998xxi. From
a UK perspective this is particularly disappointing as the White
Paper does contain proposals to impose some controls on arms brokers.
However, given that Germany already has such controls, it is to
be hoped that during the German Presidency of the EU next year,
this wide loophole in the EU Code will be closed.
The recent declaration of the countries of Central
and Eastern Europe, EFTA countries, Cyprus, Norway and Iceland
that the EU Code will guide them in their national export control
policiesxxii, does give some grounds for optimism that the activities
of arms brokers can be curtailed.
Licensed production is another area where no
proposals have been made. Yet, increasingly this is a route by
which companies can arrange for sales of weapons to countries
which would otherwise fail the human rights or various aggression
criteria contained in the EU Code. The most well known example
is that of the British Aerospace subsidiary Heckler and Koch licensing
a Turkish company to produce 200,000 H&K combat assault rifles
for the Turkish army. This arrangement can only breach the Code's
third criteria as it will `aggravate existing tensions or conflicts
in the country of final destination'. The Code should be applied
to the licensed production of arms to prevent this route being
used to circumvent the Code.
End-use controls will also need to be tightened
to ensure that the Code is effective. The ACP-EU Joint Assembly
called for efficient end-user control systems, but for this to
happen, the EU Member States must agree on a common system of
controls and checks. Without that co-ordination there remains
a considerable risk that equipment will be diverted within the
buyer country or re-exported to evade the controls imposed by
the Code. Again, the burden of proof should be placed on the exporter
to demonstrate a legitimate end-use for the equipment.
These three loopholes must be tackled as quickly
as possible as they will enable exporting companies, governments
and purchasers to undermine the spirit of the EU Code and to evade
stricter controls on the arms trade.
3. WDM RECOMMENDATIONS
3.1 White Paper
The White Paper has many positive points which
will formalise and clarify the UK's procedures for strategic export
controls. It does not, though, provide for the degree of parliamentary
and public scrutiny that Sir Richard Scott felt was necessary
to prevent further scandals. There is widespread concern that
the proposed measures will not prove effective in controlling
the arms trade to countries with poor human rights records. So,
the test of the effectiveness of the proposed legislation will
be the interpretation of the broad purposes set out in the White
Paper. That is especially so when the purposes for which export
controls could be imposed have been frequently overidden by the
commercial and foreign policy objectives as the Scott Report showed.
WDM believes, therefore, that the White Paper
proposals will not satisfy public concerns about transparency
and the Government's willingness to control the arms trade effectively.
xxiii Greater parliamentary scrutiny and public accountability
are required and could be achieved by:
Allowing for advance parliamentary
scrutiny of individual export licences, particularly where an
application for a licence may breach one or more purposes of strategic
export control. Effective parliamentary scrutiny could be achieved
by establishing a new interdepartmental parliamentary committee
which would be notified of all export licences. This Committee
should also have the authority to review, and if necessary veto,
all arms sales with a value above a certain threshold as in the
Ensuring that the proposed annual
report and parliamentary debate includes the value of arms exports
by country and region and all military equipment categories. This
would include, but go beyond, the submission to the UN Register
of Conventional Arms Transfers which provides information on only
seven categories of major offensive weapons.
Ensuring that following the legislation,
greater weight is given to the purposes of strategic export control
than has been the case. In particular, the Government must meet
the widespread concern over the use of British weapons to crush
non-violent protest and dissent.
Consideration should also be given
to placing the export licensing authority within a government
department which has no specific mandate for promoting British
arms exports, such as Customs and Excise or the Foreign and Commonwealth
3.2 EU Code of Conduct on Arms Exports
The EU Code of Conduct is an important step
forward in the search for a co-ordinated and effective arms control
policy. Efforts must now be made to persuade other major arms
exporters to agree to similar restrictions and the Code does need
to be strengthened in a number of areas, in particular:
Human Rights: the Code must be tightened
to require a ban on arms sales to any country engaged in the types
of internal repression set out in the Code. The Code must also
require any Member State wishing to take up an export which another
European state has refused to inform all 15 Member States.
Public and Parliamentary Scrutiny:
the Code's acceptance that national reports on the workings of
the Code should be produced in confidence and then consolidated
for the Council of Ministers is a far from transparent process.
As a first step towards greater transparency, national parliaments
must be given the right to debate their own country's record.
The consolidated report should be presented to the European parliament
and made public to provide the necessary reassurance that the
Code is indeed being used "to prevent the export of equipment
which might be used for internal repression or international aggression,
or contribute to regional instability."
The Code contains no controls on
arms brokering and licensed production. These two failings, along
with the absence of a common system of end-user monitoring will
enable buyers and sellers of arms to circumvent the restrictions
imposed by the Code.
The change in Government in the UK has led to
many welcome developments which should impose greater controls
on arms exporters. The White Paper proposals and the EU Code of
Conduct are manifestations of the Government's Ethical Foreign
Policy set out by Foreign Secretary Robin Cook in July 1997. Whilst
the White Paper proposals and the EU Code are clearly a big step
forward, more needs to be done to shift the balance of decision
making away from a presumption of allowing exports, except in
extreme circumstances. There is a clear mandate from the public
for the Government to move further towards an integrated ethical
policy at both UK and EU levels.
19 October 1998
i SIPRI Yearbook 1998.
ii UK Defence Statisticsvarious years.
iii Scott Report, Para K8.3, p1801.
iv Scott Report, Para K2.1, p1759.
v For a brief summary of the US system,
see L Lumpe in Weapons Decisions: Proposals for an informed
Parliament, Oxford Research Group, October 1996, pp37-40.
vi Hansard, 14 July 1998, Col. 149.
vii Scott Report, Para K8.13, p1805.
viii Scott Report, Para D2.119, p257.
ix Annual Report on Human Rights, FCO and
DfID, April 1998, p13.
x White Paper, Strategic Export Controls,
xi Scott Report, Chapter 2, pp819-851.
xii Strategic Export Controls, White Paper,
Department of Trade and Industry, July 1998, pp10-11.
xiii Human Development Report, 1994, United
Nations Development Programme, p56.
xiv According to the World Bank, as much
as one-third of all debt servicing is accounted for by arms purchases.
Its former President, Robert McNamara called on developed countries
to cut down on arms exports and the finance backing them (Financial
Times, 27 September 1989 and Finance and Development, World Bank/IMF,
September 1991). More recently, a World Bank/IMF research paper
found that high levels of military spending are likely to detract
from a country's economic performance (The Peace DividendMilitary
Spending Cuts and Economic Growth, Knight, Loayza and Villanueva,
xv Scott Report, Para K3.3, p1769.
xvi The report lists, for example, the approval
of export licences to countries which have used arms to commit
human rights violations including: Algeria, India, Indonesia,
Kenya, Pakistan and Turkey, UK Foreign Policy, Human Rights
Audit 1998, Amnesty International, July 1998, p6.
xvii Export Licensing and BMARC, Trade and
Industry Committee Report, June 1996, pxxxii.
xviii Code of Conduct on Arms Export, General
Affairs Council, 25 May 1998, European Council Press Release,
xix Code of Conduct on Arms Export, General
Affairs Council, 25 May 1998, European Council Press Release,
xx ACP-EU Joint Assembly resolution on "support
for democratization in Africa and conflict prevention through
a European code of conduct for arms exports" in April 1998.
It urged "European and ACP Member States to ensure transparency
and parliamentary scrutiny of all arms exports and imports by
providing their parliaments, or parliamentary committees, in advance,
with a list of all sensitive export licences applied for;"
Official Journal of the European Communities, 2 September 1998,
xxi Resolution on the code of conduct on
arms exports, anti-personnel mines and the Ottawa process, the
ACP-EU Joint Assembly, Official Journal of the European Communities,
2 September 1998, C274, pp31-32.
xxii European Council Press Release, 3 August
1998, No. 10754/98.
xxiii An opinion poll commissioned from
Opinion Research Business by Amnesty International, Saferworld,
Oxfam, Christian Aid, Basic and WDM showed, for example that 85
per cent believe that a European Code of Conduct should prevent
EU countries selling arms to countries which violate human rights
and 77 per cent think that there is too much secrecy around British
arms sales. Observer, 24 May 1998.