Memorandum submitted by British American
Security Information Council (Basic)
RESPONSE TO THE KINGDOM DEPARTMENT OF TRADE
AND INDUSTRY WHITE PAPER ON STRATEGIC EXPORT CONTROLS
BASIC welcomes the opportunity to respond to
the Department of Trade and Industry (DTI) White Paper on Strategic
Export Controls. We broadly share the view put foward by the President
of the Board of Trade that improved powers are necessary in the
UK for the government to effectively control the export of arms
and military-security technologies to prevent armed aggression
and internal repression. However, we are concerned that some of
the proposals in the White Paper will not meet this need, and
that even after the UK government has implemented these new measures,
it will still be faced with scandals of the kind investigated
by Sir Richard Scott. The following therefore includes recommendations
that we hope that the UK Government will give serious consideration.
SECTION 1.1 THE
We agree that at the heart of Sir Richard Scott's
critique of the current UK arms export system is the fundamental
lack of government accountability and transparency to parliament.
This is set out in his Report of the Inquiry into the Export of
Defence Equipment and Dual Use Goods to Iraq, published in February
1996. However, we believe that no system of arms export control
can operate effectively without adherence to clear normative criteria
accepted by all those involved, and in today's global markets
these criteria can only derive legitimacy if they are based upon
respect for international law pertaining to the use of arms.
In this respect, BASIC and our partner NGOs
welcome the EU Code of Conduct which was agreed by the Council
of Ministers in June 1998 as a step forward, but we are not convinced
that the provisions of the Code are clear and consistent enough.
In particular, we questioned the repeated use of the phrase "take
into account" when setting out obligations to abide by fundamental
ethical criteria, a phrase that will almost certainly be used
to undermine full respect for those principles, including international
law. For example, the EU Member States' obligation to prevent
arms exports to recipients who would most likely use them for
grave breaches of international humanitarian law is not clearly
stated in the EU Code. In addition, there is a failure to include
in the operative provisions of the Code measures to strictly control
the activities of international arms brokers and deals involving
licenced production exports. Nor does the Code provide for parliamentary
scrutiny of arms exports and multilateral consultations over denials
of export licences to ensure high common standards. Without such
improvements in the EU Code, it is unlikely to be an adequate
mechanism to prevent EU transactions for arms and dual use technologies
contributing to external aggression and internal repression.
2.1 Parliamentary scrutiny
The following two paragraphs, which set out
the Government's thinking on this matter, contain positive proposals
but the measures proposed will fall short of providing for adequate
parliamentary scrutiny and still leave unanswered some key questions.
2.1.7 "The Government does not consider
that there should be parliamentary scrutiny of individual applications
either before or after the decision on whether to grant a licence
has been taken. Parliamentary scrutiny before licence decisions
are taken would inevitably slow down significantly the process
of decision making on those licence applications. Furthermore,
any process involving publication of individual applications,
whether before or after decisions have been taken would mean identifying
companies and the nature of their planned or actual export business
which would be likely to harm their competitive position. Overseas
governments would also have a legitimate concern about the details
of their purchases of defence-related equipment being made known
to, for example, neighbouring countries. There would be the danger
that they would seek in future to buy equipment from countries
which would not disclose details of individual contracts."
2.1.8 "...the Government is committed
to greater transparency in the field of strategic exports and
will report annually on the state of strategic export controls
and their application. This is consistent with the Government's
proposals for a Freedom of Information Act. It is likely that
various Select Committees will wish to examine the annual report
which, in turn, may lead to a parliamentary debate on it."
BASIC welcomes the Government's commitment to
publish an annual report on strategic exports, but if it is the
intention of the Government to continue to deny comprehensive
and meaningful export data to MPs in response to matters arising,
the annual report will not meet the need for parliamentary scrutiny.
Moreover, the proposal leaves open the nature of the report itself,
as well as the nature of the new Freedom of Information Act, and
we fear that these could be designed to deny the issuance of legitimate
information necessary for meaningful debate.
On 14th July 1998, Foreign Office Minister,
Tony Lloyd stated that the forthcoming annual report: "will
list by country of destination the numbers of export licences
issued in each equipment category and give details of the military
equipment for which licenses have been granted; and will set out
the value of defence exports to each country."
BASIC is concerned that this proposal for the
annual report does not go far enough to ensure effective parliamentary
scrutiny. In our view, the annual report should at least include
a record of all export licences granted and refused, as well as
all actual deliveries, broken down month by month and country
by country, and classified in meaningful categories covering all
defence and law enforcement equipment and technology. This is
roughly how the annual report on military list items is published
in the USA (the so-called Section 655 reports), and it would be
a simple matter for law enforcement equipment to be included.
The publication of company names and individual contractual arrangements
is not necessary. The EU Code of Conduct already provides for
the production of annual reports by the Member States, some of
which already publish them, and a UK annual report of high standard
would encourage partner countries to follow suit.
It is vital that the data be fully comprehensive
if the Government is to be seen to be acting in good faith. This
will mean the inclusion of certain types of arms exports currently
excluded from any disclosure of information such as exports by
those Government agencies that are exempt from export licence
requirement by means of crown immunity, which could include DESO,
the Disposal Sales Agency (DSA) and the Crown Agents.
If meaningful descriptions and comprehensive
lists of the exports are not provided, as is often the case at
present when UK arms export data is provided to Parliament, then
the annual report will be condemned from the outset and the debate
over its content will become distorted. In this regard we welcome
the Foreign and Commonwealth Office (FCO) daily briefing statement
of 24 June 1998 that "The Government recognises that the
categories in the Military List are broad and that wrong conclusions
can be drawn about the details of licences which have been granted.
That is why it is committed to publishing an open and transparent
Annual Report on Strategic Export Controls to allow public scrutiny
of the application of its export licencing policy. The report
will make clear what military equipment has been licensed for
export on a country by country basis."
Another practice that inhibits legitimate parliamentary
scrutiny is the system of Open General Export Licences (OGELs)
and OGEL Transhipment Licences. Such licences permit the export
of a wide range of defence and law enforcement equipment and technology
to a number of specified countries, and exempt a company from
the obligation to apply for an export licence from the DTI for
each individual order. Companies in receipt of OGELS are required
to submit to the Department of Trade & Industry details of
deliveries within 30 days of shipment. However, such data has
not been provided in response to questions by MPs and it would
appear that the data is not being recorded on the ECLIPS computer
system at the DTI. Currently the Government cannot give full details
of licences granted and denied by itself or the previous administration.
This situation needs to be urgently addressed.
The annual report should also include a discussion
of why certain items of defence and law enforcement equipment
of technology may have been authorised to countries with poor
human rights records, and what realistic safeguards have been
established to ensure that the items are not used for human rights
violations. It is expected that the annual report should also
include recommendations to address weaknesses in the strategic
export control systems.
Nevertheless, it would be a great mistake to
believe that a transparent and comprehensive annual report can
replace the need to provide MPs with detailed answers to questions
about exports of defence and law enforcement equipment and technologies.
If the Government expects Parliament to confine its scrutiny of
such a vital area of governance to a debate on annual data, this
could even lower the level of parliamentary scrutiny.
Nor should the issue of prior parliamentary
scrutiny of individual licence applications be confused with the
post facto discussion. Without some sort of parliamentary involvement
in prior scrutiny, there is an ever-present danger in this particular
business that a sensitive export approved by officials and Ministers
is used to facilitate serious abuses or acts of aggression by
the recipients. The consequent international outcry in such cases
has focused on UK irresponsibility, with Parliament and media
blaming the government and officials.
In those cases where the intended recipient
is in a region of armed conflict or has a poor human rights record,
or where the equipment or technology would have a profound effect
on the security situation of any country, it is essential in the
public interest that an extremely strict application process is
established. In the USA, Congress is able to scrutinise licence
applications prior to approval by the State Department where the
value of the proposed transaction exceeds $14m. This system has
some merit but could be improved because it does not allow for
the fact that some lower value applications present much greater
risks to security. In Sweden, an all-party committee of MPs has
powers to scrutinise and block sensitive licence applications.
There is no doubt that excessive secrecy has
been encouraged under the guise of "commercial confidentiality"
and that this has lead to severe negative consequences as pointed
out by Sir Richard Scott. The avoidance of criticism cannot be
an acceptable reason to withhold information from Parliament,
and therefore the public, about the activities of Government.
The risk posed to commercial confidentiality in allowing some
form of parliamentary scrutiny in such instances has to be weighed
against the UK's obligations to ensure respect for international
law and to protect the public interest in terms already set out
in Government policy, including the EU Code of Conduct. Moreover,
defence and security goods manufacturing companies and national
governments are often well aware of strategic deals under negotiation.
It is merely parliamentarians and the public which are "protected"
from information as a result of such "commercial confidentiality"
Another measure would be to establish a rolling
register for all licence applications involving transfers to sensitive
destinations that could be open for parliamentary inspection in
advance of the licence application being considered. Adequate
time for comment, debate and proper consideration could be allowed
so that there was no delay in reaching a decision. The categories
of information would need to be comprehensive and meaningful,
but with company details excluded.
2.2 Purposes of strategic export controls
2.2.2 "The Government considers that
it is right that the purposes of strategic export controls should
be set out in legislation. This will contribute to greater transparency
of export licensing policy. However, the Government is also concerned
to ensure that it retains the flexibility to respond to unforeseen
circumstances, potentially at short notice. We therefore propose
that new primary legislation should make provision for the purposes
of strategic export control to be set out in secondary legislation.
Orders introducing or amending the purposes should come into force
with immediate effect, but require approval by Parliament within
a set timescale in order to remain in force."
BASIC welcomes the UK Government's proposal
to set out the purposes for strategic export control in legislation
approved by Parliament, but we are disappointed that the Government
has conceived of such purposes as a matter which should be changed
at short notice and therefore only included in secondary legislation.
The purposes of strategic export controls set out in paragraph
2.2.3 of the White paper include fundamental principles which
are incorporated into the EU Code of Conduct such as "to
adhere to the UK's international obligations and commitments,
including international arms embargoes and international control
regimes", "to prevent the proliferation of weapons of
mass destruction and of missiles and unmanned air vehicles capable
of delivering such weapons", "to safeguard the UK's
security interests and those of its allies and EU partners",
"to avoid contributing to internal repression", "to
avoid contributing to international aggression", "to
avoid damaging regional stability", "to avoid seriously
undermining the economy of the recipient country", and "to
avoid contributing to terrorism and crime."
There is no explanation as to why such purposes
should be changed at short notice except the rather unconvincing
claim that this would enable the Government "to respond to
unforeseen circumstances". Also the purposes are couched
in vague language.
The fundamental purposes of strategic export
controls should be incorporated into primary legislation and should
include an explicit reference to the respect for international
law regarding the possession and use of arms. This should include
international humanitarian and human rights law. If more detailed
criteria are required, these could be set out in the secondary
SECTION 3: POSSIBLE
3.1 Weapons of Mass Destruction
3.1.2 "The Government proposes that
it should be made an offence for anyone in the UK or a UK person
abroad to aid, abet, counsel or procure a foreigner overseas to
develop, produce or use a chemical weapon. It is also for consideration
whether it would be appropriate to make it an offence for anyone
in the UK or a UK person abroad to aid, abet, counsel or procure
a foreigner overseas to engage in military preparations or preparations
of a military nature, intending to use chemical weapons."
BASIC welcomes these broader applications and
considers this to be consistent with the UK's obligations as a
signatory of the Chemical Weapons Convention.
3.1.3 "The Government considers that
there is a strong case in principle for creating prohibitions
in relation to biological and nuclear weapons which are equivalent
to the current prohibitions in the CWA and the extension outlined
The Government is correct to suggest broadening
the restrictions on biological and nuclear weapons.
"This is on the basis that biological and
nuclear weapons (with the exemption of those in the five official
nuclear weapons states) are, like chemical weapons, subject to
international agreements outlawing them."
BASIC is opposed to this proposal since the
effectiveness of any law or treaty will be undercut by the exemption
of the P5 countries. The relevant International Court of Justice
ruling on this matter includes a legal obligation to pursue disarmament
in good faith and, therefore, this proposed exemption cannot be
regarded as permanent. Allowing the exemption of NATO members
to procure nuclear technology is perceived as a constant threat
to Russia and other countries.
"In the case of nuclear weapons, we propose
that the legislation should exempt involvement in the official
nuclear weapons programmes of countries that are members of NATO."
BASIC wishes to point out that this proposal
to exempt NATO is a breach of Articles I and II of the NPT and
should not be accepted by the UK Government.
3.1.4 "The government is also concerned
that a UK person or company, might, without being directly involved
in an attempt to produce a weapon of mass destruction, nevertheless,
provide a service or information which could assist such a program."
BASIC welcomes this proposal provided there
are safeguards that would not lead to innocent scientists being
prosecuted who were not deliberately involved. In addition to
making it an offence to develop WMD when adequately warned by
the Government or another source, UK universities should be forbidden
to train nuclear scientists in applications that could, in any
way, be used in nuclear weapons programmes. Furthermore, UK universities
should be banned from allowing any students on any nuclear physics
course from countries that are not signatories to the NPT.
"Provision would be made in the legislation
for the Secretary of State to grant a license to undertake such
activity [namely the manufacture of ballistic and cruise missiles
capable of ranges of at least 300km, which would otherwise be
outlawed] to allow participation in official nuclear programmes
in NATO countries and in certain missile and rocket programmes."
BASIC is concerned that this proposal to allow
the Secretary of State to grant a license to participate in otherwise
illegal activities in solely NATO countries would be open to abuse.
The proposal should support legislation that would force companies
to publicise their trading in components that are likely to be
used in the production of weapons of mass destruction. It should
also provide for parliamentary scrutiny and accountability of
those companies and persons engaged in such activities.
The White Paper makes no mention of what steps
will be taken to enforce and verify these new measures. In BASIC's
view, there would have to be inspections held in other countries
in order to enable the Government and international verification
agencies to ensure that UK traders and manufacturers are not collaborating,
consciously or unconsciously, with any clandestine weapons production
or procurement programme. The UK Government should work with foreign
governments to increase transparency measures in this regard.
This would mean reciprocal exchange of information.
The White Paper should have stated that the
Government would be prepared to allow international verification
teams to inspect UK manufacturing plants. In order for the verification
teams to have any credibility and ensure enforcement of non-proliferation
measures, such on-the-spot physical checks on manufacturing plants
would have to be both scheduled and by surprise. Verification
organizations would require ultimate discretion over what is searched.
The ease of manufacturing weapons of mass destruction in secrecy
would mean that searches would also have to be conducted at undeclared
3.2 Transfer of technology by intangible means
The Government proposes to introduce a new power
to control transfer of technology by intangible means, for example
via fax or email.
3.2.1 "...While this power would enable
the Government, if need arose, to introduce the same controls
on other types of technology, we propose for the time being, to
limit this wider offence to technology related to weapons of mass
destruction and long-range missiles. The Government considers
that it is right that controls on the transfer of information
orally or through personal demonstration should be limited to
the areas of greatest concern, in view of the difficulties of
licensing such transfers, both for applicants and for the licensing
authority, and given also that there are sensitivities in relation
to free speech and academic freedom."
BASIC accepts this proposal provided there are
safeguards against the prosecution of persons who have no deliberate
involvement. However, we would strongly recommend that the UK
Government extend the prohibition on technology transfers by intangible
means which is specifically designed, or lends itself, to use
in the production of weapons with indiscriminate effects such
as anti-personnel landmines, blinding laser weapons, and expanding
ammunition as well as for instruments of torture or cruel, inhuman
and degrading treatment.
3.3. Trafficking and brokering
3.3.1 "The 1939 Act gives the Government
power only to control physical exports from and imports to the
UK. As such, it does not allow the Government to impose controls
on the involvement of persons in the UK or UK persons abroad in
trafficking in goods between overseas countries or in brokering
such deals . . . However, the Government does have the powers
to control trafficking and brokering under the United Nations
Act 1946 where this is necessary to implement a binding United
3.3.2 "The Government believes that
it would be right in principle to control the involvement of persons
in the UK or UK persons abroad in trafficking and brokering in
controlled goods to countries that are the subject of other types
of embargo, whether as a result of non-binding decisions of the
UN or decisions of the EU, OSCE or the UK Government; the Government
proposes to impose controls on trafficking and brokering of deals
involving certain types of equipment, the export from the UK of
which has been banned because of evidence that the goods of the
same type have been used in torture. The Government is also committed
to banning the transfer of anti-personnel landmines. Finally,
the Government also proposes to impose trafficking and brokering
controls on missiles capable of a range of at least 300 km."
3.3.3 "The Government does not propose
to use this power to introduce controls on trafficking and brokering
of all goods that are subject to export controls. It is right
in principle that controls on trafficking and brokering should
be more limited than on actual exports from the UK as those involved
in such activities will also be required to comply with the export
control laws of the exporting country. Secondly, enforcement of
controls on trafficking and brokering is less straightforward
than the enforcement of controls on exports from the UK."
3.4.1 "To assist in the enforcement
of the expanded offences relating to weapons of mass destruction
as well as on intangible transfers and trafficking and brokering,
the Government proposes that new legislation should given HM Customs
and Excise (HMC&E) the powers to require the production of
records in respect of such transfers. The Government also considers
there would be a case for giving HMC&E the power to require
provision of information about supplies on the lines of the powers
contained within the Sanctions Orders made under the United Nations
BASIC welcomes the Government's intention to
increase its powers to control trafficking and brokering to prevent
any person in the UK or UK citizen overseas from providing arms
to embargoed destinations. However, we are particularly concerned
that the Government's proposals fall well short of the necessary
measures needed to address this problem.
Studies show that significant quantities of
small arms and associated military equipment used in current conflict
zones with mass human rights violations (referred to hereafter
as "crisis zones") are transferred internationally through
the activities of arms brokering agents and their international
networks. Some of these agents and their networks have been based
in, or operating from, the EU and Associated Countries. They also
operate from countries significantly dependent on the EU, and
sometimes are linked with international criminal trafficking in
drugs and other products. The real cost to the EU and its partners
of such activities can be measured in terms of lost export markets,
lost opportunities for new productive investment abroad by civilian
companies, and squandered development and relief assistance. This
loss of potential income is massive compared to the income from
low value arms, much of it regarded as surplus by EU and partner
governments. There is therefore not only an urgent need, but also
ample opportunity, to establish international co-operation to
prevent such activities.
The imposition of multilateral arms embargoes
is often too late to prevent arms from being delivered to a "crisis
zone". Where no international action has been taken to establish
an arms embargo or restrictions against recipients who commit
serious crimes in crisis zones, arms traders can easily operate.
This is especially the case where there are poor domestic legal
controls on the transactions of arms brokers because the arms
they trade never pass through domestic territory. Even where an
arms embargo is in place, brokers can evade the embargo through
an array of techniques and international networking.
The use of "off-shore" banking facilities
to launder income from illegal or shady international arms deals
is highlighted in the new UK Home Office report by Andrew Edwards.
He found that an estimated 100,000 companies were registered in
the UK offshore island tax havens, where they are allowed to conduct
business in total secrecy without filing public accounts or revealing
the names of their directors. The report estimates that these
island companies hold between 5 and 10 per cent of the global
offshore tax haven funds of$6 trillion, the UK part constituting
over half of the UK's gross national product. It was by using
such off-shore accounts that UK-based arms brokering agents and
their network of subcontractors violated the international arms
embargo against Rwanda in 1994. This was carried out by evading
inadequate national arms control laws in their home countries,
and by easily disguising the routes of their deliveries by choosing
to operate where there are poor customs, transport and financial
The Sandline affair and the arms to Rwanda scandal
also show that where the terms of an arms embargo are not clearly
set out in domestic law, an experienced arms broker based in the
EU can find ways to complete the deal. This is made so much easier
when there is no legal procedure by the home government to require
arms brokers to seek and obtain licensed approval for each transaction
even where the arms never touch domestic territory.
The UK Government and its partner countries
should consider ths US Government's new regulations to control
international arms brokering. Any US citizen, wherever located,
and any foreign person located in the USA or subject to US jurisdiction,
who engages in such brokering activities involving military goods
or services, must first register with the US Department of State.
Each transaction must then be given prior written approval by
the State Department. There may remain a loophole in respect of
some crime control equipment on the Commerce control list as opposed
to the Munitions list, but this new regulation would appear to
be a significant advance and its operation should be closely studied.
However, in today's global markets, even where
international arms transfers brokered by agents and shipped by
intermediaries may start as a transaction by obtaining approval
from their home government, they entail a high risk of subsequently
being transferred of used unlawfully. The deal could be authorised
and licensed by the home government where the arms orginate. Less
likely, the cargo could be checked and approved by the authorities
in the territory of transhipment or transit. Moreover, the original
licenses and end-user certificates, even less the checks in transit,
are not usually monitored by the home government of the territory
or jurisdiction where the brokering agent is registered of domiciled.
The illicit character of the deal may only become manifect after
the initial delivery when the authorised recipient in a state
with very weak controls can then easily transfer the arms to other
users not mentioned on the original end user documentation. Furthermore,
the illegal character of the transaction could manifest itself
when the arms are used for serious violations of international
law. The only way such illegal acts can be avoided is by an international
agreement to establish a more thorough system of regulation of
those traders who initiate multi-state transactions in the first
The strengthening of import/export regulations
on small arms transfers is a major aim of the new Inter-American
Convention Against the Illicit Manufacturing and Trafficking in
Firearms, Ammunition and Explosives and Other Related Materials,
as well as the Model Regulations agreed by the Inter-American
Drug Abuse Control Commission in 1997. As part of the EU Programme
for Preventing and Combating Illicity Trafficking in Conventional
Arms, the UK and its partners should study these American initiatives,
and develop specific regulations for the EU to control international
arms brokering that help combat illicit transfers. The UK and
its partners should also work to include regulations on brokering
in the forthcoming UN Firearms Protocol. However, the UK Government
and its partners should bear in mind that the American agreements
lack any explicit reference to international law, unlike the EU
Code of Conduct on Conventional Arms Transfers and the recommendations
of the UN Panel of Government Experts on Small Arms. For reasons
explained above, the omission of any reference to existing international
law is likely to undermine any efforts in arms control.
Nevertheless, the enactment of improved laws
and regulations is worthless without governments helping each
other build the capacity for enforcement. We therefore welcome
the UK Government's commitment to improve the legal powers of
UK customs and excise authorities. However, more attention is
required to improve the overall capacity and co-ordination of
the UK licensing authorities, customs, police and intelligence
agencies. It is essential that there be much greater investment
of resources by the Government in building such capacity at home
and abroad. The cost of such investment by the UK and its partners
is likely to be small by comparison with the loss of resources
caused by violent crime and armed conflict fuelled by the unlawful
use of small arms and illicit arms trafficking. We welcome efforts
by the UK Government to assist poorer countries in this regard.
However, experience shows that any such efforts at capacity building
will flounder unless existing international standards for the
conduct of law enforcement agencies are fully respected. Successful
law enforcement requires the co-operation of wider civil society
and local communities, no more so than in poor countries with
large porous borders, and this is quickly undermined if law enforcers
are allowed to commit abuses.
One area of particular neglect is the inability
of customs officials in many countries to monitor cargoes, whether
by sea or air. Often this is due to inadequate resources, poor
training and insufficient checking of containers against documentation.
Better border and customs control could also be enhanced by the
marking of weapons at the point of manufacture and also at each
point of import.
BASIC would therefore strongly urge the Government
to give consideration to the following recommendations:
(a) Legislation should be enacted requiring
all arms brokering agents and arms shipping agents domiciled in
the UK to be registered. Any agents found to have provided false
or seriously misleading information, or to have broken the law
of any country regarding arms transfers, should not be registered.
The register should be made available to the public so that public
scrutiny is possible. All UK registered brokers should be required
to submit copies of export licences and end user certificates
to the DTI whether or not these licences or certificates are issued
in the UK. Regular checks should be made to verify the authenticity
of such documentation, and the legitimate receipt of goods.
(b) The UK and its partners should closely
study the US regulations governing brokering as well as international
regimes for curbing the drug trade, including measures to enable
the inspection of bank accounts and other company data. They should
consider measures to ensure transparency of companies involved
in the arms trade and an end to the secrecy of tax haven accounts.
(c) The UK Government should ensure that
custom officials at transit ports and airports should be provided
with sufficient resources and empowered to inspect physical cargoes
and check such cargoes match valid documentation, including cargoes
in transit. They should be able to question transport crews, and
have equipment to x-ray containers. Routine checking of cargo
manifests against actual cargo, as well as flight plans against
flight directions, times and registration numbers, should be carried
out. A more robust regulatory regime and controls at the airports
where arms flights originate would further limit the secret supply
of weapons via air.
(d) All transactions conducted by registered
arms brokers and shippers in the UK and partner countries should
require prior licence authority from the Government. Any decision
to authorise such a licence should be in strict conformity with
the EU Code of Conduct, particularly the obligation of governments
to prevent arms transfers where there is a clear risk that these
would facilitate serious violations of human rights or international
humanitarian law. Decisions should also ensure that any arms exported
are not sent to countries where they are likely to be diverted
or re-exported against the stated purposes of end-use, including
the likelihood that the arms may be used for violations of human
rights or humanitarian law. The UK should encourage EU Member
States and their partners should adopt an agreement to co-operate
in the prosecution of arms dealers who contravene such controls.
(e) All arms transfers, including those conducted
by brokers, should be subject to the provision of a valid end-use
certificate. The UK Government should encourage all its partners
to adopt a common end user certificate that should stipulate that
if the arms supplied are subsequently found to have been misused
for serious violations of international human rights and humanitarian
law, the contract(s) would be rendered null and void. In such
circumstances, no further deliveries of that type of weapon or
military equipment should be permitted to the armed forces of
the recipient, nor spare parts, maintenance, training associated
with supplies, until appropriate action has been taken to bring
the perpetrators to justice.
(f) Information on illicit arms transfers
should be pooled in a central agency with the assistance of Interpol.
The UK Government and its partners should also find ways to co-operate
in information gathering with UN agencies, NGOs and individual
researchers who are able to collect field data and anecdotal accounts
from local witnesses who have credible evidence to suspect that
cargoes could be illicit arms traffic. In addition, a pooling
arrangement on the part of interested NGOs should be supported
which might facilitate the establishment of a central database
of these transfers to help predict the pattern of new transfers
in the future and assist in crisis early warning. Resources and
training should be made available to achieve this.
BASIC also welcomes the Government's proposal
to prohibit trafficking and brokering in anti-personnel mines,
strategic missiles and goods of a type for which there is evidence
of their use in torture. However, we suggest that the list of
prohibited items should be extended to include other weapons with
indiscriminate effects such as expanding ammunition and bliding
laser weapons. This list should be kept under review as new technologies
are developed. The process should include, for example, the refusal
to register by the UK authorities of patent applications for equipment
that might produce indiscriminate effects or facilitate torture.
The Comptroller of the Patent Service can deny patents on the
following grounds: "565(e) that [it] is socially objectionable,
or 566(a) for an invention. . . which would generally be expected
to encourage offensive, immoral or anti-social behaviour"
The Government should also include in the definition
of brokering and trafficking the activities of "promotion"
and "advertising", as well as "design" and
"installation". UK companies and nationals have been
found to advertise internationally the availability of equipment
prohibited in the UK, while at the same time denying they will
SECTION 4: EXPORT
4.4 Time limits for processing licence applications
4.4.1 "The Government has concluded
that licensing by default should not be adopted as it would introduce
a risk of licences being granted that were contrary to the UK's
international obligations or the Government's own policy."
BASIC supports the Government's decision. If
a default system of licence approval was introduced, export licences
could be granted for defence or law enforcement equipment which
could result in serious abuses or international aggression in
the recipient country.
4.6.3 "The Government does not propose
to grant third parties the right to appeal against a licence being
BASIC urges the Government to reconsider this
proposal. It is vital that MPs, NGOs, and other concerned citizens
have the right to appeal against licences if a system of adequate
prior parliamentary or public scrutiny of licences is established
SECTION 5: OTHER
5.1 Coverage of controls
5.1.1 "The 1996 consultation exercise
sought views on the technical detail of the goods subject to export
control as listed in the Export of Goods (Control) Order 1994
and the Annex to Council Decision 94/942/CFSP on the control of
exports of dual-use goods. Attention was drawn in particular to
the difficulties associated with interpretation of the phrase
"specially designed". In the light of the results of
the consultation and Sir Richard Scott's comments, the Government
is developing proposals for defining the terms "specially
designed" and "specially designed for military use"
as used in the EGCO and the Dual-Use and Related Goods (Export
Control) Regulations. It is hoped that consulting in Europe and
more widely will lead to their adoption internationally.
5.1.2 "The Government is also looking
at the possibility of introducing some form of military end-use
or `catch all' control. In parallel, the European Commission has
also made proposals for a military end-use control on exports
of dual-use goods to UN-embargoed destinations."
BASIC urges the Government to introduce a military
end-use control, and to make this consistent with the lists of
controlled goods, this should be defined as "military and
law enforcement" end-use control. This would recognise the
reality of the spread of modern policing technologies and their
wider security applications, and the use of military equipment
and personnel in law enforcement in many countries. The Scott
Report recognised this problem when it pointed out that: "It
should be borne in mind that `defence equipment and defence related'
equipment may include items licensable under the Industrial List,
as well as items licensable under the Military List. `Dual use'
items are capable of being put to a military or a civilian use
. . ."
BASIC is also extremely concerned by the weakness
in UK licencing of overseas sales of rights to production where
a UK producers sells the rights to manufacture its products under
licence in another country. Such agreements are increasingly supplementing,
or even taking the place of, physical exports. Only where components,
machine tools or other technology is solely for the production
of controlled goods is a licence required. This omits from the
UK controls a wide range of equipment used in security operations.
For example, UK exporters of armoured vehicle components have
had them classified as purely "civilian". Under the
present export control system, once a UK company has agreed a
licenced production deal, the UK Government relinquishes all control
of where the products end up.
All such overseas licence production deals should
fall within the arms control licencing system if the final end
products are clearly for use in defence or law enforcement. The
UK should not allow the licensed production of such equipment
where there is a risk that it will be transferred to recipients
who are likely to commit serious abuses or acts of armed aggression.
UK companies that export military and security
services in the form of training and logistical equipment should
also be subject to export criteria and licence regulation. This
is a sphere of export activity that has given rise to a number
of recent controversies.
5.2 End-use monitoring
5.2.1 "In February 1997, Labour committed
itself, if elected, to strengthen monitoring of the end-use of
defence exports to prevent diversion to third countries and to
ensure that exported equipment is used only on the conditions
under which the export licence has been granted. The statement
also said that we would seek co-operation to build a common approach
on effective monitoring of end-use within the European Union and
under the Wassenaar Arrangement. The Goverenment is currently
reviewing the options."
BASIC is extremely concerned at the lack of
progress in this area and urges the Government to initiate proposals
that can be tabled with EU and Wassenaar Arrangement members.
Proposals regarding licences and end use certificates should follow
the measures outlined above under controls on trafficking and
brokering. The Government and its partners should also develop
effective ways to ensure access to areas of armed conflict to
check the use of equipment.
5.3 Location of the export licencing authority
5.3.1 "A majority of those responding
to the consultation favoured Government responsibility for licencing
remaining with DTI. This is the Government's view."
BASIC is not convinced that the DTI should retain
responsibility for issuing licences because it also holds responsibility
for promoting UK exports, a role which presents a conflict of
interests without a clear mechanism to manage such conflict. This
was clearly identified by the Scott report as a problem. The FCO
and the MOD also have manifest conflicts of interest without means
to resolve them. The MOD massively promotes arms sales through
the Defense Export Services Organisation (DESO) which has a worldwide
network of offices.
The Government should consider the establishment
of a single, independent authority with responsibility for both
export licence applications and enforcement of export controls.
The MOD, FCO, DfiD, DTI, and intelligence agencies would be consulted,
circulated information and given opportunities to input, but primary
responsibility for overall control and enforcement would be located
in one independent authority which would not have a contradictory
promotional or marketing role. One possibility would be to locate
the new single, independent export control authority within HM
Customs and Excise.
5.4 Charging for export licences
5.4.1 "The Government accepts in particular
the argument that changing would put UK exporters at a competitive
disadvantage compared with their counterparts abroad who do not
have to pay for export licences."
BASIC suggests that the Government consider
the introduction of the Swedish system of charging exporters of
military and security equipment for the overall administrative
cost of regulation.