Export Control

Non-Proliferation Treaty (NPT)

Conference on Disarmament

General Assembly First Committee

UN Disarmament Commission

Special Session on Disarmament

Export Controls

International defence export control regimes depend upon each state voluntarily adapting its export control measures to comply with a shared purpose. These export control regimes are designed to limit the proliferation of technologies that could threaten the security of states’ party to the control agreements. The main focus of these measures is to prevent the spread of weapons of mass destruction.

There are six international export control regimes:

1. The European Code of Conduct - 1998
2. Wassenaar Arrangement – 1996
3. EU Dual Use Regulation - 1995
4. Missile Technology Control Regime (MTCR) – 1987
5. Australia Group – 1985
6. Nuclear Suppliers Group (NSG) - 1978
7. Zangger Committee - 1974

The European Code of Conduct

On 8 June 1998, the Council of the European Union adopted a Code of Conduct on arms exports, thereby taking a major step forward on a particularly sensitive issue. The aim of the Code is twofold:

- to establish strict common standards as a minimum basis for control by the Fifteen of transfers of conventional armaments falling under their responsibility;

- to promote an exchange of the relevant information among member states with a view to creating more transparency.

It defines a number of common principles for national arms export policies, building on the eight Common Criteria agreed at the Luxembourg and Lisbon European Councils in June 1991 and June 1992 respectively:

- respect for the international commitments of EU member states, in particular the sanctions decreed by the UN Security Council and those decreed by the Community, agreements on non-proliferation and other subjects, as well as other international obligations;

- the respect of human rights in the country of final destination;

- the internal situation in the country of final destination;

- the preservation of regional peace, security and stability;

- the national security of the member states, as well as that of friendly or allied countries;

- the 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;

- the existence of a risk that the equipment will be diverted within the buyer country or re-exported under undesirable conditions;

- the compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least possible diversion of human and economic resources to armaments.

A confidential annual report on the implementation of the Code will be drawn up by each EU member state and circulated to its partners. Those national reports will be reviewed annually in the framework of the Common Foreign and Security Policy. A consolidated report will then be submitted to the Council.

In order to ensure convergence in the application of the Criteria, the Code makes provision for a system of bilateral consultation triggered by the refusal of any one state to grant an export licence. The procedure is as follows:

-EU member states will circulate through diplomatic channels details of export licences refused, giving the reasons for that refusal;

- before any member state grants a licence which has been denied by another member state or states foran essentially identical transaction within the last three years, it will first consult the member state or states which issued the denial;

- if, following consultations, the member state nevertheless decides to grant a licence, it will notify its decision and explain its position to the member state or states which first issued the denial. The final decision to approve or deny the transfer will remain at the national discretion of each member state.

Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies

The Wassenaar Arrangement was formerly established by the representatives of 33 states in Vienna during July 1996.
The purpose of the Arrangement is to prevent destabilising accumulations of arms and specified dual use technologies. By controlling access to specified goods the Arrangement was designed to contribute to regional and international security.

The Arrangement pursues this aim through five main objectives:

- Promoting transparency and greater responsibility with regard to transfers of conventional arms and dual-use goods and technologies.

- Ensuring that transfers of these items do not contribute to the development or enhancement of military capabilities of states which, through their policies, undermine international peace and stability.

- Focusing on the threats to international and regional peace and security which may arise from transfers of armaments and sensitive dual-use goods and technologies where risks are judged greatest. With the following caveats that the arrangement would not:

1. be directed against any group of states;

2. impede bona fide civil transactions;

3. interfere with the rights of states to acquire legitimate means with which to defend themselves.

- Enhancing co-operation to prevent the acquisition of armaments and sensitive dual-use items for military end-uses, if the situation in a region or the behaviour of a state is, or becomes, a cause for serious concern to the Participating States.

- The undertakings of the agreement will be implemented through national export controls - the decision to transfer or deny any item remains the sole responsibility of any government.

During the discussions prior to signing, the US wanted the Arrangement to be specifically directed at a specific group of countries, namely - Iraq, North Korea, Iran, and Libya. In the end the founding members rejected the US preference and did not agree upon a list of target countries. Instead they preferred the flexibility of changing national policies when the situation demanded rather than waiting for a consensus to add, or remove, a state from a black list.

The method chosen for achieving the goals of the Arrangement is that partners to the Arrangement would consult closely about dangers they saw arising, share intelligence on threats to peace and stability, provide information about the trade in arms and sensitive dual-use goods to regions in conflict, and define common approaches to these countries.

At this stage the Arrangement does not appear to include prior notification of forthcoming contracts for controlled goods. However the current status of the Arrangement should be seen as the first step in a process whose outcome is not yet determined.

At its inception the participants established a Secretariat in Vienna to facilitate the future work of the Arrangement, and agreed to a programme that will expand and enhance the Arrangement in order to further its central objectives.

European Union Regulations on the Control of Exports of Dual-Use Goods

The European Union Regulations on the Control of Exports of Dual-Use Goods came into force on 1 July 1995. The EU members agreed to recognise each other's national export control systems for specific goods. The EU system is the first step toward creating a common system to regulate the export of dual-use goods outside the EU. At present specific decisions - such as granting export licenses - are left to members, although the aim of the EU Regulations is to promote uniform application of export controls by member states.

The objective is to have an effective mechanism to ensure non-proliferation while imposing the minimum restrictions on sales of dual-use products within the EU. The Regulations should, therefore, remove barriers to trade within the EU and provide companies with a common set of export criteria for all EU member states. It is a constructed as a compromise between the EU's remit in general trade matters and the national governments' primacy in all matters concerning defence, security and foreign affairs.

The regulations contain five annexes that specify specific items and destinations subject to control. The five lists are are:

- Products subject to export control (Annex I).

- Countries to which these products are usually allowed (Annex II).

- Guidelines on export policies agreed upon by member states (Annex III).

- Highly sensitive goods which are subject to controls even between member states (Annexes IV and V).

There is no list of proscribed destinations and it is left to each member to decide whether goods listed in Annex I should be exported to a given destination. However, when deciding whether to grant an export license authorities have to take into consideration the commonly agreed upon guidelines contained in Annex III. In addition the regulations contain a 'catch all' clause in which any unlisted goods may require a license if the exporter believes that the goods may be used for weapons of mass destruction.

Once a license has been issued in one member state, it is automatically valid for exports from any other member state. To simplify matters even further the Commission has designed a single form whose use is gaining widespread acceptance throughout the EU.

To avoid companies established in one state applying for licenses in another state with looser export regulations, it was decided that a company must apply for licenses in the state, or states, where they are legally established. If the goods to be exported are located in another state, the two states involved must consult before a license is granted. In extreme cases a state may prevent such goods being exported if it feels that vital national security interests are at stake.

It was decided that highly sensitive items relating to information security should still be subject to controls on intra-EU trade for a three year transitional period. These products are listed in Annex IV and the controls are subject to review in 1998. Goods listed in Annex V are treated as military rather than dual-use goods in more than one state. In these countries intra-EU trade in Annex V items fall under the remit of national arms export regulations.

A co-ordinating group - consisting of one representative of each member state and an EU Commission Chair - has been established. In addition, member governments are encouraged to share information. The Commission is responsible for forwarding information provided by member states about national laws, regulations and administrative positions to all other member states. In addition the Commission monitors the implementation of the regulation and may propose amendments at any time.

The EU regulation has encountered a number of problems, the most acute regarded the mutual recognition of licenses by customs officials at EU frontiers. Uncertain about the validity of unfamiliar documents, customs invoked a consultation procedure that involved two national authorities and the European Commission. Not surprisingly this procedure took up to two weeks while cross checking was carried out, and the delay reduced the credibility of the EU export control system in the eyes of industry.

The twin pillars of national and EU regulation is cumbersome. The current regulations are likely to be a step toward an integrated system of export control rather than a final step. The current system is a result of the many differences between members' national export controls.

If the EU is to fulfil its objective of creating a single market in dual-use goods while preventing undesirable third parties from obtaining them to build weapons, it will be necessary to satisfy member states that the system is being applied fairly and uniformly.

Regimes to limit the proliferation of weapons of mass destruction:
The Zangger Committee, the Nuclear Suppliers Group, and the Australia Group

These regimes are treated briefly as they deal with the transfer of material related to nuclear, chemical, and biological weapons. While they are very important to the maintenance of international security, their impact upon the activities of UK defence exporters is very limited as the trade in these goods is either illegal, or extremely rare.

The Zangger Committee was established in 1974. It agreed a list of items which would, if exported to a non-nuclear weapon state that was not party to the NPT, trigger the application of International Atomic Agency (IAEA) safeguards.

The Nuclear Supplies Group was established in 1974. The NSG is a forum for discussing and co-ordinating export
control policies with the objective of averting the acquisition of nuclear weapons by non-nuclear weapon states.

The Australia Group is an informal group whose objective is to limit the transfer of equipment used in the production of chemical, or biological, weapons. Formed in 1985 the group concentrated upon controlling the transfer of Chemical Weapon proliferation while the negotiations to complete the Chemical Weapons Convention (See below) were beingundertaken. Subsequently it has also acted to prevent Biological Weapon proliferation during the process of developing improved measures to ensure compliance with the BWC.