A Code of Conduct for Arms Sales
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Since the early 1990s there has been efforts to review and develop arms-transfer principles and codes of conduct to ensure that arms are not sold to human rights violators. Some major events, summarized, include the following:
|Year||Agreement or significant event|
|1993||A US Code of Conduct bill started and has been introduced in successive sessions of Congress since.|
|1995||A group of Nobel Peace Laureates, led by former Costa Rican President Oscar Arias, proposed a comprehensive International Code of Conduct.|
|1998||The European Union (EU) accepted a regional Code of Conduct, the first group of states to do so. The Code covers all conventional weapons, not solely small arms. In 2004, following pressure from civil society, the code has been strengthened somewhat.|
|1999||US Congress passed the International Code of Conduct Act, requiring the administration to pursue a multilateral agreement on uniform, strict export standards.|
|2000||At the December US-EU Summit, the US and EU agreed to work together on this type of agreement.|
Common themes in such codes include:
- Not selling arms to non-democratic regimes, or regimes that will use the weapons to commit human rights abuses;
- Not selling weapons where internal or external conflicts may be fueled;
- Not selling weapons that could undermine development and thus increase poverty.
However, while this sounds positive, the world’s major arms dealers have continued to sell arms to human rights violators, as mentioned in earlier parts of this site’s Arms Trade4 section. There are a number of reasons (discussed further below) as to why these codes have not been as effective as hoped. They include:
- Divergent standards;
- Divergent interpretation and implementation;
- Weakness or diluted Codes;
- Corruption and pressure to dilute codes further.
The Control Arms Campaign—a joint effort of Amnesty International, Oxfam and the International Action Network on Small Arms—notes that,
On this page:
- Loopholes in Arms Control Laws Allows Easy Bypass of Arms Controls
- US Arms Transfer Code of Conduct
- A European Union Code of Conduct for Arms Exports
- EU Code of Conduct Criticized as Weak From the Beginning, in 1998
- Many Problems with the EU Code of Conduct still, into 2004
- Loopholes allow arms transfers to human rights abusers
- Lack of transparency and accountability
- A weak code that allows this to happen
- Privatization of Security
- Expanded EU May Further Weaken European Code of Conduct and Encourage Irresponsible Export of Surplus Arms
- South Africa Adopts Human Rights Concerns in its Arms Transfers
- An International Arms Trade Treaty for All Conventional Weapons?
Loopholes in Arms Control Laws Allows Easy Bypass of Arms Controls
The Control Arms Campaign also notes that legal loopholes allow dealers to easily by-pass controls. Those loopholes include:
- By-passing end-use limitations;
- Lack of accountability and financial transparency;
- By-passing national laws by manufacturing in another country;
By-passing end-use limitations
Some governments demand to see an end use certificate identifying where arms are going and what they are to be used for.
This is a vital mechanism to ensure that
- Arms authorized for export are delivered to the stated end user;
- Arms are not diverted or misused for human rights violations.
But arms dealers can still get the weapons to their clients because this system is easy to bypass. For example,
- The licensing body does little, or has limited abilities to, verify certificates;
- Certificates are obtained through corrupt channels;
- Certificate are faked or cite a destination that is just a transit stop. Control Arms cites an example of Canada selling 33 helicopters to Colombia, a country with a terrible human rights record. They achieved this by going through the US, despite strong Canadian controls. Certificate for end-use is not required if selling to the US, and there are no re-export guarantees.
Lack of accountability and financial transparency
As noted in the Arms Trade6 section on this site, the arms trade is one of the most corrupt businesses in the world.
Many arms dealers—middlemen—are corrupt and use corrupt means, such as corrupt arms transporters and financiers. Off-shore banking is used to make it hard to track the finances.
(For more about off-shore banking and its problems in general, see this site’s section on Evading Responsibilities7.)
By-passing national laws by manufacturing in another country
By shifting production to another country, arms companies can avoid national laws. So, as Control Arms notes,
even if these countries are engaged in, or export arms to, conflicts in which gross human rights abuses are committed, this practice allows arms exporters to effectively bypass controls prohibiting arms sales there.
US Arms Transfer Code of Conduct
The US is the world’s largest arms dealer and often criticized along with many leading European countries for selling weapons to known human rights violators.
Code Seems Positive
Yet, it too has an Arms Trade Code of Conduct. It prohibits military assistance and arms transfers to countries that do no promote democracy, do not respect human rights, are engaged in acts of armed aggression, and do not fully participate in the United Nations Register of Conventional Arms.
However, the Code allows presidential exemptions based on either a US national security interest or a determination that an emergency exists requiring the United States to transfer arms or provide military assistance. Congress can however, with a 2/3 majority vote, vote to block any presidential waiver. Nonetheless, to that end, the Administration would be required to compile annually a list of countries not meeting these requirements for military assistance and arms transfers and make the list available to Congress and the international community.
Furthermore, a resolution introduced in 1999 required the US President to promote an international arms transfer control regime,
through the United Nations and other international fora … to limit arms transfers worldwide, particularly transfers to countries that do not meet the criteria established [in the resolution], for the purpose of establishing a permanent multilateral regime to govern the transfer of conventional arms.
The President then has to report each year efforts taken each year to gain international acceptance of the principles of arms code of conduct.
For more details, see a summary of the Code of Conduct9 from Center for Defense Information (CDI).
Internationalizing the US Code of Conduct so it Does Not Apply to the US!
Yet, despite what sounds like a promising code, and measures to promote such principles world wide, there has been growing criticism of the principle of a code of conduct. Indeed, as CDI also criticizes, there have efforts in the US to weaken the Code10 by making it apply to other countries but not the US.
Fears About a Code of Conduct Typically Unfounded
Often from commercial interests, there have been fears raised about any code of conduct, typically along the lines of
If we don’t sell weapons, someone else will. As CDI also noted, this argument
has become increasingly untrue and irrelevant as more and more countries have shown commitment to joining up to codes to prevent a free flowing marketplace of deadly weapons.
The Council for a Livable World’s Arms Trade Oversight Project deals with many concerns11, noting that:
- The Code is NOT an arms sales ban;
- The Code does NOT create an arms sales blacklist due to annual reviews;
- The Code does NOT micro manage the President in foreign affairs but instead strengthens its position regarding human rights and military issues;
- Congress does NOT give up its right to block specific sales;
- The Code provides Congress an opportunity to scrutinize arms;
- The Code’s restrictions are very close to those already in existing law;
- While other countries may be able to sell when the US doesn’t, the US can help set standards, given its prominent world position and pressure other countries to also commit to an international code, thus leveling the playing field amongst competing arms dealers;
- The Code will NOT cost jobs; Already many foreign arms deals require concessions such as much of the production being overseas as well.
In comparison, the Europeans seem more committed and willing to have a Code of Conduct, yet theirs too is fraught with problems.
A European Union Code of Conduct for Arms Exports
In June 1998, the European Union introduced a Code of Conduct in the export of arms. The Code of Conduct provided the criteria against which arms licenses are judged. Licenses should not be granted where there are concerns that the equipment for export could be used to commit human-rights violations, fuel internal or external armed conflict, or increase poverty by undermining development.
EU Code of Conduct Criticized as Weak From the Beginning, in 1998
Even though the code has been signed there are still many criticisms about it that say that it falls short of establishing effective monitoring of sales and transfers by a Member State. It is also claimed that it will still be probable that arms can be exported to the regimes that would be the most likely to use them and violate international humanitarian law (which lays down the rules of war).
In 1998, as the Code was agreed, a joint statement by leading NGOs in this field (Oxfam, Amnesty International, Christian Aid, Safer World, BASIC and the World Development Movement) issued a critique. They charged that
Many Problems with the EU Code of Conduct still, into 2004
Leading human rights organization, Amnesty International, issued a warning in May 2004 saying that arms export controls in the expanded European Union are dangerously ineffective13.
2004 is supposed to see a review of the EU Code of Conduct, but Amnesty fears that
the review will not be wide or deep enough to address very serious flaws.
In a report titled Undermining Global Security: the European Union’s arms exports14, Amnesty noted many of the things highlighted further above from the Control Arms Campaign, but with more detail, and more specifically, with the EU Code of Conduct.
Amnesty also notes:
- The EU is a major player in arms deals: France, Germany, Italy, Sweden and the United Kingdom accounted for one third of the worldwide arms transfer agreements signed between 1994 and 2001.
- EU expansion to include 10 new members adds some additional countries with significant arms deals.
- The application of the EU Code has shown the system to be deeply flawed. Disturbingly, there are numerous reports of exports of MSP [Military, Security and Police] equipment, technology and expertise from existing EU Member States or new EU member states which have been transferred mostly in secret to recipients who have used such items for grave human rights violations or breaches of international humanitarian law.
- Loopholes allow arms transfers to human rights abusers;
- Lack of transparency and accountability;
- A weak code that allows this to happen.
Loopholes allow arms transfers to human rights abusers
Amnesty described various ways arms are transferred to human rights abusers or where concerns are to be found. For example,
- Certain EU and new Member States have—by neglect, lack of resources or intent—undermined, by-passed or ignored their own national export criteria and those of the EU Code and therefore have allowed arms and security equipment to be transferred to illicit or abusive end users.
- There have been failures to control transit and trans-shipment of arms adequately.
- Arms brokers are experts at using
shellcompanies, shipping agents and distributors to arrange the sale of arms and weapons to human rights crisis and conflict zones. Because of the lack of effective controls at the national, EU and international level, the brokers, transportation agents, intermediaries and those providing financial services for such third party arms transfers rarely break export laws and can operate with impunity despite the serious human rights abuses caused by such arms transfers.
- The provision of powerful surveillance and interception capabilities are sometimes provided to repressive states, thus contributing to human rights violations carried out by the police, security and intelligence forces. Amnesty also charges that EU governments seem to have paid little regard to this aspect of export control.
- Companies in the EU and New Member States are still manufacturing and trading in equipment that may be used in torture and ill-treatment, despite ratifying a United Nations Convention prohibiting any torture.
Lack of transparency and accountability
Many of the problems Amnesty describes is due to lack of transparency and accountability. For example,
- There is no Operative Provision in the Code to address the massive risks posed by the spread of LPO (Licensed Production Overseas), where a company in one country allows a second company in another country to manufacture its products under license.
- There is a lack of reporting and regulation on military, security and policing training provided by various military and security companies.
- There is a lack of monitoring of end-use certificates. As Control Arms noted further above, certificates are sometimes faked, or there is inadequate resources to follow up.
- Transparency and reporting are poor. Information that is vital to enable parliamentarians and the public to hold governments to account is poor. While some countries have improved in this area, (often only after public pressure), very few governments provide sufficient details on products licensed for export, the quantities of weapons exported, who the end user is, etc.
A weak code that allows this to happen
This situation has arisen because the EU code is weak. Major flaws in the EU Code make it hard to be fully effective. Such flaws include:
- Code is only
politically bindingnot legally binding;
- Vague phrases and criteria lead to different interpretations and loopholes;
- Some provisions are weak, such as countries only need to
take into accountthe level of human rights in a receiving country.
- Lack of many operative provisions to close loopholes, increase transparency and accountability;
Privatization of Security
Amnesty also highlights a marked increase in the last decade in the use of private security or military companies by governments, companies and also inter-governmental organizations (IGOs) and even non-governmental organizations (NGOs) to provide security training, logistics support, armed security and, in some cases, armed combatants. The types of companies in this
privatization of security include:
- Private Military Companies;
- Private Security Companies.
On private military companies, Amnesty gives an example of a French company which seems to have little accountability.
On private security companies, while services provided vary enormously, there are a number of cases where they have directly and indirectly contributed to human rights abuses.
The general concern about all three groups is lack of full accountability and transparency.
Expanded EU May Further Weaken European Code of Conduct and Encourage Irresponsible Export of Surplus Arms
EU expansion to include 10 new members brings additional concerns regarding Arms Control:
- Some new countries are significant arms dealers;
- The weak EU Code of Conduct may have to be made weaker to accommodate the newer members (because of taking the
lowest common denominatorapproach to get new members to adopt the Code). While the EU appears to be attempting to address this, Amnesty criticizes it for being weak and only encourages countries to do things, rather than oblige them to;
- To meet NATO requirements, these new EU member countries will need to get rid of their old stock of weapons and modernize. Surplus must therefore be dealt with. Usually they are meant to be destroyed. But the irony of this is:
- Many old weapons have been sold for cheap to third world countries;
- The major European arms dealers sell more arms to the new European countries to help
- EU aid to third world countries may help purchase these arms;
- In effect, The richer EU countries are therefore financing their own arms sales.
But, as Amnesty also notes, even existing EU members have been
guilty of irresponsibly exporting surplus arms contrary to the criteria of the EU Code mentioning Denmark, United Kingdom, Germany and France as examples.
There are numerous opportunities to review the EU Code and strengthen it, as Amnesty and others have urged. Other leading organizations including smaller ones from the newer member states are also urgently taking up this issue.
South Africa Adopts Human Rights Concerns in its Arms Transfers
South Africa used to be one of the top arms exporters in the world, and is still prominent. During the Apartheid era, they were known for selling arms to human rights violators. Since 1994, though, Human Rights Watch have pointed out that they have made
remarkable progress … in adopting a set of human rights friendly policies in relation to arms transfers.
This policy is called the National Conventional Arms Control Committee (NCACC). The Conventional Arms Control Bill to implement this policy is still in the works. However, in their 2000 report on South Africa16 Human Rights Watch pointed out that at the same time,
it believes that the South African government must urgently address the inconsistencies that have emerged between its arms export policies and practices, and deny all human rights abusers its weapons, the tools with which such abuses have been committed.
South Africa is a well-respected, and increasingly more influential, developing country that is growing in stature. It has a lot of influence in Africa as well, so their use and exports of arms are of particular interest too.