Note d'AnalyseGroupe de recherche et d'information sur la paix et la sécurité
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by Holger Anders (GRIP/IANSA)
21 December 2005
EU governments have indicated their interest in developing guidelines to assist national licensing authorities in the implementation of criterion 7 of the EU Code of Conduct on Arms Exports. The criterion concerns the existence of a risk that military technology or equipment may be diverted within the buyer country or re-exported under undesirable conditions. The development of guidelines on this criterion is a welcome development that has the potential to make a significant contribution to achieving the Code’s aim of responsible arms export policies by EU member states.
Nevertheless, there remains concern that ambitions by EU member states are aiming too low. Specifically, concrete and practical measures should be taken to assert the responsibility of EU member states to minimize diversions and undesirable transfers also once the technology or equipment has been exported. This means that the development of guidelines on criterion 7 should go hand-in-hand with efforts to further develop related counter-diversion policies under the EU Code.
This paper seeks to make the case for such comprehensive policy. It starts by highlighting the problem of inadequate management of diversion risks at licensing and post-licensing stages. The subsequent sections assess EU standards for such risk management and the scope for strengthening these. It is recommended that EU member states consider not only strengthening risk assessment at the licensing stage, but also delivery and post-delivery controls. In addition, member states should investigate into possible means for strengthening implementation capacities and the exchange of information on diversion risks.
It is an integral part of decision-making on export licensing by EU member states to assess the risk that exported equipment is diverted during or after its transfer to the recipient. This risk assessment at the licensing stage is a key requirement for limiting the risk that exported equipment will later be diverted or used in violation of the EU Code criteria. In turn, this raises important questions as to what kind of information and credible sources thereof can be used by licensing officials to ‘fully satisfy’ themselves that there exists no clear diversion risk. Such questions can be usefully answered by the planned guidelines in the EU.
However, there are many further questions EU member states must address to ensure a responsible arms export policy that limits the risks of diversions. To illustrate, relevant authorities should also have in place guidelines that clearly specify when to seek specific guarantees by recipients and governments of importing countries in the form of end-use declarations and re-transfer restrictions. Importantly, relying only on risk assessment and scrutiny at the licensing stage is not a fool-proof measure to prevent diversions. That is, even comprehensive efforts at the licensing stage to collate and assess relevant information to minimize diversion risks cannot prevent unscrupulous actors in the arms trade to seek to exploit weaknesses in controls.
To elaborate, licensing authorities may intentionally be misled and authorize in good faith transfers that are later diverted. In addition, authorities in the importing country may have the intention to ensure that end-use and re-transfer conditions will be respected though not be in a position to effectively ensure such respect. Also, attitudes of end-users and countries of final destination towards respect for end-use and re-transfer controls may change over time. Such risks are evidenced by several examples of diversions of military equipment that was exported by EU member states.1 Significantly, the risk of diversions of the particular exports may not always have been clearly identifiable at a licensing stage (see Box 1).
In other words, a responsible EU policy to counter diversions of EU-exported military equipment should not only be based on strengthened efforts in the area of risk-assessment at the licensing stage. Rather, it should also seek to further develop EU policies in relation to delivery and post-delivery controls to ensure that the equipment arrived, remains in the hands of the legal end-user, and is used in conformity with the authorized end-use.
Indeed, as acknowledged by EU member states in the 2005 EU Council report on the EU Code on Arms Exports, “end-use controls and post-shipment verification are an important facet of responsible arms export policy”.2 It is important that EU member states now translate this acknowledgement into high common standards that promote the effective implementation of such controls.
Box 1: Round-trip of Belgian P90 submachine guns3
In the spring of 1998, the Government of Jordan ordered 100 P90 submachine guns from the Belgian arms manufacturer FN Herstal. The end user for the guns was identified as the Special Forces responsible for the protection of the Jordanian royal family. After receipt of an end-user certificate (EUC), the Belgian authorities granted an export license for this deal. The P90s were delivered in two instalments in June and August of the same year. At first sight, this export to a state actor with a clearly defined and acceptable end-use for the weapons may seem uncontroversial in relation to r<sup>isks of diversion. However, subsequent developments clearly demonstrated the shortcomings of an approach that limits itself to risk assessment at the licensing stage.
Specifically, even before the actual export from Belgium took place, the commander of the Jordanian Special Forces had negotiated and concluded the sale of the said P90s to a Swiss arms merchant. Two days after arrival in Jordan, the P90s were re-transferred to Switzerland. While it is not known whether this export from Jordan violated any re-transfer stipulations in the EUC submitted to Belgium, it certainly violated the spirit of the EUC insofar as the Special Forces were at best a very temporary end-user. In contrast, the acquisition of the P90s by the Swiss dealer fully complied with Swiss import regulations.
As the sale of fully-automatic weapons on civilian markets is prohibited in Switzerland, the P90s were subsequently transferred to a dealer in the Netherlands for conversion into semi-automatic guns. Once converted, approximately half of the P90s were delivered to private owners in Switzerland. Others were delivered to, among other, Belgian and Finnish gun dealers. About 20 guns remained in the Netherlands as payment for the conversion. In September 1999 then, four of these “Jordanian” submachine guns were discovered in weapons caches belonging to a Dutch arms and drug trafficker. Others were reportedly used in armed hold-ups in France and in Belgium.
An investigation by the office of the public prosecutor in Liege (Belgium) into whether the diversion of the P90s represented a criminal offence concluded that “no fault was found to have been committed on Belgian soil”. The same may probably also be said with respect to whether the Belgian authorities had exercised due diligence in their obligation to assess the risk of diversion before granting the export. At the same time, the continuing absence of a systematic policy on delivery verification and post-delivery controls reflects an ‘out of sight, out of mind’ approach towards arms exports. Regrettably, this approach would seem to continue in Belgium and other EU member states.4
3. EU policy on management of diversion risks
EU member states have indicated that they intend to develop guidelines for the implementation of criterion 7 on the basis of the criterion in the reworked though not yet adopted EU Code on Conduct on Arms Exports. Criterion 7 is expected to stipulate that, when assessing the “existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions”, authorities will assess elements such as:
The legitimate defence and domestic security interests of the recipient country, its technical capability to use the technology or equipment, and its capability to apply effective export controls;
The risk of the technology or equipment being re-exported to undesirable destinations, and the record of the recipients country in respecting any re-export restrictions that may have been imposed by the exporting EU member state;
The risk of reverse engineering or unintended technology transfer and of the technology or equipment being diverted to terrorist organizations or individual terrorists.5
Importantly, the reworked code will also integrate previously adopted good practices in the EU on export licensing. Of particular relevance here is article 5 of the reworked Code. The article is expected to state that “export licenses shall be granted only on the basis of reliable prior knowledge of end use in the country of final destination.” Such reliable prior knowledge “will generally require a thoroughly checked end-user certificate [EUC] … and/or some other form of official authorisation issued by the country of final destination”.6
In addition, the User’s Guide on the EU Code defines best practices in the area of end-user certificates. Specifically, the Guide spells out minimum details Member States should request when they require an EUC. These include exporter’s and end-user’s details; the final destination country; a description of the goods being exported and their quantity and/or value; signature name and position of the end-user; the date of the EUC; and an indication of the end-use of the goods.7 The Guide further suggests that authorities of the exporting country may authenticate the signature on EUCs issued by the government of the destination country and the capacity of the signatory to make commitments on behalf of their government.8
In addition, the Guide stipulates elements that member states may request when requiring an EUC. These elements may include a clause prohibiting re-exports of the transferred goods, or a restriction regarding destinations to which the goods may be re-transferred. There may also be a clause stipulating that re-transfers are prohibited unless the exporting country has provided prior written consent. Further, there may be a specification that the exported goods will not be used for purposes other than the declared end-use. 9
In short, EU member states are currently taking important steps towards a responsible EU policy to counter diversions of exported military equipment. This policy will explicitly include exported technology for the production of military equipment abroad. Such exports raise particular diversions risks which have not always been adequately addressed by EU member states (see Box 2). At the same time, as will be shown in the following section, there remains significant scope, and need, for more far-reaching measures to effectively prevent and combat diversions of EU exported technology and military equipment.
Box 2: Proliferation risks associated with transfers of production capacities
The transfer of technology and production capacities for the manufacture of military equipment abroad forms an integral part of the modern defence industry. Often, such transfers may take place under licensed production arrangements. These may serve the exporter by helping to establish his products in a new market and to bring in revenue through royalties from the manufacturer overseas. In addition, there may be transfers of production equipment to establish or to maintain and upgrade already existing production equipment. To illustrate, some 90% of current manufacturers of ammunition for ‘military’ small arms are estimated to have been provided with production equipment from the two leading global providers of such equipment in Germany and France.10
While an integral part of today’s industry, it has to be acknowledged that transfers of technology and production capacities raise particular proliferation risks. This is because the importer may divert not only the finite quantity of equipment that was acquired but, importantly, also the finished goods that were produced with the imported technology or capacities. Related, there are specific long term diversion risks because technology or production capacities may be used for several decades for the production of potentially divertible equipment.
For example, Germany actively supported in the 1960s and 70s the build-up of domestic production capacities for small arms in Pakistan and Iran to allow these states to meet their domestic security needs through national production. The deals were conditional on these weapons being only for domestic consumption by the national armed forces.11 However, subsequent regime changes in these countries resulted in new governments, which considered themselves no longer bound by end-use obligations given by the preceding regimes.
Germany now faces the situation that weapons from production centres it once helped build are finding their way into armed conflict and crime. For example, in 2001, Pakistan reportedly transferred domestically produced H&K assault rifles to Sri Lanka. Germany would not have been likely to authorize a transfer of this equipment from Germany to Sri Lanka at that time.12 Similarly, Iran is reputed to be a source of assault rifle proliferation based on production capacities once imported by Germany.
In light of the particular risks posed by transfers of technology and production capacities, it is welcome that EU member states are expected to agree to include previously adopted good practices in the EU in the reworked EU Code on Arms Exports. In more detail, the reworked EU Code is expected to explicitly refer to controls on exports for military technology or equipment for the purposes of production in third countries.
That is, when assessing applications for exports of such technology or equipment, “Member States shall in particular take account of the potential use of the finished product in the country of production and of the risk that the finished product might be diverted or exported to an undesirable end user.”13 It is desirable in this context that EU member states further agree to impose clear restrictions and specifications regarding permissible end-use and end-users of the finished goods derived from such equipment or technology.
4. Scope for strengthened controls
4.1. Risk assessment at the licensing stage
The planned guidelines for the implementation of criterion 7 can make an important contribution to assisting licensing authorities in making an adequate assessment of diversion risks. It may be of use to EU member states in this context to consider which types of equipment, if diverted, may cause particular grave consequences and which consequently should be subject to especially stringent export controls. This may include exports of technology and production equipment because of the above indicated long-term risks of diversion. Similarly, the diversion and misuse of diverted of MANPADS (man-portable air defence systems) may have particularly grave consequences (see Box 3 below).
It is desirable that EU member states also strengthen the language of the relevant standards on counter-diversion. A useful source is provided by the Principles on Export Controls of MANPADS that were adopted in the Wassenar Arrangement and the OSCE in 2003-04. The principles stipulate that exporting governments will take into account the “recipient government’s ability and willingness to protect against unauthorized re-transfers, loss, theft and diversion; and the adequacy and effectiveness of the physical security arrangements of the recipient government for the protection of military property, facilities, holdings, and inventories”14 (see also Box 3 below).
In addition, the guidelines should clarify sources of reliable information for the assessment of indicators such as legitimate defence and domestic security needs of a country of final destination or the capability for applying effective export controls. It should be noted that, if actively sought, reliable information can often be collected through open sources. Further, it may be desirable to require industry to adopt a strict policy of ‘know your customer’. Useful elements in this context may be provided by the List of Advisory Questions for Industry that was adopted in the Wassenaar Arrangement in 2003 (see Annex A).
Box 3: Export controls on MANPADS
Following several years of advocacy by especially the USA, states member to the Wassenaar Arrangement (WA) and the Organization for Security and Cooperation in Europe (OSCE) adopted in 2003-04 common principles for export controls of Man-Portable Air Defence Systems (MANPADS).15 States agreed in these forums that the particular threats to civil aviation by the misuse of MANPADS and/or the availability of MANPADS to terrorists and terrorist organizations require stringent measures to prevent diversions of these weapons. The resultant principles in the WA and the OSCE are noteworthy for stipulating some of highest counter-diversion standards found so far in multilateral agreements on conventional arms control.
To elaborate, the export controls cover not only fully assembled MANPADS, but also components and spare parts, licensed manufacture of MANPADS abroad, as well as the provision of technical assistance and training for their operation and use. Further, no general licenses16 are permissible, and a ban is stipulated on transfers of MANPADS to non-state actors who have not been duly authorized by the government of the importing country. In addition, a ban is imposed on the use of non-governmental brokers or brokering services when transferring MANPADS unless the broker or brokering service has been specifically authorized to act on behalf of a government.
The export controls also provide for high common standards for risk-assessment at the licensing stage. This includes a commitment that export decisions will take into the account the “adequacy and effectiveness of the physical security arrangements of the recipient government for the protection of military property, facilities, holdings and inventories.”17 In addition, “[p]rior to authorizing MANPADS exports, the exporting government will assure itself of the recipient government’s guarantees […] not to re-export MANPADS except with the prior consent of the exporting government [… and] to inform promptly the exporting government of any instance of compromise, unauthorised use, loss, or theft of any MANPADS material.”18
The export controls further stipulate that the “exporting government will satisfy itself of the recipient government’s willingness and ability to implement effective measures for secure storage, handling, transportation, use of MANPADS material, and disposal or destruction of excess stocks to prevent unauthorised access and use.”19 Procedures to attain the requisite levels of security and accountability in the recipient state are to include “written verification of receipt of MANPADS shipments” and storage conditions that are “sufficient to provide for the highest standards of security and access control”20 (see Annex B).
4.2. End-user certification and other pre-transfer measures
A strengthened EU policy on diversion risk management should emphasise the systematic use of end-user certification with strict conditions on end-use and re-transfers. At the same time, it will be crucial to avoid that EUCs are seen as replacing the need for adequate risk assessment. EU member states should therefore aim for a systematic requirement for EUCs, their verification, and other counter-diversion measures at licensing and pre-transfer stages.
Specifically, EU member states should identify situations under which they will always require measures such as verifying the authenticity of EUCs, including the authenticity of the signature and the capacity of the signatory to make end-use and re-transfer commitments. For transfers not requiring an EUC from the government in the country of final destination, EUCs should be linked to a prior written notification by the country of final destination that, where relevant, the import has been authorized or that the relevant authorities in the importing country have been made aware of the potential transfer.
An additional counter-proliferation measures would be to require that transit countries are informed and give prior written notice to the authorities of the state considering the export license that they have no objection to the transit. It is worth pointing out that these and other measures have already been commitment to by several EU member states in relation to transfers of firearms under the 2001 UN Firearms Protocol (see Box 4 and Annex C).21
Box 4: Article 10 of the UN Firearms Protocol22
Article 10 of the 2001 UN Firearms Protocol requires that states party to the instrument operate an effective system for licensing exports, transits and imports of firearms, their parts and components, and ammunition (hereafter firearms). Article 10 pertains only to the technical aspects of such a licensing system and does not address political aspects of whether a particular transfer should be licensed in view of transfer criteria such as the recipient government’s record on respect for end-use restrictions. In essence, this means that article 10 only becomes applicable after licensing authorities have made a preliminary decision whether the transfer would, in principle, be permissible.
Once this decision has been made, authorities in the exporting state have to verify that the importing state has issued an import licence. In practice, this could entail that the exporter already submits an import authorisation with the request for an export license. Such an import license may either be an individual document, or take the form of an end-user certificate that has been underwritten by the authorities in the importing state. In addition, prior to granting an export license, the authorities in the potentially exporting state have to verify that the authorities in the state or states through which the firearms would be transited have provided a written ‘notification of no objection’ to the transit.
Importing states have further to be in a position to inform the exporting state, if requested, of the receipt of the dispatched firearms. In practice, this could take the form of a delivery verification certificate that is issued and transferred to the authorities in the exporting state once the transferred firearms have arrived on the territory of the importing state. Article 10 further requires states party to the Protocol to ensure that licensing systems are secure and that the authenticity of documents can be verified or validated. In practical terms, this implies that there have to be mechanisms to ensure that only duly authorized officials can issue required export, transit and import licenses. It further implies that officials in other states can verify that issued documents and signatures thereon are made by only those authorized officials.
4.3. Delivery verification
Strengthened policies in the EU on managing diversion risks will remain limited in their potential impact if no parallel measures are taken to strengthen controls and standards for delivery and post-delivery verification. An example is the Belgian transfer in 1998 of sub-machine guns to Jordan’s Special Forces. The discovery of the re-transfer of the guns was not due to any Belgian policy that extends the responsibility to prevent diversions and misuse of exported military equipment to such equipment once exported from national territory. Rather, it was due to media investigations in 2003/04 once some of the guns had been discovered in illicit activities (see Box 1 above). In turn, this raises the question how many more exports by Belgium and other EU member states have been diverted or re-transferred under undesirable conditions without EU member states being aware of this.
EU member states should therefore define a clear policy on the use of transport security protection and delivery verification to prevent and detect diversions of military equipment during transfers. At a minimum, EU member states should transpose relevant principles adopted in the Wassenaar Arrangement and the OSCE on exports of MANPADS to particular situations and types of technology or equipment covered by the EU Code. This includes the principle that importing states may have to provide written verification of recipient of shipments.
Delivery verification should also include physical verification that types and quantities of equipment arriving in the country of final destination and at the end-user correspond to types and quantities authorized for export/import and to that recorded in shipping documents. This is important because only verification of whether a particular container has arrived at its intended destination does not necessarily allow for identification of whether the container’s contents have arrived at their authorized destination.
4.4. Post delivery verification and end-use controls
The probably single most important weakness in EU counter-diversion policies is the continuing absence of a systematic policy on end-user and end-use verification after an export has taken place. Such a policy is essential to allowing for verification of conformity by end-users and countries of final destinations with end-use and re-transfer conditions that may have been imposed by the exporting state.
At a minimum, there should be a policy on post-delivery and end-use controls for military equipment particularly vulnerable to diversion or misuse, or the diversion or misuse of which could have significant consequences. Where relevant, EUCs and export contracts should be required to stipulate that the exporter or officials of the exporting country, such as embassy staff, will be allowed post-delivery access to the military equipment for physical inspections.23
A restricted approach to a systematic policy on post-delivery and end-use verification would allow for targeted checks for particular equipment or end-users. This should include targeted checks for cases where, after the export has already taken place, information becomes available suggesting a possible violation of obligations by an end-user. Such a policy could draw inspiration from US legislation, which stipulates high standards on end-use monitoring for exports of defence articles and defence services (see Box 5 below).24
A more comprehensive approach would complement a system allowing for better targeted checks with a system of random checks for particular equipment, transfers, or end-users, or, more broadly still, for all exported military equipment. This approach would provide an additional incentive for recipients and countries of final destination to fully comply with end-use and re-transfer conditions that may have been imposed. Random checks are also likely to reveal possible diversions or misuse that would otherwise go unnoticed by EU member states.
Box 5: End-use monitoring by US authorities
The US Arms Export Control Act requires the US president to establish a programme for the end-use monitoring of defence articles and defence services related to high-risk exports; transfers of sensitive information or goods; or transfers of goods or services “that are particularly vulnerable to diversion or misuse, or whose diversion and misuse could have significant consequences”. Specifically, the programme aims to “provide reasonable assurances that the recipient is complying with [end-use] requirements imposed by the US Government” and that goods or services “are being used for the purposes for which they are provided”.25
For commercial exports, the programme is implemented through the “Blue Lantern” programme, which entails screening of export license applicants and post-delivery checks. In 2003, US authorities undertook some 400 post-delivery checks of specific transfers as part of “Blue Lantern”. Many of them concerned firearms recipients in the Western Hemisphere who were scrutinised on a random basis or, more often, were indicated to US authorities, after the export already took place, as suspected to be involved in criminal activities. Several of these checks resulted in the launching of investigations into possible violations of end-user undertakings.26
For exports under US security assistance programmes, end-use monitoring is implemented through the “Golden Sentry” programme. Controls are carried out in the country of final destination through among other Security Assistance Organizations based at US embassies abroad. Their control activities include annual cross-checks of inventories of exported MANPADS that are held by US export authorities with inventories on these weapons submitted by the end-user.27
4.5. Strengthening capacities for risk assessment and verification
A strengthened EU policy on risk assessment and transfer and post-transfer verification must be complemented with strengthened mechanisms for the implementation of such as policy. Member states may consider in this context to make greater use of their overseas embassies for the collection and verification of relevant certificates and other documentation. Where relevant, member states should also make greater use of missions of experts prior to licensing exports to collect and verify relevant information in the potential importing country.28 Member states should also consider possibilities for requesting embassies of other EU member states to assist in the collection of relevant information and in verification. This would be of particular benefit in cases where a EU member state does not have a representation in the country of potential or actual import.
A strengthened EU policy on preventing diversions also raises questions regarding potential additional costs and burdens for governments and/or industry. One way to limit burdens for at least governments may be to outsource certain control functions to transfer inspection companies providing tracking services for transfers as well as physical pre-delivery and delivery verification.29 Such companies could also be requested to verify for governments, where necessary, required information, certificates and other documentation. In turn, this may free up resources in licensing authorities and therewith allow for greater cost-efficiency in decision-making on export applications.
4.6. Information sharing and sanctions on violations
An effective EU policy to counter diversions and misuse of exported military technology or equipment should further include clear guidelines with respect to measures that may be taken if end-users and/or countries of final destination are found in violation of end-use or re-transfer obligations. This could include a stipulation under the EU Code on Arms Exports that a recipient country which violated or failed to prevent or sanction a violation it was aware of is considered a non-desirable export destination. Export applications for military equipment to the recipient country would be denied as a matter of principle until such a time when the situation in the recipient country leading to the diversion has been redressed.30
An effective EU policy would also be greatly assisted by clear mechanisms for the exchange of information between EU member states on end-users and/or countries of final destination which have been found violating end-use and re-transfer obligations. EU member states should consider in this context the establish of a EU database on such end-users and/or countries of final destination. Such a database would significantly contribute to adequate risk assessment by allowing licensing authorities to better draw on experiences and information that may be held by authorities in other EU member states on previous diversions of EU –exported military equipment. It would also greatly increase incentives for compliance by raising the threat of sanctions by all EU member states on transfers to a particular end-user and/or country of final destination.
Criterion 7 and article 5 of the reworked EU Code, and the related passages in the User’s Guide to the Code, will provide a strong basis for a responsible policy of EU member states to limit diversion risks for exported military technology and equipment. The responsible implementation of this policy would mean that exports will not be authorized if licensing authorities cannot obtain reliable prior knowledge of end-use and end-user and fully satisfy themselves that there is no clear risk of diversions or undesirable re-transfers.
However, EU member states will miss a valuable opportunity if they do not use the discussions on guidelines on criterion 7 to also consider related measures that will be necessary to strengthen the EU policies. Guidelines on criterion 7 should be therefore complemented with strengthened practices for the implementation of article 5 and a further development of relevant best practices in the User’s Guide.
In particular, a policy relying solely on strengthening risk assessment at the licensing stage will not be sufficient to effectively limit and prevent diversions and undesirable end-use of technology or military equipment exported by EU member states. Specifically, EU member states should clearly distance themselves from an ‘out of sight, out of mind’ approach to arms export controls. In the absence of such efforts, there is the clear threat that diversions and other misuse of EU-exported military technology or equipment will continue.
* * *
Wassenaar Arrangement- List of Advisory Questions for Industry
(Agreed at the 2003 Plenary)
The Wassenaar Arrangement Participating States decided at the Plenary 2003 to publish the following non-exhaustive list of questions on the WA website. The intended use for the list is to provide a guide for companies in any export situation. The answers to the questions below will give guidance to when suspicion should be raised and a contact with national export licensing authorities might be advisable.
Do you know your customer? If not, is it difficult to find information about him/her?
Is the customer or the end-user tied to the military or the defence industry?
Is the customer or the end-user tied to any military or governmental research body?
If you have done business with the customer before - is this a usual request for them to make? Does the product fit the business profile?
Does the customer seem familiar with the product and its performance characteristics or is there an obvious lack of technical knowledge?
Is the customer reluctant to provide an end-use statement or is the information insufficient compared to other negotiations?
Does the customer reject the customary installation, training or maintenance services provided?
Is unusual packaging and labelling required?
Is the shipping route unusual?
Does the customer order an excessive amount of spare parts or other items that are related to the product, but not to the stated end-use?
Is the customer offering unusually profitable payment terms, such as a much higher price?
Is the customer offering to pay in cash?
Wassenaar Elements for Export Controls of Man-Portable Air Defence Systems (MANPADS)
(Agreed at the 2003 Plenary)
Recognising the threats posed by unauthorised proliferation and use of Man-Portable Air Defence Systems, especially to civil aviation, peace-keeping, crisis management and anti-terrorist operations, Participating States affirm that they apply strict national controls on the export of MANPADS.
1.1. These Elements cover:
a) surface-to-air missile systems designed to be man-portable and carried and fired by a single individual; and
b) other surface-to-air missile systems designed to be operated and fired by more than one individual acting as a crew and portable by several individuals.
1.2. National export controls apply to the international transfer or retransfer of MANPADS, including complete systems, components, spare parts, models, training systems, and simulators, for any purpose, by any means, including licensed export, sale, grant, loan, lease, co-production or licensing arrangement for production (hereafter "export"). The scope of export regulation and associated controls includes research, design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, servicing, modification, upgrade, modernisation, operation, use, replacement or refurbishment, demilitarisation, and destruction of MANPADS; technical data, software, technical assistance, demonstration, and training associated with these functions; and secure transportation, storage. This scope according to national legislation may also refer to investment, marketing, advertising and other related activity.
1.3. Any activity related to MANPADS within the territory of the producing country is subject to national laws and regulations.
2. Control Conditions and Evaluation Criteria.
2.1. Decisions to permit MANPADS exports will be made by the exporting government by competent authorities at senior policy level and only to foreign governments or to agents specifically authorised to act on behalf of a government after presentation of an official EUC certified by the Government of the receiving country.
2.2. General licences are inapplicable for exports of MANPADS; each transfer is subject to an individual licensing decision.
2.3. Exporting governments will not make use of non-governmental brokers or brokering services when transferring MANPADS, unless specifically authorised to on behalf of the government.
2.4. In order to prevent unauthorised use, producer countries will implement technical performance and/or launch control features for newly designed MANPADS as such technologies become available to them. Such features should not adversely affect the operational effectiveness of MANPADS for the legal user.
2.5. Exporting governments in the Wassenaar Arrangement will report transfers of MANPADS as part of the Arrangement's Specific Information Exchange reporting requirements.
2.6. MANPADS exports will be evaluated in the light of the Wassenaar Arrangement Initial Elements and the Wassenaar document "Elements for Objective Analysis and Advice Concerning Potentially Destabilising Accumulations of Conventional Weapons" and any subsequent amendments thereto.2.7. Decisions to authorise MANPADS exports will take into account:
- Potential for diversion or misuse in the recipient country;
- The recipient government's ability and willingness to protect against unauthorised re-transfers, loss, theft and diversion; and
- The adequacy and effectiveness of the physical security arrangements of the recipient government for the protection of military property, facilities, holdings, and inventories.
2.8. Prior to authorising MANPADS exports, the exporting government will assure itself of the recipient government's guarantees:
- not to re-export MANPADS except with the prior consent of the exporting government;
- to afford requisite security to classified material and information in accordance with applicable bilateral agreements, to prevent unauthorised access or compromise;
- to inform promptly the exporting government of any instance of compromise, unauthorised use, loss, or theft of any MANPADS material.
2.9. In addition, the exporting government will satisfy itself of the recipient government's willingness and ability to implement effective measures for secure storage, handling, transportation, use of MANPADS material, and disposal or destruction of excess stocks to prevent unauthorised access and use. The recipient government’s national procedure designed to attain the requisite security include, but are not limited to, the following set of practices, or others that will achieve comparable levels of protection and accountability:
- Written verification of receipt of MANPADS shipments.
- Inventory by serial number of the initial shipments of all transferred firing mechanisms and missiles, if physically possible; and maintenance of written records of inventories.
- Physical inventory of all MANPADS subject to transfer, at least once a month; account by serial number for MANPADS components expended or damaged during peacetime.
- Ensure storage conditions are sufficient to provide for the highest standards of security and access control. These may include:
- Where the design of MANPADS permits, storing missiles and firing mechanisms in locations sufficiently separate so that a penetration of the security at one site will not place the second site at risk.
- Ensuring continuous (24-hour per day) surveillance.
- Establishing safeguards under which entry to storage sites requires the presence of at least two authorised persons.
- Transport MANPADS in a manner that provides for the highest standards and practices for safeguarding sensitive munitions in transit. When possible, transport missiles and firing mechanisms in separate containers.
- Where applicable, bring together and assemble the principal components - typically the gripstock and the missile in a launch tube - only in the event of hostilities or imminent hostilities; for firing as part of regularly scheduled training, or for lot testing, for which only those rounds intended to be fired will be withdrawn from storage and assembled; when systems are deployed as part of the point defences of high priority installations or sites; and in any other circumstances which might be agreed between the receiving and transferring governments.
- Access to hardware and any related classified information will be limited to military and civilian personnel of the receiving government who have the proper security clearance and who have an established need to know the information in order to perform their duties. Any information released will be limited to that necessary to perform assigned responsibilities and, where possible, will be oral and visual only.
- Adopt prudent stockpile management practices that include effective and secure disposal or destruction of MANPADS stocks that are or become excess to national requirements.
2.10. Participating States will, when and as appropriate, assist recipient governments not capable of executing prudent control over MANPADS to dispose of excess stockpiles, including buying back previously exported weapons. Such measures are subject to a voluntary consent of the exporting government and the recipient state.
2.11. Exporting governments will share information regarding potential receiving governments that are proven to fail to meet the above export control guarantees and practices outlined in paragraphs 2.8 and 2.9 above.2.12. To enhance efforts to prevent diversion, exporting governments will share information regarding non-state entities that are or may be attempting to acquire MANPADS.
3. Participating States will ensure that any infringement of export control legislation, related to MANPADS, is subject to adequate penalty provisions, i.e. involving criminal sanctions.
4. The Participating States will exchange information and review progress related to the implementation of these steps regularly.
5. Participating States agree to promote the application of the principles defined in these Elements to non-Wassenaar members.
UN Firearms Protocol - Article 10 : General requirements for export, import and transit licensing or authorization systems
1. Each State Party shall establish or maintain an effective system of export and import licensing or authorization, as well as of measures on international transit, for the transfer of firearms, their parts and components and ammunition.
2. Before issuing export licences or authorizations for shipments of firearms, their parts and components and ammunition, each State Party shall verify:
(a) That the importing States have issued import licences or authorizations; and
(b) That, without prejudice to bilateral or multilateral agreements or arrangements favouring landlocked States, the transit States have, at a minimum, given notice in writing, prior to shipment, that they have no objection to the transit.
3. The export and import licence or authorization and accompanying documentation together shall contain information that, at a minimum, shall include the place and the date of issuance, the date of expiration, the country of export, the country of import, the final recipient, a description and the quantity of the firearms, their parts and components and ammunition and, whenever there is transit, the countries of transit. The information contained in the import licence must be provided in advance to the transit States.
4. The importing State Party shall, upon request, inform the exporting State Party of the receipt of the dispatched shipment of firearms, their parts and components or ammunition.
5. Each State Party shall, within available means, take such measures as may be necessary to ensure that licensing or authorization procedures are secure and that the authenticity of licensing or authorization documents can be verified or validated.
6. States Parties may adopt simplified procedures for the temporary import and export and the transit of firearms, their parts and components and ammunition for verifiable lawful purposes such as hunting, sport shooting, evaluation, exhibitions or repairs.This report was written for the programme ‘Observatory on global weapons production and transfers’ by the Walloon Region, Belgium. The author would like to thank Roy Isbister and others who commented on a draft of this paper. The here presented opinions are those of the author alone and do not necessarily reflect the official position of the Walloon Region.
1. For a discussion of diversions of military technology or equipment exported by EU member states see Amnesty International. 2004. Undermining Global Security: the European Union’s arms exports. AI index ACT 30/003/2004. London, Amnesty International, February, p. 21f; 26f; 32f; and 81f.
2. EU Council. 2005a. Seventh Annual report according to operative provision 8 of the European Union Code of Conduct on Arms Exports. EU Council document 14053/05 of 14 November 2005, p. 8.
3. This box is based on I. Berkol, “Comments on the sale of the P90 to Jordan”. Internal GRIP document, September 2004; and news broadcast “Actuel” by the RTBF (Belgian television and radio) on 20 October 2004.
4. For a detailed discussion of Belgian exports causing concern regarding the absence of delivery and post-delivery verification see An Vranckx. 2005. European arms exports to Latin America – an inventory. IPIS background report. Antwerp: International Peace Information Service, Updated March, pp 37-41. Available at http://www.ipisresearch.be/publications_report.php .
5. See EU Council. 2005b. Draft Council Common Position 2005/…/CFSP Defining Common Rules Governing The Control Of Exports Of Military Technology And Equipment. Article 2, criterion 7 (Unpublished).
6. Ibid, article 5.
7. EU Council. 2005c. User’s Guide to the EU Code of Conduct on Arms Exports. EU Council document 13296/05 of 14 October, chapter 2, section 1, points 2.1.1-2.
8. Ibid, point 2.1.3.
10. See GRIP. 2005. Export controls on production capacities for military equipment: Strengthening the EU approach. Note d’Analyse. Brussels: GRIP, July. Available at http://www.grip.org/bdg/g4580.html
11. Interview, German arms export official, Federal ministry of Economics, Berlin, June 2004.
12. Amnesty International, 2004, p.35f.
13. See EU Council, 2005b, art. 5.
14. OSCE. 2004. Principles for Export Controls of Man-Portable Air Defence Systems (MANPADS). Vienna: OSCE, paras. 2.5; and 2.6.
15. See Wassenaar Arrangement (WA). 2003. Elements for Export Controls of Man-Portable Air Defence Systems (MANPADS), Agreed at the 2003 Plenary; and OSCE, 2004.
16. General or open licenses allow exporters to make repeat transfers of specific military equipment to a specific client. The exporter therefore has not to apply for a individual licenses each time the equipment is transferred to this client.
17. WA, 2003, para. 2.7
18. Ibid., para. 2.8
19. Ibid., para. 2.9
21. EU member states who have ratified or acceded to the UN Firearms Protocol are: Belgium; Cyprus; Estonia; Latvia; Lithuania; the Netherlands; Poland; Slovakia; and Slovenia (9 states). EU member states who have signed though not yet ratified the Protocol are: Austria; Denmark; Finland; Germany; Greece; Italy; Luxembourg; Portugal; Sweden; and the UK (10 states). The remaining EU members, who have not signed or acceded to the Protocol are: the Czech Republic; France; Hungary; Ireland; Malta; and Spain (6 states). Information as of 14 November 2005. See http://www.unodc.org/unodc/crime_cicp_signatures_firearms.html .
22. See UN General Assembly. 2001. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime. A/RES/55/255 of 8 June.
23. Such a requirement may be imposed under for example Bulgarian legislation on arms exports. See Bulgaria. 2002. Law on the Control of Foreign Trade Activity in Arms and in Dual-Use Goods and Technologies, as amended in 2002, art. 17.7.
24. United States of America. 2003a. Arms Export Control Act, United States Code Title 22 – Foreign Relations and Intercourse, Chapter 39, as amended in 2003, section 2785. Available via http://pmdtc.org/aeca.htm .
25. USA, 2003a, section 2785, points a, and b.
26. USA. 2003b. End-Use Monitoring Report for Fiscal Year 2003. Annual report by the Directorate of Defence Trade Controls, US Department of State. Pages 1; 2; and 4. Availabale at
http://www.pmdtc.org/docs/End_Use_FY2003.pdf . See also Amnesty International, 2004, p. 85.
27. USA. 2003c. Security Assistance Management Manual. Department of Defence, document DoD 5105.38-M, Chapter 8 – End-Use Monitoring (EUM). Point C184.108.40.206, page 276.
Available at http://www.dsca.osd.mil/samm/ .
28. For a recent example of such mission employed by the Walloon export authorities in Belgium, see GRIP, 2005, box 2.
30. This for example is the language employed in the German political guidelines on arms exports of 2001. See Germany. 2001. Politische Grundsätze der Bundesregierung für den Export von Kriegswaffen und sonstigen Rüstungsgütern. Berlin, 19 January 2000. Section iv.4.