Reforming EU export controls
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The presentation discusses needed reforms in EU export controls to adapt to technological advancements and evolving risks, emphasizing the importance of consistent licensing decisions and simplification of controls. It highlights the Arms Trade Treaty as a pivotal legal framework for regulating arms exports to enhance security and human rights. Additionally, it proposes extending controls to emerging technologies, such as cyber capabilities, while relaxing restrictions on less sensitive technologies to facilitate legitimate trade.
Reforming EU export controls
- 1. Reforming Export Controls in the EU Presentation to the C5 Export Controls Forum, 20-21 May, Brussels RICHARD TAUWHARE 1
- 2. Adapting controls to technological and political developments… 5 needs, driven by technological developments, NGOs/Parliaments, industry, the US export control reforms, other states, evolving risks and globalisation of supply chains: 1) level (and raise) the international playing field by establishing common high trade control standards, effectively implemented, worldwide 2) make licensing decisions more consistent across EU 3) simplify controls, reduce delays and denials 4) extend controls to new technologies with potentially offensive capabilities (eg some cyber), more rapidly, and manage the risks until they are controlled 5) relax controls on less sensitive/widely available technologies (eg equipment incorporating cryptography) 2
- 3. … while protecting 3 national security international security human rights legitimate trade in military and dual use items exporters’ reputations and minimising the administrative burden on exporters and governments – this will be key for the successful reform of the EU Dual Use controls
- 4. 1. Level (and raise) the international playing field 4
- 5. Design & control the process The Arms Trade Treaty "This is a landmark agreement that will save lives and ease the immense human suffering caused by armed conflict around the world.” David Cameron, UK Prime Minister 5
- 6. The Arms Trade Treaty adopted by the United Nations General Assembly on 2 April 2013 opened for signature on 3 June 2013 entry into force requires 50 ratifications May 2014: 32 ratifications (17 from EU) and 118 signatures Expect entry into force this autumn 6
- 7. Conventional arms play a vital role in ensuring legitimate defence and security But their misuse costs 100,000s of lives, violates human rights, undermines security and development, and fuels conflict, crime and terrorism Context 7
- 8. Arms Trade Treaty: Main Elements 1-5 1) Legally binding 2) fair prospects for eventually achieving universality (needs effort) – low expectation of early US ratification but hope it will come: in practice, the Treaty would impose no new obligations on the US 3) Covers all main conventional weapons, and ammunition and parts 4) Sets high standards: mandatory refusal if unacceptable risk - peace and security, humanitarian law, human rights, terrorism or crime 5) Mandatory reporting of export authorisations 8
- 9. Arms Trade Treaty Main Elements 6-10 6) Regulates brokering and where feasible of imports, transit and trans-shipment 7) Prevent diversion to illicit trafficking or use 8) Encouragement to prevent corruption 9) Cooperation and assistance between States Parties 10) Regular Conference of States Parties, small Secretariat 9
- 10. Arms Trade Treaty: Benefits What difference will the ATT make? Save lives – poorly regulated and illegal arms flows kill Promote development – violence costs resources and stability Combat terrorism and crime Reduce human suffering – most human rights abused by arms Protect legitimate arms trade – recognises right to self-defence. 10
- 11. ATT: what does it mean for you? relatively straightforward to ratify as we already have comprehensive trade control regimes. In UK (ratified 2 April), it required only minor amendments to brokering regulations and updating of the export licensing Criteria So, minimal new administrative burden. But significant benefits, for both military and dual-use trade. Higher, common global standards, implemented more effectively and more widely, will: help level the playing field, reduce long-standing competitive disadvantage of EU states vis-à-vis those with less stringent regimes increase predictability and confidence for global supply chains complement efforts (eg under UNSCR 1540) to improve export controls in all states, particularly those where they are weak (EU lobbying and assistance) 11
- 12. 2. More consistency across the EU 12
- 13. EU Common Position Common Position 2008/944/CFSP defines the common rules governing control of exports of military technology and equipment Requires each Member State to assess export, brokering & transit licence applications for items on the EU Common Military List on a case-by-case basis against 8 criteria In UK, the same Criteria are applied to all controlled items, including dual use items and those coming under end-use/catch-all control. Recommend extending same approach to all EU – both for consistency and to give human rights greater prominence in assessments 13
- 14. Criterion 1 International Commitments Criterion 2 Internal Repression Criterion 3 Internal Conflict Criterion 4 Regional Conflict Criterion 5 National Security Criterion 6 International Community Criterion 7 Diversion Criterion 8 Economic Sustainability Other Factors commercial and financial interests; international relations; strategic industrial base The EU Risk Assessment Framework 14
- 15. … is under review Common Position is currently under review the review of the legal text is complete – all are satisfied that the current 8 criteria have stood the test of time and need no amendment But also agreed on some improvements, which may overlap with potential changes to dual use controls… 15
- 16. Improving implementation of the Common Position Agreed on need to improve coordination and harmonisation at EU level Reviewing the EU Users’ Guide to bring it up to date in light of four years’ experience of operating the Common Position and of the adoption of the ATT started with Criterion 7 (diversion) and Criterion 8 (economic development): revised guidance agreed on provisional basis last year, now being implemented now looking at the Users’ Guide for the other Criteria. Once that is complete this year, the complete revised EU Users Guide will be made public Also looking at the mechanism for sharing denials information. Hope that will soon move to a faster, fully online system 16
- 17. 3. Simplify & Speed-up 17
- 18. Simplify & Streamline controls Expand ‘Open Licences’/General Export Authorisations, at EU and national level Clarify End User Undertakings (the main reason in the UK for the government to make a ‘Request for Further Information’ - currently affecting some 50% of licence applications) Refine the definition of ‘specially designed for military use’: a priority issue for Wassenaar and important if the international community is to maintain a broadly common approach, given the US export control reforms Note European Commission proposal to be represented in the export control regimes like Wassenaar. But extending membership to the EC will require consensus which will be hard to achieve. And Member States will want to continue to represent themselves, given their national security interests Improve transparency for exporters on the licensing process and more/better information, in order to get better applications … 18
- 19. UK Export Licence Refusals 2013 0 50 100 150 200 250 TOTAL 8 – Economic capacity of buyer… 7 - Risk of diversion 6 – Behaviour of buyer country 5 – UK National security 4 – Regional instability 3 – Internal tensions or conflict 2 – Internal repression 1 - Embargoes/Treaties 19
- 20. Avoiding delays or denials Given that all licence applications (ML, DU, end-use, embargoed) are considered case-by- case against the same 8 Criteria, to avoid denials or delays exporters need to: give non-technical information about the product: what it does, and what it could it do in the hands of the wrong people. make it clear what the application is for. Check out end user issues and submit correctly completed End User Undertakings. What’s the risk of the export being diverted to a different end user Check sanctions and embargoes. If there’s an exemption, what evidence do you need to provide? Be aware of political situation in the country of destination, its human rights record, the risks of the use of your equipment in internal or regional conflict 20
- 21. 4. Extend controls to new technologies 21
- 22. Potentially offensive cyber technology Some existing controls – eg on cryptography - apply to elements of a cyber export. But existing controls currently do not directly cover all cyber capabilities The majority of cyber exports – whether products, services, advice, training or know-how - hold little risk. But some may also be used to conduct espionage, track and disrupt political opposition and restrict freedom of expression. Advanced capabilities can also cut across our own or allies’ national security capabilities and interests and may accelerate a state’s acquisition of an offensive cyber capability. EU Parliament and others have called for controls on cyber exports US indictment of 5 Chinese military officers on charges of hacking US companies and passing trade secrets to Chinese comptetitors 22
- 23. New controls Complex issue the dual use nature of cyber capabilities the rapidly-evolving technology the relatively wide availability of some items the importance of not putting EU industry – market leaders in some fields – at a commercial disadvantage in rapidly- expanding global market 23
- 24. New controls Nonetheless, new controls were agreed in Wassenaar in December (based on a UK proposal), to be incorporated into EU Dual Use Regulation. These cover: equipment and software for creating and delivering "intrusion software“ - software designed to be covertly installed on a computer or smartphone which extracts data or otherwise compromises the device; "internet surveillance systems“ - systems that can monitor and analyse internet traffic and extract information about individuals and their communications 24
- 25. Managing the risks until controls are extended Until comprehensive, international controls exist, EU governments and many of the leading cyber-security companies recognise the need to manage the risks for non-controlled cyber exports Some countries – Iran, Syria - are already subject to sanctions that include controls on cyber-related exports. For all other countries, it is difficult to draw clear lines and it is necessary to consider exports case- by-case. UK Government has designed a process, with the industry, and companies are being encouraged to use it in assessing the risks of cyber exports and when to seek government advice. 25
- 26. Unmanned Aerial Vehicles (‘drones’) pressures from some states (e.g. Pakistan) Parliamentarians NGOs (‘Campaign to Ban Killer Robots’) to place bans and increased controls on use and exports of UAVs and their components, particularly armed UAVs 26
- 27. Unmanned Aerial Vehicles (‘drones’) In fact, existing controls, under both the Missile Technology Control Regime and the Wassenaar Arrangement, are very robust. While some small UAVs of limited capability may not be controlled depending on their characteristics, all UAVs specially designed or modified for military use are controlled. Large UAVs, in MTCR Category I: presumption of denial for all transfers. Scope of Cat 1 needs to be reviewed if/when Unmanned Combat Aerial Vehicles (UCAVs) replace manned fighter aircraft Use is a separate though related issue. States which operate UAVs argue that they are operated strictly in accordance with international humanitarian law and their use is identical to that for conventionally piloted combat aircraft. International debate underway in the Convention on Certain Conventional Weapons. 27
- 29. Relaxing controls Some controlled items, often due to technological development, have become less sensitive and more widely available Obvious example is mobile phone networks which include some cryptographic capability for purely administrative purposes A priority in Wassenaar to agree to define which technologies/items can safely be de-controlled 29
- 30. Recap 5 themes: 1) level the international playing field 2) make licensing decisions more consistent 3) simplify controls, reduce delays and denials 4) extend controls to new technologies more rapidly, and manage the risks 5) relax controls on less sensitive technologies … while protecting national and international security, human rights, and exporters’ business and reputations – and minimising the burden 30
Editor's Notes
- #15: As Libya has borders with some countries – as can be seen on the map - we do have come concerns that equipment may be diverted to undesirable end users. We need to have enough information about the end user and the end use of the equipment to be satisfied that it will not be diverted. - There have been a number of reports that Libya has been involved in supplying equipment to opposition forces in the Darfur region of Sudan. Libya has denied these reports. - Inadequate security measures at some bases mean that there is a risk that small arms will find their way onto the black market. There is a demand for arms on the part of criminal gangs, as well as groups in conflict zones such as Darfur.