European Union Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment

The EU Council Common Position defining common rules governing control of exports of military technology and equipment is a set of guidelines and principles intended to enable Member States of the EU to make socially responsible decisions concerning the exports of military technology and equipment.   It was adopted under Title V of the EU Treaty and, because all Member States agreed to abide by the Common Position, is legally binding for all Member States.

 

Goal: The goal of the Common Position is to meet the following objectives;

[…] set high common standards which shall be regarded as the minimum for the management of, and restraint in, transfers of military technology and equipment by all Member States, and to strengthen the exchange of relevant information with a view to achieving greater transparency.

[…] to prevent the export of military technology and equipment which might be used for internal repression or international aggression or contribute to regional instability.

 

Relevant Clauses[1]

 

Article 2: Criteria

 

2. Criterion Two: Respect for human rights in the country of final destination as well as respect by that country of final destination as well as respect by that country of international humanitarian law.

-Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, Member States shall:

a) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used for internal repression;

b) exercise special caution and vigilance in issuing licences on a case-by-case basis and taking account of the nature of the military technology or equipment to countries where serious violations of human rights have been established by the competent bodies of the United Nations, by the European Union or by the Council of Europe […]

-Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall:

c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.

 

3. Criterion Three: Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts.  Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination.

 

4. Criterion Four: Preservation of regional peace, security and stability.  Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim.  Member States shall take into account inter alia:

            a) the existence or likelihood of armed conflict between the recipient and another  country;

b) a claim against the territory of a neighboring country which the recipient has in the past tried or threatened to pursue by means of force;

c) the likelihood of the military technology or equipment being used other than for the legitimate national security and defence of the recipient;

d) the need to not affect adversely regional stability in any significant way.

 

5. Criterion Five: National Security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of friendly and allied countries.  Member States shall take into account:

a) the potential effect of the military technology or equipment to be exported on their defence and security interests as well as those of Member State and those of friendly and allied countries, while recognizing that this factor cannot affect consideration of the criteria on respect for human rights and on regional peace, security and stability;

b) the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries.

 

6. Criterion Six: 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.  Member States shall take into account, inter alia, the record of the buyer country with regard to:

            a) its support for or encouragement of terrorism and international organised crime;

b) its compliance with its international commitments, in particular those on the non-use of force, and with international humanitarian law;

c) its commitment to non-proliferation and other areas of arms control and disarmament, in particular the signature, ratification and implementation of relevant arms control and disarmament conventions referred to in point b) of Criterion One.

 

7. Criterion Seven: Existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions. 

In assessing the impact of the military technology or equipment to be exported on the recipient country and the risk that such technology or equipment might be diverted to an undesirable end-user or for an undesirable end use, the following shall be considered:

a) the legitimate defence and domestic security interests of the recipient country, including any participation in United Nations or other peace-keeping activity;

b) the technical capability of the recipient country to use such technology or equipment;

c) the capability of the recipient country to apply effective export controls;

d) the risk of such technology or equipment being re-exported to undesirable destinations, and the record of the recipient country in respecting any re-export provision or consent prior to re-export which the exporting Member State considers appropriate to impose;

e) the risk of such technology or equipment being diverted to terrorist organizations or to individual terrorists;

f) the risk of reverse engineering or unintended technology transfer.

 

8. Criterion Eight: Compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country, taking into account the desirability that states should meet their legitimate security and defence needs with the lease diversion of human and economic resources for armaments.  Member States shall take into account, in light of information from relevant sources such as United Nations Development Programme, World Bank, International Monetary Fund and Organisation for Economic Cooperation and Development reports, whether the proposed export would seriously hamper the sustainable development of the recipient country’s relative levels of military and social expenditure, taking into account also any EU or bilateral aid.



[1]The Council of the European Union (2008).European Union Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment. Retrieved October 14, 2013, from Official Journal of the European Union: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:335:0099:0103:En:PDF

Comments are closed.