Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


Letter from the Foreign and Commonwealth Office to the Clerk of the Committees

  Your letter of 27 March included several questions following up the Foreign Secretary's 21 March oral evidence session with the Quadripartite Committee. Question 11 of your letter, and our response sent on 15 April were as follows:

    "11. In his answer to Q25 of the oral evidence, the Secretary of State undertook to write to the Committee about the case for a thorough-going look at the EU Code of Conduct in the light of events since 11 September. When might the Committees expect his response?

    The Government is examining the case for reviewing the EU Code of Conduct in the light of events since 11 September. The Committee will be informed of the Government's conclusions on this issue as soon as possible."

  The Government has now examined the case for reviewing the EU Code of Conduct in the light of events since 11 September. The Code is very similar to the Consolidated EU and National Arms Export Licensing Criteria, so many of the conclusions outlined by the Foreign Secretary in his written reply to a Parliamentary Question on 13 December 2001 (HC 975W), on the criteria and UNSCR 1373, apply to the EU Code of Conduct as well.

  The EU Code is clear about the need to prevent arms flows to terrorists, set out in criteria six and seven as follows:

"Criterion six

  The behaviour of the buyer country with regard to the international community, as regards in particular to its attitude to terrorism, the nature of its alliances and respect for international law.

  Member States will take into account inter alia the record of the buyer country with regard to:

    (a)  its support or encouragement of terrorism and international organised crime; . . ."

"Criterion seven

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

  In assessing the impact of the proposed export on the importing country and the risk that exported goods might be diverted to an undesirable end-user, the following will be considered: . . .

    (d)  the risk of the arms being re-exported or diverted to terrorist organisations (anti-terrorist equipment would need particularly careful consideration in this context)."

  Criterion one of the Code is also very clear about the requirement on EU Member States to prevent the proliferation of Weapons of Mass Destruction:

"Criterion one

  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.

  An export licence should be refused if approval would be inconsistent with, inter alia: . . .

    (b)  the international obligations of member states under the Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention;

    (c)  their commitments in the frameworks of the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group and the Wassenaar Arrangement; . . ."

  As Mr Dowse, Head of Non-Proliferation Department, pointed out in response to Question 25 of the Oral Evidence Session, all EU Member States are members of the key non-proliferation regimes, and the EU is actively engaged in work by those regimes to ensure that their lists, aims and procedures are consistent with the need to prevent arms flows to terrorists.

  The CFSP Working Group on Conventional Arms Exports (COARM), which has oversight of the implementation of the EU Code of Conduct, had a brief informal discussion on whether the Code should be amended in September 2001, in the immediate aftermath of the terrorist attacks. The Group concluded informally that the Code was already sufficiently robust on the prevention of arms flows to terrorists.

  The EU Code does not include the language in the second consolidated criterion, referred to in the 13 December PQ, that HMG:

    "considers that in some cases the use of force by a Government within its own borders, for example to preserve law and order against terrorists or other criminals, is legitimate and does not constitute internal repression, as long as force is used in accordance with the international human rights standards described above".

  We have always taken the view that the inclusion of this language in the Consolidated Criteria does not contradict our obligations under the EU Code. It merely clarifies what is arguably an obvious point: that the use of force is not internal repression if it does not breach international human rights standards. For example, criteria four (external aggression) and six (international law) do not explicitly include text on the legitimate use of force. Nevertheless, we believe it is consistent with these criteria (and the EU Code) to view the use of force by a destination country as legitimate, so long as it is not used aggressively against another country or to assert by force a territorial claim, and so long as force is used in accordance with that country's international obligations and commitments, including under international humanitarian law.

  The Foreign Secretary has therefore concluded that the EU Code of Conduct does not need to be amended in response to the terrorist attacks of September 11 or in order to be compliant with UNSCR1373. The Code as currently drafted provides adequate safeguards against the supply of arms and other controlled goods to terrorists, while allowing Member States to equip those conducting legitimate, responsible campaigns against terrorism.

27 June 2002

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