By Mark Bromley and Giovanna Maletta*
Under the 1998 EU Code of Conduct on Arms Export, which was replaced in 2008 by the EU Common Position on Arms Exports, member states of the European Union have committed themselves to achieving ‘high common standards’ and ‘convergence’ in their arms export controls. The standards are outlined in eight criteria that require member states to abide by certain standards when assessing licences for arms exports. This includes denying licences when there is a ‘clear risk’ that the arms ‘might’ be used to commit violations of human rights or international humanitarian law (IHL) and ‘[taking] into account’ the risk that they will be diverted to an unauthorized end-user or end-use. Meanwhile, convergence in member states’ controls is promoted through systems of information sharing and—in cases where one state wishes to issue a licence for an arms export that another state has previously denied—a commitment to consult one another. However, decision-making in arms export licensing falls under states’ national competence and there is no formal mechanism at the EU level to sanction non-compliance with the Common Position. As such, non-governmental organizations (NGOs), parliamentarians and academics have often questioned whether EU member states are applying the criteria of the Common Position correctly and consistently.
Questions about the implementation of the Common Position have been particularly highlighted by the contrasting policies of EU member states on the export of arms to states in the Saudi-led military coalition engaged in the conflict in Yemen since 2015. There have been multiple reports by United Nations agencies and NGOs alleging that the coalition has violated IHL standards, including through widespread and systematic attacks on civilian targets and a failure to appropriately distinguish between civilian and military objects. These reports will be the subject of a ‘comprehensive examination’ conducted by a group of experts appointed by the UN High Commissioner for Human Rights. They have also led some EU member states to restrict or halt arms exports that are likely to be used in Yemen to certain members of the coalition, and the European Parliament has called for the EU to impose an arms embargo on Saudi Arabia. However, other member states have implemented no such constraints, and others have allowed exports to the coalition to increase.
Differences in exports and policies
On 14 February 2018, the 19th EU Annual Report on Arms Exports, which covers the arms export licences, licence denials and arms exports of member states during 2016, was released. On 12 March the SIPRI Arms Transfers Database, which provides quantitative and qualitative data on all states’ arms imports and exports, was updated to cover 2017. When combined, the two data sets point to an increase in arms acquisitions by states in the Saudi-led coalition and the significant but contrasting role that EU member states are playing in this trade. According to SIPRI data, the leading members of the Saudi-led coalition—Saudi Arabia and the United Arab Emirates (UAE)—were the 2nd and 4th largest arms importers during 2013–17, respectively. Exports to Saudi Arabia rose by 225 per cent, and exports to the UAE rose by 51 per cent. In both cases, EU member states were among the largest suppliers. The United Kingdom and France were the second and third largest suppliers to Saudi Arabia in 2013–17, and France and Italy were the second and third largest suppliers to the UAE.
The EU Annual Report points to an increase in the number of denials of licence applications for arms exports to Saudi Arabia and the UAE between 2015 and 2016. The number of licence denials rose from 7 to 18 for Saudi Arabia and from 9 to 17 for the UAE. The majority of these denials were issued on the basis of concerns about human rights or IHL and the risk of diversion. However, the EU Annual Report also indicates a rise in the overall value of licences issued for these destinations. The value of export licences issued for arms transfers to Saudi Arabia fell by 29 per cent but significant increases for the UAE meant that, overall, the value of licences issued for both states rose from €32 billion to €43 billion. These figures should be treated with caution given differences in the way they are collected. The data on the number of licences issued (which shows a majority of exports coming from a small group of states) may potentially be more informative: during 2016 France, Germany and the UK accounted for 85 per cent of the export licences issued for transfers to Saudi Arabia and 76 per cent of those issued for the UAE.
The variation in exports to Saudi Arabia and the UAE are partly due to the differences in the size and capabilities of EU member states’ arms industries. However, it also reflects the significant difference in national policies. The conduct of the conflict in Yemen has triggered national debates throughout the EU about whether arms exports to states that are part of the Saudi-led coalition are in line with the criteria of the EU Common Position. However, these debates have resulted in different outcomes. The Netherlands and the Belgian region of Flanders have indicated that they are denying licences for the export of arms that might be used in air or ground operations in Yemen, and Sweden has adopted a restrictive approach. Since the start of 2018 Germany has also announced that it will no longer be issuing licences for arms that will be used in the conflict. In addition, the Belgian region of Wallonia has announced that it will not supply arms to a certain section of the Saudi military.
By contrast, other EU member states have resisted public, media and parliamentary pressure to restrict arms sales to states in the Saudi-led coalition. In Italy, the legitimacy of these transfers have been justified by the government, in the case of Saudi Arabia, on the basis that the country is not subject to any international arms trade restrictions. This position was recently confirmed when the Parliament rejected two motions requesting a halt on arms exports to members of the coalition. Similarly, France has argued that its arms exports to states in the Saudi-led coalition are closely monitored and in line with national laws and regulations. In the UK, the Campaign Against Arms Trade (CAAT) has launched a legal challenge arguing that British arms exports to Saudi Arabia breached the country’s own national guidelines. However, in July 2017 the British High Court declared that the exports were lawful arguing, among other things, that the coalition did not intentionally target civilians and that the risk of ‘serious violations’ of IHL was not so clear as to justify a suspension or a cancellation of arms sales. CAAT is seeking to appeal the ruling and will hear on 12 April if the case can proceed.
How can the EU Common Position be strengthened?
The variation in policies among EU member states regarding how the criteria of the EU Common Position should apply to transfers of arms that may be used in the conflict in Yemen is a concern for several reasons. First, it limits the ability of the EU to influence the direction and outcome of the conflict. To have influence, the EU will need to speak with a common voice about the conduct of the warring parties and a crucial step will be establishing a shared view of if, and when, arms sales to the Saudi-led coalition are acceptable. Second, the variation points to the failure of EU policy-making structures to achieve some level of harmonization in member states’ foreign and security policies. The EU’s continued expansion into areas that are viewed as traditional matters of sovereignty (e.g. fiscal policy, migration and security) while simultaneously failing to achieve real convergence in these fields has been highlighted as one of the long-term threats to the health of the Union.
During 2018, the European External Action Service (EEAS) and member states are due to reassess ‘the implementation’ of the EU Common Position and ‘the fulfilment of its objectives’. This reassessment provides an opportunity to address some of the weaknesses that have been underscored by the conflict in Yemen. This process will build on a review of the Common Position that began in 2011 and concluded in 2015. Despite the length of the review, there were no changes to the text of the instrument itself. However, several sections of the user’s guide—which provides guidance on the implementation of the Common Position—were revised, and improvements to the mechanisms of information sharing agreed. The significant variance in practices regarding the assessment of arms exports to the Saudi-led coalition indicates that a more ambitious set of reforms will be needed this time.
One potential outcome of the reassessment could be a peer-review process to help clarify and iron out out some of some of the variation in how the EU Common Position is implemented at the national level. This would involve assessing and comparing how the EU Common Position is implemented in states’ laws and regulations, the methods used to assess licence applications, and the government agencies and ministries that are involved. A second could be turning the EU Annual Report into a more effective oversight tool by ensuring that all EU member states submit the data that is required in a standardized manner. This report could be further enhanced by improving its timeliness and level of detail. A third could be finding ways in which EU resources, such as its delegations abroad, could be used to assist member states with conducting risk assessments, end-user checks and post-shipment verification. Many smaller EU member states struggle with the complexities involved in accurately assessing the risks associated with arms exports. A fourth could be determining whether the criteria in the EU Common Position and the content and format of the user’s guide continue to be fit for purpose. This could lead to a strengthening of the language on diversion by requiring states to deny licences when there is risk that it might occur and turning the user’s guide into a more dynamic, regularly updated, online resource.
This list of options is far from comprehensive. A wide range of suggestions for how the EU Common Position could be strengthened have been made by think tanks, NGOs and parliamentarians throughout the lifetime of the instrument. As such, it is crucial that the reassessment process is conducted in a clear and transparent manner in which all relevant stakeholders are able to engage effectively. Given the challenges facing the EU and the array of initiatives it is undertaking, it may be hard to generate the attention necessary to effect real change in the EU Common Position. However, many of these challenges and initiatives—particularly Brexit and the increased interest in consolidating the European defence industry—may also serve to remove some of the obstacles that have previously blocked the adoption of more far-reaching proposals. Experience—and particularly the case of Yemen—show that a failure to think ambitiously during the 2018 reassessment will likely to lead to more doubts about the purpose of the EU Common Position and the extent to which it is fulfilling its intended objectives.
*About the authors:
Mark Bromley is the Director of the SIPRI Dual-Use and Arms Trade Control programme.
Giovanna Maletta is a Research Assistant in the SIPRI Dual-use and Arms Trade Control Programme
This article was published by SIPR.
 The Saudi Arabia-led coalition consists of Bahrain, Egypt, Jordan, Kuwait, Morocco, Senegal, Sudan, the United Arab Emirates (UAE) and, until June 2017, Qatar.
 See Human Rights Watch, World Report 2018: Events of 2017, 2017; Amnesty International, Amnesty International Report 2017/18: The State of the World’s Human Rights; United Nations, Human Rights Council, ‘Situation of human rights in Yemen, including violations and abuses since September 2014—Report of the United Nations High Commissioner for Human Rights’, A/HRC/36/33, 13 Sep. 2017; and United Nations, Security Council Committee established pursuant to resolution 2140 (2014), Reports of the Panel of Experts on Yemen.
 See Genschel, P. and Jachtenfuchs, M., ‘More integration, less federation: The European integration of core state powers’, Journal of European Public Policy, vol. 23, no. 1 (2016), pp. 42–59.