In addition to maintaining national export controls with respect to war weapons, other armaments and dual‑use goods, for which the Political Principles Adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment of 19 January 2000 are the decisive policy guidelines, the Federal Government has long endeavoured to harmonize strict export controls under the aegis of the European Union and at international level.
Germany’s arms export policy thus also dovetails with the country’s foreign and security policy, which has the aim of preserving peace. To this extent, its arms export policy also promotes conflict prevention.
European Union export controls
EU Common Position on the export of military technology and equipment
The Council Common Position of 8 December 2008 concerning the control of exports of military technology and equipment to non‑EU states created a legally binding framework for arms exports by EU countries. It builds on the European Union Code of Conduct on Arms Exports adopted by the Council on 8 June 1998, which had merely been politically binding, and which in turn was based on the Common Criteria for granting export licences agreed at the Luxembourg and Lisbon European Councils in 1991 and 1992.
In particular, the Council Common Position of 8 December 2008 lays down the following eight criteria for assessing export licence applications:
- Respect for the international obligations and commitments of EU member states (e.g. sanctions, etc.);
- Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law;
- Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts;
- Preservation of regional peace, security and stability;
- National security of the EU member states;
- Behaviour of the buyer country with regard to the international community, as regards in particular its attitude to terrorism and its compliance with international commitments on non-proliferation;
- Existence of a risk that the military technology or equipment will be diverted within the buyer country (e.g. to a terrorist organization) or re-exported to undesirable destinations;
- Compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country.
In addition, the Common Position retained the system established under the Code of Conduct whereby member states inform each other of cases in which applications for export licences have been refused (“denials”). If a member state wants to grant an export licence for a transaction that is “essentially identical” to one previously denied by another EU state, it is obliged to first consult that member state. This consultation mechanism increases the transparency of arms export controls among all EU member states, advances their further harmonisation and promotes the creation of a level playing field with respect to competition.
Council Regulation of 5 May 2009 on the control of dual-use items
This Regulation governs the export, transfer, brokering and transit of so‑called dual‑use goods, which can be used for both civil and military purposes. It is directly binding on all EU member states and thus contributes greatly to standardised, coherent controls in the EU. In particular, the Regulation helps EU member states to ensure that they comply with their international obligations with respect to non‑proliferation, which derive above all from the international export control regimes described below. Germany played a key role in both the genesis of this Regulation and the weaving of the current fine mesh of its net.
Export controls can only attain maximum effect if as many countries as possible apply comparable regulations and procedures and cooperate as closely as possible with the aim of implementing effective export controls worldwide. This is why the EU and its member states actively approach other countries (“outreach”) to campaign for export controls and, if necessary, help these countries to develop or improve their own export control systems. In this context, one priority is to advocate high standards for controls on transfers of small arms and light weapons, and to offer advice and support if needed. The Federal Office for Economic Affairs and Export Control has already been tasked repeatedly by the EU with organising outreach activities.
EU outreach activities: export-control.jrc.ec.europa.eu
Wassenaar Arrangement (WA)
The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual‑Use Goods and Technologies (WA) entered into force on 1 November 1996. At present 41 states are members. These include all EU states (except Cyprus), plus Argentina, Australia, Canada, Croatia, Japan, the Republic of Korea, Mexico, New Zealand, Norway, Russia, South Africa, Switzerland, Turkey, Ukraine and the USA.
The goal of the Wassenaar Arrangement is to prevent destabilising accumulations of arms by establishing effective and reliable national export controls and to improve transparency in the export of conventional weapons and dual‑use goods by agreeing on reporting duties.
To this end, common lists of weapons have been drawn up, which are regularly updated and adapted to take account of the latest developments in military technology. In Germany these lists are incorporated into the national export control legislation. The member states carry out their own export controls in accordance with the agreed criteria and best practice guidelines drawn up by the WA, and inform each other as required about approvals and denials. Particularly strict guidelines are in force for small arms and MANPADS and for certain dual‑use goods.
Export controls in the area of chemical and biological weapons-related goods and technologies (The Australia Group)
The Australia Group is the international export control regime for certain chemicals and biological agents, as well as dual‑use goods and technologies, that can be used to produce biological or chemical weapons. The use of chemical weapons in the Iran‑Iraq war prompted ten Western states, including Germany, to start coordinating their national export controls for dual‑use chemicals which could be used for the production of weapons of mass destruction in 1985. They also agreed to exchange information about procurement methods and to discuss options to curb the proliferation of such arms. In 1992, goods and technologies that could be used for the manufacture of biological weapons were added to the group’s remit.
Annual plenary meetings are held under Australia’s chairmanship, with additional meetings convened as required. The Group currently includes all EU member states, as well as Argentina, Australia, Canada, Iceland, Japan, the Republic of Korea, Mexico, New Zealand, Norway, Switzerland, Turkey, Ukraine and the USA (giving a total of 41 states plus the EU Commission).
Like other export control regimes, the Australia Group relies on the political goodwill of the participating states, not on binding international law. The participating states have agreed to make the export of sensitive items contained in the Australia Group’s lists subject to national licences. All other participating states are informed of export applications that have been denied by one of their number, and are obliged not to supply the same goods to the same recipient until they have consulted the state that denied the original application (no undercut).
The principles of the Australia Group have been laid down its guidelines, which are publicly available. The exchange of information concerning denials and other sensitive information is subject to confidentiality arrangements between the members of the Group.
Export controls in the area of missile technology
The Missile Technology Control Regime (MTCR) was established in 1987 by the governments of the then G7 states as an export control instrument to prevent the proliferation of nuclear weapons-usable missile technology. Like the other export control regimes, the MTCR is not based on an international treaty, but purely on a political understanding among the participating governments. In the MTCR Guidelines, members pledge to control the transfer of equipment and technology included in technical lists (found in the Annex to the Guidelines, and divided into “Category I” and “Category II” items), which could in the recipient state be used for delivery systems for weapons of mass destruction – e.g. ballistic missiles, cruise missiles and unmanned aerial vehicles/drones.
There is a strong presumption that transfers of Category I items (complete rocket systems capable of delivering a payload of at least 500 kg to a range of at least 300 km, as well as their major complete subsystems) will be denied. In other words, a transfer will only be approved on rare occasions where the possibility of misuse is basically ruled out.
All other participants are to be notified of transfers that are refused (denials). If a state is asked to approve the delivery of the same items to the same recipient, it must first consult with the state that issued the denial. A Point of Contact has been established at the French Foreign Ministry to coordinate export control policy among the participating governments. This task includes notifying partners of denials.
Currently 35 countries are parties to the Missile Technology Control Regime: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, India, Ireland, Italy, Japan, the Republic of Korea, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, Russia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, the UK and the USA.
The German Government attaches particular importance to the MTCR’s dialogue with non-member states, which seeks to encourage them to apply regime principles. This dialogue is conducted by the rotating MTCR Chair at outreach meetings. In addition, so-called Technical Outreach Meetings are held, at which the main features of the regime are explained to representatives of non-member states, and recent changes to the MTCR Annex are talked through by technical experts.
In order to enhance the efficacy of the MTCR as an international export control regime, Germany and its EU partners are together seeking the inclusion in the MTCR of all new EU member states which have not yet joined the regime (Croatia, Cyprus, Estonia, Latvia, Lithuania, Malta, Romania, Slovakia and Slovenia). Once again, however, it was not possible to bring this issue to a satisfactory conclusion at the latest MTCR annual meeting. The German Government will continue its efforts to develop the necessary consensus to enable these states to join the regime.
Export controls in the nuclear field
Export controls in the nuclear field are based on the work of the Nuclear Suppliers Group and of the Zangger-Committee, efforts that have been built on and implemented by EU rules and national legislation.
Article 3 of the Treaty on the Non‑Proliferation of Nuclear Weapons (NPT) prohibits the provision of special fissionable material and of equipment and material especially designed or prepared for the processing, use or production of special fissionable material, to any non‑nuclear‑weapon state unless this material is subject to the safeguards of the International Atomic Energy Agency (IAEA). With this provision in mind, the Zangger Committee, established by 15 states at the beginning of the 1970s, has since 1974 maintained a list of nuclear materials and goods which can only be exported if the recipient state applies such IAEA safeguards.
The Zangger Committee is now less important than the Nuclear Suppliers Group (NSG).
The NSG, which currently has 48 member states, is an integral part of the nuclear non‑proliferation regime. Since 1976, its guidelines have regulated the export of nuclear goods and nuclear‑related goods, which are set out in two separate lists. The guidelines are implemented by the participating states in accordance with their laws and regulations. The guidelines contain conditions under which goods may be supplied. These and the lists of goods are constantly updated. For example, it is stated that transfers to non‑nuclear‑weapon states should only be made if the recipient state applies IAEA full‑scope safeguards, i.e. safeguards covering all movements of fissionable material, and ensures adequate physical protection for the goods transferred. The aim is to stop the goods from being used for military purposes and to prevent the proliferation of nuclear weapons.
Like the other export control regimes, the NSG is based not on an international treaty but on a political understanding and voluntary commitments made by the participating governments.
The NSG chair rotates annually. Germany held it in 2008/2009.