A Common Position is not a common policy

This year the EU Common Position on the export of military goods and technology is due for review. Will the text be improved? Will there be criteria added, for example on corruption? Will vague notions such as ‘serious’ human rights violation be replaced by something more measurable? So far most EU Member States have not shown much interest in a Common Position review. They seem happy enough with what we have. While peace and human rights groups say: If Europe can export arms to Saudi Arabia while that country is bombing civilian targets in Yemen, this Common Position is not good enough.

The Common Position is a legally binding instrument. What that means is brought to the test in several countries, where peace and human rights groups have initiated law suits against their government arms export policies.  Whether courts will respond positively to civil organisations demanding strict arms export control will depend as much on the EU Common Position as on the way this Common Position is incorporated into national law. All EU countries have different systems of arms export control in which the Common Position has to be included – this is the legally bindingness.  Whether civil society organisations are allowed at all to sue their governments on arms export deals might differ from country to country. It might also differ from country to country whether the text of the Common Position will be considered strong enough for juridical application. Having a European Common Position does not mean we have a streamlined European arms export policy.

It makes one wonder how relevant the Common Position actually is. In the documents founding a European Defence Fund, the money pot to make the European arms industry more competitive on the global market, no reference at all is made to the Common Position. For the arms industry the Common Position is an instrument to prevent competitors in other European countries to take over an arms deal which their own government has forbidden out of peace or human rights considerations. It can be used to claim a legal right to export when no ‘serious ‘ human rights violations or other Common position criteria is forbidding it. For the arms industry the Common Position is an instrument to secure fair competition or, as they like to call it, a ‘level playing field’. The Common Position is not created an arms trade limitation mechanism but as an arms trade control mechanism. But it is also an instrument with which activists, journalists and parliamentarians can make a lot of annoying fuss, from arms industry perspective. The obligatory publication of national arms export figures gives civil society the information to debate on how the arms export policy is implemented, and national parliaments to question their government on this. To hand that over to a neutral and invisible authority in Brussels would curtail this democratic possibility.

Several suggestions are made to transfer the export licensing procedure from the national to the European level, suggesting an improvement of arms export control. Peace and human rights groups must be aware of the big risk of such a route. Transferring control power to Brussels might harmonise the EU arms export policy but it is not harmonisation that we want, it is preventing arms exports to war mongers and human rights violators. If European harmonisation could help with that – fine. But at present it would undermine the democratic involvement of civil society organisations and parliaments. There is no equal of this involvement on the European level, and considering the enormous amount of arms export permits from all EU countries together any attempt to control it would lead to bureaucratic overload of the European parliament. If we take away national control at the interest of harmonisation we will be left with no control.

The Common Position is inseparable from foreign and security policy which is a national jurisdiction. As long as there is only a very rudimentary EU foreign and security policy it makes no sense to transfer arms export control to Brussels, as there is no context for responsible arms export decisions.

Another element that would be missed at the European level is the custom-made national additions to the EU Common Position. Keep in mind that the Common Position only provides a minimum standard and member states are free to add their own restrictions. This is a very useful tool for civil society to open debate on standards and policies. The most effective way to improve the Common Position is by improving the peace and human rights standards of individual member states. Only with enough countries applying strict standards ca the common standard be improved. Otherwise harmonisation will follow the lowest standard just to get enough countries on board.


WdV 05/2018



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