Exportation of Military Equipment: Code of Conduct
This guide outlines the common criteria to be used in the issue of licences for the export of arms as established by the Military Equipment (Export Control) Regulations, 2001. The criteria also apply to dual-use goods as specified in Chapter I of the Handbook annexed to the Dual-Use Items (Export Control) Regulations, 2001, where there are grounds for believing that the end-user of such goods will be the armed forces or internal security forces or similar entities in the recipient country,
These criteria are based on those agreed upon by the Council of the European Union in its effort to set high common standards which should be regarded as the minimum for the management of, and restraint in, the transfer of conventional arms. This guide should also help to strengthen the potential for Malta to exchange relevant information with a view to achieving greater transparency.
The objectives of this guide are:
- to prevent the export of equipment which might be used for internal repression or international aggression or contribute to regional instability;
- to reinforce cooperation and to promote convergence in the field of conventional arms exports;
- to take the necessary measures against illicit transfers, while at the same time acknowledging the right to transfer the means of self-defence consistent with the right of self-defence recognized by the United Nations Charter.
The following criteria should be taken into consideration in the issue of export licences of conventional arms:
Respect for international commitments, in particular the sanctions decreed by the UN Security Council and those decreed by the European 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:
- the international obligations of Malta and its commitments to enforce UN, OSCE and EU arms embargoes;
- arrangements under the Nuclear Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention;
- arrangements in the framework of the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group and the Wassenaar Arrangement;
the commitment not to export any form of anti-personnel landmine.
The respect of human rights in the country of final destination
Having assessed the recipient country's attitude towards relevant principles established by international human rights instruments:
- export licences will not be issued if there is a clear risk that the proposed export might be used for internal repression.
- special caution and vigilance will be exercised in issuing licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the EU;
- For these purposes, equipment which might be used for internal repression will include, inter alia, equipment where there is evidence of the use of this or similar equipment for internal repression by the proposed end-user, or where there is reason to believe that the equipment will be diverted from its stated end-use or end-user and used for internal repression. The nature of the equipment will be considered carefully, particularly if it is intended for internal security purposes. Internal repression includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment, summary or arbitrary executions, disappearances, arbitrary detentions and other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights of the International Covenant on Civil and Political Rights.
The internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts
No exports will be allowed which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination.
Preservation of regional peace, security and stability
Export licences will not be issued if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial claim.
When considering these risks, the following factors will be taken into account inter alia:
- the existence or likelihood of armed or conflict between the recipient and another country;
- a claim against the territory of a neighbouring country which the recipient has in the past tried or threatened to pursue by means of force;
- whether the equipment would be likely to be used other than for the legitimate national security and defence of the recipient;
- the need not to affect adversely regional stability in any significant way.
The national security of Malta's neighbouring states and EU Member States, as well as that of friendly countries
Account will be taken of:
- the potential effect of the proposed export on the defence and security interests of Malta, neighbouring states, EU Member States and those of friendly countries, while recognizing that this factor cannot affect consideration of the criteria on respect for human rights and on regional peace, security and stability;
- the risk of use of the goods concerned against the forces of Malta, neighbouring states, EU Member States or those of friendly countries;
- the risk of reverse engineering or unintended technology transfer.
The 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
The record of the buyer country will be taken into account with regard to:
- its support or encouragement of terrorism and international organized crime;
- its compliance with its international commitments, in particular on the non-use of force, including under international humanitarian law applicable to international and non-international conflicts;
- 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.
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 on 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:
- the legitimate defence and domestic security interests of the recipient country, including any involvement in UN or other peace-keeping activity;
- the technical capability of the recipient country to use the equipment;
- the capability of the recipient country to exert effective export controls;
- the risk of the arms being re-exported or diverted to terrorist organizations (anti-terrorist equipment would need particularly careful consideration in this context).
The compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources
Account will be taken, in the light of information from relevant sources such as UNDP, World Bank, IMF and OECD reports, of whether the proposed export would seriously hamper the sustainable development of the recipient country. The recipient country's relative levels of military and social expenditure will be taken into consideration.