The Ploughshares Monitor June 1999 Volume 20 Issue 2
The International Code of Conduct on Arms Transfers proposed by Nobel Peace laureates led by former Costa Rican president Oscar Arias provides an exemplary set of principles for Canada and like-minded countries to collectively bring some real control to the international weapons trade. With its emphasis on compliance with human rights standards, humanitarian law, and democratic freedoms among other obligations, the International Code of Conduct sets new standards for arms transfers, standards in keeping with Canada’s interest in promoting a human security agenda.
Announced in 1997, the Nobel Peace Laureates Code (NPL Code) as it has come to be known acknowledges the right of states to individual and collective self-defence under the UN Charter, but it also acknowledges the right of individuals to liberty and security under the Universal Declaration of Human Rights. States may acquire weapons for their security needs but to do so they must meet basic obligations to both their domestic population and to the international community. In their Introductory Memorandum the Nobel laureates state, “the Code stipulates that any country wishing to purchase arms must meet certain criteria, including the promotion of democracy, the protection of human rights, and transparency in military spending. It would also prohibit arms sales to nations that support terrorism and to states that are engaged in aggression against other nations or peoples.” (Nobel Peace Laureates 1997)
The NPL Code contains seven central principles with which recipient states must conform before an arms transfer may be considered. These are:
- compliance with international human rights standards;
- compliance with international humanitarian law;
- respect for democratic rights;
- compliance with international arms embargoes, military sanctions, and transparency measures;
- commitment to promote regional peace, security and stability;
- opposition to terrorism; and
- promotion of human development.
Under the Code, the failure to meet the standards of any one of these principles would be sufficient to deny transfer of military goods to a non-compliant state.
Canadian export controls, meanwhile, remain rooted in guidelines that have been in place since 1986, three years before the end of the Cold War. As outlined in the annual government report on the export of Canadian military goods, “under current export control policy guidelines, Canada closely controls the export of military goods and technology to countries:
- that pose a threat to Canada and its allies;
- that are involved in or under imminent threat of hostilities;
- that are under United Nations Security Council sanctions; or
- whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.” (DFAIT 1998, p. 4)
The guidelines make no reference to democratic rights and freedoms, to international obligations like respect for humanitarian law and arms embargoes, or to human development indicators such as relative expenditures on the military and on health and education.
Canadian export controls have seen some adjustment since the end of the Cold War. In 1992 the Automatic Firearms Country Control List (AFCCL) was introduced to identify countries which by virtue of intergovernmental agreements are eligible to receive automatic weapons. Although the AFCCL establishes an important precedent by defining eligible arms recipients (countries not on the list are ineligible for transfers of automatic weapons), the AFCCL was introduced only after the Canadian Criminal Code, which had prohibited non-governmental possession of automatic weapons, was loosened in 1991 to allow the export of automatic firearms.
As a founding member of the 1996 Wassenaar Arrangement, a collection of arms supplier nations, Canada from time to time also alters its list of controlled military goods. Canada’s official control list corresponds to the International Munitions List collectively defined by the Wassenaar countries. (This list in turn arises from the Cold War era “CoCom” – Coordinating Committee for Multilateral Export Controls – list which was designed to prevent military equipment from reaching Eastern bloc countries.) As such, the Canadian list of military goods is periodically updated to include emerging technologies or to drop equipment deemed no longer strategically important. The list is limited to goods “specially designed or modified for military use” however, and it does not include equipment, such as some Canadian-built helicopters, that are classed as commercial goods but exported for military end-use.
Most recently, after an internal review, Foreign Affairs Minister Lloyd Axworthy instructed his department to tighten interpretation of export control guidelines. Officials were told to conduct “more rigorous analyses of security issues,” taking into account a number of conditions including “internal conflicts such as civil wars.” There also was to be “stricter interpretation of the human rights criteria” and “stricter controls where firearms are concerned.” (DFAIT 1997, p. 4) Since the 1996 directive Canada has shipped military goods to fewer countries affected by armed conflict (see Ploughshares Monitor, December 1998), but in other areas the impact is less clear, in part because government export decisions routinely involve factors other than the conditions assessed under control guidelines.
These factors include political and strategic ties. For example, as a fellow NATO member, Canada regularly supplies Turkey with military equipment in spite of ongoing grave human rights violations and armed conflict within the country. Similarly, Canada ships military goods to countries linked by cultural and historical ties such as Pakistan, a sister member of the Commonwealth and another country where human rights violations and conflict are endemic. Last, and far from least, commercial benefits are weighed in many export decisions — not only because of their contribution to Canada’s balance of trade, but also because the exports are seen to sustain the “defence industrial base” valued for war-time supply. The $1.5 billion transfer of light armoured vehicles to Saudi Arabia throughout the 1990s, in the face of the country’s ongoing poor human rights record and clear risk of military use of the LAVs against the civilian population, is the most striking example of the pre-eminence of commercial considerations.
Re-defining export controls
Canada has become a familiar proponent of human security, persistently (and correctly) emphasizing the obligations of governments towards the safety and security of individuals alongside their pursuit of state security. Human security recognizes the political, social, and economic dynamics of building sustainable peace, as it includes factors that lie beyond interstate relationships, such as good governance, human rights, political freedoms, and basic human needs.
In advancing human security, Canada explicitly recognizes the obligations of the state towards the security of its citizens. The NPL International Code of Conduct on Arms Transfers provides a mechanism to embed these obligations in national military export controls by stipulating that recipients meet basic standards before they can receive arms transfers. In effect, the Code shifts arms transfers from the current restrictive trade (where the onus is on those opposed to a sale to demonstrate its risks) to a directed trade, where transfer advocates must demonstrate that states meet international standards before they may be considered as recipients. Adoption of the Nobel peace laureates’ Code offers Canada the opportunity to promote more relevant, and effective, export controls from human security principles.
In particular, the NPL Code provides the following advances:
- All recipients would be required to meet basic human security standards before weapons shipments are reviewed, effectively creating a list of countries for which arms suppliers could apply to export military goods. Countries that did not meet the standards would not be eligible to receive military exports and exporting companies would know in advance that they may seek permits only for those destinations meeting NPL Code standards.
- The NPL Code elaborates criteria for measuring compliance with internationally recognized standards that would improve and harmonize export controls. In particular, the Code calls for adherence to international standards not addressed by most national control guidelines. These are standards in keeping with a human security agenda such as enhancement of democratic rights (free and fair elections, freedom of speech and the press, civilian control of the military) and advancement of human development (state expenditures on health and education must exceed military expenditures).
The NPL Code also would bring more precision to existing guidelines. For example, where Canadian guidelines now call simply for close control of exports to states with “a persistent record of serious violations of human rights,” the Code stipulates more detailed definitions of grave human rights violations (genocide and crimes against humanity, extra-legal, summary or arbitrary executions, enforced disappearances, etc.). In addition, the Code requires that a potential arms transfer recipient demonstrate an active willingness to tackle grave human rights abuse by investigating and prosecuting violators, training armed forces and law enforcement agencies, and establishing an independent system capable of protecting human rights.
In the case of hostilities, the NPL Code addresses both civil and state-to-state war. The Code makes explicit reference to “inter-state and intra-state armed conflict” as well as to “armed actions or practices which are likely to lead to a significant number of displaced persons or refugees.” Displaced people and refugees have become a recognizable feature of warfare and “hostilities” in all their forms.
- The NPL Code would make export controls more transparent. The Nobel laureates call on states to pass national legislation and regulations to ensure the effective implementation and enforcement of the Code. They urge states to make implementation transparent by providing “mechanisms for public scrutiny of all transfers in advance of any decision to authorize a transfer.” In Canada, this would bring the approval process from behind closed government doors into a public arena, such as a parliamentary review, where standards could be discussed and assessed. The Code also calls for “effective channels” for governments to receive relevant information from non-governmental organizations.
The NPL Code is linked to other efforts to create arms transfer Codes of Conduct. A month after the NPL Code was announced, legislation similar to the Code was passed by the US House of Representatives. Although the amendment subsequently was held up in committee, supporters within Congress are committed to passing the US Code into law as soon as possible. Elsewhere, in May 1998 the European Union agreed to an EU Code of Conduct on Arms Exports containing provisions to harmonize export control procedures and standards. “Operative provisions” call for member states to “work for the early adoption of a common list of military equipment covered by the Code” and to share details (through diplomatic channels) of export licence refusals and the reasons for refusals. (European Union 1998)
The EU Code is not legally binding and it allows EU members wide latitude in its interpretation – a number of the criteria require only that member states “take into account” particular conditions when assessing military transfers. Nevertheless, the EU Code does advance recognition of the human security obligations of states and the international community. It lists major human rights violations associated with internal repression (referencing the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights) and directly addresses internal conflict and tensions. A few months after the EU Code was adopted, Canada announced in a joint Canada-EU statement that it subscribed “to the principles and criteria” of the EU Code. (Canada-European Union 1998)
Canada and the Code
By drawing on the International Code of Conduct on Arms Transfers of the Nobel laureates, Canada has the opportunity both to promote international arms trade standards that reflect the human security agenda and to bring its own export controls into line with human security concerns. To begin, Canada could raise the bar of international norms in military export practices by basing Canadian export controls on NPL Code principles. Formulated in the Cold War – a period when state security was paramount – current Canadian export controls are disjointed from the broader human security analysis that Canadian foreign policy now endorses. Improved Canadian controls would require greater attention to democratic rights, human rights standards, and other Code considerations, and also would acknowledge both the obligations and the political significance of weapons transfers. They would establish the centrality of human security obligations to the extent that if a country does not meet international standards it does not receive arms transfers. Code requirements remove the possibility of the mixed political signals sent when, in spite of obvious violations of human rights or other standards, Canada approves arms transfers. Under the Code, all Canadian military equipment to wayward countries would be denied, reinforcing the political message that military trade represents a kind of upper tier in trade diplomacy. Withdrawal of military trade privileges is an early, minimal signal of political disapproval of the actions of another state, and total withdrawal sends an unambiguous signal.
Using the NPL Code, Canada also could promote cooperation among states on Code provisions, for example, by the harmonization of national export controls. As much as Canada needs to tighten its own export controls, the proliferation of conventional weapons will not be reversed until other supplier nations accept effective international norms and procedures to limit arms transfers. Canada could assist in “internationalizing” stricter export controls by promoting the NPL Code in multilateral and bilateral meetings. Operating through the UN, all states would be required under the NPL Code to cooperate and to report on Code implementation. Through obligatory annual reports and international consultations, Canada could promote the Code as a central initiative in the human security agenda. Widespread adoption of the Code would provide a harmonization of export controls that would address concerns about supplier states undercutting rival state export controls. The Nobel Peace Laureates’ International Code of Conduct could become the basis for the first international agreement on arms transfers.
Canada-European Union 1998, “Canada-EU Statement on Small Arms and Anti-Personnel Mines,” 17 December.
DFAIT (Department of Foreign Affairs and International Trade) 1997, “Export of Military Goods from Canada: Annual Report 1996,” November.
DFAIT 1998, “Export of Military Goods from Canada: Annual Report 1997,” November.
European Union 1998, “EU Code of Conduct on Arms Exports,” 25 May, available at http://ue.eu.int/Newsroom/
Nobel Peace Laureates 1997, “Nobel Peace Laureates’ International Code of Conduct on Arms Transfers, Introductory Memorandum,” as reproduced on the Arias Foundation website, http://www.arias.or.cr/fundarias/cpr/code2.shtml