19. Dual-use and arms trade controls

The Arms Trade Treaty

The First Conference of States Parties (CSP1) to the Arms Trade Treaty (ATT) took place in Cancun, Mexico on 24–27 August 2015. Despite disagreement on key issues during the preparatory process, vital procedural decisions were made that laid the groundwork for implementation of the ATT, including the location of the ATT secretariat. However, major obstacles remain to the ATT having any practical impact. Important arms supplying and recipient states, such as China, India, Russia and Saudi Arabia, remain outside the treaty and the United States is yet to ratify it. An increase in rates of accession, particularly among states in Africa and Asia, as well as capacity building to enable treaty implementation, will also be required.

Multilateral arms embargoes

In 2015, 38 multilateral arms embargoes were in force: 15 imposed by the United Nations, 22 by the European Union (EU) and 1 by the League of Arab States. Of the EU embargoes, 11 directly implemented UN decisions, 3 implemented UN embargoes with modified geographical scope or coverage and 8 had no UN counterpart. The single Arab League arms embargo (on Syria) had no UN counterpart.

The UN imposed an arms embargo on the Houthi armed group in Yemen in 2015 and made significant changes to the arms embargo on Iran. The EU did not impose any new embargoes during the year. Several violations of UN embargoes were reported in 2015, involving arms exports by Iran and arms supplies to Libya that were carried out without the permission of the relevant UN sanctions committee. Unlike UN arms embargoes, there are no systematic mechanisms in place for monitoring compliance with EU and Arab League arms embargoes.

Export control regimes

All the multilateral export control regimes—the Australia Group, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers Group (NSG) and the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-use Goods and Technologies—sought to update their trade controls on goods, software and technologies that have uses in connection with chemical, biological, nuclear and conventional weapons.

Discussions on agreeing common standards for controls on transit and trans-shipment resulted in the adoption of a best practice document in the Wassenaar Arrangement. All the regimes faced difficulties with admitting new members, due to the consensus requirement for approving applications. In 2015 there was an ongoing discussion in all the regimes about how to engage with non-participating states. These efforts included formalizing the status of unilateral adherence in regimes other than the MTCR and giving such status increased visibility and further incentives through enhanced information sharing.

The regimes also sought to increase the added value of their outreach dialogue beyond sharing publicly available information. Discussions continued on India’s participation in the regimes, in particular the NSG and the MTCR. The MTCR did not approve India’s membership, reportedly due to a veto based on an unrelated matter. The regimes also amended the common control lists to address the challenges of emerging technologies and the procurement strategies of those seeking to acquire weapons of mass destruction and advanced delivery systems.

EU export control developments

EU export controls on conventional arms and dual-use items were subject to review in 2015. The review of the EU Common Position defining common rules governing control of exports of military technology and equipment was concluded in 2015. While it did not result in changes to the instrument, the guidance attached to certain export criteria was amended, partly in order to take account of sections of the ATT, including its reference to gender-based violence.

The EU’s revision of its regulation on the export, transit and brokering of dual-use items continued throughout 2015. The European Commission is expected to put forward a legislative proposal in 2016 that is likely to include expanded controls on transfers of surveillance technologies. It could also lead to a shift beyond the civilian-use or military-use paradigm by framing the range of goods controlled in relation to the end user (i.e. systems used by intelligence and law enforcement agencies).

Export controls and the private sector

The expansion in the range of private sector entities potentially subject to trade controls and the increased complexity of trading patterns have helped drive two developments among national licensing authorities, the EU’s export control regimes and—to a lesser extent—international forums: (a) a growing shift to a reduction in licensing requirements for less sensitive exports, through the use of global and general licences; and (b) ongoing attempts to incentivize the adoption of internal compliance programmes in companies and research institutions.