Under the 1998 EU Code of Conduct on Arms Export, which was replaced in 2008 by the EU Common Position on Arms Exports, member states of the European Union have committed themselves to achieving ‘high common standards’ and ‘convergence’ in their arms export controls. The standards are outlined in eight criteria that require member states to abide by certain standards when assessing licences for arms exports. This includes denying licences when there is a ‘clear risk’ that the arms ‘might’ be used to commit violations of human rights or international humanitarian law (IHL) and ‘[taking] into account’ the risk that they will be diverted to an unauthorized end-user or end-use. Meanwhile, convergence in member states’ controls is promoted through systems of information sharing and—in cases where one state wishes to issue a licence for an arms export that another state has previously denied—a commitment to consult one another. However, decision-making in arms export licensing falls under states’ national competence and there is no formal mechanism at the EU level to sanction non-compliance with the Common Position. As such, non-governmental organizations (NGOs), parliamentarians and academics have often questioned whether EU member states are applying the criteria of the Common Position correctly and consistently.
Questions about the implementation of the Common Position have been particularly highlighted by the contrasting policies of EU member states on the export of arms to states in the Saudi-led military coalition engaged in the conflict in Yemen since 2015. There have been multiple reports by United Nations agencies and NGOs alleging that the coalition has violated IHL standards, including through widespread and systematic attacks on civilian targets and a failure to appropriately distinguish between civilian and military objects. These reports will be the subject of a ‘comprehensive examination’conducted by a group of experts appointed by the UN High Commissioner for Human Rights. They have also led some EU member states to restrict or halt arms exports that are likely to be used in Yemen to certain members of the coalition, and the European Parliament has called for the EU to impose an arms embargo on Saudi Arabia. However, other member states have implemented no such constraints, and others have allowed exports to the coalition to increase.
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