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EU torn 'twixt profit, principle on
China arms ban
By Colonel
Daniel Smith
(Posted with permission from
Foreign Policy in Focus)
When the United Kingdom confirmed it would
support repeal of the European Union's ban on arms
sales to mainland China, one could almost hear the
phrase "perfidious Albion" ring over Foggy Bottom.
While Washington's opposition is laudable,
the reaction seemed contrived. After all, British
Foreign Secretary Jack Straw had told a House of
Commons committee on January 12 that the EU ban
"more likely than not" would be lifted prior to
the end of June - a comment reported in London's
Guardian newspaper and other British media.
Moreover, at internal EU (March 2004) and EU-China
(December 2004) summits, it was apparent that a
critical mass of EU countries favoring repeal of
the arms embargo was forming.
The US and
EU arms embargoes were imposed after the 1989
Tiananmen Square massacre of June 4, 1989.
The US embargo, written into law in 1999
as PL 101-246, covered both lethal and non-lethal
equipment, while the EU ban covered only lethal
equipment. Public Law 101-246 allowed sales of
non-lethal equipment if the president certified
the sales were in the best interest of the United
States. Both the US and three EU countries -
France, the UK and Italy - delivered non-lethal
equipment that had been purchased before Tiananmen
occurred, and France also delivered pre-Tiananmen
lethal equipment. Between 1990 and 1998, Italy and
Britain sold non-lethal items ordered after June
1989, and US presidents George H W Bush and Bill
Clinton waived the embargo on US$350 million of
otherwise prohibited exports, most of which were
US satellites to be launched by China. [1]
Perhaps the White House thought Prime
Minister Tony Blair was in its pocket, not willing
to risk Britain's "special relationship" with the
US. In both 2004 meetings, London was the major
holdout, thereby scuttling a change in EU policy.
(Even though the largely symbolic EU ban is not
legally enforceable, any change in the EU position
requires a unanimous vote of all EU member
states.)
Washington's blunt message was:
Many current and pending cooperative US-EU
military-equipment programs might suffer
repercussions - including outright cancellation -
since many, if not all, US contributions to joint
endeavors are on the "Munitions List" of items
whose sale is controlled or whose technology is
considered "sensitive".
Britain's Straw
struck a conciliatory note in response, urging
Washington to listen to London's rationale. Others
were less understanding, regarding the US reaction
as overblown if not hypocritical. EU arms sales to
China in 2002 were under $300 million and reached
only $540 million in 2003. Russia and Israel are
China's top two arms suppliers. And while the US
blocked Israel's sale of Phalcon early-warning
radar systems to China, many US observers contend
that Israel sold US Patriot missile technology to
China and that China's F-10 fighter incorporates
many features of the ill-fated Israeli Lavi
fighter that relied heavily on US technology. [2]
Straw assured the US that Britain would
pursue a "more effective arms-control regime" for
EU countries, presumably by narrowing the scope of
sales permitted under the 1998 EU Code of Conduct
for Arms Exports. Although this too is a political
and not a legal arrangement, the Code's
transparency provisions, especially those
regarding notification of all EU members when (and
why) a proposed sale to any country was
disapproved, are thought to have inhibited arms
sales to China more than the 1989 embargo. [3]
Looking at the three sections of the 1998
EU Code, where could Straw's pledge be
implemented?
Not in the introduction,
which describes the "state of play" in the world
(the preambular "whereas" section). In fact, after
expressing a commitment to high common standards
for restraining arms sales that could be used for
repression or aggression, the basic enterprise is
undercut by noting that EU countries wish "to
maintain a defense industry as part of their
industrial base as well as their defense effort".
Not among the eight criteria governing
arms trades with non-EU countries, since the Code
has no penalties and no enforcement mechanism -
not even an internal, mandatory process to resolve
differences should EU member states reach opposite
conclusions about an arms sale's conformity to the
criteria:
International non-proliferation agreements and
other international obligations honored (eg,
United Nations or Organization for Security and
Cooperation in Europe embargoes, anti-personnel
land-mines ban).
The recipient country's human-rights record.
Recipient's situation regarding incipient or
actual internal armed conflict.
Consequences for regional peace and stability.
National-security consequences for other EU
countries and non-EU allies.
Recipient country's record on dealing with
terrorism and non-proliferation.
Risk of diversion of equipment or unauthorized
re-export.
Recipient country's capability, technical and
economic, to absorb equipment into its security
structures.
Perhaps in the Code's 12
"operative provisions" that a prospective EU
arms-supplying country is to apply when
considering a sale. However, only four operative
provisions hold any real potential to preclude a
transaction:
Each application to export arms is to be
considered separately (no "bundling").
Circumstances and rationales for denying an
arms export are to be sent to all other EU
countries (precludes an internal EU prima facie
contradictory arms-sale stance to a country).
Application of the Code to dual-use goods if
it seems likely the end-user is the military or
internal security forces.
The provision to other EU members of an annual
summary of a country's defense exports.
Of
these four, two are after-the-fact of an
agreement, if not the actual transfer.
The
Code does call for constructing a list of military
equipment subject to the Code's provision, with
the "fall-back" use of national lists, which may
well be influenced by domestic defense industries.
And although individual EU countries can impose
more stringent guidelines for their own
conventional arms sales and are invited to
"identify any improvements" in the Code, the whole
enterprise becomes suspect by an internally opaque
"Operative Provision 10": "It is recognized that
member states, where appropriate, may also take
into account the effect of proposed exports on
their economic, social, commercial, and industrial
interests, but that these factors will not affect
the application of the above criteria."
Another obstacle to implementing Straw's
promise should resonate in the US - merchandise
trade imbalance. For 2003, the trade balance
favored China by 65 billion euros ($48.9 billion
in 2004 dollars). [4] EU countries could be
tempted to play down continuing human-rights
concerns relative to the Xinjiang region in
China's far west and in Tibet.
EU-US
tensions relative to Iraq and the overall trouble
European defense companies encounter in trying to
break into the US defense market will also work
against British success. With European defense
spending in essence flat, should further
consolidation of defense-sector companies occur
across national boundaries, EU governments will
face more pressure to find new markets - just as
US companies traditionally will have to do,
particularly if Secretary of Defense Donald
Rumsfeld succeeds in transforming the US military
from a platform-intensive to a "labor" (human)
intensive force.
As so often happens, the
contest is between profit and principle.
Footnotes
1. Government
Accountability Office Report, "China: US and
European Union Arms Sales Since the 1989
Embargoes", statement of Harold J Johnson,
associate director, international relations and
trade issues, National Security and International
Affairs Division, before the Joint Economic
Committee, April 28, 1998 (GAO/T-NSAID-98-171).
2. Meanwhile, the Pentagon managed to rile
opposition members of Taiwan's legislature. Early
in US President George W Bush's first term,
Congress approved an $18 billion arms package for
Taiwan, a package including four destroyers, eight
diesel-electric submarines, and a number of
anti-submarine aircraft. The offer, yet to be
accepted by Taiwan, led to unkind words from
deputy assistant secretary of defense Richard
Lawless last October that produced an irate retort
from an opposition Taiwan legislator: "On one
side, we are being threatened by this thug, China.
But on the other side, we are being extorted by
this mafia leader, the United States, to pay
protection money."
3. It should be noted
that the effect of US law is the reverse. In late
November 1999, president Clinton signed the
Omnibus Spending Bill, which included the State
Department Authorization legislation. This
contained the "International Arms Sales Code of
Conduct", modified from the original by the
Senate-House Conference Committee. Unfortunately,
the legislation that emerged was more symbolic
than substantive. While listing six criteria a
country had to meet to be eligible for US arms,
the legislation did not actually restrict arms
sales. It only directed the president to begin
multilateral negotiations for an International
Code of Conduct based on the six criteria.
The eventual six eligibility criteria
require that countries promote democracy, respect
human rights, not engage in acts of aggression
contrary to international law, not support
terrorism, not contribute to proliferation of
weapons of mass destruction, and not be located in
a politically unstable region.
4. This was
with a 15-member European Union, which expanded to
25 members last May 1. As a comparison, the US
2003 merchandise deficit with China was $124
billion. It rose to $148 billion in 2004.
Daniel Smith is a
military-affairs analyst for Foreign Policy in Focus,
which made this article available. He is a
retired US Army colonel and a senior fellow on
military affairs at the Friends Committee on
National Legislation.
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