An ill wind for EU arms transfer controls21 November 2014
It is not just France’s credibility at stake over the way it has handled a sale of two Mistral class assault ships to Russia, says Roy Isbister, but the credibility of the whole EU Common Position on arms transfers.
In 2011 France agreed a contract to supply Russia with two Mistral-class amphibious assault ships, with an option for two more to follow. The deal was controversial at the time, and when Russia annexed Crimea earlier this year there was strong opposition from around the EU and further afield, including Japan and the US.
Delivery of the first of the ships, the Vladivostok, is now overdue, but so far no final decision on whether to deliver has been taken, with Russian sailors continuing to train on the ship in the French port of Saint-Nazaire. Russia has made clear it will seek financial compensation in the event of cancellation and that France will not be able to transfer or deploy the ship elsewhere because of Russia’s contribution to its construction and its consequent interest in whatever else might happen to the ships. Along with the potential direct financial cost, France is fretting over the possible damage to its broader reputation as a ‘reliable supplier’ of military items that a cancellation could cause.
Yet relations between Russia and NATO are at a post-Cold War low and arguably getting worse, with the situation in Ukraine showing no sign of resolution and news reports suggesting fresh Russian deployments in the east of the country. Against this background, France is under significant pressure from allies to cancel the sale.
French President François Hollande said in September that for the ships to be delivered there will need to be a ceasefire established in eastern Ukraine and a political settlement, but the deal is still very much alive. At the end of the recent G20 summit in Australia President Hollande said “I will take my decision without any pressure, wherever it may come from, and based on two criteria—the interests of France and the appreciation I have of the situation.”
What he didn’t mention is that he is in fact legally obliged to base his decision on EU Common Position 2008/944/CFSP, a legal instrument that sets out the rules Member States must follow when deciding whether to export arms. These include an obligation to refuse to transfer items where there is a clear risk that they might be used for internal repression or to undermine regional peace, security and stability, and to take into account the risk that the transfer would undermine the national security of friendly and allied countries. President Hollande’s failure to mention this came as no surprise, however: for the five years this deal has been a live issue, almost no mention has been made of the Common Position in France or elsewhere.
The story of the Mistral deal, and the way that it was agreed and since debated without regard to the legal obligations of France and other EU Member States, is now the subject of a new GRIP-Saferworld briefing An ill wind: How the sale of Mistral warships to Russia is undermining EU arms transfer controls. The briefing examines the Mistral deal from its inception to the present day, how it has been defended and criticised, and the way this points to serious problems in the functioning of the EU system in practice. The Common Position was designed to ensure responsibility and to promote convergence among Member States over arms transfers. Where they ignore the Common Position and so fail to meet their legal obligations, especially in high profile, high-value and/or strategically significant cases, Member States undermine the basic credibility of the EU system, as well as broader credibility of the EU when promoting a law-based system of arms transfer controls internationally.
It is not too late, however, to recover the situation. President Hollande and his government can still, and indeed remain legally obliged to, consider the sale against the criteria of the Common Position, and then come to a final decision on that basis.
Other EU Member States should be involved as well, making and then publishing their own assessment of how the deal fares against the Common Position. Parliaments in EU Member States, most notably in France, also have a role to play here, in questioning their respective governments about their positions on the sale, again in the context of the Common Position.
But there is a wider issue at stake here too for EU Member States: demonstrating the longer-term health of the EU arms transfer controls system. In this context, they should recommit publicly to apply the Common Position to all export licensing decisions, regardless of the nature or scale of the proposed transfer, and also to ensure that debates about arms exports and individual licensing decisions are cast in terms that reference and reflect their legal obligations. And once again, if they won’t do this on their own initiative, it falls to parliaments and the broader electorate to hold them to account to meet their obligations.
Roy Isbister is the Team Leader of Saferworld’s Arms Unit.
“France is legally obliged to base its decision on EU Common Position 2008/944/CFSP, a legal instrument that sets out the rules Member States must follow when deciding whether to export arms. These rules include an obligation to refuse to transfer items where there is a clear risk that they might be used for internal repression or undermine regional peace, security and stability.”Roy Isbister