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Europe’s interest in rearmament grew exponentially following Russia’s war of aggression against Ukraine. Since the beginning of the conflict, Brussels has been active in various ways to push for de-escalation, with different outcomes. From sanctioning persons linked to Moscow to limiting business operations, Member States went so far as to deliver military support for Kyiv in the form of weapons. If the necessity of such a measure is undeniable, it is painfully visible how export control regimes and safeguards have been loosened to allow such timely trade, with the risk of diversion and illicit trafficking becoming more serious. EU arms and defense components have already been seen in active conflict zones outside Ukraine, as in Sudan, Yemen, and Israel; countries that, being subject to arms embargoes or found not in compliance with EU values and rules, should not have had the opportunity to acquire them.
In an era of massive spending for rearmament that will lead to the most militarized European states since the end of World War II, the question becomes whether or not current export controls and arms control regulations can survive the pressure of rising geopolitical instability and continuous military escalation to not fuel the cycle of violence but serve exclusively for defensive purposes.
The EU plan to rearm the continent: Readiness 2030
Historically, arms races have been driven by perceived insecurities that could be external or internal to the state: the former come from the fear of revisionist states that want to challenge the current status quo, while the latter derive from a willingness to boost the economy and a state’s own technology. Both sentiments are at the basis of the decision made by Brussels to heavily invest in rearmament for the next foreseeable future: the Russian aggression of Ukraine coupled with the inconsistent attitude of the historic ally- the United states- and the possibility to boost R&D and the industrial complex made the EU rethink its vulnerabilities in the defense sector.
Starting from a point that was slowly but steadily fading away from the EU agenda, defense procurement was shockingly boosted with the introduction of the Readiness2030 plan, a 800 billion euro plan made of different financial mechanisms to make Europe independent, secure and ready to defend itself. Even if the operational outcomes of this plan are still disputed, arming an entire continent would necessarily mean taking into consideration various aspects of security other than the solely military one. The risks related to trade of arms however, were not taken into much consideration.
Until the EU’s military market demand will not be met, exports outside the single market will probably represent just a minimal part of the revenues of defense contractors around the continent. However, once these targets are met and pressure to rearm the union is no longer justified, market dynamics will push economic actors toward other purchasing countries, making the EU an attractive shop for weapons. It is precisely because of this event that the Union should strengthen its posture on export controls.
How the trade of arms is regulated
The legal framework governing the trade of arms has relied on state-to-state deals, most of the time sealed from public oversight, and with few occasions of redress both from those suffering the arm and from civil society at large. The EU has tried to set common rules already in 2008, establishing 8 criteria upon which decisions on whether to trade defense equipment should be based. The legally binding instrument used to set those rules is Common Position 2008/944/CFSP and its amended User’s Guide. The document imposes restrictions on exports based on certain situations: the contract cannot be performed if the receiving state is under a UN arms embargo or if such trade would violate non-proliferation and other international conventions. A similar outcome is present if the trade would impair the preservation of regional peace, if the risk of diversion that can be deduced from available information is high or, most importantly, if the receiving state is found in clear risk of non compliance or direct violation of International human rights law and international humanitarian law. As promising as it is, the text is very much keen on the legal interpretation that allowed Member States to trade arms with questionable partners during the years. In fact, the last decision on whether or not granting the license to a buyer rests on the single State.
To complement the legal framework around trade of such objects, an international treaty, the Arms Trade Treaty, was created in 2013 to try to give universal common rules to the sector. Although it pushes for transparency in the trade of arms, it rests on single states to provide the useful data to comply with the requirement. Having no enforcement mechanism, the transparency clause is not fully operational. Other sectoral treaties, such as the Ottawa Convention on Landmines, were created out of humanitarian concerns related to the use of specific arms and banned the production, stockpiling and trade of entire classes of weapons.
A system under growing pressure
In the unsettling times we are living, however, the system of arms control is under growing pressure, both from states – who want to produce more, trade more and, ultimately, have more security- and the private sector – which sees in rearmament huge profits-, creating the perfect environment for the growth of the military complex. Stricter regimes would hamper the economy and slow down the process of military support for Kyiv. Pushed by both directions, export control measures have now been stretched. With the introduction of the Defense Readiness Omnibus, Member States are now driven to provide producers with general licenses that would provide the right to transfer unspecified amounts of listed goods to recipients located in the EU over several years. Member states may, at this point, even extend the “facilities of the general licences to non-EU countries, and some have been already using the opportunity of its transposition to weaken their general arms export regimes,” disregarding the need for reassessment in light of changing situations as provided for by the Common Position for trade with foreign countries, as explained by European Network Against Arms Trade. Moreover, as the Cold War teached, bureaucratic interests and political opportunism would drive weapons production beyond the necessary for national defense, making export fundamental to maintain the defense industry complex and increasing the possibility to diversion routes. The fragmented EU defense environment, where no single position is present, would also make some states hamper internal security by selling weapons that may trigger reaction in kinds from other actors. It is already documented how anti-tank guided missiles and man-portable air defense systems given by EU countries to Ukraine have been diverted into the Balkans and North Africa; if Member States decide to heavily trade with other actors, the risk is even more exacerbated. The need for defense guarantees, however, is not just Ukraine’s priority. In the years that followed the start of the conflict, Poland, Lithuania, Estonia, Latvia and Finland all withdrew from the Ottawa convention marking a strike to the EU’s commonly shared position on this weapon. If the quantity and quality of weapons in commerce increase, there would be more ways in which they could arrive to be diverted into the black market or re-routed to destabilize the Union, especially at its borders. While it is disputed that more arms would provide more security, Member States seem to be having left this observation behind, focusing their attention on the financing of new programs and awaiting more “secure” times to deal with the problems of heavy militarization.
Conclusion
The number of conflicts worldwide is at its highest in decades, exacerbated by massive military spending by most nations. The incredible surge in European military build-up is, however, not matched with strong guarantees against diversion and illicit proliferation. The current defense industry complex, the regulation of which was loosened by the need for an easier way of intra-EU commerce of arms, mainly provides for financial mechanisms to produce weapons, but just partially addresses the need for tight enforcement of EU export controls. Precautionary measures, both on quantitative and qualitative aspects, should be taking the lead of discussion in the next months to ensure that EU defense procurement is not indirectly fuelling smuggling and illicit proliferation or, worse, ongoing conflicts. As the arms industry is now global, Brussels would also need to consider the position of its states outside its direct glance: the trade of military equipment could, in fact, be easily done via subsidiaries or joint ventures established in 3rd states with weaker regulatory frameworks than the EU and specifically not bound by the Common Position. A new way of thinking, that prefers stronger export controls and compliance mechanisms, is thus needed to try to limit the negative impact of the already destabilizing arms race Europe is undergoing.
