[co-author: Imogen Brooks]*
The legislative scrutiny over the export of arms to the Kingdom of Saudi Arabia ("Saudi Arabia") is continuing to increase in Europe, with several member states taking legal steps to restrict their export control licensing policy on arms towards the Kingdom.
This alert provides a high-level overview of the legal developments arising out of the European stance on the export of arms to Saudi Arabia and considers more specific developments observed in Germany, the UK and France, and what they mean for exporters.
1. Background
Two years ago, the European Parliament adopted a resolution for an initiative to impose an EU arms embargo against Saudi Arabia in light of the conflict in Yemen[1]. Last October 2018, the European Parliament adopted a second resolution calling for an EU-wide arms embargo on Saudi Arabia in response to the murder of journalist Jamal Khashoggi.[2]
However, the final legal decision of whether to authorise or deny an export licence remains at the national discretion of member states and Europe has been divided in its response to revoking export control licences granted to Saudi Arabia.
Several European states decided to stop granting export control licences for arms and related materials to Saudi Arabia before Khashoggi's October 2018 murder, including Norway, Sweden and Austria.
2. What has happened now?
2.1 Germany
Germany imposed an arms embargo following the killing of Khashoggi at the Kingdom's consulate in Istanbul last year. The move strained ties with allies such as France and the UK, because it stopped them selling military equipment to Saudi Arabia that was developed jointly, or shipping arms that contained German components.
On 28 March 2019, the German government extended its arms embargo against Saudi Arabia for a further six months, to 30 September 2019. During this time, no new export applications will be approved.
However, following extensive discussions with France and the UK, the German government has now agreed that the ban will no longer apply to existing joint projects with European partners. Under the compromise, the ban will be extended for another six months but existing joint projects with European partners will be exempt via general licences provided they meet strict conditions. These conditions include: (1) no finished weapons systems may be shipped to Saudi Arabia or the UAE until the end of the year, and (2) jointly produced weapons delivered to Saudi Arabia or the UAE must not be used in the war in Yemen. Internal debates of the German government on the export ban have been going on over the course of the past months and so far only shorter, preliminary extensions were agreed.
With the decision of 28 March 2019, the German government has finally settled on a compromise for extension of Germany's arms embargo against Saudi Arabia. Bilateral arms shipments from Germany to Saudi Arabia will not be authorised for another six months, until 30 September 2019.
After the meeting of the Federal Security Council where the agreement was reached, government spokesperson Steffen Seibert informed that principally no new applications for arms exports will be authorised during that period. However, the government has also agreed on the above mentioned conditions to extend general export licences for partners of joint projects, notably France and the UK. The extension will last until the 31 December 2019, so it is at this point unlikely that they will be subject to uncertainty again when the current export ban ends on 30 September 2019. Furthermore, the German government has agreed to enter consultations with European partners on the conditions of their exports.
2.2 The United Kingdom
The UK has been under strong criticism by human rights groups for granting export licenses to Saudi Arabia. The Government was challenged in Court last year when the Campaign Against Arms Trade ("CAAT") launched a judicial review of the government's decision to continue granting arms export licences to Saudi Arabia. However, the high court ruled in July 2017 that exports could continue and the claim was dismissed.
On 4 May 2018 permission to appeal the case was granted and the case will be heard by the Court of Appeal between 9 to 11 April 2019.
[1] If the appeal case is successful, UK arms export control licences to Saudi Arabia could be ruled unlawful, meaning that the UK Government would not be able to grant any new licences or renew existing licences to export weapons to Saudi Arabia.
2.3 France
Meanwhile in France, the Parliament has been openly critical of Germany's export embargo because it stopped France from selling military equipment to Saudi Arabia that was developed jointly or arms that contained German parts.
France's ambassador to Germany, Anne-Marie Descôtes, wrote in a recently published essay that "realistic export possibilities on the basis of clear and predictable rules are an essential prerequisite for the survival of our European defence industry."
[1]
As a result, Germany and France are now considering a new defence export agreement, which would involve a return to the export regime established by the 1972 Schmidt-Debré agreement, which in effect barred one country from blocking the other country's exports of jointly developed military equipment to third countries.
[2] This proposed agreement is partly designed to ease the tensions between France and Germany over this specific issue concerning arms exports. The two allies have agreed preliminary guidelines for exporting to third countries and are currently in the process of negotiating a binding agreement.
[1] See: https://de.ambafrance.org/Vom-German-free-zum-gegenseitigen-Vertrauen (the essay first appeared as a working paper Security Policy 7/2019 of the Federal College for Security Policy)
3. Conclusion
It is evident that the export of arms from the EU Member States to Saudi Arabia continues to cause controversy and attract scrutiny within a number of national forums.
Germany's extension of export licences for weapons developed jointly with Germany’s European partners has offered some flexibility to keep afloat contracts already signed. However, the extension only applies to licences that have already been granted, so no new export applications will be approved during this time. In addition, the condition imposed by the German government that no fully assembled new weapons may be shipped to Saudi Arabia would appear to prevent the delivery of new arms and military equipment. It will have to be determined what effect the envisaged consultations between Germany and its European partners will have.
It is recommended that the situation continue to be closely monitored in anticipation of possible future measures to compensate for the restrictions on jointly developed military equipment or arms that contain German parts, particularly the development of a new defence export agreement between Germany and France.
*Associate, London
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