sou · H3B372 · 2015-08-04 00:00:00 — Other violations of human rights may thus also be regarded as gross. Furthermore, the ISP states that the interpretation of the term ‘widespread’ is that it should be a matter of systematic violations of human rights. As a result of the development in practice that has taken place, the concept of gross and widespread violations of human rights has primarily come to refer to people’s physical safety. considers that gross and widespread violations of human rights can take place in relation to all human rights – civic, political, economic, social and cultural. A single violation of human rights is not, however, sufficient for the national criterion to be regarded as met. For the obstacle to exist, the violations must be of a particular scope and/or systematic and take place at the behest of the country concerned or through its condoning of or failure to prosecute crime. To summarise, the committee’s view is that the conditional obstacle in relation to human rights has been interpreted too narrowly. The threshold at which it is to be applicable should therefore be lowered. considers that the term ‘serious’ should be used instead of ‘gross’, firstly to highlight this change and secondly because the international obligations to which has become party in the area use the term ‘serious’. considers that the regulations should continue to uphold the principle that compliance of a potential recipient country with human rights in a broad sense is to be taken into account. Not solely basing the assessment of human rights on an equipment-specific approach involves a substantially more restrictive attitude in assessing applications for licences than follows from international obligations. The equipment-specific approach contained in the international obligations and commitments should therefore continue to be supplemented in the new guidelines by a national obstacle regarding the human rights situation in the recipient country. It is to follow from such an obstacle that a country’s respect for human rights shall be a key condition in the assessment of applications for licences and means that the overall human rights situation in a potential recipient country must be assessed. Licences should not be granted to a country in which serious violations of human rights occur and which in some sense are systematic. Because the assessment of applications for licences must be made on a case-by-case basis and be based on an overall assessment, all the circumstances in the individual case are to be taken into account in assessing whether widespread and serious violations of human rights are considered to occur in a particular country. Proposals for the design of obstacles relating to human rights and democratic status In view of the strong correlation that exists between a country’s respect for human rights and its democratic status, the committee proposes that these should be treated jointly in the guidelines. proposes that the following wording be introduced into the guidelines: Respect for human rights and the democratic status of the recipient country are key conditions in assessing applications for licences. A country’s democratic status is assessed on the basis of the existence of democratic institutions, the country’s respect for democratic processes and civic and political rights. The worse the democratic status, the less scope there is for licences to be granted. If serious and widespread violations of human rights or grave shortcomings in democratic status occur, they constitute obstacles to the granting of licences. Proposal to retain the conditional obstacle in relation to armed conflicts The foreign policy obstacle that military equipment should not be exported to a country involved in armed conflict with another country, a country embroiled an international conflict that is in danger of turning into armed conflict or a country where there is internal armed unrest, remains applicable. There is equivalence to this conditional obstacle in both the and the EU’s Common Position on . The fact that this circumstance exists in both the Swedish regulations and in international rules means that there is some overlap between the guidelines and international obligations. However, the point of departure for assessment differs in the different sets of rules. The national assessment of applications for licences considers the recipient country as a whole, while the international obligations are based on what kind of military equipment is to be exported. In view of this, the sets of rules complement one another. therefore considers that the conditional obstacle relating to armed conflicts should be retained as a national obstacle. Proposal for the Policy for Global Development to be taken into account in the assessment of applications for licences considers that the assessment of applications for licences should contain a requirement that an analysis be made of how a military equipment export for which a licence is granted may affect the objectives of the Policy for Global Development (PGD) adopted by the Riksdag. This should take place, in the committee’s view, by it being made clear in the guidelines that the PGD is to be taken into account in assessing applications for licences. In reaching decisions an assessment must be made of what impact the export of military equipment is expected to have on the fulfilment of PGD objectives. proposes that the guidelines be supplemented as follows: In assessing applications for licences to export military equipment, provide technical assistance to anyone abroad or other cooperation with foreign partners on military equipment, particular account is to be taken of consistency with the Policy for Global Development (PGD). An analysis is to be made in applicable cases from which it is apparent whether the intended export of military equipment may counteract efforts to meet objectives set in the PGD. Proposals concerning follow-on deliveries To enable the domestic defence industry to operate in the export market, the requirements of the purchasing country for security of supply must be taken into account in the export controls regulations. It is therefore particularly important to regulate clearly in the rules on export controls how the issue of security of supply is to be addressed. The current guidelines state that follow-on delivery means spare parts for previously exported military equipment, ammunition related to previously exported military equipment or exports where it would otherwise be unreasonable not to grant a licence. The concept of follow-on delivery does not appear in the guidelines, but does appear in the text on motivation in the guidelines, without any exhaustive definition being given. What is to be regarded as follow-on delivery has instead been clarified by development of practice. The follow-on delivery situations have been divided into different types, which in turn can be divided into three sub-groups: spare parts for previously supplied military equipment, specific ammunition for previously supplied military equipment and deliveries directly related to previously granted export licences where it would be unreasonable not to grant licences. In the assessment of the latter type of follow-on delivery, an assessment of unreasonableness ought to recur more frequently than in the other types of follow-on delivery included in this sub-group. proposes that the interpretation of what constitutes a follow-on delivery be made narrower than currently follows from the guidelines and from the development of practice that has taken place. In the committee’s view, the follow-on delivery types of replacement delivery, supplementary delivery, recurring acquisition and related equipment should not automatically be regarded as a follow-on delivery. In those cases where there is a clear direct correlation between previously granted export licences and current export, such export is to be regarded as a follow-on delivery. This is the case, for example, with regard to upgrading previously delivered weapons systems or maintenance equipment for such systems. For a direct correlation to be considered to exist, however, there must be a direct link to the products previously exported. A follow-on delivery case, like any other export case, must be assessed on the basis of applicable sets of rules. However, it follows from the guidelines that there is a presumption of assent with regard to follow-on deliveries, provided that there are no unconditional obstacles. The presumption of licences being granted for follow-on deliveries is to remain, but an assessment must always be made in the individual case to ensure that licences do not conflict with ’s international obligations or if the recipient country has not fulfilled its undertakings to which may, for example, follow from an end-user certificate. The presumption should be breached in such situations. Furthermore, in assessing applications for licences, account is also to be taken of whether the situation in the recipient country has substantially worsened in comparison with the situation that prevailed when the original decision was made. The ECC should be consulted in such cases. In addition, the ECC should be consulted in cases where a reasonability assessment must be made in relation to whether a particular export is to be regarded as a follow-on delivery. proposes that the following rule on follow-on delivery be introduced into the guidelines: Licences should be granted for follow-on deliveries. Follow-on delivery means the export of spare parts, ammunition and other deliveries, for example maintenance equipment and upgrades, which are directly related to previously delivered military equipment. Remit to survey the export controls systems of other partner countries notes that none of the countries studied has a ‘democracy criterion’ in its regulations. further notes that the Swedish rules on export controls differ in several respects from the rules in the countries studied. is alone in having transferred the assessment of applications for licences as a general rule to an administrative authority, instead of assessment being handled directly by the Government. A further difference is that the underlying principle in is that exports of military equipment in general are prohibited, but that exemptions from this ban can be granted if there are defence or security policy reasons for doing so. Some countries have a similar basic premise. majority of countries in the comparison, however, the basic premise is that the export of military equipment is in principle permitted, but that export licences will not be granted under certain circumstances. This difference is likely to be explained by the countries studied prohibiting exports ultimately to prevent valuable technology and/or knowledge ending up in the hands of the wrong user, and applications for licences being assessed on the basis of an equipment-specific assessment that includes both end- user and end-use, instead of reviewing the recipient country as such. Remit to increase openness and transparency in Swedish export controls proposes several measures, each of which increases openness and transparency in the export control of military equipment. It is proposed that, in relation to the general public, greater clarity be provided on the reasons for the decisions, the Government take political responsibility more clearly than at present for decisions made and that official reporting on export controls be enhanced. The possibility of political accountability for decisions made is improved by increased openness and transparency. Improvements regarding reporting should also be made in relation to the Riksdag, regarding both unclassified and classified information. The ‘prior notices’ (the committee’s proposal is that, in future, these should be termed preliminary assessments) should be reported to the Riksdag, thus ensuring greater transparency on the decisions made by the Government and the ISP, including the weighing-up that has taken place in each individual case and the fact that the Riksdag is informed about the recommendation made by the ECC. This must take place in consideration of the fact these cases are often covered by secrecy, principally defence, foreign-policy and commercial secrecy. It is proposed that, in addition to ordinary members of the ECC, deputy members should also be appointed. further proposes that a system of post-controls be introduced to ensure that the products and the know-how supplied reach the intended end-user. In addition it is proposed that the Government, in its annual written communication to the Riksdag, should provide more detailed information about the applications for export licences granted and refused, as well as more information concerning what actual exports have taken place. With regard to granted export licences, the written communications should indicate the licences granted broken down into the various categories in the EU military list, together with a brief description of the transferred or exported military equipment. Information should also be provided on the identity of the end-user. This should be based on four categories: military, , other government authority and industry. The data on actual exports should indicate the quantity or number of products exported and a description of the military equipment. In cases where the number cannot be stated, for example due to commercial or foreign-policy secrecy, this should be indicated. It is further proposed that a separate account be given through case studies. These should cover decisions to grant military equipment export licences in cases where there is an obvious conflict of interest between security and defence policy on the one hand and foreign policy on the other. The account given should, as far as possible, describe how the different policy areas have been weighed against each other and clarify why one particular area of policy weighed more heavily than another. It is proposed that the monthly reports presented by the ISP on granted export licences be made more detailed. This can be achieved by these reports also detailing sales of military equipment broken down by recipient country and product based on the category areas in the list of military equipment. It is further proposed that a more in-depth account be given of exports of small arms and light weapons. Hunting and sports weapons should also be reported separately in the account given. Finally it is proposed that post-controls be carried out continuously. However, to enable this, end-user certificates must be worded in such way as to make this possible. The end-user certificates must consequently be revised to ensure that the recipient country approves post-controls being carried out. The focus in post-controls should be firstly on military equipment where there is a great risk of diversion to an unintended recipient and secondly on military equipment where there is interest on the part of in ensuring that the technology and/or technical know-how that is exported is not disseminated. Procedures for the organisation of post-controls should be devised by the ISP as the licensing authority, following collaboration with affected authorities and with the defence industry. considers that decisions following from the Act should as far as possible be presented to the public, particularly with regard to military equipment export licences granted. With regard to granted and published decisions, the committee does not see any obstacle to a member of the ECC describing their recommendation, including the factors weighed up in an individual case. Consequences if export controls for non-democratic countries are tightened The issue of granting export licences for military equipment involves substantially more considerations than merely the question of the export as such. The issue of military equipment exports is ultimately concerned with ’s defence, security and foreign policy. Granting an export licence in an individual case has consequences for all these policy areas to a greater or lesser extent. The intention behind the proposed tightening of the rules is to make exports of military equipment to non-democratic states more difficult. This will have consequences for Swedish military equipment exports. Predicting how tightened rules for exports of military equipment to non-democratic countries will affect actual exports is, however, difficult in view of the factors of uncertainty that exist. It is not possible to make a quantitative analysis of this expected decrease in a meaningful . In view of this situation, a general account is given of how reduced military equipment exports may affect the domestic defence industry and how this in turn may affect the supply of military equipment to the Swedish Armed Forces, ’s of entering into international cooperation on military equipment, ’s of taking part in international peace and security missions, and the financial consequences for the defence industry and for the economy at large. A direct consequence of reduced exports is that company revenues decline. It can generally be said that this leads to a deterioration in the competitiveness of companies and therefore in their of retaining both capacity and expertise to operate at the forefront of technology. restrictive export control rules will adversely affect the competitiveness of Swedish companies in comparison with companies from other countries. The Swedish Armed Forces have a large number of military equipment systems in operation that have been manufactured by the Swedish defence industry, which means that there is a relationship of dependence on the domestic defence industry to maintain these equipment systems. Exporting these systems creates opportunities for cost-sharing with the purchasing country/countries for operation, upgrades and development of the systems. Reduced exports are likely to lead to a rise in the costs of military equipment supply to the Swedish Armed Forces. By being able to retain some expertise, defence-industry capability and capacity, Swedish scope for action is also created in order to have access in the future to certain technology and industrial capacity if a need for particular technological expertise were to arise on the basis of benefit to defence. It may be noted that it has been possible to retain a certain level of expertise in thanks to individual export deals, and there is a risk of this being made more difficult by the committee’s proposals for tightening export controls on non-democratic countries. The shift that has taken place in the boundaries between defence agencies and the defence industry in terms of technical expertise has indirectly led to a greater need for the defence industry to retain technical expertise in particular in . Cuts in government R&D budgets combined with increased investments by the defence industry in R&D have also led to increased dependence on the defence industry to maintain expertise within the country. Reduced export revenues will mean that defence industry companies will have fewer resources to earmark for R&D. Having rules on export controls that are more restrictive than in potential partner countries is generally likely to mean that becomes a less attractive partner. This is particularly the case because a potential partner does not wish to risk the restrictions imposes on third-country exports. restrictiveness between the regulatory systems of different countries already exists today, at the same time as Swedish industry has extensive international cooperation. The fact that no other country at present has a democracy criterion in its export control rules will be a factor weighed into the equation by the partner if cooperation is to be initiated, and in this context is likely to be a complicating factor in bringing about such cooperation. The changes proposed in military equipment export controls, including the proposal to tighten the control of exports to non- democratic countries, will necessitate allocating resources to the ISP. New administrative resources will be required to deal with proposals for example on increased reporting, more detailed requirements for the basis on which decisions are made, the introduction of a democracy criterion and greater post-control. As well as increased resources through increased staffing levels, greater resources are required to manage changes for example in case management systems and for increased expenses. It is estimated that a sum of –5 million annually is required to cover the cost of 4–5 full-time equivalent staff and other expenses. The defence industry is a dominant feature of some municipalities. However, it is difficult to describe what the actual consequences of the committee’s proposals will be and therefore also how the proposals will affect these municipalities. Some municipalities have submitted statements on the significance of the defence industry for their particular regions. These make clear the importance of a major export company being located in the region and operating on the international market as such companies contribute towards smaller companies being able to break into the export market. If reduced military equipment exports lead to the development departments of defence industry companies disappearing or moving, this would also affect the development of the region. Such a scenario would change the whole structure of the business sector and have an adverse impact on economic development in the region. lag (2016:000) om kontroll av krigsmateriel och av tekniskt bistånd Lagens ändamål och omfattning 1 § Denna lag gäller dels kontroll av materiel som är utformad för militärt bruk och som utgör krigsmateriel, dels kontroll av tekniskt bistånd avseende krigsmateriel. Regeringen anger genom föreskrift vad som utgör krigsmateriel och vad som utgör tekniskt bistånd. Regeringen informerar om utfallet av de prövningar som gjorts enligt denna lag. 2 § I denna lag förstås med certifiering: en certifiering som ger en mottagare av krigsmateriel eller av tekniskt bistånd här i landet rätt att ta emot krigsmateriel eller tekniskt bistånd, som överförs till från ett land inom Europeiska ekonomiska samarbetsområdet (EES) enligt ett gene- rellt överföringstillstånd, vilket har offentliggjorts av ett EES-land, generellt tillstånd: ett tillstånd enligt 3 kap. 4 § första stycket som direkt ger en leverantör här i landet rätt att till en eller flera kategorier av mottagare i ett annat land föra ut sådan krigsmateriel eller lämna sådant tekniskt bistånd som specificeras i tillståndet, generellt överföringstillstånd: ett tillstånd som har utfärdats av en nationell myndighet i ett annat EES-land än , vilket direkt ger en leverantör i det landet rätt att till en eller flera kategorier av mottagare i ett annat EES-land överföra sådan krigsmateriel eller sådant tekniskt bistånd som specificeras i tillståndet, globalt tillstånd: ett tillstånd enligt 3 kap. 4 § första stycket som ger en enskild leverantör rätt att till en eller flera mottagare eller kategorier av mottagare i ett eller flera andra länder föra ut sådan krigsmateriel eller lämna sådant tekniskt bistånd som specificeras i tillståndet, individuellt tillstånd: ett tillstånd enligt 3 kap. 4 § första stycket som ger en enskild leverantör rätt att föra ut krigsmateriel eller lämna tekniskt bistånd som avser en angiven kvantitet specificerad krigsmateriel som ska vidarebefordras i en eller flera transporter till en mottagare i ett annat land, tillhandahållande: försäljning, upplåtelse, utbjudande mot veder- lag, lån, gåva eller förmedling, tillverkning: framställning av sådan materiel eller delar därav som utgör krigsmateriel, tillverkningsrätt: varje rätt att tillverka krigsmateriel, transitering: transport av krigsmateriel eller tekniskt bistånd ge-