sou · H3B372 · 2015-08-04 00:00:00 — The provision was introduced into the Act at the time when the ISP was established in 1996. The Government which led to the formation of the ISP states that security, defence and foreign policy considerations are to be the decisive factor in assessing cases and that this is ensured by incorporating the provision mentioned into the Act. Beyond this overarching provision, the Act does not contain any further instructions on what is to be taken into account in assessing applications for licences. Guidance on assessing whether licences are to be granted can, however, be found in the Swedish guidelines on military equipment exports and other cooperation with foreign partners contained in the preparatory materials for the Act.2 These guidelines represent the principles that the Government has established in practice and that are to provide guidance in assessing applications for licences. The criteria in the EU’s Common Position on and the which has undertaken to comply with are also taken into account in this assessment. The guidelines make a distinction between what are known as unconditional and conditional obstacles. Unconditional obstacles are obstacles that prohibit export despite the fact that export may be called for on the basis of defence or security policy considerations. It follows from the guidelines that such obstacles exist and that a licence must not be granted if this would contravene international agreements to which is a party, if this would contravene decisions by the or if this would contravene international law on exports from a neutral country during war. Other foreign policy obstacles that follow from the guidelines are what are known as conditional obstacles. Such an obstacle exists if widespread and gross violations of human rights occur in the recipient country, if the country has internal armed unrest or is in an armed conflict with another country or if such a risk exists. When a conditional obstacle is present, the guidelines stipulate that a licence should not be granted. In cases where there are no unconditional obstacles, an overall assessment should be made in which account is taken of all circumstances significant to the case. The guidelines can be said to be an instrument of balance where factors in favour of export must be weighed against factors militating against export.3 Thus, this means 2Govt 1991/92:174 p. The guidelines have been approved by the Riksdag (report 1992/93;UU1, 1992/93:61). 3This has been pronounced by ; see for instance report 2003/04:UU3. that a licence can be granted in a case even if conditional obstacles exist. The guidelines distinguish between the two categories of military equipment: military equipment for combat purposes and other military equipment. The category of military equipment for combat purposes in principle consists of products with a destructive effect, while the category of other military equipment is made up of non-destructive products. In assessing applications for licences a distinction is made between military equipment for combat purposes and other military equipment, where stricter requirements are set for allowing the former than the latter. The defence industry, its market and military equipment exports Like many other product markets, the military equipment market is global, but this market is not governed solely by traditional market economy and technical factors. The military equipment market is instead governed by parameters and conditions other than those of purely a business economics nature. The political involvement of states means that the military equipment market differs substantially from other markets. The potential in the military equipment market principally consist of countries, and it is also countries that decide to whom the defence industry may export. The Swedish defence industry has undergone dramatic and extensive structural change since the current military equipment legislation came into force on 1 January 1993. Reduced orders from the Swedish Armed Forces have meant that exports have become necessary and crucial in enabling the domestic defence industry to retain technical expertise and capacity. Most of what the defence industry manufactures today is exported to other countries. As a result of the extensive structural changes undergone by the defence industry, the industry has been internationalised in recent decades. Large parts of the Swedish defence industry today are owned by foreign companies or by shareholders in an international market. Those companies where the parent company has a registered office in in turn have subsidiaries in other countries. The global military equipment market is dominated today by six countries (, , , , and ). These countries account for around of all military equipment exports. Swedish military equipment exports have been around of total Swedish exports for a number of years. Swedish exports of military equipment totalled billion in 2014. This was a decrease in exports of around compared with 2013, when exports totalled billion. It is apparent from the statistics that exports fluctuate over time. Exports in 2012 were billion, which was a decrease compared with 2011 when exports totalled billion, the highest level of exports recorded to date. It further follows from the military equipment export statistics that sales of major weapons systems have a great impact on export statistics. of major weapons systems to countries other than ’s traditional partner countries have increased in recent years, which has led to a certain shift in Swedish military equipment exports from western countries to other countries. A policy in flux – how the defence industry and military equipment exports are viewed The policy areas that govern export controls policy are security, defence and foreign policy. These are not static policy areas; rather, they change over time. The traditional elements in foreign policy behind the fundamental ban on military equipment exports, i.e. a to stay out of the armed conflicts of other countries, as well as work on arms control, are generally applicable. In addition, the overarching foreign policy objective to contribute to peace and security and promote human rights has had a great impact on the formulation of the export control rules. It follows from the guidelines that military equipment exports may lead to a conflict of aims and interests arising between foreign policy on the one hand and security and defence policy on the other. Export controls policy is also affected by the changes that take place in security and defence policy. The changes that have taken place in these areas have affected the view taken of both the domestic defence policy and military equipment exports. In defence policy the changed supply of equipment has perhaps the greatest impact on the Swedish defence industry at present. Both the Government and the Riksdag now take a positive view of the defence industry developing and producing military equipment not intended solely for the Swedish Armed Forces. Developments in security policy in themselves have provided more reasons for granting military equipment export licences, not least as a consequence of globalisation and the broadened concept of security. This does not just cover the country’s own physical territory; security of flow has also become crucial to the broadened concept of security. ’s proposals for the design of future Swedish military equipment export controls proposes a number of different measures, each of which makes military equipment export controls more stringent. Most of the proposals made by only have a bearing on the assessment of applications for licences to export to countries that are non-democratic. The proposal that has a special bearing on non-democratic countries is the committee’s proposal to introduce a specific democracy criterion into the guidelines. With regard to the regulatory framework for export controls, the committee proposes that the current structure be retained. This means that the Act should continue to indicate what the focus should be on in assessing applications for licences, while the general principles and criteria to be considered in assessing applications for licences are contained in separate guidelines. The guidelines are not to be given statutory status as the assessment of applications for licences is to be based on weighing up the pros and cons in a political sense and not establishing any positive rights that can be reviewed in a legal process. Act should continue to uphold a general ban on the manufacture, supply and export of military equipment and on the provision of technical assistance to anyone outside the country. It must be possible for licences to be granted under certain circumstances. Assessments of applications for licences under the Act should continue to be based on security, defence and foreign policy considerations. The ECC should maintain its role as an advisory body, as this creates the conditions necessary to obtain a broad parliamentary base regarding military equipment export controls. Political responsibility for the decisions made in accordance with military equipment legislation rests ultimately with the Government. This applies in particular to cases relating to vital national security interests. The rules on export controls must make it possible for the Government to fulfil its responsibility for national security. Proposal for a new Act proposes that a new Act be enacted. The principal aim is to make the wording of the Act clearer, including by dividing it into chapters. As well as this purely editorial change, for purposes of clarification and information, the Act should explain the systematic nature of the export controls system more effectively than law currently in force, including by stating that the assessment of applications for licences is based on an overall assessment if there is no international obligation that prohibits a licence from being granted. A factor that has an impact on the assessment of applications for licences is the international obligations to which is party. In certain cases, under international law, there is an obligation for to comply with international decisions. This is not apparent from the Act, and the committee regards this as a shortcoming. For purposes of clarification and information, some of the material changes proposed by the committee in relation to tightening export control rules should also be apparent from the wording of the Act, for instance the political responsibility of the Government being clarified, the circle of players required to obtain a licence being expanded to also include Swedish citizens abroad, and Swedish authorities needing a licence to manufacture and supply military equipment. There is a broad political on , for the same purpose, to also provide general instructions on the intended focus of the assessment of applications for licences regarding exports and other cooperation with foreign partners. It should therefore be apparent from the wording of the Act that the assessment of applications for licences should focus on the democratic status of the recipient country, its respect for human freedoms and rights and the extent to which the country is engaged in armed conflict or is at risk of becoming involved in such conflict. Such clarification does not alter the structure of the export controls rules i.e. the Act specifies the direction that the licensing procedure should have, while the general principles and criteria to be taken into account when considering license applications are presented in separate guidelines. Thus, this clarification does not mean that the assessment of applications for licences switches to being application of a standard. The assessment of applications for licences continues to reflect a political assessment based on political considerations. In addition, for the purpose of clarification the name of the act should be changed to Act on Control of and of Technical Assistance. Proposals for structure and formulation of new guidelines The current written guidelines do not fully reflect the principles and criteria that should underpin the assessment of applications for licences for the export of military equipment, provision of technical assistance to a party abroad or other cooperation with partner countries. The changes that have taken place in security, defence and foreign policy since the guidelines were drawn up must be reflected in them. The proposals made by military equipment export controls should also be reflected in the guidelines. The circumstances regarding security, defence and foreign policy for have changed since the guidelines were drawn up. For example, the need for international cooperation and collaboration in this area has increased. In addition, has become party to a number of international obligations and undertakings in the area of military equipment export controls, including the EU’s Common Position on and the UN’s (ATT). Although the ISP now takes account of the criteria that follow from these international agreements in its assessment of applications for licences, the criteria have not been incorporated in the Swedish guidelines. This poses a risk of ambiguity as there are differences between the Swedish guidelines on the one hand and the EU’s Common Position on and the UN’s on the other. The applicable written Swedish guidelines are not always more restrictive than the criteria that follow from the international obligations. The joint position is more restrictive, for example, as it includes criteria that stipulate that an export licence must not be granted if certain circumstances indicated in the position are present, for example if there is a risk of the military equipment concerned being used for internal repression. This also highlights the principal difference between the international obligations and commitments and the Swedish guidelines. In the Swedish guidelines, as expressed in the conditional obstacles, an assessment must be made of the situation in the potential recipient country as such, primarily with regard to the presence or risk of armed conflict, as well as the human rights situation. Unlike the Swedish guidelines, which assess the recipient country as such, the criteria that follow from the international obligations are based on an equipment-specific approach having to be observed in the assessment of applications for licences. The fact that the principles and criteria underpinning the assessment of applications for export licences are contained in several documents creates uncertainty and ambiguity regarding export controls policy. This becomes particularly clear in cases where there is no consistency between the principles and criteria contained in these various documents. In the committee’s view, the principles and criteria to be respected in the assessment of applications for licences should instead be collated in one document. As a result the guidelines can bring together all national and international principles and criteria that should underpin the assessment of applications for licences. ’s remit does not include presenting new guidelines. On the other hand, the committee makes proposals on how new guidelines could be structured and formulated and how the assessment based on these should be made. proposal in this context is that the assessment should be made in stages. The assessment of applications for licences should be based on whether a licence is compatible with the international obligations to which is party. In cases where a licence would contravene ’s international obligations, an application for an export licence is to be refused for that reason alone. If there are no international obligations to refuse an application for a licence to export military equipment from , an overall assessment must be made which firstly takes account of the international criteria has undertaken to meet in assessing applications for licences, and secondly complies with the national criteria that has unilaterally decided to introduce into the assessment (the ‘conditional obstacles’). Fundamental principles of assessment of applications for licences If there is no international obligation entailing that a licence cannot be granted, an overall assessment must be made in the assessment of applications for licences. The overall assessment is a total appraisal of the security, defence and foreign policy grounds in favour of and militating against granting a licence under the Act. This procedure is due to the policy areas concerned being weighted differently in different situations. Making an overall assessment when examining an application for a licence ensures that account can be taken of all circumstances relevant to the case. This includes a country possibly being eligible as a recipient of certain military equipment from , while some types of military equipment should be exempted. A more restrictive attitude is to be adopted with regard to military equipment for combat purposes, i.e. equipment which in everyday language consists of weapons, than for other military equipment. In cases where an unconditional obstacle is present (i.e. if has undertaken not to grant licences based on an international obligation) the application assessment process is to be concluded without a licence being granted. In the current Swedish guidelines ’s international obligations regarding military equipment export controls are regulated in the ‘unconditional obstacles’. Unconditional obstacles exist if exporting military equipment would contravene an international agreement to which is party, a decision of the or international law on exports from neutral countries during war. By adopting the EU’s Common Position on , undertook to comply with certain criteria in its assessment of applications for military equipment export licences. The obligations that follow from the UN’s have also subsequently been added. ’s view is that, as far as possible, the international obligations should be reproduced verbatim in the guidelines. As the international agreements make use of different terms, it must be ensured in wording such guidelines that the terms used are those that are the most restrictive, thus ensuring that meets its international obligations. Proposal for the introduction of a democracy criterion proposes that a democracy criterion be introduced into the guidelines. Under this criterion, the democratic status of the recipient country must be a key condition in the assessment of applications for licences. As a result of introducing a democracy criterion, the democratic status of a country is highlighted more clearly as an important foreign policy factor in the overall assessment made in each individual case. Granting a licence to export military equipment to a country that has severe shortcomings in terms of its democratic status can regarded as legitimising or giving political support to the regime in office. This in turn may counteract ’s overarching foreign policy objective to promote democracy and human rights. A national democracy criterion based on the recipient country as such complements the current conditional obstacles in the applicable guidelines. The necessary basis is consequently created for an overall assessment of the objectives that have been especially highlighted in foreign policy. It can generally be said that the greater the democratic deficit, the more foreign policy reasons there are for not granting a licence. ’s proposal for the introduction of a democracy criterion is based on the fact that an assessment of whether a country can be regarded as a democracy or not must take account of both the presence of democratic institutions (formal democracy) and how well these institutions work in practice (real democracy). For it to be possible for a country to be regarded as a democracy, it is required to fulfil certain fundamental requirements and have certain democratic institutions in place. The democratic institutions set the frameworks for how popular participation in elections to the country’s political assemblies is guaranteed. Democracy requires that popularly elected representatives can be held to account and that there is a distribution of power between certain institutions of democracy. The existence of political parties, independent media and non-governmental organisations which are allowed to operate freely is also a basic requirement. In addition it is a requirement that all citizens have knowledge of their rights and an opportunity to avail themselves of these rights. The democratic deficit in those countries that are to be regarded as non-democratic can differ markedly. The democratic status of a country should be assessed so that account can be taken of the range that may exist between different countries – everything from consolidated democracies to countries with extensive shortcomings in terms of their democratic status. No predetermined dividing line between countries to be regarded as democratic and non- democratic can be established. It is thus not possible to decide in advance which countries can be categorised as one or the other. The democratic status of a country must therefore be assessed on a case-by-case basis. proposes that the democratic status of a country can be suitably assessed on the basis of the following fundamental criteria. Occurrence of open and fair elections, with and equal suffrage. That these elections are ‘effective’ in the sense that they relate to the senior positions in the country, and that these in turn have control over the territory of the country. That a number of political freedoms and rights are also maintained between elections, in particular freedom of opinion (which includes freedom of expression and freedom of the press), freedom of organisation and assembly, and associated freedom from oppression and repression. Further guidance on how an assessment should be made is to be based on the elements which the UN General has established as essential to a democracy. Respect for human rights and the fundamental freedoms, including freedom of religion, association, assembly, expression and opinion. The right of the citizens to take part in attending to general matters, directly or through freely elected representatives, and the right to be elected in periodically held free and general elections. The presence of and equal suffrage (voting should be secret to guarantee that the will of the people is freely expressed). That the political system is a pluralistic system with political parties and organisations. Respect for the principle of the rule of law, including distribution of power between executive, judicial and legislative institutions, and the independence of the system. That public administration is open and accountable. Existence of free, independent and pluralistic media. Proposals for amendment of the conditional obstacle in relation to human rights The currently applicable obstacle relating to human rights means that a licence should not be granted for a country in which gross and widespread violations of human rights occur. The concept of gross and widespread violations of human rights thus constitutes a ‘threshold’ for when this conditional obstacle is to be regarded as It follows from the practice that has emerged regarding the interpretation of gross and widespread violations that it has principally concerned violations of people’s physical safety. The interpretation of what constitutes gross violations of human rights includes genocide, extrajudicial and summary execution, enforced disappearance, slavery and slave trading, extrajudicial and summary enforced detention over a long period, torture, crimes against humanity and apartheid. The ISP emphasises in its account of how practice has developed that this list is not exhaustive.