1 The paper is about the physical transfer of conventional armaments, both major and small and light weapons (SALW), with a focus on the latter. See The UN Register of Conventional Arms, GA Res. 46/36, Annex (Dec. 9, 1991) (describing major conventional weapons such as heavy mortars, tanks and war planes). See UN Report of Group of Governmental Experts on Small Arms, para. 25, submitted to the General Assembly, U.N. Doc. A/52/298 (Aug. 27, 1997) (GGE) (discussing small arms weapons as “those weapons designed for personal use, and light weapons are those designed for use by several persons serving as a crew”).Google Scholar

2 Annan, Kofi, Small Arms, Big Problems, International Herald Tribune, July 10, 2001 at 1. See also Zeray Yihdego, Irresponsible Arms Transfers and Humanitarian Norms: The Principles of Humanity and Public Conscience Perspective, 2 (3) Journal of Human Security 29–42 (2006).Google Scholar

3 Zeray Yihdego, The Arms Trade and International Law 9 (2007). It has to be noted that the 99 states and their 1000 companies which are involved in the manufacture and supply of conventional weapons by and large enjoy the freedom of arms supply to their favorite destinations, of course subject to permission from their respective governments.Google Scholar

4 Hughes, Helen, Europe's Deadly Business, Le Monde Diplomatique, June 2006, http://mondediplo.com/2006/06/11armscontrol (pointing out that ‘between 1994 to 2001 the EU exported nearly $10bn of arms to developing countries-approximately one-third of all deliveries to such countries'). See also Zeray Yihdego, Arms Sales and Parliamentary Controls: the Role of the Quadripartite Committee, 61(4) Parliamentary Affairs 661 (2008).Google Scholar

5 This is not to deny the EU's role inter alia: in banning anti-personnel landmines and in restricting heavy conventional weapons in Europe. See Convention on The Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211 [hereinafter Ottowa Mine Treaty]; Treaty on Conventional Armed Forces in Europe, Nov. 19, 1990, 30 I.L.M. 6.Google Scholar

6 However, there was Common Criteria agreed at the Luxembourg and Lisbon European Council sessions of 1991 and 1992 on the subject and in December 2008 the EU Code has been transformed into a Council Common Position (CCP). See Yihdego et al, ‘The UK Arms Export Regime’ below (fn 19) at 551–552 (providing detailed analysis of the Code); Council Common Position Defining Common Rules Governing the Control of Exports of Military Technology and Equipment, 2008 O.J. (L 335) 99 [hereinafter CCP]. What is clear, however, is that the essence of the Code and the CCP appears to be generally the same. See discussion infra Part E.Google Scholar

7 Council Joint Action on the European Union's contributions to combating the destabilizing accumulation and spread of SALW (2002/589/CFSP), art. 1(1), 2002 O.J. (L 191) 1–4 (EU)[hereinafter EUJA].Google Scholar

8 Id. Art. 3.Google Scholar

9 Id. Art. 4.Google Scholar

10 Craig and De Burca, EU Law: Text, Cases and Materials 25, 37 (3rd ed. 2003).Google Scholar

11 See EUJA, supra note 7, at Arts. 3 (d) and 9 (2). See also Stockholm International Peace Research Institute, EU Joint Action on Small Arms, http://web.sipri.org/contents/expcon/eujointact.html (last visited on Mar. 6, 2009).Google Scholar

12 Stockholm International Peace Research Institute, EU Code of Conduct for Arms Exports, http://www.sipri.org/contents/expcon/eucode.html, Criterion 2 (last visited on Mar. 6, 2009) [hereinafter Code of Conduct].Google Scholar

13 Id. at Criterion 8.Google Scholar

14 Yihdego, supra note 3, at 155. However, other regional organisations (notably the OAS) have taken clearer position than the EU on this issue, as will be discussed further.Google Scholar

15 Code of Conduct, supra note 12, at Operative Provision 12.Google Scholar

16 Id. at Criteria 3–6.Google Scholar

17 The Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, Nov. 14, 1997, available at http://www.oas.org/juridico/English/treaties/a-63.html [hereinafter OAS Firearms Convention]. Whilst 27 American states have ratified the Convention, the US and Canada are only signatories to it.Google Scholar

18 Id. at Arts. 3(1) and 3(2).Google Scholar

19 Bauer, S., The EU Code of Conduct on Arms Exports, much accomplished much to be done, SIPRI 6 (2004). See also Zeray Yihdego and Ashley Savage, The British Arms Export Regime: progress and challenges, Public Law 546–565 (Autumn 2008).Google Scholar

20 Third Annual Report on the Implementation of the EU Joint Action of 12 July 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons (2002/589/CFSP), 2003 O.J. (C 312).Google Scholar

21 See Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, July 9–20, 2001, Programme of Action, U.N. Doc. A/CONF.192/15) [hereinafter PoA]; EU-US Statement of Principles on Small Arms and Light Weapons, available at http://www.useu.be/SUMMIT/arms1200.html.Google Scholar

22 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Related Materials, June 14, 2006, Arts. 3, 4 and 6; See also West African Arms Moratorium, Oct. 31, 1998.Google Scholar

23 OAS Firearms Convention, supra note 17, at Art IX(2).Google Scholar

24 Annual Report on the Implementation of the EU Joint Action, 2001 O.J. (C216) 1, at para. 3. See also Second Annual Report on the Implementation of the EU Joint Action, 2002 O.J. (C330) 1, at para. 27. See also Yihdego, supra note 3, at 124.Google Scholar

25 Fifth Annual Report According to Operative Provision 8 of the European Code of Conduct on Arms Transfers, 2003 O.J. (C320) 1.Google Scholar

26 CCP, supra note 6.Google Scholar

27 See id. at Art 2 (2).Google Scholar

28 Bauer, supra note 19.Google Scholar

29 Id. at 4.Google Scholar

30 See CCP, supra note 6, at arts. 2(2(a)), 2(2(b)) and 2(4).Google Scholar

31 Yihdego, supra note 3, at 218–9.Google Scholar

32 The EU Code has also affirmed the determination of member States ‘to prevent the export of equipment which might be used for internal repression, international aggression, or contribute to regional instability'. Code of Conduct, supra note 12, at preambular para. 4.Google Scholar

33 See also The Secretary-General, Report of the Panel of Governmental Experts on Small Arms, paras. 34, 35, 36 and 37(a), (b), and (c), delivered to the General Assembly, Un. Doc. A/52/298 (Aug. 27, 1997).Google Scholar

34 See Code of Conduct, supra note 12, at operative para. 4. See also, Small Arms Survey 2002: Continuing the Human Cost (Oxford University Press: Oxford) 117 [hereinafter SAS]; Yihdego, supra note 3, at 257.Google Scholar

35 OAS Firearms Convention, supra note 17, at Art. XII.Google Scholar

36 Kriegsmaterialgesetz [KMG] [War Material Act] Bundesgesetzblatt Teil I [BGBl I] No. 57/2001, para. 28 (Austria).Google Scholar

37 Yihdego, supra note 3, at 128–9. However, as indicated in Articles 1 and 12 of the 2008 CCP Defining Common Rules Governing the Control of Exports of Military Technology and Equipment, member states are now required to have an appropriate legal framework reflecting the criteria and other related procedures.Google Scholar

38 See Press Notice 9, Session 2005–06, available at http://www.parliament.uk/parliamentary_committees/quad/quad1106pn09.cfm, for details of the Act. See also Yihdego and Savage, supra note 19, at 548–550.Google Scholar

39 See Council of the European Union, Security-related export controls II – Military Equipment, available at http://consilium.europa.eu/cms3_fo/showPage.asp?id=408&lang=en, for details of the repots. See Yihdego and Savage, supra note 19, at 557–563, for detailed analysis of the Act and its practicality.Google Scholar

40 Annual Report, European Union Code of Conduct on Arms Exports, para 7, No 6, available at http://projects.sipri.se/expcon/eucodear1999.htm. See also Yihdego supra note 19, at 551–552.Google Scholar

41 Sibylle Bauer and Mark Bromley, The EU Code of Conduct on Arms Exports: improving the annual report, SIPRI Policy Paper # 8 (Nov 2004) 6, available at http://www.smallarmssurvey.org/files/portal/issueareas/transfers/transfers_pdf/2004_Bauer_Bromley.pdf.Google Scholar

42 Ninth Annual Report According to Operative Provision 8 of the European Code of Conduct on Arms Exports, 2007 O.J. (C 253) 1.Google Scholar

43 Yihdego, Zeray, Arms Sales and Parliamentary Controls: the Role of the Quadripartite Committee, 61 (4) Parliamentary Affairs 661–680 (2008), for the UK practice. See also the Quadripartite Committee on Arms Exports at http://www.parliament.uk/parliamentary_committees/arms_committees.cfm; See e.g. Zeray Yihdego, Arms Trade and Public Controls: the Right to Information Perspective, 59(4) Northern Ireland Legal Quarterly 387 (2008), for in-depth analysis on the role of citizens and civil societies.Google Scholar

44 Id. Google Scholar

45 Third Annual Report, supra note 20, at 8. See also SAS, supra note 34, at 117.Google Scholar

46 Fiscal Year 2004: “Section 655” Report, available at http://www.fas.org/asmp/profiles/655-2004/6552004.html#DOD, for reports on actual deliveries of arms to specific countries; SIPRI database on conventional weapons transfer contains, available at http://www.sipri.org/contents/armstrad/atlinks_gov.html. See also Yihdego and Savage, supra note 19, at 555–556.Google Scholar

47 SAS, supra note 34, at 113, box 3.3 [emphasis added].Google Scholar

48 Id. Google Scholar

49 See e.g. Yihdego, supra note 43, at 671–673. See also Quadripartite Committee, First Report, 2005–6, H.C. 873 at para. 152. The Committee clearly challenged the compatibility of arms supplies to Saudi Arabia with Criterion 2 of the EU Code (human rights), noting that while the suppression of fundamental freedoms and the use of executions are widespread in Saudi Arabia, Britain supplies weapons to the country.Google Scholar

50 The G8: global arms exporters, Failing to prevent irresponsible arms transfers, Control Arms, June 22, 2005, available at http://www.controlarms.org/en/documents%20and%20files/reports/english-reports/g8-global-arms-exporters. The report refers to French's arms supply to Myanmar and Sudan, Italy's arms sales to Congo and China and German's military equipment destined in Myanmar. The report also slams others such the US, Russia and Canada for their ‘irresponsible’ arms transfer.Google Scholar

51 See e.g. Yihdego, Zeray, The Role of the UN Security Council Arms Embargoes in Stemming Destabilizing Transfers of Small Arms and Light Weapons: Recent Developments and Challenges, LIV Netherlands International Law Review 115 (2007).Google Scholar

52 Ministers, Council of, EU Declaration on China, June 26–27 1989, available at http://projects.sipri.se/expcon/euframe/euchidec.htm [emphasis added].Google Scholar

53 Council Common Position of 18 February 2002 on Zimbabwe, 2002 O.J. (L50) 1, at para. 4 [emphasis added][hereinafter CCP Zimbabwe].Google Scholar

54 Ministers, Council of, supra note 52, para 1.Google Scholar

55 CCP Zimbabwe, supra note 53, at paras. 1 and 4. See also Common Council Position of 16 September 1999 Concerning Restrictive Measures against the Republic of Indonesia, 1999 O.J. (L 245) 53, at para 1.Google Scholar

56 Common Council Position on Burma/Myanmar, 1996 O.J. (L 287) 1, at No. 2 [hereinafter CCP Burma]; See also Council Regulation No. 1081/2000 of 22 May 2000, Prohibiting the Sale, Supply and Export to Burma/Myanmar of Equipment which might be used for Internal Repression or Terrorism, 2000 O.J. (L122), at para 1.Google Scholar

57 'Common Council Position of 19 March 1998 against the Federal Republic of Yugoslavia, 1998 O.J. (L 95) 1, at preamble and para 1 [hereinafter CCP FRY].Google Scholar

58 Common Council Position of 8 October 2001 ameding Common Position 96/184/CFSP, 2001 O.J. (L268) 49.Google Scholar

59 See, i.e. CCP Zimbabwe, supra note 53, at Art. 7. See also CCP Burma, supra note 56, at Art 7.Google Scholar

60 Regulation, Council, supra note 56, at Art 6.Google Scholar

61 Release, Press, Council of the European Union, Joint Statement of the 7th EU-China Summit (Dec. 8 2004) at para 7.Google Scholar

62 Id. at sub-para 2.Google Scholar

63 EU Wants Action in China, Asian Times, Mar. 26, 2004. See also EU Split on China arms ban, but “tide turning” towards lift, Agence France Press, Dec. 8, 2004.Google Scholar

64 Id. See also UKMIL 73 British Ybk Int L 827 (2002).Google Scholar

65 The EU Lifts weapons Embargo on Libya, BBC News, Nov. 10, 2004.Google Scholar

66 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, G.A. Res. 55/255, U.N. Doc. A/RES/55/255 (June 8, 2001).Google Scholar

67 Council of Europe, Proposal for a Council Recommendations, 2, May 25, 2007, available at http://register.consilium.europa.eu/pdf/en/07/st10/st10000.en07.pdf‥Google Scholar

68 Yihdego, supra note 3, at 105.Google Scholar

69 See PoA, supra note 21.Google Scholar

70 Id. at Preambular para. 5Google Scholar

71 Id. at Part II, para. 2.Google Scholar

72 Id. at parass 32–34. See also Yihdego, supra note 51.Google Scholar

73 The First BMS was held in 2003 and the Second in 2005. The review conference was held in 2006 which was concluded without any common position or declaration.Google Scholar

74 For example, on April 27, 1999, German, on behalf of the EU, expounded that: “The European Union is strongly in favour of a wide and comprehensive scope for the international conference.… The conference should deal with both the preventive and reactive aspects of the small arms problem and envisage effective ways and means to combat and contribute to ending the destabilizing accumulation and spread of small arms; to contribute to the reduction of existing accumulations of these weapons to levels consistent with the legitimate security needs of countries; and to help solve the problems caused by such accumulations.” The Secretary-General, Report of the Secretary General on the Convening of an international conference on the illicit arms trade in all its aspects, U.N. Doc. A/54/260 (Aug. 20, 1999), available at http://disarmament.un.org/cab/smallarms/docs/260_ger.htm.Google Scholar

75 Although national reporting (including from EU States) seems to be declining, some EU states have been reporting since 2002 in accordance with the requirements of the PoA. See The United Nations Office for Disarmament, Conventional Arms Branch, National Reports, available at http://disarmament.un.org/cab/salw-nationalreports.html.Google Scholar

76 During the Second BMS of 2005 to consider the implementation of the PoA, the UK, on behalf of the EU underlined that “the easy availability of SALW act as a major barrier to development’ and therefore ‘the implementation of the PoA should be further monitored and enhanced.” Statement of H.E. Ambassador John Freeman on behalf of the European Union, available at http://www.un.org/events/smallarms2005/memberstates-pdf/UK.pdf.Google Scholar

77 See id. at para. 13 (discussing that the report submitted that ‘from 2003–2005, the EU allocated in total nearly 6 million euros for actions undertaken by affected countries to deal with’ the availability and proliferation of SALW).Google Scholar

78 G.A. Res. 61/89, U.N. Doc. A/RES/61/89 (Dec. 18, 2006), for further details on responses of states including the composition of the Panel; Note by the Secretary-General, U.N. Doc. A/63/334 (Aug. 26, 2008).Google Scholar

79 Id. at Germany's submission, 1–2.Google Scholar

80 Id. at UK submission, 1.Google Scholar

81 Margaret Beckett's statement, UN First Committee debate on 22 Oct, 2006, available at http://www.reachingcriticalwill.org/political/1com/1com06/disarmindex06.html.Google Scholar

82 Norton-Taylor, Richard, UN vote paves way for arms treaty, The Guardian, Oct. 28, 2006 Google Scholar

83 Stohl, Rachel, United Nations to Consider an Arms Trade Treaty – U.S. Opposes, CDI, Nov. 15, 2006.Google Scholar

84 Algeria, , Argentina, Australia, Brazil, China, Colombia, Costa Rica, Cuba, Egypt, Finland, France, Germany, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Romania, Russian Federation, South Africa, Spain, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland, and United States.Google Scholar

85 The Panel has submitted its Report in August 2008 (as indicated earlier); the General Assembly, taking into account the Panel's Report decided to establish an Open-Ended Working Group to further consider the matter. See UN Doc A/C/63/L.39, 17 Oct 2008. See controlarms.org, The Arms Trade Treaty Process, http://www.controlarms.org/en/arms-trade-treaty/the-arms-trade-treaty-process (last visited Mar. 9, 2009).Google Scholar

86 The EU has been working, for example, with the Wassennar and OSCE arms export partners, and on questions of brokerage and marking and tracing of firearms.Google Scholar