Attachments
Author: Hans Lammerant (Vredesactie)
1. INTRODUCTION
Transparency about arms export has generally been motivated through two rationales. First an interstate perspective which considers information about arms exports as a trust-building measure. It allows other states to notice when a strong build-up in armament is taking place and to react early on such development. As such it plays a preventive role in arms control. Additional motivations were the prevention of diversion or corruption.
A second motivation has been the intra-state perspective focussing on holding national governments accountable for their arms export policies. Common Position 2008/944/CFSP contributed to the public accountability within the member states through the publication of an EU annual report based on the licencing information contributed by the member states and the publication of a national report by the member states. In 2019 this was augmented with a database containing the same information.
These publications are focussed on political accountability and are measures of active transparency by the arms control administrations or the government to the parliament. The information in these annual arms trade reports should enable members of parliament, press and civil society to evaluate and debate the arms export policies of their governments. Which information is given is the result from the bargaining between parliament and government. While political debates and scandals created in several countries a push towards more information, it tends to be limited in detail.
Common Position 2008/944/CFSP added a third layer of accountability among the EU member states on their implementation of this Common Position. It foresees that each member state circulates a confidential annual report on its arms exports to the other member states. The reasoning for this reporting is to ensure harmonisation across a common EU market and is directed against undercutting of each other licencing decisions. A confidential report is a very limited form of transparency as it is only directed to a small group of actors. However, it is important not to ignore this rationale, as in other related areas, like procurement, it leads to active transparency measures like the publication of tenders and contract awards notices.
One important rationale for transparency is missing among the three previous arguments: a human rights perspective for transparency which entails that victims of human rights violations should have an effective remedy. Access to justice is impossible without adequate information. Persons whose human rights are violated or threatened, and their defenders, should have access to adequate information to enable them to formulate a legal claim. This includes the possibility to have a court review the legality of an export licence as a preventative legal protection.
Active transparency is not the only way how information can become available. In general, the hard limits to transparency are given in freedom of information and secrecy laws. Freedom of information (FOI) laws provide the right and the procedure to obtain information on request. They specify the grounds on which such access to information can be refused. In other words, citizens have a right to information and public authorities are limited in the possibility to refuse access to the requested information to a specific set of reasons. Also, the use of a refusal ground needs to be proportional, and the interests protected by these refusal grounds have to be balanced with the public interest served by the access. FOI legislation moves the treatment of information from access on a ‘need to know’ principle to limiting access on a ‘need for confidentiality’ principle.
Historically, the development of freedom of information rights and laws has been motivated by its role in enabling public debate and political accountability. However, the diverse jurisprudence shows also other rationales motivating the access to documents. Legal protection and accountability and the need for information in order to enable an effective remedy for rights violations have also been important justifications for such access.
In a lot of EU member states freedom of information, understood as access to documents held by the state or public bodies, is recognized as a fundamental right in constitutions or recognized as such in the jurisprudence. The UN Human Rights Committee recognizes it in its jurisprudence as included in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on Freedoms of opinion and expression. According to the European Court of Human rights (ECtHR) the European Convention of Human Rights (ECHR) does not contain a general right to right of access to State-held documents, but it recognizes such a right to be included in several Convention rights under specific circumstances linked to those rights. The Charter of Fundamental Rights of the European Union (CFR) includes similar rights as the ECHR, as well as a general right of access to documents held by the EU institutions.
In our assessment the transparency on arms export controls does not meet these legal standards. Information enabling an effective remedy through the courts is generally not provided, and in several countries, it is insufficient even for political accountability. In this research note we will first give an overview of the legal requirements concerning access to information put forward in the human rights instruments and jurisprudence. In a second part we will point out which information on arms export control needs to be accessible from this perspective.