Rewriting Canada's military export controls.

While it is tempting simply to call for an outright ban on military exports, it is clear that most States, even those guided by "common security" ideals, will continue to operate and equip military forces - to monitor and patrol national territory, to maintain non-offensive national defence forces with a demonstrable capacity to offer some resistance to potential aggressors, and to participate in international peacekeeping forces. Unless every such State were to develop its own capacity to meet all its military equipment requirements out of domestic production, international military equipment transfers will remain a feature of international life.

But the continued absence of credible restraint in arms transfers poses an ongoing and growing threat to the international community. It militarizes political conflict and in the process condemns much of the world to immeasurable suffering. From time to time the human and social costs of the wide proliferation of conventional weapons are acknowledged, as they were in the wake of the 1990-91 Gulf crisis and war, when Canada and other states warned the international community about the "excessive build-ups of conventional arms" and called especially for restraint in military shipments to "regions of tension."

To date such appeals have not yielded restraint. A combination of the end of the Cold War and global economic downturn has significantly reduced the overall volume of global arms shipments and acquisitions, but the world's battlefields and political hot spots (see the map on p. 13), not to mention the ongoing high levels of military research and spending in NATO countries, all continue to fuel high demand for military equipment, especially light weapons. And worldwide, there remains in place an over-sized military industry that promotes its wares with undiminished zeal.

The ready availability of weapons rests prominently on the presumption of military suppliers that their sales can be justified solely on economic grounds, without taking much account of the security impact. Indeed, genuine restraint is unlikely to occur until the burden of proof is put the other way around - those pursuing military sales must show that the only possible justification for selling military commodities is that such sales are essential to the enhancement of security.

The challenge, of course, then becomes to distinguish between arms transfers that are essential to common security and those that undermine it - hardly a matter of precise science. Security being a political, rather than scientific, concept, the only credible way of coming to reliable judgements about the security implications of weapons sales is through open, public assessments of the likely security impact of significant military transfers.

Security Impact Assessment

The obligation to determine beforehand the likely security impact of an arms sale requires a basic presumption against arms sales - that is, an assumption that the sale of arms is not to be allowed, unless it can be shown that the denial of a particular sale will in fact undermine international peace and security. Thus, Canadian military export control procedures should be revised to include a public assessment of the security impact of any significant transfer (e.g., any complete system, and components over a certain minimum annual volume). Such a requirement would mean in effect that every proposed export permit for a significant sale would be accompanied by a Security Impact Assessment (SIA) statement prepared by the Department of Foreign Affairs and International Trade indicating why the proposed transfer is regarded as enhancing Canadian and international security.

In reviewing the security implications of specific transfers, the SIA statement would address the regional and international security implications of the introduction of new military capability into the region. Internal security implications for the recipient would obviously also be relevant, notably the impact on human rights, political participation (democratic values/practices), and economic conditions. In order to provide for public review of the assessment, all Security Impact Assessment statements should be brought before the Parliamentary Standing Committee, which could in turn call expert witnesses. It would, of course, remain the Government's responsibility to make the final decision on export permits (being free to reject the recommendations of the Standing Committee, in the event that the Committee rejected the Government's security assessment, but decisions would be public and accountable).

A presumption against exports runs counter to one of the key recommendations of the 1992 Parliamentary Sub-Committee report (see sidebar), which envisions the creation of a list of acceptable countries to which military exports would be more or less automatically approved (see the Parliamentary Sub-Committee Recommendation No. 8). The establishment of a list of acceptable countries would be a positive measure, as is argued below, but not for the purpose of identifying countries that would be allowed to receive Canadian military commodities without significant scrutiny; rather the list would identify the countries for which a tightened military export control system is operative (countries not on the list would not be eligible to receive any military goods from Canada so the control system has no relevance to them). Countries on the list would be eligible to receive Canadian military commodities, but subject to strict criteria and, particularly, a security impact assessment review.

Prohibited recipients

Certain states must be regarded as ineligible to receive military equipment of any kind from Canada. Current regulations provide for an Area Control List (ACL), listing countries for which export permits are required for all goods, including nonmilitary, and to which military exports would generally be denied - Libya and Yugoslavia are among countries currently on the ACL. However, rather than publishing a list of "prohibited recipients," Canadian military export regulations should be changed to establish a list of those countries to which military exports will be considered on a case-by-case basis (not automatically approved), through the normal export permit system. The precedence for such a list exists in the current provision for an Automatic Firearms Country Control List. Automatic weapons can be considered for export only to certain countries which meet special requirements. This principle should be extended to military exports in general, through the establishment of a Military Commodities Country Control List (MCCCL).

Before countries could be added to such a list, public hearings (see Sub-Committee Recommendation No. 9) would be necessary to establish that certain conditions were met. Notably, that:

a) the country does not pose a threat to Canada;

b) the country is not subject to a UN arms embargo;

c) the country has an acceptable human rights record, (1)

d) the country is not involved in armed conflict, and armed conflict is not viewed as imminent; (2)

e) the country is not in a region of excessive arms and military tension;

f) the country fully reports all of its arms transfer and acquisition activities to the UN Conventional Arms Register. (See the Parliamentary Sub-Committee Recommendation No. 10.)

Prohibited weapons

Another way of distinguishing between arms transfers that enhance or undermine security is the formal recognition that certain military commodities, by their very nature, do not and cannot enhance security. Such weapons should obviously be banned under all circumstances. Thus, Canadian military export regulations should include a Prohibited Weapons List identifying the kinds of commodities that are ineligible for export to any customer. The list should include:

* repression technology (e.g., torture tools);

* inhumane weapons (such as anti-personnel landmines);

* weapons of mass destruction, including components (chemical, biological, or nuclear). (See the Parliamentary Sub-Committee Recommendation No. 12.)

There are three additional ways in which Canadian military export control policies and procedures should be strengthened.

Controlling dual-use commodities

The Export and Import Permits Act (EIPA) lists all military commodities subject to export control regulations in an Export Control List (ECL). Military commodities are defined by their type or characteristics, with the effect that certain "dual use" equipment is excluded. Dual-use equipment is equipment that is formally defined as civilian, but can readily be, and frequently is, used for military purposes. The Canadian-built Bell 212 and 412 helicopters are a case in point. These helicopters were originally designed for military use, but they have found considerable civilian use and civilian sales and they are currently certified and defined as civilian. For this reason, they are not on the ECL. As a result, Canada continues to sell the Bell 212 and 412 directly to military forces - with recent sales to the armed forces of Thailand, Colombia, Iran, and Venezuela - but without any requirement for military export permits.

To bring "dual-use" equipment sold to military forces under military export control regulations along with all other military sales, the definition of a military commodity needs to take into account not only the characteristics of such equipment, but also the end-user. Thus, in cases where the end-user is a military force, dual-use equipment must be regarded as military equipment and made subject to military export regulations.

End-use controls

Canadian military export regulations are intended to conform to international arrangements, entered into by major industrial countries, which require that before an export permit is granted, the exporter must obtain from the importer one of several varieties of end-use assurances (e.g., End-Use Certificate, End-Use Statement, International Import Certificate, and so on). The objective is to ensure that the destination shown on the export permit is in fact the final destination. Canadian regulations state, for example, that an End-Use Statement from the importer "must declare that the imported goods will not be diverted or re-exported" (Canada's Export Controls, DFAIT, April 1994).

It is currently not at all clear that Canada has the capacity to implement such a provision. In the first instance, there is no obvious means by which Government regulators are able to follow-through on end-use assurances to see that they are honored. Nor is there a clear commitment to taking corrective action in the event of the violation of such assurances. In essence, there is a need to enhance both verification and compliance of end-use conditions and restrictions that attend military exports.

Second, there is currently a lack of clarity about whether end-use assurances always require a recipient of a Canadian military commodity to receive explicit Canadian approval before re-exporting that commodity. The ambiguity increases in the case of the export of commodities which are components or subsystems of larger systems. In such cases "end-use" may simply refer to the use of such commodities in manufacturing the complete system, but that still leaves open the question as to whether or not the country in which the major system is manufactured requires Canadian permission to export systems that contain significant Canadian-origin military commodities. Export regulations need to be made explicit regarding the conditions under which foreign owners of Canadian-origin military equipment must obtain Canadian permission before re-exporting such equipment. (See the Parliamentary Sub-Committee Recommendation No. 13.)

Military exports to the United States 

Finally, under current regulations Canadian firms can sell military commodities to the United States, either directly to the Government or to US-based military producers, without a permit. Through the Canada-US Defence Production Sharing Arrangements shipments to the US are exempted from the export control system.

Export permits, however, are the key means by which the Government tracks military shipments, for purposes of reporting military exports to the Canadian public as well as to the UN Conventional Arms Register. The permit exemption for military sales to the US means that Canada is unable to track either the volume or nature of military sales to the US, a shortcoming reflected in the fact that the Government's annual report on military exports does not include any figures for sales to the US - Canada's largest single foreign customer for military commodities.

There is no option but for Canada to include military sales to the United States within the permit requirements of the EIPA. (See the Parliamentary Sub-Committee Recommendation No. 8.)

(1) Under present regulations, exports of military equipment to human rights violators are permitted if it can be shown that the particular military commodity is unlikely to be used directly against civilians (in fact, all military commodities enhance the power of the recipient regime, including its capacity to violate human rights if that is its inclination, so no sales of military equipment of any kind should be permitted to such regimes).

(2) The point of this condition is a recognition that war is not an effective means of settling political conflict, and therefore countries that persist in war must be denied military equipment and instead encouraged and assisted to come to the negotiating table. (The role of armed forces, with legitimate requirements for military equipment, is not to fight and win wars but to maintain order and prevent wars. If prevention fails, or is in danger of failing, then the international community has an obligation to intervene, through preventive and peacemaking diplomacy and other measures available to it, to terminate war.)