Exporting Arms over Values: The Humanitarian Cost of the European Defence Fund

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Table of Contents: I. Introduction. – II. Methodology. – II.1. Cause and effect: contextualising the EDF. – III. If you want peace, sell more guns? – IV. From theory to practice: the ineffectiveness of arms export controls in the EU. – V. Don’t fuel the fire: the EU’s duty to act as a responsible arms financier. – V.1. The EU as a guardian of the international legal order. – V.2. The EU as a consistent legislator. – V.3. The nature of the EU’s duty to act as a responsible arms financier. – VI. Designing a more responsible European Defence Fund. – VI.1. Operationalising the EU’s duty to act as a responsible arms financier. – VI.2. Analysing the EU’s policy toolbox. – VII. Conclusion.

Abstract: Through the European Defence Fund (EDF) the EU will become involved for the first time in arms development. EDF funding is intended to contribute to the EU’s strategic autonomy in defence. But arms developed with EDF funding may also be exported to non-EU States. International and EU norms meant to ensure a humane and responsible arms trade are insufficiently effective, leaving room for Member States to export arms even when there is a serious risk of their use in violations of international humanitarian law (IHL). On the basis of both legal and policy-based arguments, this Article argues that the EU has failed to properly take these IHL concerns into account in the EDF Regulation. The EU’s commitments to international law and to consistency require it to refrain from contributing to activities prohibited under international and EU law. These commitments oblige the EU to act as a responsible arms financier. This would also be in line with EU soft power efforts to promote export norm adoption and compliance internationally. For such soft power efforts to be effective, the EU must visibly uphold those norms it is trying to promote. By failing to enact measures that could mitigate the risk of illegal exports of EDF-funded arms – such as a ban on financing certain high-risk activities or a financial clawback mechanism in case funding recipients export arms illegally – the EU is violating its commitments to international law and to consistency and jeopardising its reputation as an international norm entrepreneur.

Keywords: Common Foreign and Security Policy – European Defence Fund – arms exports – EU values – international humanitarian law – consistency.

European Papers, Vol. 6, 2021, No 3, pp. 1575-1601
2499-8249 - doi: 10.15166/2499-8249/539

* PhD researcher, Utrecht University’s School of Law, a.n.vroege@uu.nl.


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