Regulation of arms exports: law with loopholes

The planned arms export law is a pet project of the Greens. It’s already controversial, and not just because of the war in Ukraine.

This is what the real Eurofighter Typhoon looks like Photo: Nicolas Economou/NurPhoto/picture alliance

BERLIN taz | On Tuesday at 11:30 a.m., Holger Rothbauer will sit down in front of the computer in his office and dial into a video conference. When it comes to arms exports, the Tübingen native is one of the most renowned lawyers in the country. For decades he has been taking companies to court and fighting illegal businesses. Most recently, he brought the pistol manufacturer Sig Sauer painful verdicts for deliveries to Colombia.

On Tuesday, however, Rothbauer will not be in a courtroom, but in the Ministry of Economic Affairs in Berlin. State Secretary Sven Giegold invited – not only the lawyer, but also several dozen other experts from science, peace organizations and industry. The Green politician wants to hear what the experts think about his guidelines for a new arms export law.

The schedule is tight, the appointment lasts only two hours, and Rothbauer will hardly be given more than two minutes to speak. “But maybe it’ll help anyway,” he says. “I would like Mr. Giegold to tighten up the plans afterwards. Hope dies last.” What the Ministry of Economic Affairs has planned so far does not go far enough for him and others. The concern: In the end, the law could open more loopholes than close them.

It’s in the traffic light Arms Export Control Act, to give it its full name, is an important project, especially for the Greens. In the opposition, they have been campaigning for stricter rules for years, developing concepts and introducing drafts to parliament. In the coalition agreement, they agreed with the SPD and FDP on a “restrictive export policy” and the introduction of a law.

Special case Ukraine

Of course, there are already rules for arms exports. However, they are scattered across various laws, regulations and guidelines. They sometimes contradict each other and are often not binding. A new law should bundle and tighten everything.

The project did not end with the war in Ukraine and the unprecedented German arms deliveries. On the contrary: the Greens in particular have been emphasizing again and again since February that Ukraine is a special case. With the new law and stricter rules for commercial exports, it will be shown that its roots as a party of peace have not been forgotten.

Robert Habecks, State Secretary Giegold, is responsible for the law in the Ministry of Economics, which is in charge. The way he has been working on it since the beginning of the year has been praised in principle from the ranks of NGOs: Giegold includes civil society in an exemplary manner. In the spring, he started a consultation process in which experts were allowed to contribute their expertise in the first video conferences. In the past, the armaments industry was clearly in the majority in such procedures, but this time the invitations were very broad. The State Secretary listens seriously, the process is transparent.

Only: The result so far is disappointing from the point of view of the NGOs. In mid-October, the Ministry of Economics presented the first key points for the new export control. Within the government, they are currently being discussed between the ministries concerned. In the coming year, Giegold’s people will formulate the draft law on this basis.

At the same time, the State Secretary will listen to the participants in the consultation process again in two video conferences on Tuesday and Wednesday. This is unusual at this point. According to the ministry, Giegold is following the customs in Brussels, where he worked for twelve years as an MEP and where great value is placed on external participation.

No right of association

The cornerstones certainly provide for tightening of the current situation. A catalog of criteria for export decisions is to be laid down in law for the first time. The human rights situation should play a greater role than before. The Ministry of Economic Affairs wants to expand the so-called end-use controls, which prevent recipient countries from illegally passing on the weapons to third parties.

The fact that the critics still see more shadows than lights is mainly due to two points: First, there is no so-called class action right based on the model of countries like Italy and Belgium. There, NGOs can go to court if they believe an export license violates the law.

In Germany, on the other hand, lawyers like Rothbauer from Tübingen have to choose complicated legal expedients in order to bring disputed transactions to court. That only works in a fraction of the cases. In the past, the Greens had therefore always called for a right to take collective action.

“It’s good that there should be stricter legal requirements in the new law,” says lawyer Rothbauer, “but they’re worth nothing if compliance can’t be checked in court, and only the industry can sue against rejection notices.”

The second point of criticism concerns the rules for European joint projects such as the Eurofighter, which Germany produces together with France, Spain and Great Britain. There is a dilemma here: the traffic light actually wants to expand European cooperation in the armaments sector in order to reduce production costs and use defense spending efficiently. But there are often disputes with such projects, especially with France, because Paris doesn’t think much of export restrictions and doesn’t want Berlin to screw up lucrative exports. It is true that there are common rules at EU level, laid down in the so-called common position. In practice, however, they are mostly ignored.

The Ministry of Economic Affairs wants to avoid new trouble in this matter. According to the cornerstones, joint projects should have their own mechanisms instead of the law, which the government agrees on in agreements with the other states involved. One option is majority decisions on exports. So what if Spain and France want to sell a jointly built tank to Qatar in the future, but Germany doesn’t? Couldn’t do anything. The others would have the majority.

Exceptions become the rule

“If that happens, it would be the biggest mistake of the law,” says peace researcher Max Mutschler about the planned primacy of international treaties. “In practice, there are always exceptions to the rule in joint projects. With the law, the traffic light would make the exceptions the rule. That would be a step backwards.”

The Greens blame the SPD and FDP for the gap in the right to take collective action. Giegold said in October that it had already become clear during the “early coordination” within the government that “a class action lawsuit that I was planning would not be approved by the partners”. He therefore refrained from even including them in his key points.

Other departments are also opposed to tightening the Europe clause. At an event in Berlin last week, Defense Minister Christine Lambrecht (SPD) called for the rules to be relaxed. “The European partners must be able to rely on the fact that if they enter into a cooperation with us, there can also be exports,” she said.

However, at least on this point, the position of the Greens is not clear. Most recently, Foreign Minister Annalena Baerbock justified an export to Saudi Arabia by saying that without goodwill for European armament projects, there would be no money for basic child security in Germany. Others in the party would like more courage at this point.

“It’s not likely that we’ll be successful across the board in Europe, and that’s okay,” says MEP Hannah Neumann. “But it can’t be that France always gets through as before.” The traffic light should make your own point of view clear in the law. For the time being, the law must then also apply to community projects. “That would be the lever to finally ‘force’ serious negotiations in Europe. In the end, majority decisions could be a suggestion, but they shouldn’t undermine existing rules such as those in the common position,” says Neumann.

SPD without criticism

The Greens are amazed that there is hardly any criticism of the controversial points from the SPD parliamentary group. Many social democrats, like the FDP, are close to the armaments industry. However, in the past there have also been calls for stricter rules from other parts of the SPD.

And now? Group leader Rolf Mützenich, who often puts the brakes on arms deliveries to Ukraine, does not want to comment on the new law. At least Ralf Stegner, who is on the left of the party, speaks up. “Circumventing the German arms export restrictions via Europe cannot be done with the SPD parliamentary group. With the Greens and the SPD, there will be no liberalization of arms exports under the guise of Europeanization,” he says. And: “A class action right could ensure equality of arms with arms lobbyists. I welcome that. The peace party SPD does not belong in a museum.” The decision is still open, since the discussion within the parliamentary group has only just begun.

Some things could still move before the Bundestag finally votes on the law in 2023 or 2024. This applies in both directions: just as the NGOs hope for stricter rules, the armaments industry lobbies vigorously against any tightening. At Giegold alone, armaments bosses visited at least six times this year for one-on-one interviews.

As early as April, in the first technical talks at the Economics Ministry, they were uncompromising. “An arms export control law is superfluous and counterproductive,” said the head of the Federal Association of the German Security and Defense Industry, according to the minutes. According to Hans Christoph Atzpodien, the project simply does not fit into the times.