Taking ambiguity seriously: Explaining the indeterminacy of the European Union conventional arms export control regime
| Date | 01 March 2016 |
| DOI | 10.1177/1354066115584086 |
| Author | Susanne Therese Hansen |
| Published date | 01 March 2016 |
European Journal of
International Relations
2016, Vol. 22(1) 192 –216
© The Author(s) 2015
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DOI: 10.1177/1354066115584086
ejt.sagepub.com
E
JR
I
Taking ambiguity seriously:
Explaining the indeterminacy
of the European Union
conventional arms export
control regime
Susanne Therese Hansen
Norwegian University of Science and Technology (NTNU), Norway
Abstract
The reduction of ambiguous language is a commonly proposed strategy to remedy
non-compliance with international obligations. The European Union conventional
arms export control regime is a case in point; here, eliminating ambiguity has stood
at the forefront among the strategies that have been proposed to remedy poor
implementation. The point of departure of this article, however, is the observation that
language-addressing strategies are largely inattentive to the underlying dynamics that
caused ambiguity in the first place. Through tracing the formation and evolution of the
regime, the article argues that the ambiguity of the export control regime is attributable
to a configuration of underlying heterogeneity and resistance that is not conducive to
a more precise language. Furthermore, the article argues that in order to explain the
adoption, evolution and ambiguity of the regime, we need a theoretical model that
moves away from the strong emphasis on norm dynamics prevalent in recent research
on arms export control. While norm dynamics and a preference for export restraint
have certainly influenced the adoption, evolution and design of the regime, the article
highlights how the material interests of export promotion, security and sovereignty
feature as more critical variables. This casts new light on the gap between export
control commitments and export practice, and provides important clues about the
prospects for efficient multilateral arms export control. Pushing the research agenda
forward therefore hinges on bringing material interests back into the equation.
Corresponding author:
Susanne Therese Hansen, Department of Sociology and Political Science and Department of Historical
Studies, Norwegian University of Science and Technology, Trondheim, Norway.
Email: susanne.hansen@svt.ntnu.no
584086EJT0010.1177/1354066115584086European Journal of International RelationsHansen
research-article2015
Article
Hansen 193
Keywords
Ambiguity, arms export control, European Union, international law, norms,
sovereignty
Introduction
Ambiguity, vagueness, legal and linguistic indeterminacy, interpretive leeway, and loop-
holes; these are common features of international law. Likewise, these features are fre-
quently implicated when international obligations are criticized for not being interpreted
with the stringency that proponent stakeholders envisaged them to be.1 The European
Union’s (EU’s) conventional arms export control regime is a case in point.2 This regime,
of which Council Common Position 2008/944/CFSP (Council, 2008) is currently the
cornerstone, aims to (1) prompt convergence in arms export practice through (2) ascer-
taining the pursuit of eight agreed criteria. These criteria, returned to in detail later, spe-
cifically require restraint from EU arms exporters if exports, inter alia, could contribute
to undermining their international obligations, aggravate human rights conditions in the
receiving country or fuel tensions or armed conflict. Since EU member states consist-
ently account for about a third of worldwide arms exports, the regime could have a dis-
cernible impact on exports patterns.3 Yet, on numerous occasions, the regime provisions
have been subject to interpretations running counter to their alleged spirit of restraint as
exports have been licensed to countries with poor records on conditions supposed to
have invoked restraint (Amnesty International, 2004; Bromley and Brzoska, 2008;
Cooper, 2000; Duquet, 2014; Erickson, 2013; Hansen and Marsh, 2015; Vranckx, 2010).
Following such revelations, scholars, the media, parliamentarians and non-governmental
organizations (NGOs) have accused member states of knowingly undermining moral
obligation for the sake of material profit. The elimination of linguistic ambiguity has
stood at the forefront among the suggested solutions for remedying non-compliance.4
This echoes the long-standing concerns of legal scholars — positivist and others — con-
cerning the ineffectiveness resulting from legal imprecision; it is proposed by scholars of
international law (Lustgarten, 2013; Yihdego, 2009), political scientists (Davis, 2002:
98; Yanik, 2006) and NGOs (Amnesty International, 2004; Saferworld, 2004, 2008). A
2004 Amnesty International report argued that unless the ambiguous language is dealt
with ‘the [regime] will continue to allow arms exports that fuel human rights violations
… particularly now that the borders of the EU have grown. [The] result will be to under-
mine international security’ (Amnesty International, 2004: 96). Similarly, a 2008 report
by the British NGO Saferworld requested member states to:
[a]mend the language of the [regime] or produce new guidance on criteria implementation
which reduces the current excessive room for Member States to make decisions contrary to the
spirit and intent of the [regime] and reduces the incidence of Member States making
contradictory and contrary decisions. (Saferworld, 2008: iii)
Language is not unimportant; theories of legal interpretation and diverse camps of
International Relations (IR) scholarship accept that ambiguity provides interpretive
leeway and may prove harmful to compliance (Abbott and Snidal, 2000; Chayes and
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