22 Article 1 o f the European Convention o f Human Rights: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I o f this Convention”. E. Decaux, P.-H. Imbert and L.-E. Pettiti (eds.), Lm Convention Europeenne des Droits de / ’Homme, Commentaire Article par Article, 2d ed., (Paris 1999), p. 156 and F. Julien-Laferriere, L’application par ricochet de Particle 3 CED H . L’exemple des mesures d’eloignement des etrangers, In C.-A. Chassin (ed.), E a Portee dc lArticle 3 de la Convention Eutvpeenne des Droits de IHomme, (Bruxelles 2006), pp. 141-155, p. 154.
requesting the extradition, its political regime and the personal situation o f the plaintiff.24 As such, these cases invite to envisage the obligation o f due diligence as an obligation to refrain from facilitating the commission o f hum an tights abuse.
In this respect, a similar obligation is emerging in the context o f the arms trade. In this situation, one State is in die capacity to prevent the commission o f an illegal act when it has reasonable grounds to believe that its failure to act would increase the likelihood o f a violation o f international law which will occur extra-territorially.
1*3. T h e E m ergence o f an O bligation o f D u e D iligence E ntailing the Exercise o f a Scrutiny over the Likelihood o f the C om m ission o f H um an Rights Abuse by Another or Other States in the Context o f the Arms Trade.
In 1998, the Council o f the European Union adopted the EU Code o f Conduct for Arms Exports which is a non-binding instrument.25 The code invites m em ber States o f the EU to adopt a licensing regime for the arms trade that gives due regard to the level o f respect for international law in the countries o f destination. Under Criterion 2, a license application will be refused if there is a clear risk diat the proposed export will be used for internal repression.26 According to Criterion 4 o f the EU Code, licence applications
24 J.-F. Renucci, Traite de Droit Europeen des Dtvits de / ’Homme, (Pads, 2007), 131. The rationale o f the Soering case have been extended to cases o f expulsions (Cms^ Varas and Others v. Sweden, judgment o f 20 March 1991, (1991) 14 EHRR 1) and refoulement (Vilvarajah v. United Kingdom, judgment o f 30 October 1991, (1991) 14 E H R R 248) and this in line with Geneva Convention relating to the Status o f Refugees, 28 July 1951 (Article 33 (1) o f the Convention: “N o Contracting State shall expel or return (‘refonle/*) a refugee in any manner whatsoever to the frontiers o f territories where his life or freedom would be threatened on account o f his race, religion, nationality, membership o f a particular social group or political opinion”. However for the principle to apply, the plaintiff has to demonstrate that there exist substantial grounds to believing that the person in question, if expelled, would face a real risk o f being subjected to a treatment contrary to Article 3 in the receiving country (Chahal v. United Kingdom, judgment 15 N ovem ber 1996, (1996) 23 EHRR 413).
25 Available at http: / / www.consilium.europa.eu/uedocs /cm sllp load /08675r2en8.pdf (last visited 15 December 2008). Hereinafter “the code”.
should be refused where there exists a clear risk that the recipient would use the proposed export aggressively against another country or to assert by force a territorial claim.27 Therefore, the possibility o f a potentially serious violation o f international law exhorts m em ber States o f the EU to enquire into the final use o f the weapons which they allow out o f their territory.
The implementation o f the code by EU countries varies from one country to another. Some countries have incorporated the prescriptions o f the code in their own legislation.28 However, the non-uniform implementation o f the prescriptions o f the code poses certain issues and several discrepancies in the enforcement o f individual embargoes. The European Parliament called repeatedly for the code to be made legally binding but the Council never adopted the code as a Common Position that would have rendered its provisions obligatory, given the will o f some m em ber States to lift die arms ban on China.29 A t present, a confidential annual report on exports and implementation o f the code is to be circulated by each EU m em ber State to the other EU states. Following this, a public report on the basis o f the individual States’ submissions is produced. However,
Having assessed the recipient country's attitude towards relevant principles established by international human rights instruments, Member States will:
a) not issue an export licence if there is a clear risk that the proposed export might be used for internal repression.
b) exercise special caution and vigilance in issuing licences, on a case-by-case basis and taking account o f the nature o f the equipment, to countries where serious violations o f human rights have been established by the competent bodies o f the U N , the Council o f Europe or by the EU [...]”
27 “CRITERION FO U R
Preservation o f regional peace, security and stability
Member States will not issue an export licence if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial claim.
W hen considering these risks, EU Member States will take into account inter alia: a) the existence or likelihood o f armed conflict between the recipient and another country;
b) a claim against the territory o f a neighbouring country which the recipient has in the past tried or threatened to pursue by means o f force;
c) whether the equipment would be likely to be used other than for the legitimate national security and defence o f the recipient;
d) the need not to affect adversely regional stability in any significant way.”
28 For instance, the United Kingdom has given effect to the provisions o f the Code through the Export