What are the legal and political consequences of exporting arms to a third-party country without the manufacturer country consent?

Question

Poland has signalled that they may provide Ukraine with Leopard tanks even without Germany consent? What are legal and political consequences to Poland should they do it?

What if some other country with the Leopard tanks sends the tanks, not Poland?

Answer 1

This is a bit of a black hole at international agreements level. As one 2014 UN document notes, despite extensive agreements not to do that (like Wassenaar etc.)

None of the guidelines and best practice documents on transfer controls of SALW and conventional arms contain any recommendation or prescription concerning how states should respond if and when re-export or re-transfer controls are ignored or violated.

However, as that document also explains, emphasis is put on prevention of such cases, which seems to suggest that a typical response would be to deny further exports to such offenders. However, national legislation often goes further, but generally speaking due to sovereignty limitations, targets of [legal] retaliation are generally the domestic ones:

Of the 5 survey respondents in South East European states that impose re-export or re-transfer restrictions, 2 have legislation or guidelines in place that outline the response to any alleged violations of re-export and re-transfer controls, as do 7 of the 10 survey respondents in Wassenaar Arrangement states that impose re-export or re-transfer controls. Where such legislation or guidelines exist, the main focus is on
(a) prosecuting any companies or individuals involved that fall under the exporting states’ jurisdiction,
(b) suspending any existing licences for exports to the end-user in question,
(c) having a strong presumption of denial for any future-export licences to the end-user in question, and
(d) sharing relevant information with partner states.

There are also a few concrete cases discussed.

While none of the 5 survey respondents in South East European states that impose re-export or re-transfer restrictions have identified cases of violations, 3 of the 10 survey respondents in Wassenaar Arrangement states that impose re-export or re-transfer controls have identified cases. In all cases, information was requested from the end-user, the export licence was suspended or annulled, and restrictions were placed on future-exports to the end-user or destination. In the case of another country, information was also sought from the exporting company. In 2 states, information on the case was shared with other states, via COARM or the Wassenaar Arrangement.

The few concrete cases discussed in the next chapter include:

• Israel complaining to Russia around 2006 about Syria re-exporting arms to the Hezbollah, in particular advanced anti-tank missiles. Russia essentially did nothing in response, saying that Israel hasn't provided enough evidence.

• Swedish AT4 rockets found in the hands of FARC rebels around 2009. The transfers source was apparently Venezuela. Sweden retaliated by blacklisting further arms exports to Venezuela.

• A few Swedish M3 (AT) recoilless rifles found in use by Myanmar's army in 2012. Transfer source was apparently India. No clear countermeasures taken.

• Swiss hand grenades found used by the Syrian opposition. Apparently transferred through a longer chain first via UAE and then Jordan. Switzerland imposed some countermeasures on UAE, mostly tightening export conditions, even though it wasn't too clearly stated the UAE couldn't send the materiel to Jordan. This was more like the 2nd strike against UAE because they also re-exported Swiss M109 howitzers to Morocco, albeit using a loophole that the Swiss were not prohibiting pure gifts (i.e. no-cost transfers) at the time.

• Swiss bullets found in Libya. Transfer source was apparently Qatar. The Swiss temporarily suspended exports, but resumed them after concluding the transfer was a "logistical error".

• Belgian FN FAL rifles initially exported to Qatar found onboard a ship from Libya to Syria in 2012. As the initial exports predated much of the re-export frameworks, Belgian response was limited to cooperating with UN investigations.

• Ukrainian T-72 tanks officially destined to Kenya being re-exported to Southern Sudan around 2007. Ukraine insisted the tanks were delivered to the right destination and apparently not much else came of that, despite US satellite imagery to the contrary.

The chapter also include discussion of a few use rather than re-export issues, including British ammo/systems used by Israel against Palestinians (the UK objected and limited some sales) and various Belorussian jets and rockets used in Darfur, contra to some UN embargoes. Belarus claimed (as you might guessed) there wasn't enough evidence.

Answer 2

Theoretically the reputation of the country would be damaged, but this obviously depends on why and with whom these weapons have been shared. One thing is to re-export to some questionable regime in Africa, another is share with somebody that (at least from the view point of the Europe, I know there are other views) is actually defending Poland and the same Germany also, by shielding it from the potential aggressor.

It may fully be that in the exact case as it stands now Poland could count on the reputation not suffering enough so they could get Challengers from UK in the future, even if the Germany would refuse to give any more Leopards. As UK shares the tanks with Ukraine itself, they are unlikely to condemn really a lot.

Answer 3

As the Daily Mail and Express points out:

Several other NATO countries have the powerful Leopard 2 tanks (pictured, file photo) in their arsenals and have expressed their wish to send some to Ukraine. However, any such move would require sign-off from the German government.

... Poland, Lithuania, Estonia, Slovakia and the Czech Republic have all publicly said on Thursday and Friday that they are willing to send their Leopard 2 models to Ukraine pending German approval ... But on Wednesday, Chancellor Scholz allegedly told US lawmakers that Germany had no plans to send the Leopard 2 tanks to Ukraine, nor would they permit other countries to do so.

Should countries in possession of the German-made tanks proceed without Mr Scholz’s approval, they would risk defence contracts with Germany being permanently cancelled, leaving them increasingly vulnerable to foreign attacks.

Thus, it is clear that that German-Poland Defence agreements prohibits Poland from giving German weaponry to Ukraine (or any other country) without Germany's permission. If it happens, Poland - Germany relationship will deteriorate.

The "minor" reasons why such conditions are included in defence contract are economics - weapon manufacturers, like any other business, don't like their used and second-hands products entering the market again as the free or cheaper versions hurt their business. But more important than that, the origin countries of these weapons have their own political concerns of the weapons falling into enemy hands or with their competitors or provoking another country to become hostile towards them.

Thus, the diplomatic negotiations and contractual terms stipulate strict terms on who these weapons are intended for (e.g. only military, and not police) and what should be done with when the weapons are no longer viable or have outlived their life.

Some more examples:

The United States is especially famous for including very intrusive terms in contracts that even allow for inspection of the weapons onsite (US military now doing onsite weapons inspections in Ukraine).

Some of their terms even prohibiting modifying or upgrading their weapons in any manner without their explicit permission:

In Indian experience, when we acquired weapon systems, we exercised total ownership. It is not apparently so with military equipment of US origin ... The US has not permitted any country procuring their military hardware to modify or technically alter without their consent and participation ... EUMA and other related instruments could well prohibit India from choosing sensors and weapon systems of its choice for the aircraft from sources other than the US, forever. While we have adapted sensors and weapon systems of origin other than Russian on the SU-30MKI, the US will not permit India to adapt sub-systems, weapons and munitions of non-US origin, especially from Russia on US machines in Indian inventory. (Source: End-Use Monitoring Agreement (EUMA): Buyer Beware).

This is one of the major reasons that the Indian government and military prefer buying arms from Russia, Europe, Israel etc., as they don't include such intrusive and objectionable terms. But India still has to adhere to some Russian terms and especially be conscious to Russia's security concerns.

For example, when Indo-US military relationships improved, and India and the US wanted to conduct joint military exercises between the Indian Air Force (IAF) and the US Air Force, the indian government informed the Russian government about this planned exercise. This was necessary as the bulk of IAF's fighter jets are of Russian origins. The Russian government sought information on what exercises would be done, and in turn placed some restrictions on the weapons and fighter jets that could be used in the exercise. This was to prevent the US military from obtaining data about Russian weaponry. The US Air Force similarly placed their own conditions to ensure no military data could leak to the Russian side. (Cope India Exercise).

Poland, under its right-wing totalitarian government, however seems to have been preparing for break down in military relationship with Germany and is already buying more weapons from the USA and South Korea - Meet Europe’s coming military superpower: Poland.