Towards a Legally Binding Arms Trade Treaty
Author: Gerardo Alberto Arce
Originally Published at Peace and Conflict Monitor on: 01/09/2012
Unregulated arms trade and trafficking, especially of small arms and light weapons causes 200,000 deaths every year all around the world (UNODC 2011: 39). These arms, used either by common or organized crime, or in the context of armed conflicts, cause deaths that are preventable. However, at the present time arms trade is largely an unregulated business, where the line between licit and illicit arms transfers is often a blurred one due to the lack of an international and binding legal framework. This is why this year in the month of July the international community will gather at the UN Conference on the Arms Trade Treaty in order to develop such a legal framework.
This conference and its forthcoming treaty are the outcome of a process initiated in 1997, when a civil society awareness and advocacy campaign led by a number of Nobel Peace Prize laureates –among them Oscar Arias, former president of Costa Rica– demanded that the international community address the issue of arms trade regulation through international law. After a few years, this campaign bore its fruits, when in December 2006 the United Nations General Assembly adopted Resolution A/RES/61/89: Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms. In this resolution, the UN member States recognized that the absence of common international standards on the import, export and transfer of conventional arms is a contributory factor to armed conflicts and to “the displacement of people, crime and terrorism, thereby undermining peace, reconciliation, safety, security, stability and sustainable development” all around the world (UN 2006:1). They also acknowledged the growing support across all regions for concluding a “legally binding instrument negotiated on a non-discriminatory, transparent and multilateral basis, to establish common international standards for the import, export and transfer of conventional arms” (UN 2006:1). In this same resolution, they requested the UN Secretary-General to seek the views of the member States regarding the feasibility, scope and draft parameters for such a treaty, and requested him to establish a group of governmental experts, on the basis of equitable geographical distribution, to examine the same aspects for this new instrument (UN 2006).
It is very interesting to take note of the vote on this resolution at the UN General Assembly. On December 18th 2006, 153 States –more than three quarters of all the member States– voted in favor of this resolution, one voted against, and 24 abstained. The only State that voted against the resolution, i.e. against establishing a treaty to regulate arms transfers, was the United States, the world’s leading arms producer and exporter (SIPRI 2011). The States that abstained were the following: Bahrain, Belarus, China, Egypt, India, Iran, Iraq, Israel, Kuwait, Laos, Libya, Marshall Islands, Nepal, Oman, Pakistan, Qatar, Russian Federation, Saudi Arabia, Sudan, Syria, United Arab Emirates, Venezuela, Yemen, and Zimbabwe. All of these states are, in one way or another, deeply involved in the arms trade business, be that as massive arms producers and exporters, or as importers. Most of them are also countries that have a very high defense budget and currently face, or have faced, some kind of internal or interstate conflict.
Such as it was requested in the resolution, the member States sent their views on this matter to the Secretary-General. A total of 96 states submitted responses to the Secretary-General’s call for views on the feasibility, scope and draft parameters of an Arms Trade Treaty (ATT). Regarding the feasibility of the treaty, all but seven of the States who sent their views on this matter were in favor of developing this instrument and “agreed that the creation of an ATT is both possible and desirable” (Parker 2007: 3). Nevertheless, some States disagreed with this position on the feasibility and desirability of this legal instrument (Russia, China, India, Pakistan, Israel, Egypt, and Venezuela).
Regarding the issue of the scope of the treaty, the views submitted by the member States “provided a range of comments on the scope of an ATT including suggestions for the categories of weapons and the types of transactions and activities that should be covered. Several States also noted there were principles or issues that an ATT should not address” (Parker 2007: 5). Regarding the categories of weapons, “most states indicated that an ATT should cover ‘all conventional weapons’. Many gave specific examples such as ‘tanks and other armoured vehicles’, ‘combat aircraft’, ‘helicopters’, ‘warships’ and so on. Most States included ‘small arms and light weapons’, ‘landmines’ and ‘Man Portable Air Defence Systems (MANPADS)’ in their lists” (Parker 2007: 5). In addition to this, some member States provided suggestions to include or adopt existing lists of armament, such as the UN Register of Conventional Arms (Parker 2007: 5). This UN Register covers seven categories of deadly weapons: battle tanks; armoured combat vehicles; large-caliber artillery systems; combat aircraft; attack helicopters; warships; and missiles and missile launchers. However, the reliability of this register is limited due to the fact that member States submit information about their arms purchases only on a voluntary basis.
Regarding the activities and types of transactions that the ATT should regulate, most States suggested that, in addition to the import, export and transfer activities mentioned in Resolution 61/89, this instrument should also cover other transactions, like “brokering, transit, trans-shipment, re-export, loan/gift, intangible transfers, technical assistance, temporary export/import, transport, lease, licensed production, and commercial sales” (Parker 2007: 7). Finally, regarding the parameters of the treaty, the views submitted by the member States suggested some “criteria that should form the common standards applied by States when determining whether to approve a weapons transfer”. As we will see below, some of these criteria have been incorporated into the draft of the treaty.
The next step in the process towards an Arms Trade Treaty was the work of the Group of Governmental Experts (GGE) established in 2008 by the UN Secretary-General to examine the feasibility, scope and draft parameters for this treaty. In the report, the group concluded the following:
“28. The Group recognized that there are different motivations for conventional arms production and acquisition. The Group observed that the weapons being traded in the illicit market can be used for terrorist acts, organized crime and other criminal activities. In addition, the Group acknowledged the need to prevent the diversion of conventional arms from the legal into the illicit market.
29.The Group acknowledged the respective responsibilities of exporters and importers. In order to begin improving the current situation, the Group recognized the need for all States to ensure that their national systems and internal controls are at the highest possible standards, and that States in a position to do so could render assistance in this regard, upon request”.
(UN 2008: 16)
After the GGE report was released, the UN General Assembly adopted Resolution A/RES/63/240 in 2008, in which it established an Open-Ended Working Group (OEWG) to meet for up to six one-week sessions starting in 2009 “in order to facilitate further consideration on the implementation of the relevant recommendation of the GGE report on a step-by-step basis among all States Members of the United Nations, in an open and transparent manner” (UN 2008: 2). After the first two sessions of the OEWG held in March and July 2009 in New York, the UN General Assembly decided, through Resolution A/RES/64/48, to “convene a United Nations Conference on the Arms Trade Treaty to meet for four consecutive weeks in 2012 to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms” (UN 2009: 3). In the same Resolution, the General Assembly decided to consider the remaining sessions of the OEWG in 2010 and 2011 as a preparatory committee for the United Nations Conference on the Arms Trade Treaty; and to request this committee, at its four sessions in 2010 and 2011, to “make recommendations to the United Nations Conference on the Arms Trade Treaty on the elements that would be needed to attain an effective and balanced legally binding instrument”. In order to do so, the preparatory committee must bear in mind the views and recommendations expressed by the member States and those contained in the reports of the Group of Governmental Experts and the Open-Ended Working Group (UN 2009: 3). It is worth noting that in the case of this Resolution calling for a UN Conference on the ATT, the United States changed its official position and voted in favor (unlike the first Resolution that triggered this process).
During these first three sessions of the Preparatory Committee, some member States promoted a “7+1” or a “7+1+1” proposal to define the scope of conventional arms transfers to be covered by this treaty. Here “7+1” refers to the seven categories of deadly weapons covered by the UN Register of Conventional Arms (see above), plus small arms and light weapons; and “7+1+1” refers to these categories plus ammunition (which some member States, like the US, are reluctant to include in an ATT) (Mack 2010). However, some civil society organizations hold that these broad categories could still leave substantial gaps and loopholes needed to be covered by a strong and effective ATT (Amnesty International 2011). Due to the critiques received by this approach, at the end of the third session of the Preparatory Committee, the Chairman issued a Draft Paper (draft treaty) including a wider list: “for the purposes of this Treaty, conventional arms shall include any items which fall within the following categories:
- Military Vehicles
- Artillery Systems
- Military Aircraft (manned or unmanned)
- Military Helicopters (manned or unmanned)
- Naval Vessels (surface and submarine vessels armed or equipped for military use)
- Missiles and Missile Systems (guided or unguided)
- Small Arms
- Light Weapons
- Ammunition for use with weapons defined in subparagraphs (a)-(i)
- Part or Component specially and exclusively designed for any of the categories in subparagraphs (a)-(j)
- Technology and Equipment specifically and exclusively designed and used to develop, manufacture, or maintain any of the categories in subparagraph (a)-(k).”
(ATT Preparatory Committee Chairman’s Draft Paper, July 14th 2011)
Furthermore, this draft treaty also includes a list of activities to be regulated (import, export, transfer, brokering, manufacture under foreign license, and technology transfer), along with their definitions and the criteria that should inform any decision on arms transfers: “In reaching the decision whether or not to authorize an export application, competent national authorities of States Parties shall make assessments whether to transfer arms on an objective and non-discriminatory basis, taking into account information on the nature of the arms to be transferred and risk assessment of the potential use of the weapon and the end-user”. These criteria included in the Draft Paper are the following:
“A. International, regional and subregional obligations of a State
- A State party shall not authorize a transfer from, to, or through territories under its jurisdiction of conventional arms if the transfer would violate any measure adopted by the Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes.
- A State party shall not authorize a transfer of conventional arms from, to, or through territories under its jurisdiction if the transfer violates any of its other relevant international, regional or sub regional obligations or commitments regarding the control and regulation of international transfers of conventional arms.
B. Potential consequences of arms transfer on peace and security
A State party shall not authorize a transfer of conventional arms if there is a substantial risk that those conventional arms would:
- Be used in a manner that would seriously undermine peace and security or, provoke, prolong or aggravate internal, regional, subregional or international instability.
- Be used to commit or facilitate serious violations of international humanitarian law.
- Be used to commit or facilitate serious violations of international human rights law.
- Be used to commit or facilitate serious violations of international criminal law, including genocide, crimes against humanity and war crimes.
- Seriously impair poverty reduction and socio-economic development or seriously hamper the sustainable development of the recipient State.
- Be diverted to unauthorised end users for use in a manner inconsistent with the principles, goals, and objectives of the Treaty, taking into account the risk of corruption.
- Be used in the commission of transnational organized crime as defined in the United Nations Convention Against Transnational Organized Crime.
- Be used to support, encourage, or perpetrate terrorist acts”.
(ATT Preparatory Committee Chairman’s Draft Paper, July 14th 2011)
Nevertheless, these criteria, and the list of types of weapons and activities to be covered by the ATT, are just part of a draft treaty subject to changes during the course of the fourth session of the Preparatory Committee (February 13-17, 2012) and the Arms Trade Treaty Conference itself (July 2 -27, 2012). However, it is clearly indicative of the likely final content and reach of the treaty. But the critical task here is not the treaty itself, but its actual implementation and enforcement by the international community. Only then will we know whether it has a real impact on arms flows in conflict zones, and whether it serves to prevent the death of innocents in upcoming wars.
Bio: Gerardo Alberto Arce is an MA candidate in International Peace Studies at the University for Peace of Costa Rica.