The UN Arms Trade Treaty Negotiations: A battle between codifying frail and robust legal principles

The trade/transfer in conventional weapons, including, but not limited to, small arms and light weapons, and major armaments such as tanks and fighter airplanes, has always been controversial for various reasons. First, these are the main tools of armed conflict, gross violations of human rights and humanitarian law, and repression. Recent events in the Arab Spring and in Africa evidence that the problem is not limited to small arms and light weapons but also to major conventional weapons such as combat helicopters and heavy artillery. Secondly, arms supplies from developed to developing countries may well be contrary to the sustainable development agenda of importing countries and populations, the Least Developed Countries (LDCs) and their starving and most deprived populations in particular. Thirdly, weapon transactions are prime spots of corruption, embezzlement of public funds, and abuse of political power.

This is not to say that conventional weapons never serve a good purpose; they are vital for countries’ self-defence, policing, and for participating in United Nations and regional peace keeping operations, as widely and rightly recognised by the international community. They are also economically and technologically important, mainly for arms supplier countries, as they generate trillions of US dollars in sales.

However, distinguishing the legal and legitimate trade in and use of conventional weapons on the one hand, from their illegal trade, use and abuse on the other, is quite a complex matter. The fact that we do not have a global arms trade treaty, setting out global standards and an institutionalised framework for their implementation, adds to this problem. While regional legal instruments such as the ECOWAS Convention on the Import/Export of Small Arms 2006, and the EU Code of Conduct on Arms Exports 1998, have included, to varying degrees, the commitment to abide by the most fundamental principles of international law such as human rights, humanitarian law protection, and the maintenance of peace and security, major differences remain among the top arms producing countries regarding the adoption of a robust and appropriate global treaty on arms trading. Similarly, the UN Firearms Protocol 2001 which supplements the UN Conventions against Transnational Organised Crime 2000, is mainly concerned with trafficking in firearms and excludes the ‘legal’ and ‘legitimate’ trade in armaments from its ambit, although it contributes to the regulation of the arms trade by requiring states parties to implement stringent national measures for the manufacturing, importing and exporting of armaments.

As a follow-up to the efforts made since the early 1990s by the UN and other regional actors to regulate the trade in conventional armaments, however, the UN General Assembly adopted resolution 61/89 on 18 December 2006 titled ‘Towards an Arms Trade Treaty: establishing common standards for the import, export and transfer of conventional arms’. The resolution, which was supported by 153 countries and opposed solely by the United States, decided that:

‘The absence of common international standards on the import, export and transfer of conventional arms is a contributory factor to conflict, the displacement of people, crime and terrorism, thereby undermining peace, reconciliation, safety, security, stability and sustainable development’.

The open recognition by the Assembly of the link between unregulated arms transfers and armed conflict, displacement, terrorism and impediment to sustainable development, amongst other things, can be seen as a major achievement for arms control law. Although the essence of the reference made to ‘the absence of common standards’ is not entirely clear, it would make sense to understand it as referring to the absence of codified international law and/or detailed indicators, and the absence of a robust implementation framework to regulate global arms transfers.

Despite this and other ambiguities, resolution 61/89 gave birth to the Arms Trade Treaty (ATT) process, as it contains the decision to conduct a feasibility study on the matter, which attracted overwhelming support from most, if not all, states and civil societies. This led to a series of Assembly resolutions and PrepComs on the ATT over the last couple of years which culminated in the production of a Chairman’s Draft Paper on 14 July 2011. Many saw as encouraging the fact that the USA, which initially opposed the ATT process, became part of it by taking a direct part in the Working Group meetings, although this fact also raises vital questions as to how the major powers and arms producing countries may be contributing to, or alternatively defeating, the effort to produce a strong ATT.

The Chair’s paper, which is neither a draft treaty nor a binding commitment but an important starting document for the UN ATT conference, which is at this moment being convened in New York City from 2-27 July , reaffirmed general international law including the principles of sovereignty and territorial integrity of states, self-determination, international human rights law, and humanitarian law, and the right of states to produce, import and export weapons and make use of them for lawful purposes. The paper also endorsed the principle that ‘non-proliferation and arms control are essential for the maintenance of international peace and security’, although the regulation of conventional arms transfer should proceed in the context of ‘the priorities accorded to nuclear disarmament and weapons of mass destruction and conventional disarmament’. This is a fairly comprehensive endorsement of and reference to the fundamentals of international law.

There are two problems here. The first is that it is not clear whether the principles relating to humanitarian norms, and collective security, etc., have been accorded more weight and value than the principles of sovereignty and national security/interest when the two broad categories of principles inevitably clash in the context of a given arms transfer, for example the supply of armaments to Syria under the current circumstances. The preamble of the Chair’s paper begins by stressing the right of states to manufacture, import and export, whilst it later endorses the (individual and collective) responsibility of states to combat ‘irresponsible’ and illicit’ transfers and trafficking of conventional weapons.

The second problem is that we do not know what was meant in the Chair’s paper by ‘conventional disarmament’. Presumably, it refers to some inhumane weapons, or some elements of strategic missiles, or weaponry systems attached to WMDs. In any event, such prioritisation does not seem to be compatible with the despicable effects of conventional weapons on human life, economy, security and regional and global peace as the real (as opposed to the symbolic) weapons of mass destruction and extreme repression.

However, the draft must nevertheless be commended for various reasons. It covers a broad range of weapons including small arms, light weapons, major armaments such as military aircraft (manned or unmanned), and ammunition, while excluding weapons of mass destruction such as nuclear weapons. Most of the items listed in Part VI of the Draft are not controversial, but the inclusion of ammunition in the ATT will probably be rejected or resisted by some states, particularly including the USA. Most states regard the regulation of ammunition as central to the ATT as the weapons themselves are nothing without ammunition. Yet, some argue that the regulation of ammunition is hard and expensive to enforce and thus must be omitted, which appears to be unconvincing. The draft’s scope also encompasses weapons imports, exports, transfers, technology transfer, and brokering. This means that any arms transactions across-borders, be they profit or national interest driven, will be subject to the ATT.

Most importantly, Part V of the Draft contains criteria to be used for authorising arms transfers, which can been seen as broadly divided into three categories. The first is that states must assess the consequences of their decisions involving arms transfers on a non-discriminatory and objective basis. This is important because the ATT could potentially be used as a political tool to punish states and deny their right to acquire armaments, although this is not the primary concern of the humanitarian community regarding conventional weapons. The second is that states must prohibit arms transfers in violation of UN mandatory arms embargoes or any other arms control obligation incumbent upon them as a result of regional or international legal/political commitment. This is a reaffirmation of existing international law, though it is not an exceptionally creative articulation of the law. Similarly, the third category of criteria is based on ‘Potential consequences of arms transfers on peace and security’. This is known as the use-based prohibitions, and ranges from the consequences of arms supplies to peace and security as a contributory factor to armed conflict, to violations of human rights, humanitarian law, international criminal law and impairing poverty reduction efforts of countries. Reference is also made to terrorism, crime and corruption as criteria for arms transfer within the peace and security strand.

This is indeed quite a comprehensive list of criteria, which has been generally supported by several participating delegates to the ATT process. What is missing, however, is the prohibition of arms sales to non-state-actors, a criterion which has been advocated by an overwhelming majority of countries, including developed countries such as Canada, for the last decade or so. However, inclusion of this criterion appears to have been blocked due to the strong objection of, or reservation by, a few countries. Some rightly argue that this can be dealt with by the fact that diversion of arms transfers from the intended users and use will be prohibited by the ATT. It has also been argued that some non-state actors deserve help through arms transfers in order to protect themselves form cruel regimes. Yet, this omission represents the omission of the principle of non-intervention under international law, which is expressly applied by the ICJ in the Nicaragua case to arming and supporting an armed group, the Contra in Nicaragua. Moreover, the consequence of arming rebels in the name of protection of vulnerable groups is not only illegal, if not necessarily immoral, but is also unwise – it typically results in countries and communities being awash with guns which will eventually be used in clan/ethnic violence, further unrest and criminality for many years to come—Libya is showing some signs of this, although there are also some positive developments there.

The other issue regards the security approach to the ATT. Almost every thing has been considered as part and parcel of peace and security. This is not without merit. Since the end of the cold war, peace and security has been interpreted to mean not only armed conflict but also violations of human rights principles and arms proliferation, among other things. New elements such as corruption seem also to be recently considered as part of the notion of peace and security. However, although all these elements are very much linked to international peace and security, a clear distinction must be drawn between matters of peace and security such as armed conflict, terrorism, and diversion of weapons (and perhaps organised crime) on the one hand, and international humanitarian law and international human rights law on the other – the latter incorporating sustainable development and extreme poverty as factors to deny/authorise arms transfer. This makes sense given, for example, that all violations of human rights do not necessarily constitute a threat to peace and security under international law and in the practices of the UN Security Council.

The problem is beyond finding the right structure of criteria. Some states have been arguing that reference to human rights is not a good idea perhaps due to the territorial limits of international human rights obligations. Some arms control academics back the notion that international human rights law is not applicable to arms transfers as exporting countries do not have the duty to respect or protect human rights outside their territory or jurisdiction. However, overwhelming majority of states have clearly supported the idea that it is irresponsible to supply weapons to repressors and to those who kill their own people. While states may not be under a legal duty to protect human rights outside their territory, they are duty-bound not to contribute to gross violations of human rights elsewhere, be it as a matter of international human rights law or arms control law, as enshrined in a number of regional arms control treaties.

It has also been argued that while referring to human rights in the ATT is good and desirable in principle, some states wanted just to ‘take into account’ the human rights consequences of countries in their decision making process involving arms transfer. This will make the ATT quite weak as such a phrasing does not connote a full incorporation of existing international human rights law obligations into the ATT. It is vital that the ATT codifies the principle that arms transfer shall not be authorised when it is clear that the weapons will be used to commit gross violations of human rights. The question of how and when states should assess the potential consequences of transfers is a matter of fact and not law –UN, regional and national bodies and civil society assessments can be used to determine the facts, as rightly indicated in the Draft.

These will be the core issues of the on going negotiations. There are however other issues of concern which have significant importance. The Draft, and the attitude of most arms producing countries, appears to focus on national implementation and enforcement of the ATT, as opposed to international oversight and monitoring either by UN bodies, the UN Register for Conventional Weapons or a new treaty organ. Although the reporting mechanism referred to in the Draft is a positive step forward to promote transparency on arms transactions, the resistance to global institutionalised oversight seems unfortunate and unjustified. There is nothing wrong with considering national implementation as part of the enforcement process, but not as the sole mechanism. This will put the ATT in a weaker and disadvantaged position when compared with other arms control regimes, such as nuclear and chemical weapons control.

In short, the UN ATT diplomatic conference, if adopts an ATT, will be a major achievement for conventional arms control law and for the international community at large; it will contribute to the prevention of armed conflict, serious and widespread violations of humanitarian principles, and the fight against corruption, crime and terrorism. However, although the endeavour to be more inclusive and accommodative is right, the need to secure consensus must not defeat the main objectives of the treaty – to ‘Promote the goals and objectives of the United Nations Charter’, which include collective peace and security, international human rights and ‘the promotion of the economic advancement of all peoples’. A prudent diplomatic and negotiating strategy is thus desirable to produce an ATT without compromising on the core issues and principles involved. It is imperative that the preamble is revised and made clear as to which norms have more weight: sovereignty, national interest, self-defence, etc., or the most fundamental legal principles such as international humanitarian law, some of which may be regarded as jus cogens. The Conference must also ensure that the ATT is not a toothless legal framework when countries are engaged in breaches or when controversies arise as to how to interpret its terms. A review conference on the implementation of the treaty would also be very useful, although it may be seen as contrary to the ‘principle’ of national enforcement of the ATT, which is not necessarily so. What is expected, therefore, a robust ATT, and not a frail one, in both a substantive and implementation sense.