The ATT – A Predictable Failure

The Arms Trade Treaty (ATT) negotiations that took place at the UN this July ended as a considerable diplomatic failure, – not because the draft Treaty did not command consensus, but because consensus was blocked by the wrong government. Having insisted on rules of procedure that required consensus for adoption of the Treaty (as opposed to the normal procedure for Treaty adoption laid down in the Vienna Convention on the Law of Treaties), key States had calculated that a compromise text would be blocked by those strongly opposed to the ATT, such as Syria, Iran, Venezuela, North Korea or others. Such a “consensus minus a few very negative States” draft Treaty text could then have been forwarded to the General Assembly and adopted there, as the case was with the CTBT[1] after it was blocked in the CD[2] in 1996.

On the very last day of the Diplomatic Conference (27 July), however, the US delegation took the floor and stated that they were not in a position to support adoption of the draft Treaty text of 26 July. This took the Conference by surprise, as this draft was exactly the foreseen “consensus minus a few very negative states” text. The US had been heavily involved in working out the tough compromises, not least regarding the two most difficult issues: 1) should ammunition be included in the Treaty’s scope, and 2) should there be an obligation not to authorize an arms export if the arms would be used for serious violations of human rights law or international humanitarian law. The 26 July draft Treaty text solved both of these contentious issues in a manner that appeared to be acceptable to both the somewhat restrictive States as well as the more progressive ones, along with civil society and the ICRC. When the US backed out of the compromise they had been a key party to, the draft Treaty’s status suddenly went from being a text that could have been forwarded to this fall’s General Assembly as is, to being just a possible basis for further negotiations.

It seemed that the reason for this apparent change of heart was that the White House had yielded to pressure from the US gun lobby, which incorrectly alleged that the ATT would impact on national US gun regulations and impair second amendment rights. Rather than taking the trouble of explaining that the ATT is about international (e.g. trans border) arms transfers and that the draft Treaty contained explicit provisions specifying that it would not have effect on national arms regulations, the Obama administration must have figured that this fight was not worth fighting at the outset of an election campaign.

A key reason for the US domestic pressure was the inclusion of ammunition in the ATT’s scope. A number of States, including the US, Russia and China, had been very vocal in stating that they did not want international transfers of ammunition to be covered by the Treaty at all (in spite of the fact that the US for example, does have a licensing system for its own ammunition export). For many African and Latin American as well as European States, however, it was essential to include ammunition in the ATT. The arguments were that poorly regulated and irresponsible trade in ammunition reinforces organised crime and activities of non-state armed groups and terror organisations and tends to lead to armed violence and suffering. In the course of the Conference, it became clear that unless ammunition were to be included in the scope of the ATT, a massive number of African and many other States would simply walk out. To conclude an international Arms Trade Treaty under such circumstances was not appealing to anyone. The compromise that was reached in the end was to include ammunition in a separate provision on export,[3] instead of placing it on the list of conventional arms to be covered,[4] and to exempt ammunition from recording and reporting obligations.[5]

A second major issue of contention was whether there should be an obligation not to authorise arms transfers in certain specific circumstances. It was a given that a core element of the ATT would be to ensure that all States Parties would have a national licensing authority for international arms trade, entailing that all arms producers must apply for and receive an export license before their products may be sold to anyone outside the State in which the production takes pace. The ATT is thus not a disarmament treaty or an arms control treaty, but simply a framework aimed at universalizing an export regime that already exists in many western States.

The national licensing authority should take the ATT’s criteria into account and ensure that arms transfers that might contribute to or facilitate serious violations of human rights or international humanitarian law would not take place. As mentioned above, the disagreement about the criteria and how obligatory they should be, was one of the most difficult issues. Compared to the Chair’s 3 July text, the draft Treaty of 26 July (distributed on the penultimate day of the Conference) contained significantly improved provisions on criteria. Its Article 4 states that:

“2. Prior to authorization and pursuant to its national control systems, the State Party shall assess whether the proposed export of conventional arms could:

a)     be used to commit or facilitate a serious violation of international humanitarian law;

b)    be used to commit or facilitate a serious violation of international human rights law; or

c)     be used to facilitate or commit an act constituting an offense under international conventions and protocols relating to terrorism to which the transferring State is a party.……

5. If, after conducting the assessment called for in paragraph 1 and 2 of this article, …., the State Party finds that there is and overriding risk of any of the consequences under paragraph 2 of this article, the State Party shall not authorize the export”.

Thus, there would be a clear obligation not to authorize transfers in certain circumstances, as opposed to the corresponding provision in the Chair’s 3 July text.

It was clear from the outset that civil society would judge the ATT by the strength of its criteria. There were continuous discussions on whether the draft Arms Trade Treaty would be better than nothing or worse than nothing. Would the ATT improve the situation and lead to a reduction in irresponsible trade in arms and ammunition, or would it “green wash” and give increased legitimacy to existing and future arms transfers to recipients who ought not to be supplied with arms and ammunition?  One relevant “acid test” (in July 2012) could be: would the ATT make it impossible or at least more difficult for arms exporters to sell arms to the Assad regime, or would the ATT give increased justification for such arms transfers?

In this author’s opinion, the Chair’s 3 July text would be an example of the latter, whereas the 26 July draft Treaty would be an example of the former. It seems clear that its Article 4 would have outlawed any arms transfers to the Syrian regime as of July 2012.

As is often the case in multilateral negotiations, there are many other agendas than the official one being pursued. One example was how the Palestinian delegation made sure that the larger part of the first week of the four week diplomatic conference were spent on the issue of their political and legal relationship to the UN, thus giving the sceptical States a first-class tool to essentially renegotiate the rules of procedure and exclude civil society from half of the Conference’s meetings. Another example was how the Holy See spent their entire diplomatic force to fight for the deletion of the term “gender-based violence” in the preamble. Other States were also clearly not in New York for the sake of reducing or preventing the harm and human cost that uncontrolled or unregulated arms trade causes. It had been clear from the outset that several States viewed the idea of applying criteria based on human rights or humanitarian law assessments in arms exports as a means of political abuse. All of this notwithstanding, a large majority of the UN member States seemed to be in favour of an ATT, believing that it would make a difference from a humanitarian as well as a security point of view. The question is; how can the work be taken forward? What is likely to happen next?

The Chair of the Diplomatic Conference, Roberto Moritan, will submit his report (with the draft Treaty text attached) to the General Assembly this fall. As it does not command consensus among the key States, it is uncertain whether it will be forwarded for adoption. Some States will be in favour of forwarding the 26 July text as is, whereas others will want to improve it. Opening up the text for improvements will cause a risk of other amendments that would have the opposite effect. If efforts to get the General Assemble to adopt the draft Treaty, or an improved version of it, fails, it would appear that there are two main directions the work could take: to continue in the UN framework, with a consensus based process, which then may not commence again until 2014 (given the budgetary situation), or to take the process out of the UN and launch an independent diplomatic process.

Would the 26 July draft Treaty have been adopted according to the Chair’s plan (consensus minus the very negative States) if the US had not blocked consensus? Probably not. The Russians, Chinese and others were quick to make follow-up statements to the effect that it would be wise to spend more time on the process and that the draft Treaty was not yet ready for adoption. Other key States were also unhappy with elements of the text. A large number of African States were for example very dissatisfied with the way ammunition had been dealt with in the 26 July text. The claim that the Diplomatic Conference was extremely close to a successful outcome is thus not necessarily true.

No one should be surprised by the lack of success for the ATT negotiations. It has been demonstrated time after time that a requirement of consensus leads to either an outcome that is so watered down that it has no real impact, or to no outcome at all. It seems that the ATT process is just another nail in the coffin of the consensus requirement for adoption of international agreements.