The UN ATT Conference –a Disappointing but Worthwhile Exercise

The July 2012 diplomatic conference on the Arms Trade Treaty (ATT) in which more than 150 states participated, ended without adopting an ATT but with a Draft ATT submitted by the president of the Conference. An overwhelming majority of states, including arms exporters, importers, and victims of armed violence, were all eager to make a final and legally binding deal, while a few countries such as Syria and Iran were opposed to it. No major arms producer/exporter states officially objected the Draft, although the US (supported by Russia and China) requested more time to think about it. As a result, the negotiations have been suspended for an unspecified period. Opponents of the process celebrated this, although many states, humanitarian organizations and the UN were deeply disappointed.

This stalemate raises two important questions: first, whether it was a worthwhile conference to which a full one-month was dedicated; and second, what are the future prospects for the ATT?  The first question leads to an inquiry into what the Conference successfully produced. We got a Draft ATT submitted by the chair of the Conference, the contents of which largely refer to general international law. The Draft is founded on existing principles of international law, including the ban on the use of force, genocide and other crimes, non-intervention, human rights law, IHL and the principle of pacific settlement of disputes. However, the principles of sovereignty, equality and the right of states to produce, import and export weapons for lawful purposes have also been endorsed. It is interesting to note that the Draft has recognized the sovereign rights as well as responsibilities of states to produce, export and acquire conventional weapons (CWs). More importantly, the Draft recalls that:

the United Nations Charter promotes the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources;

This rightly refers to one of arms control law’s purposes and objectives – reducing the economic burden of armaments, and thereby contributing to the maintenance of world peace. Yet, while most countries support the reference made to the UN Charter and arms control as applied to CWs, a minority saw this as a threat to their legitimate and sovereign rights to produce and transfer armaments. However, promoting cooperation, transparency, peace and security and preventing human suffering have without controversy been mentioned as core goals, which is consistent with arms control law’s general objectives.

The Draft envisages three categories of duties of states. The first category prohibits any transfer of weapons contrary to Security Council mandatory arms embargoes, and other (regional) arms control commitments. It also prohibits arms supplies ‘for the purpose of facilitating the commission of genocide, crimes again humanity, war crimes which constitute grave breaches of the Geneva Conventions (GCs) including Common Article 3 to the GCs’.  This is a reinstatement or a reaffirmation of the application of existing international law to the arms trade. The high-threshold intent required concerning assisting international crimes will have normative and practical problems. A weapon supplier (state or a non-state entity) may not necessarily have the intention to support the commission of grave international crimes, but may ignore the risk of contributing to crimes for economic or other political reasons.

The second cluster of duties, which comprises the most important but also the most controversial legal norms, is intended to oblige states to assess whether an arms transfer ‘could be used to commit or facilitate a serious violation’ of humanitarian law (IHL), human rights and legal duties relating to international terrorism. If there is ‘an overriding risk of any of the consequences’ against any one of the aforementioned legal norms there is a duty not to authorize a given transfer. This is straightforward, at least on paper, and appears to be consistent with existing arms control instruments, such as the ECOWAS Convention on small arms 2006, and the EU Code of Conduct on Arms Export 1998. However, questions may arise as to why IHL-like criterion have not been included in the first cluster, which is strongly worded to prohibit transfers to protect fundamental norms of international law.

The third category, however, intends to oblige states ‘to take feasible measures’ to prevent, inter alia, diversion (of arms and their end-use), corruption and affecting sustainable development of arms recipient countries. This looks like a great innovation, but the Draft does not attempt to define what ‘feasible measures’ are, without which it is hard to fully understand the envisaged legal duties and their implementation.

The Draft has also stipulates the establishment of a ‘Secretariat’ to facilitate cooperation, information exchange and the smooth running of review conferences. As things stand now, there is no global body with powers of oversight on arms transactions, although the UN Register of Conventional Weapons does receive reports from arms exporting states on voluntary basis. The establishment of a Secretariat will therefore be a good addition to the regulation of arms transfers. However, establishing a body without concrete verification powers is less likely to bring about an effective legal framework on controlling CWs. Negotiating states have opted for national implementation and enforcement and not global oversight. This suggests that the envisaged ATT, if adopted, will merely be a cooperative measure which would not be supported by a strong global oversight whenever questions of contraventions arise.

Undoubtedly, the Draft ATT does not have a formal legal status. However, it is a by-product of intense negotiations over the years, and thus reflects current hopes and fears of states on the subject. It can also be said that it reiterates the principles enshrined in regional arms control treaties, and is therefore in a sense more than soft law. Despite the division among states and the weakness of the Draft, therefore, the diplomatic conference was a worthwhile exercise(1.). More than 80 countries vowed to continue with the process while few, though key, states are reluctant to endorse the Draft in its current form and shape.

The fate of the Draft ATT is thus threefold: The majority of supporting states may continue to reach a deal at the UN. This is highly likely given the position of a majority of interested states and the pressure from arms control proponent civil society. The second possibility is that those who requested more time might (or might not) come back with a positive attitude if and only when domestic politics permits. This is the most preferred option, to endorse a universal and all-inclusive legal instrument. The third but an extreme (long-term) possibility is that likeminded states may well initiate a process like the 1998 Ottawa Mines Convention process, in order to adopt relevant regal principles and shame and influence those who are reluctant to be part of an ATT.

Footnote:

1. Arms Trade Treaty Conference Yields Composite ‘Working Document’, Prompting Nearly 60 Speakers to Consider Viability, Probable Impact