It is tempting for commentators on the UN Arms Trade Treaty negotiations to lose themselves in the diplomatic machinations of the various camps in New York this month or perhaps the more legal analysis of comparing the 2011 and 2012 draft papers of the chair to gauge “progress” or “direction.” Some commentators (including this one) certainly will be troubled by Article 6(A)(3) of the draft Arms Trade Treaty contained in the 2012 draft paper. This provision essentially allows national authorities to authorize the export of conventional arms and related items even where a substantial risk exists of serious violation of international human rights law, international humanitarian law or international criminal law, including genocide, crimes against humanity and war crimes, so long as the State Party takes “appropriate precautionary and preventive measures to mitigate such risk . . . .” One could argue that an equally troubling aspect is the absence of any reference to the dangers of the private manufacture of arms. This stands in stark contrast to the last global arms-trade-related treaty outside the organized crime context to actually enter into force – the Covenant of the League of Nations.
Paragraph 4 of Article 8 of the Covenant provides the following in relation to the private manufacture of arms:
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
Does this provision have any legal weight for states today to the point that they must prohibit the private manufacture of arms? Certainly the non-existent Council no longer can advise on how to prevent these “evil effects” or otherwise create obligations for states. Moreover, the language of the first sentence of Article 8(4) falls short of creating an obligation on states inasmuch as it merely recognizes that the private manufacture of arms is “open to grave objections.” Therefore, it is difficult to conclude here, as the ICJ concluded in its 1950 International Status of South-West Africa advisory opinion with regard to the League’s mandate system, that there is an arms-trade-related obligation that does not “depend on the existence of the League of Nations” and thus continues on after the League’s conclusion (1950 I.C.J. Rep. 128, 132-33 (July 11)).
This does not necessarily mean, however, that Article 8(4) cannot retain any normative weight for states. In particular, the second sentence’s categorical reference to the effects from the private manufacture of arms as “evil” stands out. The drafters of the Covenant did not spell out exactly what those evil effects were, and the available travaux préparatoires seems far more focused on the other provisions of Article 8 to give any meaningful guidance in interpreting Article 8(4) in particular. However, it is not difficult to imagine the drafters had in mind a desire to avoid private manufacturers pushing states into an international arms race and war merely for the sake of making a profit. Regardless of the exact meaning the drafters had in mind, has the situation changed so drastically since the drafting of the Covenant that this sentiment in Article 8(4) can be completely ignored? For example, should the control of private brokers be more of a priority than control of private manufacturers, based on a shift in their relative influence over the contemporary trade in arms? Alternatively, is there so much for the negotiators to consider right now that their overlooking of the private manufacture of arms is excusable? Or is it that governments (or rather key governments) now are so beholden to these private manufacturers that they dare not single them out? If the latter, what options exist for civil society to try to keep these special interests in check, especially if the dangers are as serious as the Covenant’s drafters framed them?