What the UN Secretary-General said at the Monterey Institute of International Studies – And what he did not say

On 18 January, UN Secretary-General Ban Ki-moon delivered a speech on the disarmament and non-proliferation agenda at the Monterey Institute of International Studies. While the Secretary-General highlighted five themes with regard to disarmament and non-proliferation (accountability, the rule of law, partnerships, the role of the UN Security Council, and education), it is what he did not say that I would like to draw your attention to.

Accountability. Ban Ki-moon stresses the special responsibility of the nuclear weapon states in contributing to nuclear disarmament and emphasises that ‘[n]uclear deterrence is not a solution to international peace and stability. It is an obstacle’. This might well be true but flies in the face of reality: the continued reliance of nuclear weapon states’ policies on nuclear deterrence. How those states can be persuaded to change their mind is something the Secretary-General does not address. He also recommends that negotiations are initiated in the Conference on Disarmament to secure legal security assurances for non-nuclear weapon states: while this would certainly be a welcome result at the universal level, it is often forgotten that those assurances are already provided in the protocols attached to the five treaties establishing nuclear weapon-free zones. What the Secretary-General could have also recommended is that the nuclear weapon states that have not done so ratify those protocols as soon as possible.

Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here)

Specific regional issues and the role of the Security Council. Ban Ki-moon singles out the usual suspects, i.e. Iran and North Korea, as his proliferation concerns. He admits that he is deeply concerned about Iran’s nuclear programme and stresses that Iran must comply with relevant Security Council resolutions. It is striking that there is no mention of other proliferators, i.e. India, Pakistan and Israel. True, they are not parties to the NPT and therefore have not violated it, but at the beginning of his speech the Secretary-General had emphatically stated that ‘[t]here are no right hands for wrong weapons’. On the upside, it is welcome to read that the Secretary-General believes that a conference on a zone free of weapons of mass destruction in the Middle East can still be convened in 2013 and that he supports the initiative (more information on the WMDFZ in the Middle East here and here). The Secretary-General does not, however, suggest steps to be taken in order to remove the obstacles that derailed the conference in 2012, in particular Israel’s opposition to the initiative.

Disarmament education. Ban Ki-moon rightly emphasises that funding for disarmament education, training and research is low. The Secretary-General also encourages the academia to include disarmament and non-proliferation issues in their curricula and research agendas. While the contributors to this blog cannot be blamed for not doing their part by researching and publishing on non-proliferation issues, undergraduate or postgraduate courses on non-proliferation law are still rare in universities. Consistently with existing financial resources, this is something that we academics with a non-proliferation expertise perhaps could do more on. If anyone is aware of or teaches university courses on non-proliferation law, why not drop us a line so that we can alert potentially interested students here.

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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.

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The Private Manufacture of Arms and its “Evil Effects” under International Law

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?

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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.

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