An International Code of Conduct on Arms Transfers

Tasneem Jamal

Ernie Regehr

The Ploughshares Monitor June 1997 Volume 18 Issue 2

While worldwide military spending and the international trade in military equipment have declined significantly in recent years, both continue to fuel wars and rob current and future generations of the economic resources and social/political stability that many hoped would yield a post-Cold War “peace dividend.” Any move toward military restraint by individual states is to be welcomed, but to turn the world persuasively from the continued pursuit of militarized stability toward genuine human security requires a collective international commitment to both regulate and restrict the resort to military force. One such important measure will be the development of collective restraint in arms transfers. A new proposal by a group of Nobel Prize winners, led by Oscar Arias of Costa Rica, outlines a Code of Conduct to guide and restrict military transfers. Ernie Regehr reports on the initiative.

Suppliers of military equipment are fond of arguing that they are merely in the business of supplying the hardware states need to give substance to the United Nations Charter’s assertion of the right of all states to self-defence. But the rights of institutions and responsible individuals are linked to duties, and Article 51 is no exception. States are entitled, even obligated, to defend themselves inasmuch as they are instruments for the promotion of international peace and security, for serving the welfare of their citizens, and for protecting fundamental rights and freedoms. The legitimacy of states and the right to self-defence depend ultimately on the performance of these duties. Indeed, the preamble to the UN Charter provides “that armed force shall not be used, save in the common interest.”

There is no fundamental right of states to acquire whatever military capacity and hardware they please – all in the name of the right of self-defence. The Charter admonishes all states to spend as little as possible on military defence (Article 26), to promote rights and freedoms, and to refrain from threatening the use of force against other states, all in the context of the General Assembly’s declared objective of general and complete disarmament. The Charter’s guarantee of the right of self-defence is the right of legitimate states to defend themselves from armed attack – to acquire weapons to mount a defence against aggression and to contribute to collective security.

But, of course, much of the world’s accumulation of military prowess has to do with the opposite – with states seeking the capacity to commit aggression and the means of repression to deny the basic rights of their citizens and to prevent democracy. All of this begs the question of how to distinguish effectively between legitimate self-defence needs and the illegitimate accumulation of weapons to undermine the objectives of the UN Charter. The exercise of restraint in the acquisition of military prowess requires the capacity, not to mention the will, to discriminate between legitimate and illegitimate acquisition of military hardware – which brings us to some welcome efforts to define an international code of conduct for the supply of military hardware, to an attempt to clarify and standardize the distinction between legitimate and illegitimate arms acquisitions.

To begin with, there already are some provisions in international law to declare some weapons as illegitimate by definition and thus not to be acquired by any state – chemical and biological weapons are a case in point; the current Canadian-led “Ottawa process” to outlaw anti-personnel landmines and add them to the list of certain conventional weapons that are unlawful in all circumstances is another case; and the acquisition of nuclear weapons is explicitly prohibited for all states party to the Nuclear Non-Proliferation Treaty, except for the five traditional nuclear weapons states, and the 1996 ruling of the World Court raises doubts about the legality of any nuclear weapons.

But aside from nuclear, biological, chemical, and certain inhumane conventional weapons, there is a vast, vast array of conventional weapons that are perfectly legal in and of themselves – however, as already argued, that does not mean that all states are entitled to acquire them, or to acquire them without restraint. Only some states under some conditions have a right to acquire weapons which are in and of themselves legal, and an international code of conduct for arms transfers is an attempt to define those states and conditions. Such a code would require certain minimal conditions and behaviours of recipient states before any otherwise legal weapons could be transferred to them (leaving aside for the moment the problem of states acquiring weapons for illegitimate purposes out of domestic production).

This is the approach of a group of Nobel Peace Prize Laureates in a proposed comprehensive new code that requires the following conditions in a recipient country before arms can be transferred to it: the country must respect international human rights standards, be in compliance with international humanitarian law, conduct itself as a democracy, respect international arms embargoes and military sanctions, report fully to the UN Arms Register, support regional peace and stability, oppose terrorism, and give priority to social spending over military spending. Covered by the code are conventional weapons and munitions, military and security training, and sensitive military and dual-use technologies (the detailed principles of the code are reproduced below).

The Laureates point out that weapons acquired through international transfers are frequently used to commit human rights abuses and to prevent democracy, frequently create international instability, and are frequently used to commit international aggression. Furthermore, even weapons that are not used unlawfully can still undermine social and economic development by consuming scarce resources.

In a stirring plea for sanity, the Nobel Laureates say:

The international community can no longer ignore the repercussions of irresponsible arms transfers. Indiscriminate weapons sales foster political instability and human rights violations, prolong violent conflicts, and weaken diplomatic efforts to resolve differences peacefully. Arms transfers often take place under a cloud of secrecy, and generally respond to the desires of a few while ignoring the needs and rights of the many…. Our children urgently need schools and health centres, not machine guns and fighter planes. Our children also need to be protected from violence. The dictators of this world, not the poor, clamour for arms.

Their proposal calls on states to pass national legislation and regulations to ensure the effective implementation and enforcement of the Code. Notably, they call for mechanisms for public scrutiny of all proposed transfers in advance.

In addition to Oscar Arias, the Code is supported by Nobel Laureates the Dalai Lama, Jose Ramos-Horta, Elie Wiesel, Betty Williams, Norman Borlaug, Adolfo Perez Esquivel, Mairead Corrigan Magquire, Rigoberta Menchu, Joseph Rotblat, Desmond Tutu, and Lech Walesa. Other prominent sponsors include former US President Jimmy Carter, British Foreign Secretary Robin Cook, and former UN Under-Secretary-General Brian Urquhart.

The comprehensive code proposed by the Nobel Laureates will not find an easy consensus in the international community, but it is not as far ahead of the international consensus as one might imagine. Three informally adopted “codes” involving the major arms suppliers include several of the key concerns articulated here. The Permanent Five members of the UN Security Council (P-5) issued a joint “Guidelines for Conventional Arms Transfers” in 1991, the European Community (EC) issued a set of guidelines in 1991 and 1992, and in 1993 the Conference on Security and Co-operation in Europe (now the OSCE) articulated a set of principles governing arms transfers. All three refer (sometimes obliquely) to respect for human rights, adherence to international arms embargos, opposition to terrorism, the promotion of international stability, and the economic impact of transfers as factors to be considered when contemplating arms transfers.

Notably absent from the criteria in the declarations of the major supplier states are requirements for democracy or transparency, and, of course, their commitments to give attention to human rights standards in recipient countries are far from firm. Nevertheless, the P-5, EC, and OSCE principles do reflect an emerging consensus that arms exporters have an obligation to require certain minimum standards of behaviour in recipient countries, and however often individual suppliers disregard such principles, the rhetorical commitment to them indicates that the more comprehensive norms advocated by the Nobel Laureates’ proposal already enjoy a certain level of political currency.

What is needed now is the promotion of the comprehensive Code – a kind of “Ottawa process” – to follow up on the anticipated successful initiation of a comprehensive international convention to ban anti-personnel landmines with the adoption of an effective code to limit arms transfers, to ensure, as the Nobel Laureates put it, that “violence and its vestiges” become “a distant memory of the past.”

Arms transfer principles

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination, is in compliance with all of the following principles:

Compliance with international human rights standards (Article 3)

A. Arms transfers may be conducted only if it can be reasonably demonstrated that the proposed transfer will not be used by the recipient state, or recipient party in the country of final destination, to contribute to grave violations of human rights, such as:

  • genocide and other crimes against humanity, for example “ethnic cleansing;”
  • extra-legal, summary or arbitrary executions;
  • enforced disappearances;
  • torture or other forms of cruel, inhuman or degrading treatment or punishment;
  • detentions in violation of international human rights standards.

B. Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

  • vigorously investigates, prosecutes and brings to justice those responsible for the above-mentioned violations and abuses of human rights and violations of the laws and customs of war;
  • makes it part of the training of the armed forces and law enforcement agencies that anyone ordered to commit the above-mentioned grave violations has a duty to refuse;
  • works towards the establishment of impartial and independent bodies that oversee the protection of human rights and does not impede the free functioning of domestic and international human rights organisations.

Compliance with international humanitarian law (Article 4)

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

    • does not engage in, or sponsor, grave breaches of the laws and customs of war as set forth in the Geneva Conventions of 1949, and additional Protocols of 1977, and other rules and principles of international humanitarian law applicable during inter-state or intra-state armed conflict which, for example, prohibit arbitrary and summary execution, indiscriminate killing, mutilation, torture and cruel treatment, and hostage taking;
    • provides access on a regular basis to humanitarian non-governmental organisations in time of conflict or humanitarian emergency, including access of the International Committee of the Red Cross to detainees;
    • co-operates with international tribunals, either ad hoc or general, with the power to adjudicate violations of the rules listed above.

Respect for democratic rights (Article 5)

Arms transfers may be conducted only if the proposed recipient state:

    • allows its citizens to choose their representatives through free and fairly contested periodic elections that feature secret balloting;
    • permits its citizens to express their political views through the freedom to speak, disseminate ideas and information, assemble, associate, and organise, including the organisation of political parties;
    • has civilian institutions that determine national security policy and control the operations and spending of the armed forces and law enforcement agencies.

Respect for international arms embargoes and military sanctions (Article 6)

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

    • is in compliance with international agreements relating to arms embargoes and other military sanctions decreed by the United Nations Security Council, whether or not they have been adopted specifically under Chapter VII of the UN Charter;
    • is in compliance with arms embargoes and other military sanctions decreed by regional organisations or regional arrangements to which it is a party.

Participation in the United Nations Register of Conventional Arms (Article 7)

Arms transfers may be conducted only if the recipient state fully participates in reporting arms transfers to the United Nations Register of Conventional Arms, as defined in United Nations General Assembly Resolution 46/36 L of December 9, 1991.

Commitment to promote regional peace, security and stability (Article 8)

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

    • is not involved in an armed conflict in the region, unless it is recognised by the UN as being engaged in an act of self-defence in accordance with Article 51 of the UN Charter; or is playing a role in a UN-mandated operation;
    • is not, as a result of this transfer, introducing weapons beyond those considered appropriate for its legitimate self-defence; or introducing a significantly more advanced military technology into the region;
    • recognises the right of other UN-recognised states in the region to exist within agreed boundaries, and agrees to submit disputes relating to territorial claims to third party settlement;
    • carries out and/or respects an agreed cease-fire as party to a former conflict;
    • does not advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, in particular propaganda inciting individuals to overthrow their own or a foreign government, or inflammatory propaganda in pursuit of the vindication of territorial claims;
    • is not engaged in armed actions or practices which are likely to lead to a significant number of displaced persons or refugees.

Opposition to terrorism (Article 9)

Arms transfers may be conducted only if the proposed recipient state, or recipient party in the country of final destination:

  • has ratified, and is not in violation of, the international conventions and instruments concerning terrorism or acts associated with terrorism, including, for example: the Tokyo Convention on Offences and Certain Acts Committed Onboard Aircraft; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aircraft; the Convention on Offences Against Internationally Protected Persons (New York Convention); the International Convention Against the Taking of Hostages (Hostages Convention); and the Convention on the Physical Protection of Nuclear Material;
  • is in compliance with the international obligations relating to the apprehension and prosecution or extradition of terrorist suspects found within the territory of the recipient state; or of persons indicted by an international ad hoc War Crimes Tribunal or by an international criminal tribunal;
  • does not allow its territory to be used as a base for terrorists, or as a base to supply or direct terrorists.

Promotion of human development (Article 10)

Arms transfers may be conducted only if the recipient state’s expenditures on health and education combined exceed its military expenditures, unless the recipient state can reasonably demonstrate that such transfers are justified by exceptional needs to counter acts of aggression.

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