Following the Liberal government’s announcement that Canada would accede to the Arms Trade Treaty, Project Ploughshares partnered with Amnesty International Canada, Oxfam Canada, and Oxfam Quebec to produce a detailed briefing outlining key areas related to Canada’s military export controls regime that require attention if Canada is to effectively implement the obligations of the Treaty. The briefing has been shared and discussed with government officials involved with the process by which Canada is to become an ATT state party. A summary version follows.
Published in The Ploughshares Monitor Volume 37 Issue 4 Winter 2016 by Kenneth Epps and Mark Fried
Illicit and irresponsible transfers of conventional weapons are a significant factor in human suffering worldwide, fueling armed violence in all its forms—from domestic violence to international armed conflict. With the entry-into-force of the Arms Trade Treaty (ATT) in December 2014, the majority of the world’s states agreed to establish global standards for responsible national decision-making on the transfer of conventional weapons. Canada will soon join this effort.
Despite Canada’s relatively rigorous regulation of arms exports, amendments will be required to fulfill the Treaty’s provisions and set a high bar for all parties to the treaty to emulate.
What is the Arms Trade Treaty?
The Arms Trade Treaty is an international accord agreed in 2013 that regulates the trade in conventional (non-nuclear) weapons, their parts and components, and munitions. Motivated primarily by the desire to reduce human suffering, 130 countries have signed the ATT, and 89 countries have either ratified the treaty or acceded to it. As of December 2014 the treaty forms part of the body of international law.
Has Canada signed the ATT?
Canada has not signed, but Prime Minister Trudeau included the goal of “acceding to the Arms Trade Treaty” in his open mandate letter to the Minister of Foreign Affairs. It must now be implemented in Canadian law and ratified by Parliament.
What happens next?
The first step in the legislative process was taken in June 2016 when the text of the Treaty (and an explanatory memorandum) was tabled by Foreign Minister Stéphane Dion in the House of Commons. Further legislation will be introduced to bring Canada’s laws and policies into compliance with the ATT.
Aren’t Canada’s current exports controls good enough?
Despite Canada’s relatively strong export controls on weapons and ammunition, meeting ATT obligations will require significant changes to current federal legislation, policies, and procedures. The most important amendments relate to the provisions of the Treaty’s three core articles: General Implementation (Article 5), Prohibitions (Article 6), and Export and Export Assessment (Article 7).
Doesn’t Canada regulate all of the weapons categories covered by the Treaty?
The military goods and technologies subject to Canadian export controls (listed on the Munitions List, otherwise known as Group 2 of Canada’s Export Control List) include all the categories covered by the ATT, plus many other military goods. Canada’s Munitions List would more than meet minimum Treaty standards. Indeed, Canada would advance the international standards for treaty application by tabling its Munition List as the list of conventional weapons to which it will apply Treaty provisions.
So, what are examples of the changes that are needed?
Some firearms exports, notably to the United States, are currently exempted from permit requirements, and all exports of military goods to the United States are exempt from regulation, including weapons, parts and components of weapons systems, and ammunition. The ATT does not allow for exemptions. All exports of military goods to the United States will have to be licensed in some fashion.
What specifically should be done regarding the U.S. export permit exemption?
The exemption must be revoked. The necessary procedural changes would be more straightforward if the exemption were removed for transfers of all military items shipped to the United States (listed on the government’s Group 2 list), not just for the equipment specified in the ATT.
Will this jeopardize Canadian companies’ access to U.S. military contracts?
It should not. The United States has signed new agreements with Australia and the U.K. that allow for shipping military goods to the United States under general licences. Similar but more transparent licences could be established in Canada via the “general export permits” of the Export and Import Permits Act.
Are there other exemptions that need to be addressed?
Currently the Department of National Defence (DND), as a crown department, is exempt from the export control system. Exports of military aid or government-to-government gifts do not require authorization and occur without oversight by Canadian export control officials. Article 5 of the ATT requires bringing DND into the export control system.
Does the ATT prohibit some weapons exports?
The ATT defines circumstances under which arms exports would be prohibited, for example, in violation of UN Security Council sanctions or arms embargoes. Although Canada’s export control system (EIPA) contains a section on “Prohibitions,” it only mandates “close controls” on exports, not prohibition. That will require amendment.
What about where arms exports might be used to fuel conflict or violate human rights?
The ATT requires exporting states to undertake a risk assessment of all proposed exports, according to several specific criteria. Crucially, authorization must be denied if the assessment reveals an overriding risk of negative consequences.
Currently, Canadian officials conduct a case-by-case review, based on policy guidelines and other less formal considerations. The guidelines assess whether the importing country poses a threat to Canada and its allies, is under UN Security Council sanctions, is involved in or under imminent threat of hostilities, or has a persistent record of serious violations of the human rights of their citizens. These guidelines are insufficient to meet the legal obligations of the ATT.
In what way is Canada’s review of exports deficient?
The ATT lists five criteria by which proposed exports must be evaluated: peace and security, human suffering (according to the standards of International Humanitarian Law), respect for human rights (according to the standards of International Human Rights Law), terrorism, and transnational organized crime. These criteria must be explicitly incorporated into Canada’s export control regime, which most glaringly omits reference to international humanitarian law. Amendments will be necessary to ensure that Canadian officials use the specified standards to assess each criterion.
Is violence against women and children not considered?
The ATT requires the exporting country to take into account the risk of the arms or munitions “being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.” The ATT is the first international convention to recognize and address the link between conventional arms transfers and gender-based violence. Such criteria will have to be incorporated into Canada’s export controls.
Does the ATT address arms brokering?
Yes. Along with at least five other multilateral weapons agreements to which Canada is a signatory, the ATT requires Canada to regulate brokering so as to limit illicit brokering, including that performed by Canadian citizens residing outside Canada and engaged in brokering between states other than Canada. Canada will need to do so.
What about keeping weapons from falling into the hands of criminals or terrorists?
The diversion of weapons is a major threat to international security and stability and can be a source for the weapons used by criminal and violent groups to threaten and attack the vulnerable. The ATT requires exporters to assess the risk of diversion. Canada’s current control regime already considers the possibility of unauthorized transfer or diversion of the exported goods and technology, and requires export permit applicants to provide end-use certificates. Canada must formalize diversion as a criterion in its export control system.
Does the ATT require new record-keeping and reporting?
The ATT obligates exporting countries to maintain national records of the authorization or the export of weapons for at least 10 years. The greatest challenge for Canada will be to record trade with the United States, which now occurs with few if any records. Only when U.S. data is recorded and reported along with data for all other states will Canada meet ATT obligations.
The Canadian Commercial Corporation, a crown corporation established in 1946, is well placed to report on military shipments to foreign destinations. And many private companies already track the use and location of their equipment to provide follow-up maintenance and repair services. It would not be difficult for exporters to report such information as a condition of export authorization.
Should Canada use its export control expertise to help other countries fulfill their ATT obligations?
With a tradition of collaboration, cooperation, and assistance across a range of international concerns, Canada is well placed to embark on joint efforts to identify and monitor transnational criminal activities, corrupt practices, trafficking routes, and illicit brokers, for example, and help to set up a common database available to all ATT signatories. Canada may also benefit from cooperation and assistance.
How important is Canada in the world of arms exports?
Canada is a significant exporter of conventional weapons ammunition and parts and components, especially to the United States. Because U.S. exports are not regulated, no accurate figure for total annual Canadian arms exports is available. Estimates vary widely, but the average value likely exceeds $2-billion per year. Thus, while Canada is not in the top tier of weapons suppliers (the permanent members of the UN Security Council) it is certainly in the second tier.
- Canada should advance high Treaty standards by tabling its Munitions List as the conventional weapons scope to which it will apply Treaty provisions. Additionally, Canada should collaborate with the majority of the 41 Wassenaar member states that are ATT States Parties to propose their common munitions list as a standard for Treaty scope.
- Canada should alter its export regulations so that all firearms exports are authorized by Canadian export control officials.
- Export permit authorization by Canada must apply to all Group 2 equipment shipped to U.S. destinations, as it does for all other states. Subcontracted shipments to the United States—largely components and subsystems—must be included.
- The Canadian Commercial Corporation should include the risk assessment criteria of the ATT’s Article 7 in its risk mitigation mechanisms. No contract involving military goods should be agreed before a formal risk assessment and authorization process by Global Affairs Canada has been completed.
- The Department of National Defence must be subject to the same authorization and risk assessment procedures as other exporters of military goods from Canada.
- Canadian legislation and procedures must be amended to ensure that the criteria used in case-by-case reviews of proposed military exports fully reflect treaty obligations, and that Canadian officials use emerging standards to assess each criterion. Canada also must restructure its policies and procedures for the assessment of risk. Particular attention should be paid to meeting the ATT obligations related to international humanitarian law and international human rights law, so that these are consistently and thoroughly assessed and result in permit denials when risks are serious. Canada should demonstrate leadership in setting high treaty standards in relation to the gender-based violence provision of the ATT.
- Canada should create legislation to regulate weapons brokering, drawing on national legislation with “extraterritorial” application, particularly the United Nations Act and the Special Economic Measures Act. Enforcement must be given particular attention, since extraterritorial enforcement of existing legislation appears weak.
- Canada should consider measures to better regulate the final destination of Canadian parts and components; at a minimum, Canada should monitor their use and final destination.
- Canada should apply the criteria in ATT Article 7 to assess the risk of diversion of all Group 2 military goods, which would help to establish high international standards on diversion. In addition, Canada should collaborate with other States Parties on joint counter-diversion efforts. In particular, Canada should actively promote the use of standardized end-use/end-user certificates.
- Canada should publicly report both authorized international transfers and actual transfers of conventional arms. Data on the arms trade with the United States must be recorded and reported. In addition, Canada should keep records and publicly report relevant data for each of the categories of ATT Article 12 (Record keeping) to promote high international standards for reporting.
- The “Offence and Punishment” section of the export control system (EIPA) should be reviewed and amended to ensure that Treaty provisions are adequately enforced.
Kenneth Epps is Policy Advisor on the ATT at Project Ploughshares.
Formerly a Policy Coordinator at Oxfam Canada, Mark Fried now works as an independent researcher and literary translator.