Additions and amendments: An overview of what Canada would need to do to meet the terms of the Arms Trade Treaty

Kenneth Epps Conventional Weapons

Author
Kenneth Epps

The Ploughshares Monitor Volume 34 Issue 2 Summer 2013

At the time of writing, Canada is not expected to be an early signatory of the Arms Trade Treaty (ATT). The Department of Foreign Affairs has invited interested public parties in Canada to join a departmental “technical assessment” of the ATT, which is unlikely to provide recommendations for the Foreign Minister before the autumn. And even if signing is recommended, it is not clear that the government will follow such a recommendation.
The technical assessment should reveal that, to meet the terms of the treaty, Canada would need to add to or amend its existing conventional arms transfer regulations. These changes are significant, but would not be onerous. They should include:

Comprehensive national authorization of arms exports and imports.
Cross-border trade in military goods between Canada and its largest military trade partner, the United States, is currently unregulated. Canada does not require export permits for shipments of military goods to the United States and Canadian imports of U.S. military goods are exempt from U.S. regulation. This “free trade” arrangement will need amendment to bring Canada in line with ATT provisions that require the authorization of all exports of the weapons, their parts and components, and ammunition that are within the scope of the treaty.

Strengthening of Canada’s export control policy and procedures to reflect the prohibitions and risk assessment criteria of the treaty.
The guidelines that Canada currently uses to “closely control” arms exports are insufficient under ATT provisions. Mere guidelines are not strong enough to enforce treaty prohibitions, such as that against exports to UN-embargoed states. The process also must use the criteria of the ATT risk assessment process and include not only the risk of human rights violations (which is included in Canada’s current guidelines), but other stipulated risks, such as the risk of breaches of international humanitarian law. Significantly, Canada’s use of guidelines, which can and have been overridden by such factors as economic benefits, must be replaced by a national control system that denies exports if there are substantial transfer risks.1

Subjecting arms exported by the Department of National Defence (DND) to the same authorization process as other arms exported from Canada.
DND, as a Crown ministry, is currently exempt from the Export and Import Permits Act that governs Canadian weapons transfers. Although equipment transfers for DND use outside Canada are exempt from the treaty (such as the equipment DND shipped to Afghanistan), under ATT provisions DND transfers to other states, such as equipment donated as military aid, should be subject to Canada’s export control system, including risk assessments.

Brokering regulations.
Canada does not have regulations to control the activities of arms brokers, including Canadian brokers operating abroad (see Epps 2013). The ATT brokering provision requires states parties to “take measures, pursuant to its national laws, to regulate brokering.” The ATT, however, demands no more of Canada than do other multilateral instruments to which Canada is a signatory (such as the UN Firearms Protocol). Its brokering requirement merely replicates commitments Canada has already made.

Comprehensive recordkeeping.
Because trade with the United States is unregulated, Canada does not keep records of arms exports to the United States. Article 12 of the ATT requires each state party to maintain national records of export authorizations or actual exports of weapons covered by the treaty. The new arrangements that Canada must negotiate with the United States to achieve comprehensive authorization should require recordkeeping.

Annual reporting.
Although Canada was one of the first countries to publish an annual report on its export of military goods, recent reports have been delayed (the last available figures are for 2009) and their reporting period has been as long as three years. The treaty requires states to submit reports for the previous calendar year by May 31.

Canada needs to attend to these provisions if it is to meet ATT obligations. Because Canada has the resources and export control experience, making the necessary adjustments to Canadian export control policies and procedures will be relatively painless. Other states will have far greater challenges. In recognition of the unequal conditions, the treaty encourages Canada and other wealthy states to support states that possess limited resources.

Canada could contribute to the ATT’s “voluntary trust fund,” which will be used by states that request international help in implementing the treaty. As well, Canada has important technical expertise in the control of conventional weapons transfers that could be helpful to many states parties. Although Canada did not play an active role in the development and negotiation of the treaty, it has the opportunity to take leadership during the important ongoing period of treaty implementation and amendment.

Note

1. Arguably, Canada’s current risk assessment process for human rights sets a standard higher than that required by the ATT. Under Canada’s guidelines, in the case of governments that “have a persistent record of serious violations of the human rights of their citizens,” it must be demonstrated “that there is no reasonable risk that the [exported] goods might be used against the civilian population.” In other words, there is a presumption of caution unless it can be demonstrated that there is no reasonable risk of human rights violations. Under the ATT the presumption is that the export will proceed unless it can be demonstrated that there is a high risk of human rights violations. As the former is more difficult to demonstrate, it would seem that caution should prevail in more cases. The problem is that Canadian risk assessment involves guidelines for “close control” of arms exports. And close control does not necessarily equal denial.

Reference

Epps, Kenneth. 2013. Canada and the brokering provisions of the Arms Trade Treaty. Ploughshares Briefing 13/2, February.

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