Arms Trade Treaty: Briefing document

Tasneem Jamal Conventional Weapons

March 2013

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Armed violence kills up to 2,000 people every day and keeps millions more living in fear or poverty. This violence is fuelled by the poorly regulated global trade in arms and ammunition that enables weapons to be used for war crimes, acts of terrorism and human rights violations. In July 2012, the UN Diplomatic Conference on the Arms Trade Treaty (ATT) saw the achievement of a first draft text to regulate the global flow of arms, but member states failed to agree to the draft by consensus. States are meeting again from March 18 to 28, 2013 in an attempt to finalize the ATT.

Canada has been a quiet supporter of the ATT to date. The negotiations face major challenges, not the least of which stems from a minority of skeptical states that will seek to weaken or prevent a strong treaty sought by the majority. For the upcoming negotiations to reach a meaningful result, Canada must step forward as a strong and public advocate of a treaty that is comprehensive and robust and will lead to significant reductions in the human costs of irresponsible arms transfers.

To be effective, the ATT must be an international legally-binding agreement that will stop transfers of arms and ammunitions that fuel human suffering, conflict, poverty, gender-based violence and serious violations of international human rights and humanitarian law. The current draft text contains several flaws which could undermine the efficacy of the Treaty.

In order to produce a strong and effective ATT, change is needed in the following areas of the draft text:

  1. Wider scope: Under the current draft, many types of conventional weapons —including armoured troop-carrying vehicles and helicopters — would not be controlled. Ammunition and munitions, parts and components are also missing from the scope section of the draft text. The scope of the Treaty must cover all conventional arms, their parts and ammunition.
  2. A clear definition of international transfer: The current draft defines “transfer” primarily in terms of “trade” in conventional weapons. This could lead states to interpret their obligations differently and exclude some types of transfer such as arms supplied as gifts, aid, loans or leases. The Treaty must cover all transfers of conventional arms, their parts and ammunition.
  3. Prevention of genocide, crimes against humanity, war crimes and gender-based violence: The provisions in the draft text relating to grave breaches of international humanitarian law are too narrowly applied and the range of war crimes is too limited. The Treaty must ensure that there is an absolute prohibition on any transfer of conventional arms where there is a significant risk that they would facilitate or be used to commit these acts.
  4. Strong criteria to assess risk: The threshold for risk assessment of human rights and humanitarian law violations and for commission of terrorist acts is unclear. Provisions concerning diversion, corruption and damage to development are weak to the point where they are not part of the risk assessment at all. The Treaty must ensure that risk assessments address all of the above criteria, and that where such an assessment points to the likelihood that any of them will be breached, then there must be an obligation on state parties to refuse the relevant international transfers.
  5. Exclusion of loopholes for “defence cooperation agreements”: As currently written, transfers of conventional arms made under the auspices of “defence co-operation agreements” could be exempted from the Treaty’s provisions. This loophole must be removed; all transfers must be subject to risk assessment procedures as laid out in the Treaty.
  6. Public reporting: There is no explicit requirement in the draft text that national reports on treaty implementation and arms transfers should be made public. In order for parliaments and civil society to ensure that the Treaty is effective and to hold governments properly to account, this information must be publically available.
  7. Strong implementation measures: There is no explicit requirement for states to develop and implement arms export licensing and authorization systems, and the draft text is silent on the need to ensure that where individuals or companies break national laws instituted under the Treaty they will be subject to criminal and civil proceedings and penalties. The Treaty needs to specify that states will establish national measures to enforce its provisions, including criminal and civil sanctions.
  8. A treaty that can be improved over time: Provisions relating to future treaty amendments are weak, with any future amendment requiring consensus among all States Parties. It would be excessively difficult to amend the Treaty for changing circumstances, and this should be rectified. Once it has entered into force, the Treaty should be able to be amended subject to approval by a two-thirds majority of States Parties.

Canada’s position on draft treaty provisions

In July 2012, Canada aligned itself with traditional allies and progressive states on some treaty provisions, and with skeptical states and diplomatic opponents on others. Some Canadian positions opposed efforts to strengthen the draft text. These include:

  1. Scope: Canada opposed proposals to include ammunition and weapons parts and components fully within the scope of the Treaty. In this, Canada aligned with the US, Belarus, Egypt, Iran and Pakistan. Meanwhile, more than two-thirds of UN member states, including all of Canada’s non-US NATO allies, supported proposals to strengthen the treaty provisions on ammunition and parts and components.
  2. Risk-assessment criteria: Canada opposed including criteria on development and corruption in the risk assessment process that states will use to authorize arms transfers. In the case of the development criterion, Canada joined the Arab Group (including Syria), Belarus, Cuba and Pakistan and others in opposing the provision to take into account the development impacts of arms transfers. Canada’s position was counter to many developing states, including the members of the African Group and ASEAN, as well as all members of the European Union. In the case of its opposition to a corruption criterion, Canada aligned with Cuba, Egypt and Syria and other states. Support for the criterion came from the European Union, the members of the Economic Community of West African States (ECOWAS), Mexico and others. Canada’s opposition to the corruption criterion even runs counter to recent government amendments to strengthen the Corruption of Foreign Public Officials Act.
  3. Public reporting: Although Canada favours public reporting, it supported the draft text provision to exempt commercially sensitive and national security information from reporting requirements. Yet, unless the specifics of these exemptions are defined, there is the risk that states may choose to exempt transfer details by placing transfers in these categories. These exemptions could severely weaken public reporting standards.

Canada has also made its own proposals for treaty provisions that have garnered little support — and even significant opposition — from other states. These include:

  1. Special considerations for firearms: Canada supports preamble language to recognize legitimate civilian possession, transfer and use of firearms. Although some states have objected to such language in the draft preamble, it seems likely the text will stand. This will be a useful compromise in March unless Canada responds to domestic and foreign gun lobby pressure to advocate stronger preamble language or returns to its earlier proposal to exempt “civilian” firearms transfers from the ATT.
  2. A revision of the draft treaty provision on brokering: Although there are extraterritorial jurisdiction precedents in Canadian legislation (including the United Nations Act which governs Canadian participation in UN sanctions), Canada is reluctant to extend its legal and judicial ATT responsibilities to Canadian brokers who may operate outside Canada. In fact, Canada’s proposals effectively remove the brokering provision of the Treaty. For more on this issue, please refer to Project Ploughshares Briefing 13/2 (February 2013).
  3. Providing for national discretion in treaty implementation: Canada has stated that “there must be national discretion on how legislative and administrative measures to implement the Treaty are put in place.” Since most provisions of the Arms Trade Treaty will be implemented at the national level, and because there are a range of legislative and administrative systems among states, it is reasonable to assume that a degree of national discretion will be required to implement some treaty provisions. It is not apparent, however, why Canada is motivated to call for national discretion in treaty implementation. A significant concern is that Canada — in the name of national discretion — may claim special exemptions for Canada in ATT implementation.

 

For further information, please contact:

Mark Fried, Policy Coordinator, Oxfam Canada
39 McArthur Avenue, Ottawa, ON K1L 8L7
Tel: 613-237-5326

Ken Epps,Senior Program Officer, Project Ploughshares
57 Erb Street West, Waterloo, ON N2L 6C2
Tel: 519-888-6541

Hilary Homes, Campaigner, Amnesty International Canada
312 Laurier Avenue East, Ottawa, ON K1N 1H9
Tel: 613-744-7667

Lina Holguin, Policy Director, Oxfam-Québec
2330 Notre-Dame St. West, Montreal QC H3J 2Y2
Tel: 819-923-0041

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