Building Support for a Strong Arms Trade Treaty

Kenneth Epps Conventional Weapons

Author
Kenneth Epps

The Ploughshares Monitor Summer 2010 Volume 31 Issue 2

In early 2010 Project Ploughshares hosted, with local partners, two expert roundtables on the international Arms Trade Treaty (ATT) in Washington, DC and Cape Town, South Africa. The purpose was to engage a range of stakeholders with expertise in conventional arms control in a review of the key challenges and issues facing imminent UN negotiations of the treaty.1

The Washington roundtable, held February 18 at the Carnegie Endowment for International Peace, was co-hosted by the Arms Control Association, the Center for International Trade and Security at the University of Georgia, Oxfam America, and Project Ploughshares. Ambassador Roberto Garcia Moritan of Argentina, the chair of ATT negotiations at the UN, was the opening panel speaker. The keynote address was read by Ambassador Donald Mahley, the US lead negotiator on the ATT, on behalf of Under Secretary of State Ellen Tauscher.2

The South Africa roundtable was held March 4 at the Cape Town offices of the Institute of Security Studies, which co-hosted the event with Project Ploughshares and the International Action Network on Small Arms. Panel speakers included Clare da Silva, the legal advisor to the international NGO coalition on the ATT, and other experts from the South African government, academia, and parliament.

The two sessions engaged representatives of common stakeholder groups: civil society and defence industry experts, state officials responsible for arms control policy and multilateral negotiations, academics with expertise in relevant national and international law, and legislative committee representatives. Although the size and structure of the two roundtables differed, discussions overlapped in several thematic areas.

Roundtable briefing documents outlined the political and economic influence of the US and South Africa on the international arms trade, which is dominated by a few suppliers and recipients. The United States is the largest supplier of conventional arms, and its market share alone underlines the importance of its participation in Arms Trade Treaty negotiations. A small number of African states, most notably Egypt and South Africa, manufacture and export conventional weapons. South Africa’s role in arms production and export, combined with its political influence in a region that is heavily affected by the trade in weapons, suggests that it also can play an important and constructive role in treaty negotiations.

National regulatory frameworks

The regulation of the international trade in conventional weapons occurs at the national level, but many national standards are inadequate to the task of effectively controlling the trade. In his remarks Ambassador Moritan3 noted:

The current situation, as I see it, is full of gaps and loopholes and inconsistencies. Some countries have national controls with different standards, in many cases barely enforced. A large number do not have controls or those criteria are too weak.

Consequently, a key objective of the Arms Trade Treaty must be to rectify the inadequacy of national controls.

Participants lauded the comparatively high export control standards of the United States and South Africa. The background paper prepared for the Washington roundtable by arms control analyst Rachel Stohl (2010, ch. 6) notes that US law and the proposed global principles for an Arms Trade Treaty are quite compatible. Cape Town participants referred to the high standards of South African export control legislation. After arms transfer decisions early in the post-Apartheid period were criticized, the National Conventional Arms Control Act was passed in 2003, resulting in the codification of constitutional values and international norms, such as important human rights standards.

Others suggested that, as comparatively high as US and South African standards may be, significant questions and concerns about past and future export control operations remain. At the Washington roundtable several participants noted that multilateral negotiations for the ATT coincide with US efforts to overhaul and liberalize domestic export controls. They asked how the US will match the ATT call for high common international export standards with this interest in easing US export control requirements and practices. Others at the Washington roundtable drew attention to the US practice of a “licence-free” weapons trade, which would contravene basic ATT provisions that require states to authorize all transfers of conventional weapons across their borders. For example, the “Canadian exemption” under the US International Traffic in Arms Regulations currently allows unlicensed trade in military goods between the United States and Canada.

In Cape Town some roundtable participants noted that a recent report by the Auditor General identified failings in the South African export control system, while others suggested that the legislation was fundamentally sound and remained a potential model of best practice for other states. Yet, the Auditor-General also identified capacity as a challenge for the South African export control system. If South Africa, with the largest economy in Africa, faces a capacity shortage, what would be the case for other African states?

Risk assessment criteria and transfer decisions

Many participants emphasized that the treaty should require that the criteria used in arms transfer decisions preserve the comparatively high standards of the US and South Africa. Under Secretary of State Tauscher warned that treaty negotiators should not accept the lowest common denominator to achieve a quick agreement. Others reinforced this point, noting that there would be no benefit to a treaty that merely endorsed the current wide range of standards and practices.

Civil society representatives argued that an effective ATT must require case-by-case assessments of the risks of weapons transfers (as is already required in the US and South Africa). The risk assessment process should involve criteria derived from the commitments and obligations of states under international law and multilateral norms. When there is a substantial risk that the transferred arms will be used in serious violations of these laws and norms, the transfer should not be authorized. Sometimes states can draw on the analysis and expertise of international agencies and credible civil society organizations when making risk assessments.

Roundtable participants noted that arms transfer decisions may be subject to, or even driven by, national strategic, political, and economic policies and interests. In the US “national priorities, existing circumstances, and interpretation often guide U.S. arms transfer decisions” (Stohl 2010, p. 19) and the executive branch maintains significant discretion over the implementation of laws governing arms transfers. In South Africa, participants acknowledged the influence of national political and economic interests and discussed the roles that parliamentarians and civil society groups should play to hold government officials to account.

Treaty text and scope

The roundtables discussed anticipated treaty text and some aspects of the treaty’s scope. Washington participants noted that some stakeholders, such as the defence industry and Congress, are not likely to become engaged in the ATT process until a draft treaty text is available. In Cape Town, some emphasized the importance of a common African position on the treaty text or at least significant treaty elements. However, such agreement faces challenges beyond the short negotiation timeframe. Most significantly, several North African states are ATT skeptics.

Both sessions reviewed proposals for the scope of the treaty. Washington participants discussed the “common minimum acceptance” of the “7+1” proposal regarding the categories of conventional weapons to be governed by the treaty. The UN Register of Conventional Arms tracks seven major weapons categories and to this would be added the category of small arms and light weapons. It is not obvious, however, that states using this categorization recognize its limits – that, for example, the UN Register category of combat aircraft excludes other kinds of military aircraft.

Will ammunition be included in the scope of the treaty? While some in Washington stated that including ammunition would be problematic for the US, citing the problems of monitoring end-use when large volumes of goods are transferred, others noted that many states strongly support the inclusion of ammunition in the treaty. Indeed, it was noted at the Cape Town meeting that ammunition was the category most often cited by states in their 2007 submissions to the UN Secretary-General on the scope of the Arms Trade Treaty.

Negotiations

Each roundtable reviewed the schedule for treaty negotiations and acknowledged the comparatively short formal period available. In Cape Town, participants noted that the negotiation schedule poses a significant challenge for developing text that could be endorsed by African states.

In Washington, Ambassador Moritan expressed hope that a draft of substantive elements of the treaty would be available by the end of 2011. As he noted, four weeks of scheduled preparatory sessions in the next two years provide 120 hours for negotiations in advance of the 2012 treaty conference. Washington participants discussed the need for states to undertake “intersessional” meetings – informal multilateral meetings between the formal UN sessions to allow states more time to develop consensus on treaty text in advance of negotiation sessions.

When the UN General Assembly adopted the October 2009 First Committee ATT resolution, it also adopted the stipulation that the 2012 conference be undertaken “on the basis of consensus.” Some Washington participants stated that negotiations on security issues such as arms transfers should aim for universality and that the consensus process is central to achieving this aim. Others expressed concern that consensus could result in a treaty that is universal but weak. Or, if consensus results in treaty commitments that drop below a “minimum threshold,” it may lead to alternative treaty processes outside the UN, such as those that occurred in the development of the Landmine and Cluster Munitions Treaties.

Conclusions

The roundtables in Washington and Cape Town successfully engaged a range of expert stakeholders in an informed discussion of the challenges of ATT negotiations. Both were applauded as constructive platforms for an open exchange among participants with different perspectives and concerns.

The two roundtables arrived at common questions and views about ATT negotiations and treaty provisions. Although unanimity was not achieved, it is apparent that further policy discussion and elaboration of detail in these areas are warranted. Indeed, roundtable participants expressed support for additional events in the US and South Africa to widen the circle of people and institutions aware of, and engaged in, the ATT process.

With detailed export control policies and some of the highest standards, the US and South Africa are well placed to bring proposals for treaty provisions and text to the negotiation table. Yet the evidence of the roundtables suggests that both states need to undertake further consultation to formulate clearer policy details in advance of the negotiation sessions. Without significant commitment to treaty preparations from such supportive states as the US and South Africa, states opposed to or skeptical of an ATT will have an easy task resisting or undermining progress in negotiations.

Other states may be no better prepared. It would seem that the expert roundtable format could be constructive in all influential states that are committed to negotiating an effective Arms Trade Treaty.

Notes

  1. The Glyn Berry Program within the Global Peace and Security Fund of Foreign Affairs Canada provided funding support for the two roundtables.
  2. A transcript of the morning panel is available here. The keynote address is available here.
  3. From the transcript of the morning panel (see Note 2).

 

Reference
Stohl, Rachel. 2010. U.S. Policy and the Arms Trade Treaty. Project Ploughshares Working Paper 10-1, April.

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