‘For the sake of all humanity’: With a draft text in hand, states can now push to secure a strong and effective Arms Trade Treaty

Kenneth Epps Conventional Weapons

Kenneth Epps

The Ploughshares Monitor Volume 33 Issue 3

“Our common goal is clear: a robust and legally binding arms trade treaty that will have a real impact on the lives of those millions of people suffering from the consequences of armed conflict, repression and armed violence. It is ambitious, but I believe it is achievable.” –United Nations Secretary-General Ban Ki-moon in an opening address to the UN Arms Trade Treaty conference, July 3, 2012.

The July conference to negotiate a global Arms Trade Treaty (ATT) to better regulate international transfers of conventional weapons could be deemed a failure because it did not reach agreement. Many would argue that this result had been inevitable since December 2009 when, during the drafting of the UN General Assembly resolution to host the 2012 conference, the United States, as a condition of participation, insisted that the conference reach agreement by the consensus of all UN member states. The condition was imposed to allow the United States to pull the conference plug—an option which at the last minute it exercised—but it was always possible that any state could have taken similar action. In other words, the conference failure was predictable. The outcome would not have surprised participants going into the conference.

What did surprise participants was how close the conference appeared to come to a meaningful final agreement before the United States and a few other states called for extra time. Conference President Ambassador Roberto Garcia Moritán of Argentina introduced draft treaty text only late in the conference, in part to avoid providing an early target for treaty “skeptics” such as Algeria, Egypt, Iran, and North Korea. For many state proponents of a robust Arms Trade Treaty, as well as for the international civil society coalition Control Arms, the draft was flawed, but certainly worthy of continued effort. A second iteration was on the table when the conference ended. This draft was attached to the final conference report by the President “under his own responsibility,” and is now a tangible conference product to take forward.

The draft text will be at the centre of future treaty developments. In the next few months civil society proponents of a strong and effective treaty will seek to ensure that the text meets the humanitarian and human security goals for an ATT by securing limited but significant amendments. The draft is close to delivering a human security treaty. But the route to this end is less certain.

The ATT will establish which conventional weapons are governed by the treaty. It also will determine national standards and international regulations for arms transfers. To meet the humanitarian objectives of the treaty, improvements in the text on both topics are required. At present the draft text is weaker on the former.

The draft currently covers the seven major conventional weapons categories of the UN Register of Conventional Arms, plus the additional category of small arms and light weapons (SALW). The inclusion of SALW is essential to advancing human security; these weapons are most responsible for widespread armed violence.

But important weapons categories are missing from the list, most controversially, ammunition and weapons parts and components. Prior to and during the conference, the United States persistently opposed the inclusion of ammunition within the scope of the treaty, although U.S. export controls cover ammunition. U.S. influence on the draft text resulted in distinct export regulations for both ammunition and weapons parts and components that were weaker than provisions for the major weapons categories.

Latin American, Caribbean, and, especially, African states were vocal in their opposition to the separate ammunition provision. They argued that, without strong regulation of ammunition and munitions exports, they would continue to experience prolonged warfare and armed violence. They justifiably argued that the text should be amended to include ammunition and munitions as another category in the equipment list.

Other important weapons categories, including military electronics, transport helicopters, and counterinsurgency aircraft, are omitted. There is no mechanism to expand the list to include evolving categories and new weapons such as drones. The draft refers to “the following categories at a minimum” to suggest the list is indicative rather than exclusive, but the text needs to be strengthened to support ongoing expansion of the weapons categories covered by the treaty.

Crucially, the draft text makes risk assessment the core of a standard national process to authorize weapons exports. In particular, the draft requires a state to determine whether there is an “overriding” risk that an export could be used to commit or facilitate serious violations of international humanitarian law or international human rights law. If so, “the State Party shall not authorize the export.” Although it sets the bar for assessing risk too high (it should be based on substantial, rather than overriding, risk), this requirement is fundamental to an ATT that meets humanitarian goals and reinforces state responsibility to uphold international law.

The draft text includes important risk assessment criteria long advocated by civil society. But some need to be more strongly worded. For example, states are only required to “consider taking feasible measures” to prevent the diversion of arms to illicit markets. After such consideration, states could then take no action at all and not be in violation of the treaty. The draft should be strengthened so that any substantial risk would require preventive action. Thus, if there is a substantial risk that weapons will be diverted to illicit markets or for unauthorized end use, the exports must not be approved.

To meet basic humanitarian and human security objectives for the treaty, the draft text requires relatively few additional improvements. As it stands, Article 3 of the draft, which deals with prohibited transfers, would weaken international humanitarian law. The draft currently prohibits arms transfers “for the purpose of facilitating the commission of genocide” and other grave breaches of the Geneva Conventions. Since no state would declare such a purpose for weapons imports, the draft needs to be amended to prohibit an arms transfer “where it would amount to aid or assistance in the commission of genocide.”

The reporting and record-keeping provisions found in the draft are fundamental to the transparency that is needed to ensure that states fulfill treaty obligations. These provisions currently contain loopholes that would excuse states from keeping and reporting adequate national records. One provision, supported by Canada, allows states to exclude data for unrestricted “commercially sensitive” or “national security” reasons. As well, the draft does not oblige states to make national reports public. These loopholes must be closed. Reporting and record-keeping requirements in the draft should be tightened to ensure that states are held to account for their implementation of the treaty.

India insisted that the draft include a provision that legal experts have interpreted as capable of negating the treaty. It states that the treaty cannot be used to void “contractual obligations under defence cooperation agreements.” This provision would seem to allow states to arrange future contractual obligations that would be exempt from treaty obligations. If not cut entirely, this provision must be amended to ensure that it does not provide a mechanism to bypass the treaty.

Concluding a humanitarian treaty
Despite the failure of the July conference to conclude a treaty, the majority of participating states saw the President’s draft text as very close to a meaningful treaty. In the final conference intervention, 901 states, including Canada, acknowledged this in a joint statement, which said in part:

We came to New York a month ago to achieve a strong and robust Arms Trade Treaty. We had expected to adopt such a draft Treaty today. We believe we were very close to reaching our goals. We are disappointed this process has not come to a successful conclusion today…. We are determined to secure an Arms Trade Treaty as soon as possible. One that would bring about a safer world for the sake of all humanity.

States have begun debating the steps needed to deliver a treaty result. In a press statement released on July 27, only hours after U.S. intervention ended the conference, the U.S. State Department called for the conference to reconvene in 2013 on the basis of consensus. The conference would begin where it left off this July, using the same rules and with a high risk of repeating the same inconclusive process.

Other states may use the momentum from the conference to attach treaty text to a UN General Assembly resolution and vote before the end of this year. Yet, quite apart from declared U.S. opposition to UN activity that might overlap with the U.S. presidential election in November, it is not apparent that a General Assembly process could accommodate improvements to the President’s draft text.

Civil society groups are calling for an improved treaty text to be adopted as soon as possible. There is strong interest in achieving this by the end of 2012 through the UN General Assembly. If a stronger text can only be achieved through a reconvened conference in 2013, then dropping  the consensus requirement will be crucial. For those seeking a treaty that meets human security objectives, the next few months will be as important as any that preceded them.

1. If more time had been available, more states would have signed on to this statement.

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