Toward a Convention on International Arms Transfers

Tasneem Jamal

Oscar Arias Sánchez

The Ploughshares Monitor December 2001 Volume 22 Issue 4

This article contains excerpts from a longer article of the same title, published in the Seton Hall Journal of Diplomacy and International Relations, Volume II, Number 2.

Oscar Arias, President of Costa Rica from 1986 to 1990, was awarded the 1987 Nobel Peace Prize. He is the founder of The Arias Foundation for Peace and Human Progress

The line between licit and illicit arms deals is often so thin as to be invisible. We must begin to ask ourselves what is more important: legalistic definitions or principles? When civilians are massacred by a paramilitary member, rebel group, or army in a civil war, does it matter if the weapons used were acquired legally? When a woman is murdered by her ex-soldier husband with his service weapon, does it matter whether he had a permit to own it?

In principle, I’m sure we’d all agree that the answer is “No.” Yet, in the real world, we do need legal definitions, as the power of judgment is vested in our courts, and they depend on those definitions, and their interpretations, to do the business of justice. How, then, shall we define legal transfers of weapons? Which transfers are illicit? These questions are so far without a convincing answer from the community of States embodied in the United Nations.

We know that, in some cases, weapons have been used against the interests of those who made and sold them, creating what has been deemed a “boomerang effect.” For instance, US-made weapons have been turned against US troops in Somalia, Iraq, Panama, and Haiti, where unaccountable military leaders replaced former allies and inherited the arsenals acquired courtesy of the United States. Other arms-manufacturing countries, such as Great Britain and France, have experienced the boomerang effect as well. Ultimately, it was these deaths – deaths of first-world soldiers, rather than third-world civilians – that put the topic of controlling the arms trade on the international agenda.

It is not just gun deaths that ought to make us think twice about the legitimacy of the arms trade. In a world where 1.3-billion people live on less than one dollar a day, unrestrained commerce in weapons perpetuates this poverty. Each year, around $20-billion is spent on conventional weapons transfers worldwide. Yet we know that just $8-billion a year (the amount of money the world spends on military equipment and training in four days) would be enough to ensure that all children around the world had basic education. It is time that the world’s arms merchants and their customers realize that the children of the world urgently need schools and health clinics, not machine guns and grenades.

For a UN plan to be truly comprehensive, it will have to re-examine the typical definition of an “illicit arms transfer.” A commonly used definition of “illicit” covers those transfers that are not authorized by exporting, importing, and transit states. However, many arms deals that begin with the requisite authorizations are later diverted to illicit markets and end-users. As an important element in combating illicit trafficking, therefore, governments must strictly control the “state sanctioned” or “legal” trade.

Aside from combating the risk of diversion, however, there is a second reason why legal transfers must be controlled. Certain governments have defined the illicit trade as strictly those international transactions which are not authorized – by either one or both states concerned in the transfers. In other words, only those arms transfers which take place on the “black market” are illicit. However, the United Nations, in the form of the UN Disarmament Commission, defines illicit trafficking more broadly as “that international trade in conventional arms, which is contrary to the laws of States and/or international law.” Under this definition, many arms transfers considered licit by the states involved are actually illicit under international law. So-called legal transfers of small arms have facilitated human rights violations and breaches of international humanitarian law, fueled conflict and violent crime, and undermined development and regional stability.

Principles of international law do support checks on legal arms transfers; however, the world’s governments have yet to codify these principles and turn them into practical reality. While States cling to their right to self-defence in order to acquire conventional weapons, they often disregard their obligations to international commitments and to limiting arms acquisition to legitimate security needs. More than fifty years ago, those countries which signed the UN Charter committed themselves to creating a mechanism for regulating arms transfers worldwide. Today, Article 26 of the UN Charter remains an unfulfilled promise.

Under the 1948 Geneva Conventions and its 1977 Protocols, governments are bound to respect and ensure respect for international humanitarian law. However, states often proceed with an arms transfer even when there is a clear risk that it could contribute to serious violations of these internationally agreed-upon, binding standards.

The proposed International Criminal Court may prosecute perpetrators of war crimes, crimes against humanity, genocide, and serious human rights violations once the necessary sixty states have ratified its statute. But there is no equivalent international mechanism to prevent these individuals from receiving arms in the first place. States have yet to complement this effort against impunity with the obligation not to authorize arms transfers which would contravene the limitations imposed on them by international law.

The vicious cycle of arms sales, conflict, and human rights abuse can and must be stopped. With this goal in mind, a group of Nobel Peace Laureates, which I had the honour to lead, developed in 1997 the International Code of Conduct on Arms Transfers, which establishes a set of principles to control the legal arms trade. It is endorsed by eighteen individuals and organizations that have been honoured with the Nobel Peace Prize. Drawing on existing international law, we called on all states to abide by a restrictive Code of Conduct on arms transfers, based upon the following principles:

  • respect for human rights and international humanitarian law;
  • commitment to promote regional peace, security, and stability;
  • compliance with international arms embargoes, military sanctions, and transparency measures;
  • opposition to terrorism; and
  • the promotion of sustainable development.

A coalition of non-governmental organizations (NGOs), including Project Ploughshares, has joined the Peace Laureates in this effort. For several years now, we have promoted the Code and discussed it with governments. In order to make progress on this issue, in late 2000, this group joined with lawyers from the Lauterpacht Research Centre for International Law at Cambridge University to transform the principles endorsed by the Peace Laureates into a Framework Convention.

Once adopted, the Framework Convention will be a legally binding agreement which codifies States’ obligations under existing international law. It sets out core principles and mechanisms relating to international transfers of arms, which at a later stage could be supplemented by protocols dealing with specific issues such as licensed production, end-use monitoring, transparency, and arms brokering. Like any other treaty, the Framework Convention would enter into force and become a binding international instrument once signed and ratified by the requisite number of states.

The basic obligation under this convention would be for states which have ratified it to adopt national mechanisms for the explicit authorization of international transfers of arms. As a minimum, each application for an authorization would have to be analyzed on a case-by-case basis. States would not allow a transfer if

  • it violates the state’s obligations under international law;
  • there is a risk that its contents may be used to violate human rights and international humanitarian law or to commit war crimes, genocide, or crimes against humanity; or
  • it undermines sustainable development, political stability, or regional security or facilitates crimes.

Because of the scope and complexity of the problem the Framework Convention seeks to address, and because of the powerful political and economic interests that sustain the international arms trade, a broad and dynamic campaign will be necessary to move forward on this issue. This campaign needs to be truly international in character and to benefit from the experience, perspectives, and expertise of NGOs from around the world. It will be a concerted and coordinated effort from global civil society based upon equal partnership, solidarity, and a common commitment to alleviating the devastating consequences of irresponsible weapons sales. This movement is in the works, and it is my hope that more and more like-minded individuals, organizations, and governments will come on board to promote this logical, just, and humane effort.

There is much work to be done. The situation is daunting, and yet we have hope, because thousands of individuals, groups, and community leaders have already expressed their faith in an International Code of Conduct on Arms Transfers as both morally sound and politically necessary. It is these people, and the force of their convictions, that will turn possibility into progress, and this “impractical idea” into reality. Victor Hugo once said, “There is one thing stronger than all the armies in the world; and that is an idea whose time has come.” I am convinced, as are many others, that the time has come for responsible measures to rein in the unchecked sale of death and misery on the international market. To those who die at the hands of assault rifles or attack helicopters, it does not matter whether these weapons were acquired legally or illegally. What matters is that these weapons were abused. It is the duty of all those concerned with human life and dignity to ensure that the definition of illicit transfers used by the international community encompasses the true scope of the problem of weapons proliferation. The Framework Convention on International Arms Transfers sets out a clear and comprehensive standard that all States should have the courage to adopt.

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