The U.N. Arms Trade Treaty: Temporarily Holstered

Introduction

The international trade in small firearms, light weapons, and their ammunition is known to fuel regional conflicts, government repression, organized crime, and terrorism. Small arms are reported to kill more than 300,000 adults and children each year and leave almost as many permanently disabled.[1] The cost to African states alone of small arms-fueled conflicts is estimated at $18 billion annually.[2] Despite numerous international embargoes on arms sales to countries suffering internal conflict,[3] hundreds of millions of dollars of small arms and ammunition are imported into these countries every year.[4] Yet, international law addresses illicit arms trading only obliquely and ineffectually.

The tragedies caused by unregulated arms trading have recently convinced states to unify their efforts to adopt binding, universal restrictions and safeguards. Two years ago, the U.N. General Assembly resolved to convene a major diplomatic conference in July 2012 to negotiate a comprehensive Arms Trade Treaty (“ATT”). Despite intense pressure by affected states and civil society, however, the July conference failed to produce a viable draft and now awaits either a new round of negotiations or further action by the General Assembly.

This Insight summarizes the international weapons trading regimes currently in place, the purpose and the history of ATT negotiations, and the causes and consequences of the failure of the diplomatic conference to achieve consensus.

The Current Global Arms Trade Legal Regime

Small arms and light weapons (“SALW”) are conventional weapons that can be carried and used by an individual or small group of individuals, such as personal firearms, grenade launchers, portable missile systems, and small mortars. Every year, at least 7.5 million of these weapons are manufactured[5] and traded globally at a value of approximately $7 billion.[6] There are a number of multilateral treaties and informal regimes restricting the trade in conventional weapons, including SALW. Some of the early instruments, such as the Organization for Security and Cooperation in Europe (“OSCE”) 1993 Principles Governing Conventional Arms Transfers,[7] the European Union Code of Conduct on Arms Exports,[8] and the Central American Code of Conduct on Arms Transfers,[9] rely on nonbinding guidance to prevent the dangerous accumulation, diversion, and illicit use of SALW.

The arms treaty best known among international lawyers, the Convention on Conventional Weapons ("CCW"), is a legally binding instrument with broad subscription (114 state parties as of 2012).[10] The CCW’s regulation of arms manufacturing, trade, and use appears mainly in its five protocols, which deal with specific military technologies, such as incendiary weapons, landmines, and blinding lasers. The protocols do not cover international trade in small arms or light weapons generally.

The oldest, and in many ways the most comprehensive regulation of the international trade in SALW, is the 1996 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.[11] The Wassenaar Arrangement evolved out of a much older group, the Coordinating Committee for Multilateral Export Controls (“CoCom”), established in 1945 in a Cold War context. The Wassenaar Arrangement, like CoCom before it, is not a legally binding treaty but rather a voluntary group of states that coordinates export controls for the purpose of limiting the negative effects of the global arms trade on human rights, regional stability, terrorism, and the national security of its member states. As of 2012, forty-one states participate in the Wassenaar Arrangement, including all of the largest arms exporting states except China. The Wassenaar group, acting by consensus, identifies goods and technologies that have an actual or potential military use and publishes guidelines that its members use to regulate the exportation of identified items. Included on the Arrangement’s list of regulated military items (the “Munitions List”) are a range of SALW.[12]

The Wassenaar Arrangement, although generative of stable behavioral expectations among its members, leaves to the judgment of individual states how to implement export controls, including which arms exports to which destinations should require and be granted a license. Consequently, although the Wassenaar Arrangement itself is a type of legal regime, most of its norms are sufficiently subject to interpretation and to the discretion of member states that they do not create firm commitments limiting the sale of conventional weapons in contexts that threaten a stable world public order and human rights.[13]

The U.N. Convention Against Transnational Organized Crime[14] is a multilateral convention that directly regulates the international trade in small arms, but with limited commitments and subscription. The Convention is supplemented by the 2001 Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition,[15] which aims “to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.”[16] The Protocol commits state parties to criminalize any private trade in firearms and ammunition unauthorized by both the exporting and importing state and to adopt record-keeping measures that allow the tracing of arms traded by unauthorized channels.[17] It also requires state parties to adopt a licensing system for the exportation, importation, or transit of SALW—a system already in place in most Wassenaar member states—and requires the sharing of information between state parties about arms exports and imports between their territories.[18] Finally, parties agree to require unspecified border controls and security measures to prevent illicit trafficking.[19] The Protocol has ninety-five state parties, but few major arms exporters participate. Canada, China, the United States, the Russian Federation, Switzerland, and the European Union and its major arms exporting states have not ratified the Protocol.

In July 2001, a conference on the illicit arms trade was organized in New York, resulting in a Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects.[20] The U.N. Programme soon developed an International Tracing Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons.[21] The Instrument sets forth marking and record-keeping standards and includes general guidelines on international cooperation and information-sharing both directly and through the International Criminal Police Organization (“INTERPOL”). It also sets up a voluntary U.N. register to record transfers of SALW.[22] Its efficacy is limited, however, by the absence of major arms exporters from the list of 2001 Protocol parties.

For lack of an effective multilateral regime controlling the illicit trade in SALW, the most affected states have turned to regional initiatives. Members of the Organization of American States adopted a treaty, the 1997 Inter-American Convention[23], committing states to a wide and fairly detailed range of procedural measures to limit the negative effects of international trade in SALW. These include weapon marking requirements; security measures; the implementation of export, transit, and import licensing regimes; recordkeeping requirements; and cooperation and information sharing guidelines. The Inter-American Convention attracted a large number of ratifications in the Americas, but neither Canada nor the United States, the two main suppliers of SALW in the region, have ratified the treaty.

Similarly, the Economic Community of West African States (“ECOWAS”) concluded a convention on the SALW trade in Abuja in June 2006.[24] However, that treaty binds only a small number of arms-importing states.[25]

Impetus for a Global Conventional Arms Trade Treaty

Predictably, given the status of and limitations to the current international arms trade regulation regimes, the global trade in illicit SALW continues to flourish, especially in the developing world. In 2000, the U.N. General Assembly took up the problem of unauthorized traffic in SALW in the specific context of the trade’s destabilizing effects in Africa.[26] At the same time, two important developments added momentum to the fight against illicit trade in SALW. First, the OSCE issued a 2000 Document on Small Arms and Light Weapons,[27] providing firmer guidance on arms export regulation, including standards for export and usage monitoring, export license denial, and end-user verification procedures. Second, the 2001 U.N. Programme of Action (mentioned above) called for further measures to curb the illicit trade in small arms. The Programme stopped short of calling for a new treaty, but it encouraged states to adhere to existing treaties and to adopt national laws regulating the trade in small arms. It also called on the U.N. Secretary-General to collect and disseminate information on arms controls, and it committed its participants to “developing and implementing” unspecified “international measures” to achieve the named purpose of the conference.[28]

Soon after these initiatives, a group of eight Nobel Peace Prize winners, led by former Costa Rican President Oscar Arías Sanchez, began a campaign for an international code of conduct for arms transfers.[29] Supported by Arías’s Peace Foundation, the group developed and distributed documentary movies, aired television spots and radio announcements, distributed brochures and posters, and organized awareness campaigns beginning in 2003.[30]

Popular attention to the cause of unregulated SALW trade, along with renewed interest among developing states in the subject, led the U.N. General Assembly to endorse the Programme of Action in its 2005 World Summit Outcome[31] and to call on the Secretary-General to begin exploring “a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms.”[32] This measure, Resolution 61/89, was adopted in 2006, with twenty-four states abstaining and only the United States opposing.[33] Then–newly appointed Secretary-General Ban Ki-Moon solicited the positions of the U.N. member states on the feasibility, scope, and desired parameters for a comprehensive arms trade treaty. The resulting report, issued in August 2007, indicated broad support for a treaty that included collaboration and information sharing, nationally-implemented export and import regulation, and anti-diversion measures within the economic means of state parties.[34]

Secretary-General Ban also convened a Group of Governmental Experts to examine the feasibility of a treaty to regulate transnational transfers of SALW. In its report, issued in August 2008, the Group observed that, although some arms trade occurred in violation of Security Council sanctions, most illicit traffic begins with legal sales of the SALW.[35] The problem, according to the Group, was thus frequently one of diversion of the weapons from their intended uses. Although the Group acknowledged the contribution of illicit SALW to conflict, crime, terrorism, and human suffering, it offered no concrete suggestions as to the scope and content of a potential legally binding treaty.

In Resolution 63/240 of January 2009, the General Assembly drew a direct connection between the absence of general global regulation of transnational arms transfers and the social ills identified by the Group of Experts.[36] More importantly, the Assembly established a working group to consider how a “legally binding treaty on the import, export and transfer of conventional arms” could gather sufficient consensus.[37] Again, only the United States dissented. The U.N. Working Group convened twice that year to hear statements of numerous state representatives, as well as observers from the Holy See, Palestine, and the International Committee of the Red Cross, after which it had an “informal exchange of views with representatives of civil society.”[38]

In January 2010, the General Assembly came to a decisive resolution, endorsing the Working Group Report and convening a U.N. Conference on the Arms Trade Treaty to meet in 2012 “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms.”[39] To that end, the Assembly requested the Secretary-General to seek the views of member states on proposed treaty elements, while converting the Working Group to a Preparatory Committee for the conference. Again, only one state voted against the resolution, this time Zimbabwe.[40] The United States, after a presidential election, had altered its stance toward the concept of multilateral SALW regulation.[41]

The July 2012 Diplomatic Conference

The ATT was intended to regulate the international sale of SALW and ammunition, comprising a substantial part of the $40 to $70 billion global conventional arms trade.[42] The majority of these arms sales are made to developing countries.[43] The significant death toll of U.N. humanitarian workers caused by illegal small arms further motivated the United Nations itself to view the conference as a priority. The change of U.S. Administration and the attendance of numerous supportive NGOs had raised hopes that the conference would achieve significant progress. At the outset of the three-week conference, Argentina’s Roberto García Moritán was elected president of the Conference Bureau and, controversially, Iran’s representative was elected as one of fourteen vice-presidents.[44] The important subjects of discussion regarding the scope of the ATT included:
 

Which weapons the ATT would regulate. All states except China and Iran agreed that the ATT should cover SALW, but a significant split developed during the conference over whether it should cover other conventional weapons, such as combat vehicles, artillery, military aircraft, and missiles. The United States, EU, and most other countries favor a more inclusive treaty, while China, Brazil, and most of North Africa and the Middle East oppose including other conventional weapons.

Whether the ATT should regulate trade in ammunition. The great majority of countries wish to include ammunition within the scope of the ATT’s regulation. The United States, China, India, and several smaller countries oppose including ammunition in the ATT. Millions of illegal SALW, most of which can be used in multiple conflicts, are already circulating among criminals and terrorists throughout the world.[45] Although ammunition is easier to manufacture locally than firearms, the international community would nonetheless interpose a significant obstacle to illicit SALW use by hindering trade in ammunition.[46]

The extent to which states would be obligated to monitor and regulate arms brokers, insurers, and financiers. Arms brokers arrange sales between arms manufacturers and buyers, thus providing an important route through which the illegality of a transaction may be disguised. Requiring states to monitor brokers and to punish their misdeeds is a necessary part of arms trade regulation. In addition, insurers and financiers are often well placed to observe “red flags” indicating suspicious behavior; regulating their activities would be helpful as well. Most states support the inclusion of such regulation in the ATT, with only China and Iran opposing it.

The implementation measures to be included in the ATT. An effective ATT would obligate states to adopt laws for marking SALW with traceable symbols; to prohibit removing the weapon markings; to criminalize unauthorized arms transfers and supplying false information to authorities; to maintain security measures at ports to deter smuggling; and to implement an arms export, transit, and import licensing regime. Some of these measures are already required by the 2001 Protocol to the U.N. Convention on Organized Crime or used by Wassenaar member states. Although there is some divergence in opinions on the details, most states support including such measures in the ATT. Some two dozen mostly smaller states, led by India and Egypt, oppose strong implementation measures.

International verification, cooperation, and information sharing. All states except India and Zimbabwe support including an information sharing system and a verification mechanism, such as annual reporting of arms transfers and the creation of an Implementation Support Unit to collect and analyze trade data.

The recognition of victims’ rights and victim assistance. Almost all states support recognizing the rights of victims of armed violence in the ATT and obligating states to provide assistance to them under some circumstances. Only the United States, Israel, Malaysia, and Algeria oppose an assistance obligation.

Another important subject requiring definition was the purposes for which states would be obligated to deny export, transit, or import licenses for arms shipments. Most states agreed that licenses should be denied when they would provoke or exacerbate armed violence; only Cuba, India, and Zimbabwe dissented. Almost all states agreed that licenses should be denied where the arms would be used for gender-based violence, with only North Korea, Pakistan, and Syria objecting. More troubling was the significant disagreement over whether licenses should be denied when there is substantial risk that the arms would be used to seriously violate human rights law or the laws of armed conflict. China, Russia, India, and many North African and Middle Eastern states opposed prohibiting arms sales on these grounds. A relatively large number of states opposed export license denials when the arms transfers would exacerbate corrupt practices or undermine socio-economic development in the states where such arms would likely be used.

Despite some differences of opinion, a consensus had developed around the core elements needed to make the ATT effective. The development of a significant consensus made the eventual production of a first draft text seem likely. Yet, after weeks of intense and seemingly fruitful negotiations, progress on the ATT stalled at the last minute due to new U.S. and Russian objections.[47] On July 26, President Moritán submitted a proposed draft text,[48] but it failed to break the deadlock. As a result, the conference dispersed on July 27 with no consensus text. The conference began in a sustained crescendo and ended with a rimshot.[49]

Prospects for Progress

The main objections to the consensus text came from the United States,[50] in the uncomfortable company of Cuba, North Korea, Russia, and Venezuela.[51] The Economist attributed the U.S. change of attitude to a National Rifle Association-inspired letter sent to President Obama by a bipartisan group of fifty-one senators, “claiming (spuriously) that the treaty could impinge on” the Second Amendment rights of U.S. citizens.[52] Other arms exporters have struggled to undermine the negotiations for economic reasons.

Nonetheless, the prospects of an eventual agreement appear bright. A large number of states, including major European arms exporters, have expressed support for President Moritán’s draft and optimism that agreement is near.[53]

Should the General Assembly decide to vote on a draft in October, it will likely gather the two-thirds majority needed. The ATT would then enter into force after ratification by sixty-five countries, which—given the treaty’s support in Latin America, sub-Saharan Africa, and Europe—appears probable.

As for U.S. participation, prospects are less sanguine. The Obama Administration has declared that it has no “core” objections to the treaty,[54] and the U.S. Department of State has articulated its support for a second diplomatic conference on an ATT.[55] However, as noted, the National Rifle Association is lobbying actively against the treaty and has convinced more than half of the U.S. senators to oppose ratification, which dampens any prospect of immediate U.S. participation.

About the Author:
Aaron Fellmeth, an ASIL member, is a professor at Arizona State University College of Law.

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