Irresponsible arms trade and the arms trade treaty.

Author:Stohl, Rachel
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 1:00 p.m., Friday, March 27, by its moderator, Jesse Clarke of the U.K. Foreign & Commonwealth Office, who introduced the panelists: Rachel Stohl of the Center for Defense Information; Clare da Silva of the Control Arms Campaign; Gregory Suchan of the Commonwealth Consulting Corporation; and John Duncan of the U.K. Diplomatic Service.

INTRODUCTORY REMARKS BY JESSE CLARKE *

There is broad agreement that the irresponsible and unregulated trade in conventional arms has devastating consequences for ordinary people across the globe. Conventional weapons routinely find their way to those who use them without regard for human rights or humanitarian law, thus exacerbating conflict and undermining security and development. Yet, there is currently no consensus on the international standards that govern, or should govern, the international arms trade.

National regulation of arms transfers ranges from the rigorous and comprehensive to the lax and even nonexistent. Regional instruments and arrangements have sought to impose controls on the arms trade and establish principled criteria against which arms exports must be assessed. But this patchwork of regulations has left gaps, given rise to inconsistencies, and, in some cases, has not been rigorously enforced--all of which provides an environment for unscrupulous arms dealers to engage in the illicit and irresponsible trade in arms. Even responsible participants in the international arms industry, who are eager to comply with applicable controls, find that in many cases the various layers of regulation are inconsistent, unnecessarily complex, or opaque.

In response to these central concerns, the international community has begun to consider whether an international Arms Trade Treaty (ATT) can establish universal standards capable of substantially reducing the illicit and irresponsible trade in arms.

The effort to establish internationally agreed standards for the trade in conventional weapons is not a recent phenomenon. As far back as 1978, the UN General Assembly held a special session on disarmament, in part to address the conventional arms race and to reach agreement on an international strategy for disarmament. The resulting Program of Action listed priorities and measures that states should undertake in the field of disarmament, which included reaching agreement to limit the international transfer of conventional weapons. (1) Numerous UN General Assembly resolutions have since addressed international arms transfers.

In 1991, the five permanent members of the UN Security Council adopted Guidelines for Conventional Arms Transfers. Five years later, the UN Disarmament Commission adopted Guidelines for International Arms Transfers. (2) And, of course, the UN has taken important steps forward in the regulation of transfers of certain types of arms; most notably, the 1991 Protocol "Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition" and the 2001 Program of Action to "Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects."

But it was not until 2006 that the international campaign for a comprehensive convention governing international arms trade moved into a higher gear. In December 2006, the UN General Assembly passed Resolution 61/89 entitled, "Towards an Arms Trade Treaty:

Establishing Common International Standards for the Import, Export and Transfer of Conventional Arms." The operative paragraphs of that resolution requested the Secretary General to seek the views of states and to establish a Group of Government Experts (GGE) to examine the "feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms." One hundred fifty three states voted in favor of Resolution 61/89, twenty-four abstained, and one--the United States--voted against.

During 2007, almost one hundred states submitted their views to the Secretary General on the feasibility, scope, and parameters of an Arms Trade Treaty--an unprecedented response on any matter of UN business. The United Nations Institute for Disarmament Research (UNIDIR) undertook an analysis of those states' views, which revealed the following:

Feasibility: All but seven states were in favor of developing an Arms Trade Treaty and agreed that the conclusion of such a treaty was possible and desirable. One of the reasons supporting that conclusion was that many of the fundamental principles that might be included are already set out in existing international law.

Scope: A large number of states proposed that an Arms Trade Treaty cover all conventional weapons (some of which referred to existing lists such as the UN Register of Conventional Arms or the Wassenaar Munitions List) as well as ammunition, parts and components, and manufacturing technology. With respect to transfers, many states indicated that an Arms Trade Treaty should cover a range of activities and transactions such as brokering, transit, and trans-shipment, in addition to exports and imports.

Parameters: UNIDIR organized the proposed criteria into five themes: (1) whether an arms transfer was consistent with existing international obligations, including under the UN Charter, Security Council Resolutions, and embargoes; (2) whether arms would be transferred to undesirable end users such as terrorists, criminal groups, and unauthorized non-state actors; (3) whether arms would be used in breach of international humanitarian law, international human rights law, or in the commission of international crimes; (4) whether an arms transfer would exacerbate conflicts or undermine regional security and development; and (5) whether factors regarding the recipient state cause concern such as its human rights record, its record in relation to good governance, and its legitimate security and defense needs.

The report also indicated a healthy level of skepticism from some states. They noted the following obstacles to an Arms Trade Treaty: (i) lack of political will; (2) lack of the capacity of some states to implement an Arms Trade Treaty; (3) the project was too ambitious; (4) that a universal treaty would necessarily have to water down standards to the lowest common denominator; and (5) that an Arms Trade Treaty might risk jeopardizing fundamental principles of international law, including the right to self-defense and the principle of non-intervention.3

These issues--feasibility, scope, and parameters--consumed much of the time of the Group of Governmental Experts during its three sessions held in 2008. Twenty-nine states participated, including the United States. In its August 2008 report, (4) the GGE recognized that an ATT would have to be cognisant of modern trends in the international arms trade. The international arms trade was globalized, competitive, and made significant contributions to the economy and employment in a number of countries. Arms-producing states manufactured equipment and weapons systems under joint-ventures and licences and relied increasingly on technology transfers from external sources rather than indigenous production. But there was an illicit market, frequently fueled by unlicensed production and transfers, unlawful brokering, and illegal re-exports, from which arms could be obtained for use in terrorist acts, organized crime, and other criminal activities. Ultimately, the GGE concluded that further discussions within the UN were necessary.

In December 2008, the UN General Assembly passed Resolution 63/240, securing further discussions towards an Arms Trade Treaty. It provides that all states will have an opportunity to participate in an Open-Ended Working Group on the Arms Trade Treaty. 133 states voted in favor of the resolution, nineteen abstained, and one, again the United States, voted against. (5) The first of six sessions of the Open-Ended Working Group was held in New York from 26 March 2009. The second session will take place from 13-17 July 2009.

It is at this stage that we find ourselves along the journey towards an Arms Trade Treaty. The stage has been set. States have expressed their views, the Group of Governmental Experts has aired the issues, and discussions continue within the UN. The future of United States engagement is unclear. Despite voting against both UN General Assembly Resolutions and expressing its skepticism about the feasibility of an Arms Trade Treaty, the United States has repeatedly confirmed that it supports "the goal of promoting responsibility in arms transfers and reducing the destabilizing trade in illicit arms." (6) Many observers are eager to see whether the Obama Administration will step up United States support of the Arms Trade Treaty and pursue a more positive multilateral engagement. It now remains to be seen whether states can identify points of consensus upon which the text of an Arms Trade Treaty can be built.

* Assistant Legal Adviser, United Kingdom Foreign & Commonwealth Office. The views expressed in this introduction do not necessarily reflect the views of the United Kingdom Government.

(1) See GA Res. S-10/2 (June 30, 1978), Tenth Special Session (First Special Session on Disarmament), Final Document of the Tenth Special Session of the General Assembly, available at .

(2) See Report of the Disarmament Commission, U.N. Doc. A/51/42 (May 22, 1996), available at .

(3) Sarah Parker, United Nations Institute for Disarmament Research (UNIDIR), Analysis of States' Views on an Arms Trade Treaty, Oct. 2007, available at ; see also Sarah Parker, United Nations Institute for Disarmament Research (UNIDIR), Implications of States' Views on an Arms Trade Treaty, Jan. 2008, available at .

(4) Report of the Group of Governmental Experts to Examine the Feasibility, Scope and Draft Parameters for a Comprehensive, Legally Binding Instrument...

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