On Christmas Eve, the Arms Trade Treaty (ATT, text here) entered into force in record time following the attainment of 50+ ratifications. The ATT is the first multilateral treaty aimed at regulating the international trade in conventional arms, as opposed to weapons of mass destruction, and the first arms control treaty to be premised on a human rights and atrocity prevention framework. The treaty was adopted in April 2013 by the U.N. General Assembly with 154 votes in favor, 3 against (Iran, North Korea, and Syria), and 23 abstentions. It opened for signature on June 2, 2013. As of today, 130 states have signed the treaty, and 61 have ratified it. About half of the arms exporting countries have ratified the treaty, including 2 of the P-5 (France and the United Kingdom). Although Amnesty International, former Costa Rican President and Nobel Laureate Oscar Arias, and others first conceptualized the treaty back in the 1990s, its current momentum was inspired in large part by the flow of arms into Syria, many of which are ending up in the hands of radical elements and the Islamic State.
The United States, which is the largest arms exporter in the world, signed the treaty on September 25, 2013, becoming the 91st state to do so. In its negotiations, the United States was most concerned with
- establishing an extensive and rigorous international system of controls and lifting all state parties to the highest standards,
- preventing any restrictions on civilian possession of firearms otherwise protected by the U.S. Constitution,
- promoting international peace and humanitarian goals and helping to prevent atrocities,
- not unduly hindering the legitimate commercial trade in arms, and
- ensuring consensus decision-making.
The Senate is unlikely to take action on the ATT any time soon in light of persistent congressional opposition to the treaty, particularly among Republicans and gun advocates. Indeed, in October 2013, 50 Senators penned a letter to President Obama raising national security, 2nd Amendment, and other concerns about the treaty. In any case, there are about a dozen treaties still awaiting ratification, including:
- the Convention on the Rights of Persons with Disabilities (which failed in the Senate in 2012 by 5 votes),
- the Comprehensive Nuclear-Test-Ban Treaty (CTBT, which failed a Senate vote in 1999),
- the Law of the Sea Treaty (which has broad bipartisan support but a committed set of detractors),
- the Convention on the Rights of the Child (which only the United States and Somalia have failed to join (with the latter indicating last year on International Children’s Day that it intended to ratify) and which is strongly opposed by parents’ rights groups, and
- the Convention on the Elimination of Discrimination Against Women (CEDAW, which got through the Senate Foreign Relations Committee twice, but has never went to a full Senate vote).
Even if the prospects of U.S. ratification are slim, by signing the ATT the United States can express its support for the treaty, will retain a seat in the room (although not at the table) when treaty matters (such as amendments or implementation) are discussed, and can more credibly encourage other states with less rigorous arms export controls to join and raise their standards. It also commits itself to refrain from undertaking any action that would defeat the object and purpose of the treaty.
By way of background, the trade in conventional arms is estimated to be an annual $70 Billion – $100 Billion business, with over 600 million small arms alone in circulation. The treaty defines “convention arms” quite broadly at Article 2(1) to encompass:
- Battle tanks;
- Armoured combat vehicles;
- Large-calibre artillery systems;
- Combat aircraft;
- Attack helicopters;
- Missiles and missile launchers; and
- Small arms and light weapons.
Prior to this point, conventional arms had been regulated by the 2001 Firearms Protocol to the 2000 UN Convention Against Transnational Organized Crime and the 2001 UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects as well as a number of other soft law instruments, the UN Register of Arms, and other multilateral disarmament efforts.
Most importantly, the ATT is aimed at ensuring that conventional arms are not used to perpetrate war crimes, acts of terrorism, crimes against humanity, genocide, and other atrocities. Article 6(3) thus provides that:
A State Party shall not authorize any transfer of conventional arms … if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
In addition, even if the transfer of a particular munition is not expressly prohibited by Article 6, by Article 7(1) also expects exporting states to:
assess the potential that the conventional arms or items:
(a) would contribute to or undermine peace and security;
(b) could be used to: (i) commit or facilitate a serious violation of international humanitarian law; (ii) commit or facilitate a serious violation of international human rights law; (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.
If there is an “overriding risk of any of [these] negative consequences,” the relevant states are to consider mitigating measures or desist in the transfer (Article 7(3)). Importing states are to provide the information necessary for exporting states to undertake this assessment, including end user documentation (Article 8).
States parties are additionally obligated to:
- Establish and maintain a national control system to regulate the export of these weapons themselves—as well as the ammunitions/munitions fired, launched or delivered by them—and their parts and components (Articles 3-5).
- Establish a national point of contact to exchange information on treaty matters (Article 5(6)).
- Prevent the transfer of any of these items if it would violate measures adopted by the Security Council (e.g., arms embargos) or other agreements (Article 6(1)-(2)).
- Take measures to prevent the diversion of imported/exported weapons, ammunitions, and parts via, inter alia, the procurement of additional documentation, information sharing, assurances, law enforcement actions, etc. (Article 11).
- Maintain national records of imports, exports, and transshipments (Article 12).
- Submit initial reports and share best practices on national implementation by December 24, 2015, and then annually (Article 13).
- Cooperate on implementation and seek/offer technical assistance (Articles 15-16).
- Convene a Conference of States Parties by December 24, 2015, to review implementation of the treaty and consider amendments.
A number of seminars (e.g., in Costa Rica and Cambodia) have already been held to help prepare states parties to implement the ATT (through, e.g., domestic legislation and institution building) under the auspices of the UN Office for Disarmament Affairs and UN Regional Centres for Peace and Disarmament (UNRCPD), among others.