Transfer

Transfer of landmines is defined in the 1996 Amended Protocol II on Landmines to the 1980 Convention on Certain Conventional Weapons. It ‘involves, in addition to the physical movement of mines into or from national territory, the transfer of title to and control over the mines, but does not involve the transfer of territory containing emplaced mines.’Art. 2(15), 1996 Amended Protocol II.

Under Article 2(8) of the 2008 Convention on Cluster Munitions, transfer is defined as follows:

‘Transfer’ involves, in addition to the physical movement of cluster munitions into or from national territory, the transfer of title to and control over cluster munitions ...

According to a 2010 commentary of the Convention:

The definition of transfer addresses the relocation of cluster munitions across State borders and changes in their ownership. As a result, it clearly covers the import and export of cluster munitions by sale or through provision of military assistance. Because it links its initial phrases with ‘in addition to’ instead of merely ‘or’, however, the definition raises serious questions of interpretation. It could mean that either movement across borders or transfer of title and control is sufficient to constitute transfer. In that case, if a State Party allowed a State not party to deliver cluster munitions to a military base it is hosting on its territory, it would violate the prohibition on transfer, which is articulated in Article 1, paragraph 1(b). Many States have interpreted the virtually identical definition of transfer in the 1997 Anti-Personnel Mine Ban Convention in this way. Alternatively the definition could mean that there must be physical movement across borders and a handover of title and control for transfer to occur. This reading restricts the scope of the provision and would primarily cover sales and foreign aid. Regardless of the interpretation, a passing of title must always be accompanied by a passing of control to amount to transfer.

The 2013 Arms Trade Treaty defines the term transfer in Article 2(2):

For the purposes of this Treaty, the activities of the international trade comprise export, import, transit, trans-shipment and brokering, hereafter referred to as “transfer”.

It is uncertain whether this definition covers gifts or loans.For further discussion of this issue, see, e.g., Geneva Academy of International Humanitarian Law and Human Rights, The Arms Trade Treaty (2013), Academy Briefing No. 3, June 2013. According to the definition in the International Small Arms Control Standards (ISACS), transfer is a:

general term encompassing the import, export, transit, transshipment and brokering of small arms or light weapons.

The definition notes that the term 'includes sales, leases, loans and gifts; re-export, licenced production abroad, and tangible and intangible transfers of equipment and technology for the purpose of producing small arms or light weapons.'ISACS 01.20: 'Glossary of terms, definitions and abbreviations', Version 1.0, 27 August 2012, http://www.smallarmsstandards.org/isacs/0120-en.pdf.

Last updated on: 08 February 2014