2013 Arms Trade Treaty

The campaign for an international arms trade treaty can be traced back to 1997, when a group of Nobel Peace Prize laureates voiced concern over the destructive effects of the unregulated arms trade and published a draft International Code of Conduct on Arms Transfers. In 2003, a group of NGOs circulated a revised version of the document as a Draft Convention on International Arms Transfers. Shortly thereafter, Amnesty International, the International Action Network on Small Arms, and Oxfam launched the Control Arms campaign to push for a binding international agreement.

States took the matter over in 2004, when a group of states, under the informal lead of the United Kingdom, pledged to work towards an Arms Trade Treaty (ATT). A meeting was organised in 2005 in Dar es Salaam, at which 31 governments agreed to move forward a process to establish global principles on arms transfers based on existing international law. Momentum was growing.

The issue was brought over to the United Nations. In December 2006, at the 61st session of the UN General Assembly, seven states introduced a resolution in the First Committee entitled ‘Towards an Arms Trade Treaty’.UN General Assembly Resolution 61/89 of 18 December 2006. Its central request was to establish a Group of Governmental Experts to examine the feasibility of a treaty. It also called on the UN Secretary-General to invite states to give their views on the feasibility, scope, and draft parameters of such an instrument. A total of 139 states supported the resolution – the United States was the only one to oppose it. The states who abstained generally questioned the necessity of a Group of Governmental Experts, but did not necessarily question the idea of a treaty.

The views of more than 92 states were compiled into a UN Secretary-General report. A majority of states were calling for a treaty based on international human rights law and international humanitarian law. At the same time, representatives from 28 states formed a Group of Governmental Experts (GGE) to further examine the feasibility of a treaty. The GGE held three sessions between February and August 2008 before adopting a final report.Towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms, UN doc. A/63/334, 26 August 2008.

Four issues stood out as especially contentious: goals and objectives, feasibility, scope, and parameters.M. Spies, ‘Towards a negotiating mandate for an Arms Trade Treaty’, Acronym Institute, 1 August 2009. Goals and objectives referred to the problems a treaty was meant to resolve: would it be limited to the prevention of terrorism or would it address all arms transfers? Major arms exporters were reluctant to acknowledge the contribution of weapons transfers to armed conflict. Feasibility referred to the objective of the ATT as a universal, objective and non-political and non-discriminatory instrument. Several states did not consider a treaty feasible at all, while others questioned the idea of a legally binding instrument. The scope referred to the type of weapons, activities or transactions to be covered by the ATT. Would it include licensing, brokering, transshipment? Would it cover weapons in the UN Register of Conventional Arms, or also small arms and light weapons? What about ammunition? Finally, the parameters referred to the substance of the treaty, including the potential range of criteria to apply in reviewing transfer applications. Would the criteria include human rights? Would these criteria be assessed based on actual record of abuses, or on forward-looking risk?

The GGE was forced to leave most of these questions open. So in December 2008, the General Assembly passed the second Arms Trade Treaty resolution, by which it established an Open-Ended Working Group (OEWG) to further develop the elements contained in the GGE report. The OEWG was meant to hold six one-week sessions between 2009 and 2011 in an attempt to reach consensus. States at that point preferred taking more time to resolve issues, aiming at an instrument universal in scope. There was uncertainty, however, as to whether the UN budget would be able to finance such an extensive process. And the OEWG was still plagued by divisions among some states – including many of the major arms exporters – over the feasibility of a treaty. Language on substantive elements proved difficult to agree, and several key elements had to be dropped.

After two meetings, the OEWG produced a draft report, which was endorsed by the General Assembly in December 2009.Draft report of the Open-ended Working Group towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms, UN doc. A/AC.277/2009/L.4/Rev.1, 16 July 2009. At that point, states decided there was enough support for a treaty that formal work could begin in earnest. The General Assembly decided to set aside four weeks in 2012 to convene a United Nations conference on an Arms Trade Treaty, which would seek to ‘elaborate a legally-binding instrument on the highest possible common international standards for the transfer of conventional arms’.UN General Assembly Resolution 64/48 of 2 December 2009, §4. This time, with a reference to negotiations on the basis of consensus, the United States supported the resolution. As a result, the OEWG did not reconvene, and was replaced by four Preparatory Committee (PrepCom) meetings.

Two weeks of PrepComs were held in July 2010 and a further one each in March and July 2011. The negotiations during the meetings remained tough, with some states – Syria, Iran, Russia, Iran, Egypt, Venezuela, Cuba, and others – lobbying hard for a consensus approach that would effectively give them a veto over the final text. China on the other hand appeared a quiet supporter of an ATT.

In July 2012, during a four-week Diplomatic Conference, states still failed to achieve consensus on the text. Negotiations were often opaque, held in closed sessions. A first draft treaty was tabled on 24 July, but widely criticised as weak.E. Kirkham, ‘The 2012 Arms Trade Treaty negotiations: Controversy, compromise and disappointment’, Saferworld Briefing, 18 October 2012. A new text was tabled on 27 July. The new draft contained several compromises pushed by the United States, such as excluding ammunition and defence cooperation agreements from its scope. Yet on the final morning of the conference, the United States still asked for ‘more time’, effectively blocking consensus on the text. The draft treaty was nevertheless annexed to the report of the conference, therefore providing it with official status.

A resolution was tabled at the First Committee of the UN General Assembly in October 2012, which endorsed the draft text as basis for discussion. A new round of negotiation was held from 18 to 28 March 2013. The conference was submitted to the consensus rule again, but the General Assembly remained ‘seized’ of the matter. The draft text was submitted to a vote and passed by an overwhelming majority of states on 2 April 2013.

The Arms Trade Treaty begins by setting out a number of overarching principles, such as the right to individual or collective self-defence, the peaceful settlement of disputes, non-intervention in the domestic affairs of states, the importance of human rights and humanitarian law, the primary responsibility of states to regulate the arms trade and prevent their diversion, but also their right to produce, export, import and transfer conventional arms.

The stated objective of the treaty is to ‘establish the highest possible common international standards’ for the regulation of the international arms trade, and to prevent their diversion.Art. 1, 2013 Arms Trade Treaty.

Its scope extends to all conventional arms: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons,Art. 2. including their parts and components,Art. 4. and related ammunition.Art. 3. States are encouraged to apply the treaty to the broadest range of weapons possible.Art. 5(3). The treaty understands ‘transfer’ as referring to export, import, transit, trans-shipment or brokering.Art. 2.

The treaty requires states to establish a national control system, including control lists and national points of contact,Art. 5. and national laws and regulations.Art. 14.

The treaty spells out criteria against which transfer applications must be considered. In three cases, arms transfers are prohibited: where they would violate measures adopted by the UN Security Council, such as arms embargoes,Art. 6(1). where they would violate international agreements to which the potentially transferring state is a party,Art. 6(2). or where the weapons would be used in the commission of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, or other war crimes.Art. 6(3).

In other cases, export applications must be considered in the light of the possibility that the weapons would undermine peace and security, be used to commit or facilitate violations of humanitarian or human rights law, terrorism or transnational organized crime,Art. 7(1). gender-based violence and serious acts of violence against women and children,Art. 7(4). or where there is a risk of diversion.Art. 11. If this is the case, the exporting state will consider risk mitigation strategies.Arts. 7(2) and 11(2). If the risk remains (apart from, seemingly, gender-based violence and serious acts of violence against women and children), the export shall be denied.Arts. 7(3) and 11(2). Also, if the situation changes after the export has been authorized, the authorization should be re-considered.Art. 7(7).

Detailed records of arms transfers must be kept for a minimum of 10 years,Art. 12. and information will be shared with importing, transit and trans-shipment states.Art. 7(6).

Importing states must put in place adequate importing systems, share all relevant information with exporting states, and may request information on pending or actual export authorizations.Arts. 8 and 11(3).

Transit and trans-shipmentArts. 9 and 11(3). and brokeringArt. 10. will similarly be regulated.

All states will take measures to prevent or stem the diversion of conventional arms, particularly by sharing informationArts. 11 and 15(5). and stemming corrupt practices.Art. 15(6). States are also encouraged to share good practicesArts. 13 and 15. and provide international assistance.Art. 16. A voluntary trust fund will be set up to facilitate implementation.Art. 16(3).

A Secretariat is established to assist states with the implementation of the treaty.Art. 18. One year after becoming party to the treaty, states are to provide an initial report on measures taken to implement the treaty.Art. 13. A conference of states parties will be convened.Art. 17. New measures should be reported after they have been adopted.Art. 13. In addition, states parties will submit an annual report of actual exports and imports of conventional arms.Art. 13.