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Next Steps for the Arms Trade Treaty: Securing Early Entry Into Force

Paul Holtom and Mark Bromley

On April 2, the UN General Assembly adopted the text of the Arms Trade Treaty (ATT) by a vote of 156-3, with 22 abstentions.[1] After the treaty is opened for signature early this month, countries will sign it and prepare for its ratification according to their national procedures for considering treaties. The ATT requires ratification by 50 states before it can enter into force.

This article outlines several short-term steps that states can take to ensure that the ATT enters into force as soon as possible. It also describes long-term measures to increase the chances that significant arms-trading states that abstained from the vote in the General Assembly will become states-parties.

Ratification Checklist

The ATT outlines a number of obligations for states-parties to fulfill so that the treaty can be effective in regulating international arms transfers and preventing and combating illicit trade. The treaty text does not provide details on how states should fulfill these obligations, as the approach may vary by country. Experience from other areas shows that states can use different mechanisms to achieve the same goal. For example, an obligation to regulate arms brokering activities, such as introducing a buyer and seller of arms to each other, can be achieved by creating a licensing system for brokering activities or by banning such activities altogether.

Nonetheless, the text provides some guidance for prospective states-parties on reviewing their national laws and regulations to ensure they can fulfill relevant treaty obligations (see box). For many states, this review will result in the identification of gaps that need to be addressed before ratification can take place. Notably, under this approach, states would make their own assessment of whether they are in a position to ratify the ATT. Once the ATT enters into force, however, states-parties may seek clarification on whether others are fulfilling their obligations and hold each other to account.

In addition to these requirements, states-parties are obliged to prepare a report for the ATT Secretariat shortly after ratification, providing information on how the country is implementing the ATT. The ATT does not provide a format for this report, but experience shows that the provision of standardized reporting forms assists states in reporting under UN instruments. This issue will likely be addressed at the first conference of states-parties, but this will not help the states that are required to ratify the ATT before it enters into force and before the first conference of states-parties takes place. Translating the 15 items listed on page 10 into an “ATT ratification checklist” would help states to assess whether they are in a position to ratify the ATT. The staff of the provisional secretariat or experts from nongovernmental organizations (NGOs) could draft the ratification checklist. The secretariat and the NGOs also could provide assistance to states in undertaking their ratification assessment. In addition, the checklist could be presented to the first ATT conference of states-parties as a possible basis for a standardized form for state-party reports on implementation.

The ATT ratification checklist is far less daunting than it initially appears. Many of the obligations contained in the ATT already appear in existing international and regional instruments relating to transfers of conventional arms, particularly small arms and light weapons. These instruments include the UN program of action on small arms and light weapons; the UN Firearms Protocol; the Economic Community of West African States’ Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials; and the European Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment. Furthermore, much of the necessary information already is publicly available. As a result, it should be possible for nongovernmental experts to assist states with the completion of their ATT ratification checklists.

The checklist would draw on the methodology used to construct the matrix adopted in early 2005 as a tool for organizing information on measures undertaken by states to implement UN Security Council Resolution 1540. That resolution requires states to put in place “appropriate” and “effective” laws that prohibit any nonstate actor, primarily terrorists, from manufacturing, acquiring, possessing, developing, transporting, transferring, or using nuclear, chemical, or biological weapons and their means of delivery.[2] It also requires states to exercise control over legal transfers of dual-use goods and technologies.

In addition, the resolution established a committee and a group of experts to carry out its directives. The 1540 Committee’s group of experts developed a matrix of measures for implementation based on the resolution’s provisions and information provided by states. The innovation of this approach is that the group of experts constructed and completed a matrix for every UN member state regardless of whether the country had provided information to the 1540 Committee on implementation, using information provided directly to the committee and from other publicly available, official government information. The committee then made the matrices publicly available, and states were invited to amend or update their national matrix. This approach has enabled the 1540 Committee to generate reports that are far more detailed and accurate than those that rely entirely on submissions by states-parties.

The matrices have become an important tool for identifying areas in which states could benefit from assistance to strengthen elements of their national transfer control system. The matrices also have helped to relieve the burden on states that are required to complete multiple and often overlapping reports under different instruments. Before the ATT enters into force, the ATT ratification checklist could play the same role of identifying gaps that should be filled before ratification can take place. It can be used after entry into force by NGOs or the ATT Secretariat as part of efforts to assess states’ progress in fulfilling their commitments under the ATT and to provide assistance to states in implementing the ATT.

International Assistance

The ATT contains provisions on assisting states with treaty implementation after the treaty enters into force, but it does not elaborate on how states will be helped in preparing for treaty ratification before that point. Yet, a number of existing efforts already aimed at strengthening export controls are of relevance in this regard.[3] In addition, regional organizations and NGOs are preparing new forms of assistance that make greater use of online tools and that could help states before the ATT enters into force.

Since the early 1990s Australia, Japan, the United States, and some European states have been involved in strengthening the transfer controls of other countries, primarily in Asia and central and eastern Europe.[4] More recently, various UN agencies and regional organizations such as the European Union, the Organization for Security and Co-operation in Europe, and the Organization of American States have become involved in this field. The key pillars of these assistance programs include

  • reviewing, revising, or drafting transfer control laws, regulations, and control lists;
  • building capacity for government ministries and agencies involved in transfer controls—for example, export licensing officials and border, customs, and law enforcement services—and raising awareness in relevant administrative structures;
  • sharing experience to develop good interagency cooperation and coordination within a country;
  • donating equipment to assist with licensing, record keeping, and enforcement;
  • providing guidelines and standards for risk assessments; and
  • strengthening government relations and raising awareness of export control responsibilities for relevant sections of industry.

The programs involve legal reviews, training seminars, and workshops for a wide range of ministries and government agencies. Material assistance also is provided to improve interagency cooperation for licensing and enforcement and to broaden efforts to enhance capabilities for border surveillance and detection.

Because the primary motive for international assistance to strengthen transfer controls has been to prevent the proliferation of weapons of mass destruction, the focus for these programs has been on improving controls on transfers of dual-use goods and technologies. More recently, Australia, the EU, Japan, the United States, and some European states have provided assistance to help countries in their neighborhood and in sub-Saharan Africa to counter trafficking in small arms and light weapons. In many states, the laws, administrative procedures, agencies, and staff responsible for transfer controls for dual-use goods and technologies overlap with those for conventional arms, including small arms and light weapons. As a result, assistance provided for controlling dual-use goods often has benefits for conventional arms transfer controls and potentially for ATT-related assistance efforts.

In particular, existing efforts provide guidelines, model legislation, and other templates for helping states to identify gaps that ATT-related assistance efforts can help fill. In other cases, they represent ongoing efforts to which ATT-related elements can be added. In this sense, they provide vehicles for engaging in ATT-related outreach efforts aimed at states that have not signed or ratified the treaty.

Including the Abstainers

Among the 22 states that abstained from the UN General Assembly vote on adopting the draft ATT were two of the world’s largest arms exporters—China and Russia—and India, the world’s largest arms importer. Convincing these states to sign and ratify the ATT will require patient and nuanced lobbying efforts aimed at addressing those countries’ national concerns without diluting the content of the treaty itself. It is important for all stakeholders interested in making the international arms trade more transparent and responsible to engage in consultations with these states and understand their concerns. These interactions also could demonstrate to the skeptical countries the advantages of joining the ATT.

Of these states, China has shown itself to be the most open to exploring the possibility of signing and ratifying the ATT. China abstained from early General Assembly resolutions on the ATT between 2006 and 2011 and initially opposed the inclusion of ammunition and small arms and light weapons in its scope. Beijing also opposed an obligation for states to deny authorizations for arms exports that could be used to violate international humanitarian law and international human rights law.[5] As the negotiations progressed, however, China’s position gradually shifted, and Beijing appeared to accept the draft texts that were circulated at the close of the July 2012 and March 2013 negotiating conferences.

Unlike other abstaining states, China did not raise substantive objections to the content of the final draft of the treaty. China said it was abstaining because it opposed the adoption of a multilateral arms control treaty through a majority vote at the General Assembly. Beijing’s vote could reflect its concerns about the precedent that the ATT process might set for other arms control negotiations. In particular, China’s vote may be an attempt to block states that might seek to promote the “ATT model” as a means of overcoming the gridlock in the Conference on Disarmament, where the consensus rule has prevented agreement on a program of work since 1996.

Assessing what China has to gain or lose by signing and ratifying the ATT is made more complicated by the differing interests within China. According to a recent analysis, China was the fifth-largest arms exporter for the period 2008-2012.[6] In some respects, China has garnered a reputation of being a supplier of last resort for states that either cannot afford arms produced elsewhere or are deemed too much of a risk with regard to potential misuse or diversion. If China views the implementation of the ATT as a potential threat to these transfers, it might choose not to sign and ratify the treaty.

Chinese arms companies are seeking to produce and potentially export more-sophisticated systems. These companies also have interests in civilian areas that would benefit from collaboration with entities based in Europe and North America. In both areas, building a reputation as a more responsible arms exporter could be beneficial. In addition, China’s Ministry of Foreign Affairs appears to be increasingly interested in countering the negative impressions created by certain Chinese arms exports. This was true in 2008 when China sought to deliver arms and ammunition to Zimbabwe at a time of electoral violence and in 2011 when it was revealed that Chinese company representatives attempted to sell arms to Libya when it was subject to a UN arms embargo. In the latter case, Chinese officials emphasized that the Chinese government was not aware of the discussions and that steps would be taken to tighten controls.[7] Such considerations may argue in favor of a decision to sign and ratify the ATT.

In contrast to China, Russia came to realize only at a very late stage in the process that the ATT was likely to become reality. As a result, Moscow did not engage constructively in the negotiations until it was too late to have a significant impact on the text.

In explaining its abstention, Russia, like China, noted that the treaty text was put to a vote in the General Assembly and stressed the need for a consensus outcome. In contrast to China, however, Russia raised a number of substantive objections to the final text. In particular, Russian officials highlighted the lack of a ban on arms supplies to unauthorized nonstate entities, despite the support for this proposal by many states.[8] Although Russia said it would study the draft treaty, the underlying tone of its statements suggests that it is unlikely to sign the ATT in the near future.

Russian analysts argue that there is no domestic arms lobby that opposes the treaty, but point to a broader feeling that the ATT does not give anything to Russia and could be manipulated to exert diplomatic pressure on Russia regarding its arms exports.[9] This sense of unease was strengthened by the conference participants’ frequent references to Russian arms supplies to Syria as a concrete example of where an ATT would force a state to cut off arms supplies.

Russia already has the technical requirements in place to fulfill many of the obligations contained in the ATT. Although Russian President Vladimir Putin has declared Russia to be a responsible arms exporter, signing and ratifying the ATT would demonstrate that this is the case.[10] It would also show that Russia is willing to adhere to evolving global norms on the humanitarian impact of the international arms trade. More substantially, signing and ratifying the ATT would allow Russia to attend the conferences of states-parties and influence the treaty’s development.

The ATT does address the prevention of arms transfers to nonstate actors, with explicit references to terrorists in particular. If Russia would like to be involved in the development of understandings on these issues within the ATT framework, then it needs to sign and ratify the treaty. Attending the meeting of states-parties also would allow Moscow to raise its own concerns with other states’ arms exports. Russia sought to draw attention to arms supplies to Georgia before the August 2008 conflict and frequently complains that its concerns were ignored. The ATT conference of states-parties would provide a key venue to raise these types of concerns in the future.

India gave a strongly worded explanation of its abstention, implying that it had come very close to voting no. This was despite the inclusion in the final text of a clause stipulating that defense cooperation agreements would not be affected by the treaty, which was India’s key demand throughout the negotiations. Like Russia, India raised the issue of the lack of a ban on transfers to unauthorized nonstate actors in explaining its position. India provided little else of substance to explain the intensity of its opposition.

India is not only the world’s largest arms importer, but also aspires to develop its own arms industry and join all four export control regimes—the Nuclear Suppliers Group; the Missile Technology Control Regime; the Australia Group, which “seeks to ensure that exports do not contribute to the development of chemical or biological weapons”; and the Wassenaar Arrangement, which promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies as a means of preventing destabilizing accumulations of arms.

For example, Indian Foreign Secretary Ranjan Mathai has declared that India aspires to join the Wassenaar Arrangement and presents India as a “like-minded country” with regard to export controls on conventional arms and dual-use goods and technologies.[11] To become a member of these regimes, however, a state must gain the support of all existing members. It will be very interesting to monitor the reaction of the Wassenaar Arrangement’s participating states, most of whom have been key supporters of the ATT, to Indian hopes to join the regime while remaining outside the ATT. For this reason, India might yet be persuaded to sign and ratify the ATT if it has serious ambitions to join existing export control regimes and demonstrate that it is a like-minded state with regard to export controls.

After Entry Into Force

Once 50 states have signed and ratified the ATT and the treaty has entered into force, a new set of challenges will emerge. First, it will be necessary to reconcile ATT reporting requirements with existing reporting requirements under other instruments in the field of arms transfers and arms transfer controls. For example, the ATT says that the required annual reports on arms imports and exports may contain the same information as states’ required submissions under the UN Register of Conventional Arms. There have been calls for merging the ATT reporting mechanism with the UN Register or even replacing the UN Register with an ATT reporting mechanism.

Neither of these options is realistic. Only states that have signed and ratified the ATT will be obliged to submit reports to the ATT Secretariat, while all UN member states are called to provide information for the UN Register. Further, the scope of the two instruments does not match. States are currently invited to submit information for the UN Register on military holdings, defense white papers, and procurement from national production, none of which are covered by the ATT. At the same time, although small arms and light weapons are included in the scope of the ATT, they are not included in the current scope of the UN Register proper. There are high hopes that the group of governmental experts currently reviewing the operation and development of the UN Register will expand the register’s scope to include small arms and light weapons as an eighth category, but this is not guaranteed.

A second issue that will need to be confronted once the ATT enters into force is the need to provide states with the assistance they require to implement their treaty obligations effectively. The ATT will play an important role in fostering the political will necessary to establish, modernize, and strengthen national transfer control systems and efforts to combat illicit arms trafficking. The treaty envisages that the secretariat will perform a clearinghouse role in international assistance efforts by matching needs and resources. Experience from existing instruments shows that it will need to play an active role in identifying states’ needs and connecting them with providers of assistance.

The 1540 Committee has a clear mandate to act as a clearinghouse to match needs and resources. It provides states with a template for making assistance requests, and the committee of experts actively undertakes informal matchmaking. The committee’s approach appears to have been effective. In September 2011, 37 of the 39 requests for assistance distributed to states, regional and international organizations, and NGOs in November 2010 had been met via bilateral or multilateral programs.[12]

Finally, there will need to be mechanisms to ensure that states-parties live up to their commitments under the ATT. Such commitments include applying the prohibitions and criteria on arms exports and fulfilling reporting obligations. States-parties will play a key role in holding their peers to account, but NGOs, which were crucial in promoting the ATT initiative, clearly will also be central to the process. NGO activities could include monitoring the international arms trade, uncovering illicit arms transfers, highlighting irresponsible arms transfers, and evaluating states’ transfer control systems.

A number of NGOs are already active in each of the areas; their efforts should receive a boost if the ATT enters into force. Whether there will be a need for an ATT Monitor, comparable to the Landmine and Cluster Munition Monitor that has proven so effective at overseeing implementation of the Ottawa Convention on anti-personnel mines and the Convention on Cluster Munitions, remains to be seen.

In contrast to these two conventions, which prohibit the transfer of landmines and cluster munitions, the ATT outlines a limited range of circumstances under which transfers shall not be authorized. The ATT’s lack of provisions for monitoring actual transfers or mechanisms for assessing whether particular transfers are carried out in accordance with the letter and spirit of the treaty means that this is an area in which NGOs can make a considerable contribution. The need to monitor implementation of the ATT, notably including the results of states-parties’ national export assessments, argues in favor of different NGOs or groups of NGOs monitoring different aspects of ATT implementation.

The adoption of the ATT text in April 2013 was a historic moment for international efforts to regulate the global arms trade. Yet, this was just the start of a new chapter that will require further negotiation among states and further advocacy aimed at convincing states to sign and ratify the treaty.

There are high hopes for the ATT’s impact on peace, conflict prevention, and respect for international human rights and humanitarian law, as well as on increasing transparency in the global arms trade. States will need to undertake considerable technical work to strengthen transfer control systems, in particular with regard to enforcement.

For some states, the ATT will not require significant changes to their legal and administrative arrangements for controlling arms transfers. Therefore, optimists predict that an ATT can enter into force three years from now. It remains to be seen if all of the major arms exporters will be on board when the ATT enters into force. What impact will the ATT have if major exporters and importers do not sign or ratify the ATT? Will it be business as usual for these states, which could include China and Russia?

An ATT with a large number of states-parties will send a powerful signal to those that do not join, but to really prevent conventional arms from reaching states and other entities that are seeking to use them for nefarious ends, all major exporters and importers need to be encouraged to sign the ATT, ratify it, and fulfill their obligations under it.

A Ratification Checklist for the ATT

The Arms Trade Treaty (ATT) contains a number of obligations for a state-party. The main obligations could form the basis of a checklist, which states could use before ratification to assess their compliance with the treaty or to identify areas in which they require international assistance to fulfill their obligations. These main obligations are

  • establishing and maintaining an effective national control system for the export, import, transit, and transshipment of and brokering activities related to (all defined as “transfers” in the ATT) the eight categories of conventional arms covered by the ATT, as well as exports of related ammunition and of parts and components that are used for assembling conventional arms covered by the treaty (Articles 3, 4, and 5.2);

  • establishing and maintaining a national control list (Article 5.3) and making it available to other states-parties (Article 5.4);

  • designating competent national authorities responsible for maintaining this system (Article 5.5);

  • designating at least one national contact point responsible for exchanging information related to the implementation of the ATT (Article 5.6);

  • prohibiting transfers of conventional arms, ammunition, or parts and components for the eight categories of conventional arms covered by the ATT that would violate obligations under Chapter VII of the UN Charter or international agreements relating to the transfer or illicit trafficking of conventional arms or where there is knowledge that the items will be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, or other war crimes (Article 6);

  • reviewing applications for exports of the eight categories of conventional arms covered by the treaty and conducting a national export assessment on the risk that the exported arms could have “negative consequences” for peace, security, and human rights, denying an arms export if the assessment determines that there is an overriding risk that the exported arms will be used to commit or facilitate a serious violation of international humanitarian or human rights law or offenses under international conventions or protocols relating to terrorism or international organized crime and taking into account the risk of the exported arms being used to commit or facilitate serious acts of gender-based violence or violence against women and children (Article 7);

  • taking measures to regulate conventional arms imports (Article 8);

  • when importing conventional arms, providing information to assist the exporting state-party in conducting its national export assessment, including by providing documentation on the end use or end user (Article 8);

  • taking measures, where necessary and feasible, to regulate the transit and transshipment of conventional arms (Article 9);

  • taking measures to regulate brokering taking place under its jurisdiction (Article 10);

  • taking measures, including risk assessments, mitigation measures, cooperation, and information sharing, to prevent the diversion of conventional arms to the illicit market or for unauthorized end use and end users (Article 11);

  • maintaining national records for each export authorization or delivery of conventional arms for at least 10 years (Article 12);

  • providing annual reports to the secretariat on export and import authorizations or deliveries of conventional arms to be distributed to states-parties (Article 13);

  • taking appropriate measures to enforce national laws and regulations to implement the treaty (Article 14); and
  • cooperating with other states-parties in order to implement the ATT effectively (Article 15).

Paul Holtom is director of the arms transfers program at the Stockholm International Peace Research Institute. Mark Bromley is a senior researcher in the same program.


ENDNOTES

1. The original vote in the UN General Assembly on April 2 recorded 154 states in favor, three states opposed, and 23 abstaining. Angola wanted to change from abstention to a vote in favor of the treaty, and Cape Verde wished to vote for the resolution rather than being marked as not present. Jeff Abramson, “Special Report: UN General Assembly Adopts Arms Trade Treaty in Overwhelming Vote,” Arms Control Today, May 2013.

2. UN Security Council, S/RES/1540, April 28, 2004.

3. Paul Holtom and Mark Bromley, “Implementing an Arms Trade Treaty: Mapping Assistance to Strengthen Arms Transfer Controls,” SIPRI Insights on Peace and Security, No. 2012/2 (July 2012), http://books.sipri.org/files/insight/SIPRIInsight1202.pdf.

4. Sibylle Bauer, “Arms Trade Control Capacity Building: Lessons Learned From Dual-Use Trade Controls,” SIPRI Insights on Peace and Security, No. 2013/2 (March 2012), http://books.sipri.org/files/insight/SIPRIInsight1302.pdf.

5. Statement by China at the Second Preparatory Committee for the UN Conference on the Arms Trade Treaty, February 28, 2011, http://www.un.org/disarmament/convarms/ATTPrepCom/Documents/Statements-MS/PrepCom2/20110228/20110228China-C.pdf (in Chinese).

6. Paul Holtom et al., “Trends in International Arms Transfers, 2012,” SIPRI Fact Sheet, March 2013, http://books.sipri.org/files/FS/SIPRIFS1303.pdf.

7. Chris Stephen and Caroline Alexander, “Libya Leaders Say China Relationship Will Suffer If Arms Sold to Qaddafi,” Bloomberg, September 6, 2011.

8. “Russia Warns That It May Not Sign Landmark UN Arms Treaty,” The Moscow Times, April 4, 2013.

9. “Russia’s Special Opinion on the Arms Trade Treaty,” Valdai Club, April 17, 2013, http://valdaiclub.com/defense/57540.html.

10. Official Site of the President of Russia, “Meeting of the Commission for Military Technology Cooperation With Foreign States,” October 17, 2012, http://eng.state.kremlin.ru/news/4531/print.

11. Indian Institute for Defence Studies and Analyses, “Keynote Address by Foreign Secretary Ranjan Mathai at the Ministry of External Affairs, Institute for Defence Studies and Analyses (IDSA) National Export Control Seminar,” April 18, 2012, http://idsa.in/keyspeeches/AddressbyForeignSecretaryShriRanjanMathai.

12. UN Security Council, “Letter Dated 12 September 2011 From the Chair of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council,” S/2011/579, September 14, 2011 (1540 Committee Report).