Press Contact: Daryl G. Kimball, Executive Director, (202) 463-8270 x107
Updated: October 2011
The arms trade treaty (ATT) is a potential multilateral agreement that will be negotiated by member states of the United Nations at a treaty conference scheduled for July 2012. The conference will be convened under the mandate of UN General Assembly Resolution 64/48, which was adopted in December 2009 with the support of 158 countries, including the United States.
History of recent negotiations
The contemporary ATT process began with a Nobel Laureates’ initiative in the late 1990s which provided the inspiration for a 2006 UN General Assembly Resolution (61/89). That resolution was co-sponsored by Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom, but was opposed by the United States.
A Group of Governmental Experts created by Resolution 61/89 published their report on the feasibility, scope, and parameters of a treaty in August 2008. The report highlighted several key issues that would later dominate discussions on the treaty:
- Respect for the sovereignty of state-parties and non-interference with “internal affairs” or “constitutional provisions;”
- “Objective and agreed global criteria” for approving arms transfers;
- Inclusion of small arms and ammunition within the scope of the treaty;
- Activities to be covered by the treaty, including potentially exports, imports, transfers; transit, trans-shipment, technology transfer, and foreign licensed production.
In December 2008, the UN General Assembly (Res. 63/240) endorsed the report and convened an Open-Ended Working Group to provide a more public forum for further discussion of these and other substantive issues.
On Oct. 14, 2009, U.S. Secretary of State Hillary Rodham Clinton announced that the United States would support the arms trade treaty negotiation process, and would vote in favor of a General Assembly Resolution creating a treaty conference. In addition to setting a 2012 date for the conference, Resolution 64/48 also converted four future planned Open-Ended Working Group meetings into Preparatory Committee meetings.
At the insistence of the United States, any final text that emerges from the July 2012 treaty conference must be adopted by consensus.
Two Rationales for a Conventional Arms Treaty
The first rationale for an ATT is the need to prevent legal transfers of arms to state end-users which should not be receiving arms from responsible exporting states. The normative prohibition against such transfers might be based on factors (or ‘objective criteria’) such as:
- The undermining of global, regional, local, or internal peace and security;
- Violations of international humanitarian law or human rights law;
- Involvement in genocide, crimes against humanity, or war crimes;
- Risk of diversion to organized criminals or terrorists;
- Impairment of socio-economic development[1];
- Risk of unauthorized re-export from the recipient state.
A potential “should not” standard is controversial in part because the right to approve arms sales and acquire arms is widely recognized by states as a basic exercise of sovereignty in the already-sensitive security sphere, and in part because determination of what constitutes a morally-problematic arms transfer will vary from state to state, barring the highly unlikely introduction of a supranational element.[2]
Bearing these limitations in mind, the ATT will likely include a commitment by states to take into consideration certain objective criteria, but a commitment that approaches the status of a legal prohibition on certain arms sales may be difficult to agree on.
The second rationale for the ATT is that it can help address the illicit smuggling of arms on the black and grey global markets. Many states want the ATT to create obligations to raise national trade controls to the level necessary to effectively enforce national trade regulations, as well as regional and international sanctions. The present lack of uniformly rigorous trade control systems allows conventional arms smugglers to exploit loopholes in licensing requirements to illicitly transport weapons to end-users that would normally be barred from acquiring them.[3] In some cases, poor enforcement is coupled with lax or non-existent regulations for controlling the arms trade and criminalizing illegal transactions across borders.
These two rationales, while addressing distinct problems, are intimately linked at several levels:
- On the most basic, the application of objective criteria for license approvals is impossible without the maintenance of working trade controls;
- Transfers to countries involved in internal or local hostilities often lead to the subsequent re-export of arms through illicit means;
- Lack of trade controls in an otherwise-non-problematic importing state would prevent an exporting state from properly assessing the risk of subsequent diversions of its goods[4];
- Efforts to mask politically-unpopular or sensitive legal shipments often involve the employment of brokers, transporters, and shipping means (aircraft or cargo vessels) more often associated with smuggling operations[5];
- Diversions of arms from legal shipments before they reach the intended end-user allow arms smugglers to similarly disguise their activities.
Scope
The conventional weapons and trade transactions that will be covered by the treaty are referred to as being within the scope of the treaty. The second Preparatory Committee meeting that took place in February-March of 2011 focused on scope, but states could not reach agreement on a list of arms and activities that satisfied all parties.
Weapons Categories: Most states agree that all of the weapons covered by the categories used in the UN Register of Conventional Arms should fall under the scope of the treaty. These include tanks, armored combat vehicles, artillery, combat aircraft and helicopters, warships, and missile systems. Most states, including the United States, are also in agreement that small arms and light weapons should be included in the treaty. The United States does not currently support the inclusion of ammunition within the scope, although many states do.[6]
Types of Transactions: Most states agree that imports, exports, transfers, and transshipment should be included. A model text proposed by the Chairman of the Preparatory Committee meetings reads:
“International arms transfers involve, the transfer of title or control over the equipment as well as the physical movement of the equipment into or from a national territory.”
Brokering of arms deals has also been included by many states in their proposals. The inclusion of technology transfer and manufacture under license is also widely supported, but several states, including India and Brazil have dissented on this issue.[7] According to a Brazilian statement made in July 2011, the inclusion of technology transfer would create a world of “haves” and “have nots” and would improperly mimic a nonproliferation treaty.[8] Several states have also proposed including an article in the treaty creating a blanket ban on the transfer of arms from governments to non-state actors.
A transfer that would fall under the purview of an ATT would have to involve arms covered by the treaty and be of a transaction type covered by the treaty.
Key implementation issues
In discussions at Preparatory Committee meetings and expressed in official statements, states have made it clear that implementation of the treaty must be conducted at the national level.[9] States will retain sovereign decision-making powers and have rejected supranational oversight of the treaty.
Reporting:[10] States have largely agreed that reports on steps toward full implementation of the treaty should be mandatory. These reports should include updates on legislation to bring national controls in line with the treaty’s requirements. Reports on application of the treaty have proven more controversial, however. Application reports would include details on arms transfers and license approvals.
Some states already provide public reports on some or all arms transfers. The U.S., for example, publishes an annual ‘655 report’ on direct commercial sales approved by the State Department’s Directorate of Defense Trade Controls.[11] Records of sales managed by the Department of Defense under the Foreign Military Sales program are also made public. European Union member states agreed to an arms sales “Code of Conduct” in 1998 that, among other obligations, asks member states to provide data for a joint EU annual report on arms transfers and licenses.[12] The reports on application of the ATT will likely be no more and possibly much less detailed than either of these examples.
While supporters of a strong ATT have called for annual reports on application of the treaty to be made public, a growing number of states oppose such a measure. At present, most state proposals support the sharing of reports between states-parties, without making them available to the general public. In addition, the publication of transfer license denial information has met with strong resistance for two reasons. While a number of states oppose such an obligation on the grounds of confidentiality or national security, others believe it would incorrectly imply that transfer approvals or denials require justification when they do not.
International Cooperation: For smaller states with weak existing trade controls, meeting the obligations of the treaty may prove difficult both in terms of financing and technical expertise. At the same time, arms smugglers often use these same states for transfer purposes precisely because of their lax standards. In the course of discussions with state proponents of the treaty, developing countries have stressed the importance of creating a framework for cooperation and aid as an integral part of the treaty.
Implementation Support Unit: While the ATT is unlikely to create a large secretariat, most states are in agreement that a small support unit will be needed to collate state reports and facilitate international cooperation projects. The size of an Implementation Support Unit (ISU) will ultimately depend on the roles assigned to it. Almost all states are in agreement that the ATT should not create a transnational regime that monitors the actions of state-parties or verifies reports. While proposals for a more intrusive ISU have been floated, none appear to have gained traction yet.
At present there also exist differences over whether the ISU should be hosted within the United Nations or should be separate and funded by states-parties alone.
Entry into Force: Finally, the question of the requirements for the treaty’s formal legal entry into force must be decided. To date, only a few states have expressed a preference on the requirements for entry into force of the treaty. Most states that have expressed a view on the issue have suggested that entry into force should be triggered when a certain number of signatories, many suggesting between 30 and 60 states, ratify the treaty. A small minority of states have advocated that the top arms-producing states must ratify in order to trigger entry into force.
Research assistance provided by Xiaodon Liang
[1] On global arms transfers to developing nations, see Richard E. Grimmett, ‘Conventional Arms Transfers to Developing Nations, 2002-2009’, Congressional Research Service, September 10, 2010, available at http://www.fas.org/sgp/crs/weapons/R41403.pdf
[2] The Economic Community of West African States has adopted a convention on small arms and light weapons which does incorporate a supranational arms transfer approval process. See http://www.unidir.org/pdf/articles/pdf-art2836.pdf
[3] See Amnesty International, ‘Deadly Movements: Transportation Controls in the Arms Trade Treaty’, July 2010, available at http://www.amnesty.org/en/library/asset/ACT30/015/2010/en/7898d591-f17a-4d8b-9836-17c3b9a11df3/act300152010en.pdf
[4] See Ilhan Berkol and Virginie Moreau, ‘Post-Export Controls on Arms Transfers: Delivery Verification and End-Use Monitoring’, Groupe de Recherche et d’Information sur la Paix et la Sécurité, 2009/4, available at http://3w.grip.org/en/siteweb/images/RAPPORTS/2009/2009-4.pdf
[5] See Amnesty International and Transarms, ‘Dead on Time – arms transportation, brokering, and the threat to human rights’, August 2006, available at http://transarms.org/a2.pdf
[6] On the arguments for inclusion of small arms ammunition, see Hilde Wallacher and Alexander Harang, ‘Small, but Lethal – Small Arms Ammunition and the Arms Trade Treaty’, Peace Research Institute Oslo, 2011, available at http://www.kirkensnodhjelp.no/Documents/Kirkens%20N%C3%B8dhjelp/Publikasjoner/Ymse%20publikasjoner/KN-rapport_Small%20but%20lethal_A.pdf
[7] On the need for controls in these two areas, see Control Arms Campaign, ‘Arms Without Borders: Why a globalized trade needs global controls’, October 2006, available at http://controlarms.org/wordpress/wp-content/uploads/2011/02/Arms-Without-Borders-why-a-global-trade-needs-global-controls.pdf
[8] Both India and Brazil are interested in acquiring defense technologies to bolster their national production capacities. Technology transfer is a major consideration in Indian defense acquisitions deals, following national policy.
[9] For an introduction to what national implementation might involve, see Oxfam, Saferworld, and the University of Georgia, ‘National Implementation of the Proposed Arms Trade Treaty: A Practical Guide’, 2010, available at http://controlarms.org/wordpress/wp-content/uploads/2011/02/National-Implementation-of-the-ATT-A-practical-guide.pdf
[10] For more on reporting mechanisms, see Paul Holtom and Mark Bromley, ‘Implementing an Arms Trade Treaty: Lessons on Reporting and Monitoring from Existing Mechanisms’, Stockholm International Peace Research Institute Policy Paper No. 28, July 28, 2011, available at http://books.sipri.org/files/PP/SIPRIPP28.pdf
[11] See reports at http://www.pmddtc.state.gov/reports/655_intro.html
[12] For example, see the twelfth edition of the EU annual report, covering 2010, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:009:0001:0417:EN:PDF