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– Gary Samore
Former White House Coordinator for Arms Control and WMD Terrorism
P5 Commits to Arms Trade Negotiations

Xiaodon Liang

Representatives of UN member states came away from a July 11–15 meeting in New York with a statement of ­support from the five permanent members of the Security Council (P5) for the arms trade treaty (ATT) negotiation process and the first full but controversial and unofficial text of what a treaty might look like.

The meeting was the third session of the Preparatory Committee (PrepCom) for the United Nations Conference on the Arms Trade Treaty. That conference, which will take place next July, is where the treaty will be formally negotiated and opened for signature if the participants can reach consensus on the text. (See ACT, April 2011.) A fourth preparatory meeting focused on administrative matters is scheduled for February 2012.

Roberto García Moritán of Argentina continued to serve as chairman of the treaty discussions. García Moritán has released a series of informal “nonpapers,” which are based on his impressions of states’ views and are intended to stimulate debate on substantive issues. As with previous versions, the latest nonpaper, dated July 14, is not a draft treaty and does not reflect consensus viewpoints. However, it is the first text that includes all or most of the elements of a final ATT, including goals and objectives, the scope of the treaty, criteria for states to consider in authorizing arms transfers, responsibilities for the creation of national transfer authorization systems, further rules for implementation, and final provisions.

In their July 12 joint statement, the P5—China, France, Russia, the United Kingdom, and the Unites States—hailed the treaty’s potential to help solve “key problems resulting from the illicit trafficking and uncontrolled proliferation of conventional arms.” The five countries reaffirmed their joint understanding that the proposed ATT should not be “a disarmament treaty nor should it affect the legitimate arms trade or a state’s legitimate right to self-defence.” In a separate statement issued July 15, Alistair Burt, parliamentary undersecretary of state in the British Foreign and Commonwealth Office, said that the treaty would enhance competitiveness and create a “level playing field” for the global defense industry.

In their statements to the conference, delegations agreed that implementation of an ATT should be conducted at a national level and that each state would be responsible for enacting  measures to control trade as mandated by the treaty. States also broadly agreed to report on efforts toward implementation of the treaty. Some parties aired concerns that, without a commitment from larger countries to provide international assistance and expertise to smaller states, the latter would be disinclined to take on new commitments, thus damaging the universality of the treaty. That point was mentioned in a joint statement issued by the Caribbean Community and was repeated by other ­developing countries.

Regular reporting on application of the treaty proved a more contentious topic. Although many states, such as the Netherlands and South Korea, called for regular obligatory reporting, the contents of reports that will be explicitly mandated by the treaty remain unclear. Brazil, India, Israel, and other countries cited confidentiality and national security concerns as grounds for preferring less-detailed, aggregate reports to be shared among states-parties alone. García Moritán’s latest nonpaper no longer contains a requirement for reports of license approvals to be made public. In addition, widespread opposition to an institutionalized procedure for sharing information on transfer denials prevented inclusion of such a measure in the most recent nonpaper. Finland echoed the views of several other states in stating that the justification of transfer denials would improperly imply a right to receive arms transfers.

Many states applauded the work of the PrepComs in illuminating areas of disagreement and agreement on ATT proposals, but several countries said they doubted whether real progress had been made toward providing concrete proposals to the 2012 conference given lingering differences on such fundamental issues as the scope of the treaty. A Russian delegate stated that discussing implementation of a treaty with an undefined scope was equivalent to “construct[ing] the roof of a house that has neither foundation nor walls.” U.S. Acting Deputy Assistant Secretary of State for Non-Nuclear and Counter-Proliferation Ann Ganzer told a Department of Commerce conference July 20 that negotiations beginning next year “promise to be complex” but that the United States remains “committed” to seeking a treaty that reflects the “highest international standards possible.”

Additional Views on Implementation

States remain divided on whether an implementation support unit (ISU) should be housed within the United Nations or be independent and funded by states-parties alone. The Grenadian representative expressed concern that if the former approach were taken, UN members not party to the treaty might be unwilling to pay dues to support an ISU. More controversial however, was the future role of any permanent administrative body. States largely agreed that, at a minimum, an ISU should play some role in facilitating international assistance and acting as a repository for national reports. More ambitious proposals put forward by supporters of a stronger treaty include giving the ISU a role in verifying the accuracy of reports, arbitrating denials, and identifying implementation gaps. Sweden and Switzerland separately proposed outlining minimalist tasks for the ISU in the treaty itself but allowing annual meetings of states-parties or periodical review conferences to enumerate additional roles after the treaty enters into force.

For entry into force, a number of states have supported a simple threshold of between 30 and 60 ratifications, while others indicated that they were flexible on the issue. Brazil said that a strong ATT with a transfer denials exchange system and compulsory, comprehensive reporting requirements should include a select tier of primary arms-producing states that would be required to ratify the treaty before it came into force, while a weaker treaty would not need such an arrangement. Brazil separately called for a stronger disarmament focus and a treaty that would create additional obligations for arms-producing states. A minority of states, in particular India and a number of Arab countries, also have called for such a focus, while many participants in the discussion rejected the possibility outright.

An Emergent Opposition

Two nongovernmental organizations that attended the July PrepCom, the World Forum on the Future of Sport Shooting Activities and the National Rifle Association, made statements arguing that civilian firearms should not be included in the scope of the treaty. This position and other concerns were included in two letters addressed to the White House and Department of State, circulated by the offices of Sens. Jerry Moran (R-Kan.) and Jon Tester (D-Mont.) and signed by 55 other senators.

Both letters cite potential conflict with the right of U.S. citizens to own firearms as the leading cause for concern with the treaty process and demand that the Obama administration not support a treaty with limits on domestic ownership of civilian firearms.

The UN General Assembly resolution that established the process acknowledges the exclusive right of states to regulate such ownership, including through “national constitutional protections,” and states have reaffirmed this right in their statements at PrepCom meetings. Although some states, such as Russia, have emphasized the importance of controlling all stages of a weapon’s life cycle in order to prevent diversion, no proposal to obligate states to enact legislation limiting the domestic ownership of any weapons included in the scope of the treaty has gained wide support.

At present, many countries, including the United States, continue to support the inclusion of all small arms and light weapons within the scope of the treaty. According to the Swiss delegation, such weapons should be included “given, in particular, the roles these weapons play in fueling armed violence around the world.”