Bid to Craft Arms Trade Treaty Stalls

Farrah Zughni and Daryl G. Kimball

A month-long UN diplomatic conference to negotiate the first-ever treaty to regulate the international arms trade failed to reach consensus on a final document by its July 27 deadline as a handful of key countries, including the United States, said they needed additional time to resolve their concerns with the proposed draft of the pact.

The meeting, which brought together more than 190 countries at the United Nations July 2-27, overcame procedural difficulties as well as numerous conflicting positions on substance and appeared to be close to agreement on a 12-page treaty text that was circulated by conference president Roberto García Moritán on July 26. The general aim of an arms trade treaty (ATT) is to require that all states put in place national regulations on international arms transfers, establish common international standards for approving the transfers, and mandate regular reporting (see box).

The apparent momentum for an agreement was halted by the unexpected announcement by U.S. Assistant Secretary of State for International Security and Nonproliferation Thomas Countryman of unresolved U.S. objections to the July 26 draft treaty text. Addressing the plenary meeting on July 27, Countryman said he did not see problems with the document’s general framework but that he still had concerns about a few aspects of the text.

The United States “wishes to see all progress preserved for a successful treaty, but I have to say that my capital does not have the time that is needed to address these issues; we need to not take a step backward but to get this right,” Countryman told the conference.

Shortly after Countryman spoke, Russia and a handful of other delegations joined the call for more time to negotiate a final text. In a July 27 story, the Associated Press quoted a Western diplomat as saying the United States had “derailed” the process and that it was likely that no further action would be taken on the treaty until after the U.S. elections in November.

Many states expressed disappointment with the outcome, particularly because the July 26 draft negotiated by the conference had incorporated major U.S. proposals and avoided U.S. negotiating “redlines,” according to several diplomats.

“We came to New York to achieve a strong and robust Arms Trade Treaty. We had expected to adopt such a draft Treaty today. We believe we were very close to reaching our goals,” said the Mexican delegation in a written statement on July 27 on behalf of more than 90 countries, including major arms exporters France, Germany, and the United Kingdom.

“Compromises have had to be made, but overall the text…put forward yesterday has the overwhelming support of the international community,” the governments’ statement said.

Some major human rights organizations blamed the United States for the outcome. “This was stunning cowardice by the Obama administration, which at the last minute did an about-face and scuttled progress toward a global arms treaty, just as it reached the finish line,” Suzanne Nossel, executive director of Amnesty International USA, said in a July 27 statement. “It’s a staggering abdication of leadership by the world’s largest exporter of conventional weapons to pull the plug on the talks just as they were nearing an historic breakthrough,” she said.

Key Elements of the Proposed ATT

The July 26 draft text of an arms trade treaty (ATT) would require all states-parties to adopt basic regulations and approval processes for the flow of weapons across international borders, establish common international standards that must be met before arms transfers are authorized, and require annual reporting of such transfers. In particular, the July 26 ATT text would

• require that states “shall establish or update, as appropriate, and maintain a national control list” and “shall designate competent national authorities in order to have an effective and transparent national control system regulating the international transfer of conventional arms.” (Currently only 90 countries have international arms transfer regulations.)

• prohibit arms transfers to states if the transfer would violate “obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes;” other “relevant international obligations;” or would be “for the purpose of facilitating the commission of genocide, crimes against humanity, [or] war crimes constituting grave breaches of the Geneva Conventions”;

• prohibit an arms transfer if the state determines there is an “overriding risk” that the transfer could be used to “commit or facilitate a serious violation of international humanitarian law,” “a serious violation of international human rights law,” or an act of terrorism;

• require that states “shall establish and maintain a national control system to regulate the export of ammunition for conventional arms under the scope” of an ATT and shall apply the authorization criteria and prohibitions established by the treaty prior to authorizing any export of ammunition;

• require that each state “shall take the appropriate measures, within its national laws, to regulate brokering taking place under its jurisdiction for conventional arms under the scope” of an ATT; and

• enter into force when 65 states ratify the treaty.

Tough Negotiations

Before and during the July conference, it was not clear whether it would be possible for so many states to achieve consensus on a treaty in such a short time. The start of the conference’s work was delayed for two days when a group of countries, led by Egypt, proposed that the Palestinian Authority be granted voting status at the conference. A walkout by some states that oppose voting status for the Palestinians was avoided when a compromise was forged that granted the Palestinian Authority and the Vatican observer status.

Through long hours of parallel working sessions and informal consultations, the diplomats offered divergent perspectives and struggled to reach agreement on core elements of the treaty, including its scope and the criteria for evaluating arms transfers. (See ACT, July/August 2012.) By the last week, bottom-line positions became more apparent, and García Moritán presented a consolidated draft text on July 24. A revised version followed on July 26, just one day before the scheduled close of negotiations.

Some states pushed for an ATT with a relatively broad scope, while others sought a narrower one. In the end, the states could agree only that the draft treaty text should cover seven categories derived from the existing UN Register of Conventional Arms—battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, and missiles and missile launchers—plus small arms and light weapons.

Most states argued that the treaty’s scope should include transfers of ammunition, but some, including the United States, resisted its inclusion in the scope section of the treaty. The July 26 text struck a compromise that would obligate states-parties to regulate only the export of ammunition.

There also were competing proposals on how the treaty should address arms transfers that contribute to human rights abuses. The July 26 treaty text contains a compromise formula that would prohibit an arms transfer if the state determines there is an “overriding risk” that the transfer could be used to “commit or facilitate a serious violation of international humanitarian law,” “a serious violation of international human rights law,” or an act of terrorism.

Toward the end of the conference, treaty supporters were most concerned about the possibility that countries such as Algeria, Egypt, Iran, North Korea, and Syria—all of which had voiced strong opposition to central components of the agreement—might decide to block consensus. Prior to Countryman’s statement, however, no delegation had publicly declared that consensus at the conference would not be possible.

Once it became clear that adoption of a final treaty text was out of the question, the conference approved a report for the UN General Assembly relaying the meeting outcome.

UN Secretary-General Ban Ki-moon issued a statement July 27 calling the forum’s “inability” to conclude its work a “setback.”

“There is already considerable common ground and states can build on the hard work that has been done during these negotiations,” he said.

U.S. Concerns

In his July 27 remarks, Countryman listed a number of specific issues that the U.S. delegation found problematic in the July 26 text. None of the points he raised, however, disputed the core treaty elements, such as the scope, criteria for determining whether an arms transfer should be authorized, and prohibitions on certain transfers.

Countryman criticized language in Article 5 that says the treaty “shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements.” Diplomatic sources say the provision was included at the insistence of India over the objections of many states. Countryman argued that the language was “so broad that it threatened to undermine the treaty’s goals” of setting the highest common standards to regulate the international arms trade. Countryman said a provision of Article 3 stipulating that a state-party shall not authorize a conventional arms transfer that would “violate its relevant international obligations” was too ambiguous. He also said that Article 9, which calls on importing and exporting states to “cooperate and exchange information” with “transit and transshipment” states, would need to be rewritten in a manner that is “consistent with international law.” Countryman did not elaborate on the U.S. objection or how it could be addressed.

Some aspects of Countryman’s critique echoed concerns outlined by a group of 51 U.S. senators in a July 26 letter to President Barack Obama. Referring to the first consolidated treaty text of July 24, the senators said the draft treaty text’s requirements for national regulations on international transfers, including those that transited through national territory, and for national reporting of arms transfers potentially infringe on individual gun-ownership rights under the Second Amendment of the U.S. Constitution. The lawmakers, including eight Democrats, said they “will oppose the ratification” of any ATT that does not “explicitly recognize the legitimacy of lawful activities associated with firearms.”

In a July 31 press briefing, State Department spokesman Patrick Ventrell underscored that, “from our perspective, this treaty and this text, and indeed, in all of the rounds of the text that we saw, in no way would infringe on Second Amendment rights.”

The July 26 text explicitly recognizes “the sovereign right and responsibility of any State to regulate and control transfers of conventional arms that take place exclusively within its territory, pursuant to its own legal or constitutional systems.”

Next Steps Unclear

Most ATT supporters said the July conference’s failure has postponed but will ultimately not prevent the treaty’s adoption. “An ATT is coming. It did not happen on [July 27], but it is coming soon,” said Jo Adamson, British permanent representative to the Conference on Disarmament, in a July 31 e-mail to Arms Control Today. The July 27 multicountry statement affirmed its signers’ determination “to secure” an ATT “as soon as possible.”

The French government said in an Aug. 1 statement, “France is not resigned to this situation. The UN General Assembly…must follow up on this process. The efforts made in recent weeks were not in vain. The text of July 26 must be considered the basis for negotiations whose accomplishments must be preserved.” France said that “this text is not perfect.… [W]e would have liked to see more robust, clearer language on munitions and technologies.”

In an Aug. 21 e-mail to Arms Control Today, Egyptian Permanent Representative to the United Nations Mootaz Ahmadein Khalil said the draft text was “a work in progress” that “provides ample material for proceeding further.”

“Any negotiations for a future arms trade treaty,” Khalil wrote, “must take place within a multilateral framework and under the auspices of the United Nations…. It is important to keep in mind that the value of an ATT depends on its universal adherence including from major arms exporters and importers.”

According to diplomatic sources, treaty backers are considering their options ahead of the next session of the UN General Assembly, which convenes in September. Unlike the ATT diplomatic conference, the UN General Assembly does not operate by consensus, and resolutions can be approved with the support of a two-thirds majority of UN member states.

The United States has maintained that it would accept an ATT only if it were adopted on the basis of consensus. State Department spokeswoman Victoria Nuland said in a July 27 written statement that the United States did not support the adoption of an ATT in the General Assembly. Rather, Nuland said, the U.S. government favors “a second round of negotiations, conducted on the basis of consensus” on a treaty “next year.” At the July 31 briefing, Ventrell acknowledged that, with respect to getting a commitment to another round of ATT negotiations, “We’re not there yet.”