Closing the Deal on a Robust Global Arms Trade Treaty

Volume 4, Issue 3, March 13, 2013

Diplomats from the United States and over 100 other countries will meet in at the United Nations in New York this month for the "final" meeting to negotiate a legally-binding, global Arms Trade Treaty (ATT).

When completed, ATT has the potential to reduce the unregulated and illicit flow of weapons and ammunition into conflict zones that are fueling wars and enabling human rights abuses against civilians.

The March 18-28 diplomatic conference will start from the draft Arms Trade Treaty that emerged from the July 2012 negotiating forum. The treaty would:

  • establish legal prohibitions on arms and ammunition transfers that contribute to war crimes;
  • require that all states put in place national regulations on international arms transfers;
  • set forth common international standards for approval of the transfers; and
  • mandate regular reporting on arms transfers.

Human rights, development, security, religious organizations, and relief organizations on every continent--including the International Committee of the Red Cross--are working together to press key governments--including the United States--to help close the deal on a robust and effective treaty "with the highest possible standards."

In response to a Feb. 19 letter from 36 nongovernmental organizations to President Barack Obama, a White House spokesperson told Reuters Feb. 25:

"The U.S. objective is to bring other countries in line with existing U.S. best practices, which will have a positive humanitarian impact and reduce the chances that illicit arms flow to terrorists and those that would commit human rights violations."

The United States was among a handful of states that failed to join consensus on the treaty after a month-long conference in July 2012 saying "more time was needed" to complete the process.

Now, months later, President Obama has a chance to help close the deal on a robust, effective Arms Trade Treaty.

Years in the Making

Efforts to secure the ATT have been underway for more than a decade. In November 1999, with the support of then-Senator John Kerry (D-Mass.), the U.S. Congress approved the International Arms Sales Code of Conduct Act. It required the President to begin negotiations on a multilateral regime on arms export criteria and restricts U.S. arms transfers to countries that do not observe certain fundamental values of human liberty, peace, and international stability.

International efforts to negotiate a global Arms Trade Treaty began in 2006. Pressure for action has come from a core group of states including Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom. Since 2009, the United States has supported efforts to negotiate an ATT.

To finalize the treaty at this month's conference, states must approve the final text by consensus. However, the rules also allow the treaty to remain on the UN General Assembly's agenda, meaning a vote to endorse the treaty could be called if some states block consensus at the March conference.

The Need to Act

Thousands of civilians around the globe are slaughtered each year by weapons that are sold, transferred by governments or diverted to unscrupulous regimes, criminals, illegal militias, and terrorist groups.

The ongoing conflicts in Syria and Mali--like recent wars in Sudan, Sierra Leone, Liberia, and Congo--vividly underscore the urgent necessity of common-sense rules to prevent the international transfer of weapons.

The unregulated arms trade increases the availability of small arms and ammunition in conflict zones. According to a 2012 report published by Oxfam, more than $2.2 billion worth of arms and ammunition has been imported since 2000 by countries operating under 26 UN, regional, or multilateral arms embargoes in force during this period.

While the United States and a few other countries have relatively tough regulations governing the trade of weapons, many countries have weak or ineffective regulations, if they have any at all. Only 52 of the world's 192 governments have laws regulating arms brokers, and less than half of these have criminal or monetary penalties associated with illegal brokering.

The patchwork of laws allows irresponsible arms brokers--such as the notorious Victor Bout--to operate on the margins of the international regulatory system and circumvent the jurisdiction of countries like the United States.

Main Elements of the Proposed ATT

The current draft text of the 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. The July 2012 draft treaty:

  • requires 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;)
  • prohibits 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;"
  • prohibits 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;
  • requires 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;
  • requires 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
  • allows for entry into force when 65 states ratify the treaty.

Key Issues and Challenges

Although the proposed ATT has drawn support from the vast majority of UN member states, several potential obstacles could complicate the March 18-28 negotiations:

  • The short amount of time (10 working days) will require states to limit their proposed adjustments and clarifications to the draft treaty; and
  • Hard-core treaty opponents could stymie efforts to finalize the text simply by creating delays. A small group calling themselves the "Friends of the ATT," including Iran, Syria, Venezuela, and others, has emerged. All these states have expressed strong reservations about the treaty.

A number of states are pressing for small but important adjustments that would strengthen the treaty.

In a Feb. 19, 2013 letter to President Obama, 36 U.S. human rights, development, security, and religious organizations wrote: "The United States, as the world's leading arms supplier, has a special responsibility to provide the leadership needed for an ATT with the highest possible standards for the transfer of conventional arms and ammunition."

ATT supporters have identified three key issues upon which Obama's leadership is particularly important:

Banning Arms for Atrocities--the United States can help strengthen Article 3 of the draft treaty text to ensure it prohibits arms transfers that will aid and abet war crimes, genocide, or crimes against humanity and to perpetrators of a consistent pattern of serious violations of international human rights law.

Currently, the draft treaty would prohibit authorization of conventional arms transfers "for the purpose of facilitating" genocide, crimes against humanity, or war crimes as defined by the Geneva Conventions of 1949. A small number of states, particularly Russia, which continues to resupply the Assad regime in Syria with weapons during that country's civil war, have expressed concerns about the effect of this core provision of the treaty on their ability to provide arms to their allies.

ATT supporters are seeking to strengthen that section of the treaty and/or modify it to ensure it is not interpreted in a way that may undermine existing understandings of international humanitarian law.

Stronger Human Rights Risk Assessment--the United States can help to strengthen the requirement in the treaty to ensure that arms exporters rigorously assess the risk of a proposed export being used to commit or facilitate a serious violation of international human rights, humanitarian law or acts of terrorism.

Including Ammunition in the Treaty--the flow of ammunition helps to feed and prolong conflicts and armed violence. The draft ATT under consideration would require that each state "establish and maintain a national control system to regulate the export of ammunition for conventional arms under the scope of this Treaty." This provision is fully consistent with U.S. law and practice.

Several African states are expected to press for the inclusion of ammunition in the scope of the treaty in a way that mandates import and export regulation. The Obama administration has not yet expressed its support for including ammunition in the scope section of the treaty, even though the United States already licenses the import and export of conventional arms and ammunition under the Arms Export Control Act. But because of a law passed in 1986 that restricts reporting on the importation of ammunition, U.S. officials continue to tell other delegations that they oppose the inclusion of ammunition in the scope section of the treaty.

Failure by the United States to support the compromise language already in the draft treaty requiring the regulation of ammunition exports could unravel the talks in March.

Closing the "Gift" Loophole--Chinese diplomats have objected to possible changes to the current text that would explicitly apply the treaty guidelines and prohibitions to state-to-state "gifts" of conventional weapons. Other states are concerned that transfers labeled as gifts could create a loophole in the treaty.

The NRA's Myths and the Realities of the ATT

Unfortunately, here in the United States, the value of an ATT has been obscured by the misleading lobbying efforts of the National Rifle Association (NRA) and its proxies in Congress who allege that the treaty will clash with legal firearms possession in the United States. That is not the case.

In July 2012, the NRA's CEO Wayne LaPierre told the UN "the NRA wants no part of any treaty that infringes on the precious right of lawful Americans to keep and bear arms."  He said "any treaty that includes civilian firearms ownership in its scope will be met with the NRA's greatest force of opposition."

Allegations that an ATT would infringe on the right of U.S. citizens to legally possess firearms amount to irresponsible demagoguery. Claims by the NRA and its allies that they will block an ATT that affects domestic gun ownership are little more than cynical fundraising ploys given the fact that the treaty would not do so.

Such measures are undeniably outside the scope of the treaty and the Obama administration has repeatedly stated that it opposes any infringement on national gun ownership rights.

The 2009 UN General Assembly resolution establishing the ATT negotiation process explicitly acknowledges the exclusive right of states "to regulate internal transfers of arms and national ownership, including through national constitutional protections."

Nevertheless, some of the NRA's arguments have been echoed in letters circulated by Sens. Jerry Moran (R-Kan.) and Jon Tester (D-Mont.) and signed by 55 other senators beginning in 2010. Although both letters recognize the security and humanitarian benefits of the treaty, the Moran letter expresses concern that the ATT might monitor certain internal arms transfers.

This year, a group of 76 Congressional members have introduced a resolution opposing the Arms Trade Treaty as a threat to Second Amendment guarantees.

However, a February 26, 2013 analysis from the American Bar Association Center for Human Rights concludes such concerns are unfounded. Under the proposed ATT, "the United States retains the discretion to regulate the flow of weapons into and out of the United States in a manner consistent with the Second Amendment," according to the analysis.

Another objection cited by skeptics is the inclusion of small arms and light weapons in the treaty. This argument ignores the fact that the U.S. government already controls the export and import of small arms and light weapons and their ammunition. It is in the interest of the United States to ensure that other states are required to follow similar practices. The Obama administration--and the vast majority of other governments--are on record in support of including small arms and light weapons in the scope of the treaty.

Some Congressional skeptics have incorrectly suggested that the ATT would prevent arms deals with U.S. allies Israel or Taiwan. With or without the ATT, the United States will continue to make its own determinations regarding whether a proposed arms sale meets the existing U.S. criteria for arms transfers.

The United States sometimes attaches conditions on certain arms transfers to reduce the risk that U.S. supplied weapons are used in a manner inconsistent with U.S. or international guidelines. The only arms transfers that are to be expressly prohibited under the ATT are those that facilitate the commission of genocide, war crimes, or to countries that are subjected to a UN arms embargo.

Advocates of legal civilian gun possession should recognize the value of an ATT in reducing the carnage created by illicit and irresponsible international arms transfers and the responsibility to protect civilians who are threatened by conflicts fueled by the irresponsible arms trade.

Bottom Line: The Responsibility to Protect

The Arms Trade Treaty will not, by itself, prevent all illicit and irresponsible arms trafficking, but it will help reduce the enormous toll of armed conflict around the globe.

As then-Secretary of State Hillary Rodham Clinton said in a July 2012 speech at the U.S. Holocaust Memorial on preventing the mass slaughter of civilians, there must be a new emphasis on prevention. She said we can "directly pressure those who organize atrocities and cut off the resources they need to continue their violence."

In a speech before the UN Security Council on Feb. 13, 2013, UN Secretary-General Ban Ki-moon called on states to conclude the Arms Trade Treaty:

"We all have a responsibility to protect. Violence against civilians is unquestionably abetted by the free flow of weapons. We urgently need a robust and comprehensive agreement that addresses the humanitarian impact of the poorly regulated trade in arms."

Congress should support the Obama administration's effort to secure an effective Arms Trade Treaty that raises the arms transfer standards of other states closer to those of the United States.

No one, except maybe illicit arms dealers and human rights abusers, should oppose common-sense international law regulating the arms trade.--Daryl G. Kimball


The Arms Control Association (ACA) is an independent, membership-based organization dedicated to providing information and practical policy solutions to address the dangers posed by the world's most dangerous weapons. ACA publishes the monthly journal, Arms Control Today.