By Alexander Kmentt
On July 27, after four weeks of negotiations, the diplomatic conference to negotiate an arms trade treaty (ATT) closed without accomplishing its goal of adopting a treaty. After the president of the conference, Roberto García Moritán of Argentina, submitted his revised final draft treaty on July 26, hopes and expectations rose among delegations and civil society that a successful outcome of the six-year process to achieve an ATT would be possible.
Following a U.S. statement that the treaty was not ready for adoption and further negotiations would be required, these hopes were dashed. Several other delegations, including Cuba, North Korea, Russia, and Venezuela, immediately echoed this line of argument, effectively ending the conference and any chance of reaching consensus on a treaty. The conference concluded by adopting a procedural report to be submitted to the UN General Assembly, which must now decide how to proceed.
After this inconclusive ending of the conference, the future of the ATT negotiation process is highly uncertain. There are widespread concerns as to whether the momentum for a strong treaty can be maintained and that additional negotiations in this format may result in a further weakening of the draft treaty. Despite the frustration at this missed historic opportunity, there is also a degree of relief that the window for a yet more ambitious treaty remains open, at least in theory. An assessment of what the ATT conference did or did not achieve, why it ended without accomplishing its goal, and whether this augurs well or badly for the future process is necessarily difficult.
Progress and Loopholes
Despite the unsatisfactory outcome, some significant progress was made in the four weeks of negotiations. First, a very significant level of convergence emerged among an overwhelming number of states on the desirability of a strong and effective ATT and on the key elements that such a treaty must contain. On several occasions during the conference, joint statements were delivered on behalf of a large, cross-regional group of states expressing commitment to a strong and robust ATT. At the beginning of the last conference week, 74 countries underscored that “[w]e need a treaty to prevent authorization of transfer of conventional arms where there is a substantial risk that those weapons would, inter alia, be used for or facilitate serious violations of international law, including international humanitarian law and human rights law, having a destabilizing effect or exacerbating existing conflicts[, or be] diverted to unauthorized users…. We need a treaty that encompasses all conventional arms, including small arms and light weapons and ammunition.”
The draft treaty that emerged by the end of the conference contained a number of more or less acceptable compromises on some of these key issues. The scope of the future treaty—that is, which weapons it would cover—was one of the most hotly debated aspects of the conference. In the end, the draft treaty stuck to the seven categories of weapons contained in the 1991 UN Register of Conventional Arms, but also included small arms and light weapons. Owing to resistance mainly from the United States, however, all attempts to include ammunition in the scope of the treaty—a key condition for a meaningful ATT, for the vast majority of states—were unsuccessful. Attempts to include “parts and components and technology” of weapons also were resisted by a group of several developing countries. Ammunition was finally included in a more limited manner in the implementation section addressing exports.
The negotiations to establish which criteria and parameters should be applied to the export of conventional arms under an ATT proved to be similarly difficult and contentious. In the final draft treaty, a three-layered structure emerged. In the first layer, violations of obligations under UN Security Council measures (for example, arms embargoes), violations of other international obligations or transfers that would facilitate genocide, and crimes against humanity or war crimes would trigger an automatic prohibition of transfers. A second layer of criteria would be applied in a national assessment and include whether a proposed export would undermine peace and security or could be used for serious violations of international humanitarian law, international human rights law, or terrorism. If a national assessment demonstrated an “overriding risk” of such violations, the state-party would be obliged (“shall not”) not to authorize the export. The third layer of criteria to be considered when authorizing an export includes the possible diversion of arms into the illicit market, risk of gender-based violence or violence against children, corruption, and an anticipated negative developmental impact on the importing state.
Although the exact formulation of these key provisions in the draft treaty is far from ideal and hardly “the highest possible common international standards for the transfer of conventional arms,” as mandated by the UN General Assembly, it is undeniable that an ATT comprising this scope and these export criteria and implementation measures would represent a significant improvement on the status quo. This was expressed in a joint statement of more than 90 countries at the closing of the conference, indicating that “the draft treaty had the overwhelming support of the international community as a base for carrying forward our work.”
At the same time, the draft treaty contains significant loopholes and deliberate ambiguities that could have a seriously negative impact on the effective implementation of an ATT or undermine its credibility. For instance, under its terms, states establish a national control list specifying which arms fall under the scope of the treaty, thereby leaving it up to states and their national legislation to decide to include or to exempt certain types of arms. This clearly opens the door to inconsistencies in the interpretation or possibly to circumvention of the treaty provisions.
Another key concern was the sweeping exemption, included in the section of the draft text on general implementation, that “[t]he implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments. This Treaty shall not be cited as grounds for voiding contractual obligations under defense cooperation agreements concluded” by ATT states-parties. With the provision formulated this way, states obviously could cite it as grounds for widespread exemptions from treaty obligations and thus potentially undermine the treaty. The provision on relations with states not party to the treaty represents another potential loophole by seemingly excluding the export of ammunition and parts and components to nonmember states from the treaty’s coverage. Other criticisms include the draft’s narrow definition of “trade,” excluding “gifts or loans” of arms from the scope of the treaty.
The concept of “victims’ assistance” was also not included in the draft. For many stakeholders, this demonstrated that the draft ATT was indeed merely a trade treaty and as such lacked a humanitarian underpinning. Finally, future amendments of the ATT would require consensus rather than a two-thirds majority, thereby raising the bar of future improvements to an unrealistically high level.
In short, although the sincere disappointment among states committed to achieving an ATT is understandable, it is apparent that the draft on the table contained serious flaws. The time available to rectify them was extremely limited, and furthermore, as the loopholes and ambiguities were specifically included to accommodate skeptical countries, revision was unlikely. As consensus on a text without these loopholes may have proved impossible, the lack of agreement on the text and the resulting requirement for additional negotiating time over the next few months may not be such a bad thing.
Why the Conference Fell Short
When García Moritán closed the conference, he graciously assumed sole responsibility for the lack of consensus, a claim that a number of delegations immediately rejected. Two questions prompted by the meeting’s result are whether another outcome could have been possible and who is ultimately responsible for the fact that the conference fell short of expectations.
García Moritán conducted the conference in a flamboyant and unusual style that might have left him open to criticism by some delegations. Much of the work of the conference in the final phase was conducted in informal open-ended consultations. Their chief purpose seemed to be to demonstrate how far apart the positions were, thus preparing the ground for the acceptance of the compromise text that García Moritán would submit toward the end of the conference.
These meetings were conducted in a conversational style that lasted until the early hours and can only be described as torturous. They were characterized by filibustering tactics by those countries apparently not interested in a strong treaty, such as Iran, North Korea, and Syria. Cuba, Egypt, Pakistan, Venezuela, and some other states also frequently and lengthily complained about the process or reiterated that the approach being followed would be discriminatory and that the treaty should be more balanced.
Yet the tactics of these countries are not the reason that the conference failed. Although they seized the opportunity provided by the United States to delay agreement on the text, these countries had been largely marginalized in the negotiations. Whether they would have actually blocked consensus at the end of the conference remains uncertain. Interestingly, some of these states normally used to assuming leading roles on disarmament issues within the Non-Aligned Movement (NAM) found themselves directly opposed by the very progressive and ambitious positions of large numbers of NAM countries. African, Caribbean, and several Latin American countries consistently expressed commitment to a strong and robust ATT.
García Moritán conducted the actual negotiations in very small and informal groups, comprising the skeptical large arms-importing and -exporting states, several states pushing for a strong treaty, and a few other states with mediating roles. For some of the most progressive states, among them several African countries, the Caribbean Community, Mexico, New Zealand, and Norway, the final text would have been difficult to accept due to its loopholes and the overall modest level of ambition. Despite these misgivings, these states probably would not have blocked consensus at the end of the conference.
Among the large arms-importing and -exporting countries, India had voiced several reservations and concerns during the negotiations about possible discriminatory export denials. Yet, it appeared relatively comfortable with the final draft and the ambiguous language it had promoted in several sections.
China had conceded to the demands for inclusion of small arms and light weapons in the scope of the treaty and of international humanitarian law and human rights law. At the same time and with direct reference to the EU arms embargo against it, China rejected the possibility of accession to the treaty by regional organizations. This clause was not included the final draft put forward by García Moritán despite the strong requests by the European Union. At the end of the conference, China seemed to be in a position to accept the text.
Russia’s stance on the final draft is difficult to assess. Throughout the conference, Russia had questioned the value of an ATT, stating that it should focus on the prevention of illicit trade of arms and complaining that the conference had not taken up most of its proposals. Russia immediately supported the U.S. call for further negotiations. On balance, it is more likely, albeit not certain, that China, India, or Russia would not have objected to an eventual adoption of the final text.
The United States has been widely blamed for having “pulled the plug” on the conference. It had been very active and engaged during the conference and seemed to have achieved most of its objectives in terms of the structure of the draft treaty and the overall compatibility with existing U.S. legislation. The key U.S. redline was the inclusion of ammunition into the scope of the treaty, thereby requiring reporting, marking, and tracing of ammunition. In what appeared to be a workable compromise, García Moritán put ammunition into the implementation section, avoiding reporting obligations but still requiring that ammunitions exports be regulated in accordance with the criteria of the treaty. When the U.S. delegation in its final statement requested negotiations to continue beyond the July conference, it nevertheless declared that it did not have any “core objections” to the draft. It is speculative but not implausible that agreement on the draft treaty might have been possible if the United States had come out in support on the last day of the conference.
It is also a widely held view that the final U.S. position was motivated chiefly by domestic politics rather than the actual content of the draft ATT. Indeed, the degree of manipulative misinformation and vitriolic anti-UN rhetoric in much of the conservative U.S. media about what an ATT would aim to achieve and what its alleged impact on the rights of U.S. citizens under the Second Amendment of the U.S. Constitution would be was quite shocking, at least from a European perspective.
In light of this fierce domestic opposition, one wonders whether the Obama administration could have afforded to agree to any ATT in an election year, almost irrespective of its actual content. As such, the decision to call for more time may have been an understandable way out, seen as the least damaging. Yet, it would seem that a potentially historic first step toward regulating the international arms trade has been missed due to primarily domestic political considerations.
Where to Go From Here?
Given the positions of the different stakeholders outlined above and the requirement for consensus, it is difficult to envisage how more time and further negotiations will fundamentally alter the situation and facilitate the adoption of an ATT. The process and scenarios are unclear.
Most likely, a resolution on an ATT will be tabled in the 2012 UN General Assembly First Committee. The resolution could propose the establishment of a new forum and mandate for negotiations. In that scenario, the timing could be contentious, with the United States and others favoring 2013 and like-minded pro-ATT states pushing for an earlier start. There could be a drive for the General Assembly itself to complete the negotiations. The more progressive pro-ATT countries may see this as an attractive option, as it would be a way to circumvent the requirement for consensus. For the same reason, it would be rejected by others, notably China, India, Russia, and the United States. The option of simply putting the final draft treaty to a vote without additional negotiation is a theoretical possibility but both unlikely and undesirable given the current status of the draft. Other scenarios may still emerge in the following months.
There are serious concerns among most stakeholders that the ATT process may have lost critical momentum and that, through more negotiations, the draft treaty may become diluted rather than strengthened. Can an effective ATT even be achieved in a consensus forum, or is it impossible for a UN process to deliver an outcome without watering it down so much that it becomes practically meaningless?
All outcomes are still possible. They range from a meaningful ATT achieved with consensus (or very near consensus) to a complete failure and unraveling of the process. The ATT process serves as a reminder that all constructive forces need to work together in order to demonstrate that viable solutions to urgent global challenges can be found through the United Nations and through multilateral cooperation. ACT
Alexander Kmentt is director of disarmament, arms control, and nonproliferation in the Austrian Federal Ministry for European and International Affairs. The views expressed in this article are the author’s and do not necessarily reflect those of the Austrian government.