Overwhelming UN approval for first-ever treaty on global arms trade

11 April 2013

I Stock Inkk Studios F15 Eagle Fighter Jets
© Istock/Inkkstudios

On Tuesday, 2 April 2013, after many years of discussions and negotiations, the United Nations General Assembly adopted the UN Arms Trade Treaty (ATT) by an overwhelming margin — the first ever global agreement governing the conventional arms trade. A total of 154 States voted in favour of the resolution, three voted against (Iran, Syria and DPR Korea), and 23 abstained. The treaty will be open for signature on 3 June 2013.

This is a very good treaty - not perfect - but a robust text that will genuinely make a difference. The global trade in conventional arms is worth tens of billions of dollars each year, while many other weapons are transferred by means of gifts, leases, or loans. At his opening address of the Diplomatic Conference, the UN Secretary-General said that the absence of international legal rules governing the arms trade ‘defies any explanation’, noting that even tomatoes, T-shirts, or toys are better regulated. Putting the value of the arms trade and broader military expenditure into context, Ban Ki-moon observed that 60 years of UN peacekeeping operations cost less than six weeks of current military spending.

Among the many questions surrounding the problem of irresponsible arms transfers are: where are they produced; how have they been licensed; what standards have been applied to assess the legality of proposed transfers? However, the biggest question was what to do about it?

Over past decades, an eclectic array of national and regional instruments has been adopted to regulate arms transfers. To date, none has asserted global control over the transfer of all conventional weapons. In the view of the UN, the absence of a global, legally-binding framework for regulating the international trade in conventional arms has obscured transparency and accountability. Thus, this multilateral treaty of global scope can set a clear international standard for responsible transfers and close the gaps and inconsistencies that exist between the current range of domestic and regional arms export control systems.

It is common knowledge that the availability of weapons and ammunition has led to human suffering, political repression, and widespread violations of human rights with a devastating impact on civilians caught in armed conflicts. The transfer of conventional weapons has a major impact on recipient nations. According to the Ministers for Foreign Affairs of France, Germany, and the United Kingdom, and the Minister for Trade of Sweden, each year millions of people around the world suffer directly or indirectly as a result of poor regulation of the arms trade and illicit trafficking of arms, while hundreds of thousands of people are killed or injured by conventional arms.

Irresponsible transfers of conventional weapons can also destabilise security in a region and contribute to poverty. Indeed, arms spending as well as armed conflict and violence contribute to diverting public resources away from key social services and capital investment. Countries affected by armed conflict or high levels of armed violence are unlikely to attain the Millennium Development Goals.

Which weapons?

The scope of the treaty is broad, covering most conventional arms, ammunition and munitions, as well as arms parts and components. The treaty covers tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, small arms and light weapons (SALW), and the ammunition and munitions that are fired, launched, or dropped by them. Parts and components of arms are covered, but not those of ammunition/munitions. Despite press reports to the contrary, the treaty applies to the transfer of unmanned aerial vehicles (drones) at least when they are armed. Armed drones fall under the definition of combat aircraft. It also applies to armoured vehicles that take more than four soldiers, and can be extended to so-called ‘non-lethal’ weapons such as tear gas and rubber bullets. These ammunition/munitions are fired or delivered from SALW, helicopters, and even combat aircraft, so fall within the definition.


Prohibitions

Several provisions relate to human rights and humanitarian law, notably the criteria governing denials of proposed arms transfer, an issue which proved to be one of the most controversial aspects of the negotiations.

State Parties will be expected to review arms export legislation and not authorize any transfer of conventional arms (under Article 6.3) if they have knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such (i.e. where they are not participating actively/directly in hostilities), or other war crimes as defined by international agreements. While the provision is not as comprehensive or as detailed some would have hoped, it reaffirms that war crimes may be committed not only in international armed conflicts but also in armed conflicts of a non-international character. The prohibitions set out in Article 6 are complemented by those in Article 7, where states will have to prohibit arms sales to states where there is an ‘overriding risk’ that the arms could be used to commit ‘serious’ violations of human rights law or international humanitarian law. The standard of ‘overriding’ for the prohibitions set out in Article 7 to apply remains vague. However, it is likely to require significant potential contribution to peace and security in order to override the potential negative consequences. In any event, difficult questions of interpretation subsist about which arms may impact human rights. What is the meaning of ‘serious human rights violations’ as there are no agreed definitions under international law?


Implementation and Reporting

The Treaty will enhance transparency and strengthened accountability by making key information available. Under Article 5, there is a general obligation to ‘take measures necessary’ to implement the treaty, as well as to ‘establish and maintain’ a national control system. Reporting on measures to implement the treaty will be obligatory as will reporting on ‘authorized or actual exports or imports of arms’ (but not ammunition/munitions) but ‘commercially sensitive or national security information’ may be excluded (Article 13(3)). However, there is no specific obligation to penalize violations of the treaty. The obligation is only to ‘take appropriate measures to enforce national laws and regulations that implement’ the treaty (Article 14).

Looking Forward

As the Mexican representative, speaking on behalf of 96 States, said, the General Assembly made ‘a historic achievement’ from a long process. This started in the late 1900s with the group of eight Nobel Peace Laureates led by former Costa Rica President Óscar Arias which provided the inspiration for the 2006 UN General Assembly Resolution 61/89 (‘Towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms’) co-sponsored by Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom.

This treaty now provides an opportunity to prevent violations of human rights and humanitarian law. If adhered to and implemented in good faith the ATT will significantly reduce the humanitarian impact from the irresponsible transfer of weapons. It is unfortunately too late for the countless victims in the ongoing conflict in Syria, but the implemention of this treaty will hopefully avert the further human rights violations and international crimes.


The Oxford Martin Programme on Human Rights for Future Generations, which participated actively in the negotiations, initiated the drafting of a detailed legal commentary, which will be issued by a leading academic publisher in 2014.

Dr Gilles Giacca has co-authored a legal briefing on the treaty, which reviews the text of the treaty, summarises the process that led to the formal adoption of the text and then comments briefly on the provisions of the treaty in three sections: its title, preamble, and principles, its core provisions, and its final provisions. The project has been supported by the the New Zealand Ministry of Foreign Affairs and Trade and the Swiss Federal Department of Foreign Affairs.

Gilles Giacca used to be Programme Co-ordinator for Human Rights for Future Generations.