JURIST Guest Columnist Clare da Silva of Amnesty International argues that the new Arms Trade Treaty shows remarkable progress in the international regulation of arms transactions…

On April 2, 2013, the United Nations General Assembly voted overwhelmingly in favor of a global treaty that applies international legal standards to govern transfers of conventional weapons across borders. Of 193 member states, only three voted to reject the treaty: North Korea, Syria, and Iran.

Despite the huge margin, the adoption of an Arms Trade Treaty to regulate the international trade in conventional arms was far from a given. It took a series of shocking crises—including the wars in the Persian Gulf and in the former Yugoslavia, the 1994 Rwanda genocide, and conflicts in Africa’s Great Lakes region, West Africa, Afghanistan, and in Central America—before the international community could no longer ignore the repercussions of untrammeled and irresponsible arms transfers, and began to move forward with attempts to control the global trade in conventional weapons.

Interested governments and nongovernmental organizations including Amnesty International worked for more than twenty years, seven of them under the aegis of the UN, to reach this historic climax. The goal was winning near-universal support for a treaty with the potential to save countless lives and revolutionize the 70 billion USD global trade in conventional weapons.

Understanding this watershed moment and what the treaty itself means requires a closer look at both the United Nations process and the substance of the treaty itself.

The process at the United Nations began in the UN’s First Committee, rather than in the largely dysfunctional Conference on Disarmament. In 2006, seven co-authoring states, (Finland, Japan, Kenya, Argentina, Costa Rica, United Kingdom, Australia) kick-started the process by introducing a draft resolution that 153 states voted to adopt; 24 countries abstained, but only the US, under the Bush Administration, voted against the measure.

Fast-forward seven years, and it is clearly apparent that the General Assembly vote to adopt the final Arms Trade Treaty text largely reflected the same voting pattern: 155 states in favor, 23 abstentions, and 3 opposed. Clearly, those states that were committed at the beginning of the process to achieve a treaty on regulating the trade in conventional weapons remained so. The US reversed its position after the inauguration of President Barack Obama in January 2009. In the final vote on the treaty in April 2013, the US not only voted yes but also co-authored the resolution that brought the final treaty text to a vote in the General Assembly.

Another important procedural point is that the Arms Trade Treaty remained on the agenda of the General Assembly from the outset. Two conferences on the Arms Trade Treaty (July 2012 and March 2013) made it clear that the aim was to negotiate a treaty that would be accepted by consensus; but as the General Assembly remained seized of the issue throughout, it was always a possibility that a State or group of States could request a vote on a treaty text by Member States. And so in the end, the text adopted by the General Assembly was the same that would have been adopted unanimously by the negotiating conference but for the opposition of Syria, North Korea and Iran.

Negotiating on the basis of consensus ensured that a number of key exporters and importers of conventional arms participated actively in engineering the substance of the treaty’s text. Keeping these key states engaged in the process was fundamental to finalizing a text that would have credibility and increase the probability that it would be widely ratified by parliaments and governments.

Treaties negotiated by all the countries of the world are always going to be complex and subject to often tedious processes of compromises and arm-twisting. The Arms Trade Treaty’s negotiating process was no different and the final text is far from perfect.

But despite the compromises and what might be seen as shortcomings, the treaty itself is nothing short of remarkable.

This is significant because it is the first multilateral treaty in which states have agreed to be bound by international legal principles to regulate a variety of activities related to the international trade in conventional arms—including exports, imports, brokering, and transit shipments. International human rights and humanitarian law are at the top of the list of such criteria—something unthinkable even half a decade ago.

Article 6 of the treaty provides a clear standard for those instances when a transfer of conventional arms is absolutely prohibited. This article reflects existing international law by including prohibitions in cases when an international arms embargo is in place and where a transfer would violate a state’s obligations under international agreements to which it is a party. But, importantly, it also extends existing international law by establishing an absolute prohibition of the transfer of conventional arms if a state party “has 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, or other war crimes as defined by international agreements to which it is a Party.”

Article 7 requires a state party to conduct a rigorous risk assessment to determine whether a proposed export of conventional arms could be used to commit or facilitate serious violations of international humanitarian law or international human rights law, as well as acts of terrorism or transnational organized crime. Where there is an “overriding risk” of any of these outcomes, a state party shall not authorize the export. State parties are also required to take into account the possible risk of the conventional arms being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

The treaty’s definition of “conventional arms” is outlined in Article 2. This definition encompasses the major categories of conventional arms from the United Nations Register on Conventional Arms as well as small arms and light weapons. The inclusion of small arms and light weapons was something that the Peoples Republic of China and a number of other states resisted for many years; it was a significant victory to have them included in the array of arms whose trade is to be regulated. Although the categories of arms are extremely limited, the reality is that any state implementing the treaty in good faith will apply its obligations under the Arms Trade Treaty – especially under Articles 6 and 7 – to all items on their export control lists, which in practice is much more comprehensive that the categories of the Register.

The treaty sets out basic obligations on states parties to regulate their imports, the brokering activities within their jurisdiction, and the transit and transhipment of conventional weapons. Many of these obligations are ambiguous and left to governments to implement “as appropriate”. But since the treaty can be amended and has many strong rules, it provides a firm foundation on which to construct an international system to curb the flow of arms to those persons who would commit atrocities, both in war and in peacetime. And because it builds upon and complements the existing obligations states have accepted under international law, it will become a fundamental part of the legitimate trade in conventional weapons and munitions in years to come.

The Arms Trade Treaty will be opened for signatures and ratification on June 3, 2013, at the United Nations General Assembly, and will enter into force shortly after it has been ratified by 50 states.

Clare da Silva is an independent legal consultant who provided legal and policy advice to Amnesty International on the Arms Trade Treaty for over seven years.

Suggested citation: Clare da Silva, Arms Trade Treaty Shows Remarkable Progress, JURIST – Hotline, May 1, 2013, http://jurist.org/hotline/2013/05/clare-da-silva-arms-trade.php