For the month of July, UN member states were deep in negotiations to finalize a global Arms Trade Treaty (ATT) that would establish the highest possible international standards for the trade of conventional weapons for the first time. However, despite significant progress and overwhelming agreement, the ATT is not yet open for signature.
After a decade of advocacy efforts, ATT negotiations were initially delayed as Israel and the United States threatened to walk out of negotiations after calls for full participant status for the Palestinian Authority. The matter took two days to resolve, after which the President of the Diplomatic Conference, Ambassador Roberto Garcia Moritán, shrewdly introduced a draft treaty text to the conference. This text served as the basis for negotiations and was the focus of efforts for the rest of the conference.
Weeks of tense deliberations followed, with delegates predictably disagreeing on what weapons should be included, what constitutes an irresponsible transfer, how to implement such a treaty, and so on. Notable heated exchanges took place over whether the criteria for assessing the risk of arms transfers should be left for national implementation, and whether identification of a 'substantial risk' – however defined – should result in an automatic denial of the transfer. Each of these deliberations, each removal or addition of a word, each disagreement over the placement of a paragraph, was a fight over whether or not the ATT would hold up or undermine the existing rule of law.
In the end, time lost at the start of the conference proved costly. On the morning of the final day of negotiations the US, Cuba, Venezuela and North Korea called for an extension of the negotiations. The US State Department issued a press release to say that that the conference 'ran out of time to reach a consensus text'. Many observers of the conference have since said that other states (notably Russia and China) would have called for more time even if the US had not.
The draft treaty
The extant draft of the treaty would successfully solve some of the key problems within the international arms trade.The draft treaty text addresses the widespread consequences of the illicit trade in small arms and light weapons, the disproportionate impact that conventional weapons times of conflict have on women and children and establishes a mechanism to prevent the transfer of arms when there is a risk of violation of human rights and international humanitarian law.
However, the current draft still has a long way to go. It is weak on the practicalities of preventing irresponsible transfers of weapons to actors who may use them in breach of international humanitarian and human rights law. As expected during any international negotiations where there are divergent opinions, treaty language was watered down over the course of July's negotiations so as to accommodate the intractable red lines of major exporters including the US, China, Russia, and of major importers such as India.
The draft treaty addresses the issue of international sales of ammunition only through the instruction that each state shall 'establish and maintain a national control system to regulate the export of ammunitionfor conventional arms'. Excluding ammunition from the scope of the treaty removes it from the very heart of the ATT. One of the disappointments for the proposers of the treaty is that the scope, as currently outlined, does little to extend the list of weapons in the seven categories of the UN Register of Conventional Arms.
In addition, a number of subjective terms in the treaty draft would leave room for loopholes of interpretation. For example, in outlining national assessments, the draft bases export authorizations on whether 'the proposed export would contribute to or undermine peace and security'. Although more objective and legally based assessments are outlined, terms such as 'peace and security' could leave room to legalize transfers based on subjective national interpretations not based in international humanitarian or human rights law, thus defeating the central purpose of the ATT.
At the very heart of the problems in UN negotiations on security issues is the abuse of the process of consensus. The decision to proceed on a consensus basis in the ATT was widely criticized by civil society from the start for fear that the need for consensus would lead to a weak treaty. Adopting agreements 'without a vote' at the UN is seen as a strong international endorsement. When it comes to international treaties, it would be desirable to obtain agreement on a treaty throughout the entire international community.
However, as was the case in the ATT negotiations, there is a major flaw in the approach that demands consensus from the outset: the power of veto is handed to each and every state. Negotiated compromises thus tend to the lowest common denominator and the purpose of the treaty is often undermined. In addition, the very countries that insist on weakening treaty language often failto ratify – or even sign – the treaty once it is on the statute books. In treaties where voting is allowed (for example the Mine Ban Convention), consensus is reached because countries wish to avoid a vote if they can work together to find agreement – an altogether different approach.
It is important to remember that the countries opposed to adopting an ATT at this stage were in the minority. Indeed, on the last day of the negotiations, ninety states – including major arms exporters France and the UK – issued a joint statement expressing their disappointment, and stating that the draft treaty developed at the conference had the 'overwhelming support of the international community'. Following the conference, UN Secretary General Ban Ki-moon said that he was 'encouraged that this is not the end of the ATT' and that 'States have agreed to continue pursuing this noble goal'.
However, the question remains about what forum might serve as a base to develop the ATT – particularly with regard to addressing existing gaps and strengthening the unfinished draft. The joint statement called for the text to be brought to the UN General Assembly's First Committee in October 2012 to be finalized. Other states, including Nigeria, called for a new mandate to continue work on the ATT, while others called for the adoption of the ATT in the near future. There is strong and widespread intent to follow through with the ATT and it is now more than possible to capitalize on this momentum to move forward towards an effective Arms Trade Treaty.
Project on Arms Control >>
Also read: The Arms Trade Treaty Negotiations: A Balancing Act, Expert Comment, July 2012