Little to Cheer in the Arms Trade Treaty

On 02 Apr 13, the UN General Assembly passed the 28-article Arms Trade Treaty (ATT) by a majority vote of 154 in favour to 3 against (Democratic People’s Republic of Korea, Iran, Syria), with 23 abstentions (including India, Russia and China). The treaty aims at taking steps to regulate the annual nearly USD 70 billion arms business, through the establishment of highest possible common international standards for all cross-border transfers of conventional weapons, ammunition/munitions and parts and components and prevent their illicit trade and diversion into the hands of unfavourable elements.

For over more than two decades the need for globally agreed standards had been propagated by peace and human rights advocates from different sections of the society. They have continued to highlight the misuse of such unregulated transfer of weaponry by government forces, or diversion of arms into illegal markets where they end up in the hands of criminals, gangs, war lords and terrorists. Such proliferation of smaller conventional arms has caused more death and mayhem than the more demonised WMDs.

Negotiations for the treaty commenced in 2006, with Group of Governmental experts studying submissions by more than 100 countries and preparing a draft treaty.  However, it was not until 2009, when the United States, under its newly elected President Barrack Obama, reversed an earlier U.S. policy on the issue, that these talks got a boost. Although the General Assembly’s convened ‘Conference on the Arms Trade Treaty’ in Jul 2012 failed to adopt the accord, owing mainly to the US vetoing it - the veto was viewed as a measure to placate the domestic arms lobby in view of the upcoming US presidential elections in November 2012 - a ‘Final’ United Nations Conference on the Arms Trade Treaty was planned in March 2013 to push through the pact.

The Conference held from 18-28 Mar 13 failed to reach consensus (understood as the adoption of a decision without formal objection or vote by any member) on the text with North Korea, Iran and Syria formally objecting to its adoption. The sponsoring nations, supported by the United States, then transmitted the draft to the UN General Assembly where it achieved the majority vote as required by the UNGA regulations, making it the first major arms accord to be adopted since the 1996 Comprehensive Nuclear Test Ban Treaty. The pact will now have to go through the process of ratification by nations, with it coming into force 90 days after being ratified by the fiftieth signatory. Nations will have to adopt appropriate domestic regulations to control the cross border transfer of conventional arms, to ratify the Treaty. The process is expected to take years.

The treaty asks the states to review all cross-border arms contracts and prohibits signatory states that ratify the treaty from transferring conventional weapons if they violate arms embargoes, international treaties regarding illicit trafficking or if they promote acts of genocide, crimes against humanity or war crimes abet terrorism or organized crime or slaughter women and children. It also requires states to prevent conventional weapons reaching the black market. Transfers are defined as including not only exports and imports, but also “transit,” “trans-shipment” and “brokering” (all undefined terms) within a member party state’s territory. Signatory states are expected to report to the UN their actions and the export and import details. The treaty establishes an international Conference of State parties that would review the implementation and receive and distribute these reports.

The UN Office for Disarmament Affairs has stated categorically that the treaty will not imply interfering with the domestic use of weapons in any country, banning the export of any type of weapon or harm the legitimate right to self-defence or undermine national arms regulations.

While the sponsors are quietly celebrating the treaty as a crucial first step in stemming the flood of lethal weapons to conflict sites around the world, there are clear signs that the highly complicated negotiations have forced compromises resulting in several shortcomings in the text and procedures that would require to be addressed before the treaty can be effective in achieving the desired objectives of its advocates.

Firstly, success of any international treaty is not defined by numbers but by participants. The Landmines Treaty, although having 160 signatories, is ineffectual as major countries including the United States have refused to sign it. The ATT has had the ardent support of African and Latin American nations as they perceive themselves to have been at the receiving end of illegitimate small arms proliferation. However, beyond the western powers, major arms exporters (Russia and China) and importers (India and Pakistan) of the world have abstained. Some objections pertain to the individual states’ on-going concerns and some which relate to the perceived inequalities among the nations while framing international regulations.

Most abstaining nations have objected to the treaty being heavily weighted in favour of the exporting countries with the rights of importing States to acquire and import arms for their security needs being subjected to discretionary judgment of exporting States.  As India’s permanent representative to the Conference on Disarmament, Geneva Ambassador Sujata Mehta put it, India "cannot accept that the treaty be used as an instrument in the hands of exporting states to take unilateral force majeure measures against importing states parties without consequences". North Korea took issue with the language of the text giving power to exporters to judge the human rights record of importing countries. These stands highlight the lack of clear definitions that contributes to the subjectivity of the evaluation by the exporting countries and thus have the potential to be utilised by them as a political tool. India, which has been at the receiving end of unilateral sanctions in the past on nuclear and space issues, is concerned that the treaty in its present form could potentially affect its existing and future arms contracts.

Syria has objected to the omission of supply of arms to unauthorised ‘non state actors’ or irregular groups in the treaty. India, itself the target of continuing sponsored terrorism from across its borders, that somehow manages an unending supply of weapons, has also echoed this view. Supporters of the treaty argue that the guidelines in the text provide for this and counter that stronger provisions would hold back sales to liberation movements facing abusive governments.  

Iran’s objections pertain to the failure of the treaty to ban the transfer of conventional arms to countries involved in the invasion of other countries or occupying countries. It also expressed concern that the “text was not applicable to the international movement of conventional arms by, or on behalf of, a State party for its use.  Those weapons in some cases had been used to commit aggression and occupation, causing human loss and destruction of economic infrastructure in several countries, including in the Middle East and the Persian Gulf.”

While the initial aim was to seek a strong regulatory framework along with a credible monitoring system and penalties for defaulters, the final pact is a severely watered down version that banks on the good intentions of the signatory nations by asking them to take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty. It also asks them to cooperate on its implementation and to assist each other in investigating and prosecuting violations. Such a toothless mechanism, trying to regulate such a wide variety of weapons through only voluntary measures, is hardly going to be a deterrent for the states that anyway would put their own national interests above global ones.

The Treaty applies its constraints to seven major categories of conventional weapons:  battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships and missiles and missile launchers, small arms and light weapons. It however has left out important ones like UAV/UCAVs, grenades, mines and explosives. With the treaty not seeking any amendments for six years after its entry into force, it would be years before additions of these can even be considered.

Ammunition/munitions and the parts and components capable of assembling those weapons, although mentioned, have been kept outside the ambit of the Treaty so as not to make it ‘too tough’. The responsibility has been placed on States parties to establish and maintain a national control system to regulate the export of these. They would hence continue to serve the weapons already out there.

There were apprehensions of the major powers influencing the negotiations as it was unlikely that they would let go of their hold over arms transfers, which they have regularly used for economic and strategic gains. Hence there were mumblings, for e.g., about the U.S. allegedly coercing introduction of articles and language - such as “legitimate trade and lawful ownership, and use of certain conventional arms for recreational, cultural, historical, and sporting activities”, to placate its domestic gun rights lobby. Iran caustically remarked that the treaty provided specific protections for individual gun owners to meet the constitutional requirements of one State, while ignoring the inalienable right to self-determination of peoples under foreign occupation or colonial domination to “appease a notorious occupying Power”.

In a similar vein, Ambassador Mehta additionally brought out, “The final draft has the tell-tale marks of behind- the-scenes carve outs of exclusive interests of a select few countries, such as egregiously excluding non-state actors or arms transfers as gifts or loans.”

The omission of the “excessive production” and stock piling by the main arms-producing countries, that may be one of the contributing factors of proliferation, further underline these concerns. There is also a view that the treaty while mentioning ‘arms brokers’ has not done enough to address their control by states.

Being the world’s largest arms exporter, all eyes are now on the U.S. While it is expected to get the presidential approval, the two-thirds majority support needed in the Senate for approval would be tougher. A view that has often been voiced in the US is that if the ‘rogue’ nations ignore the treaty, it would only constrain the ‘law abiding countries’. Such views as also reservations of the National Rifle Association, an influential power lobby have already made the Senate approve a non-binding amendment opposing the treaty. This has the support of more than 50 Republican as well as Democrat members. Non ratification by U.S. will make this treaty a non-starter.

These weaknesses notwithstanding, the treaty sponsors hope that it will provide moral standards that once put into place by the signatory states would also tacitly put forth guidelines that even those states not willing to ratify the document would be compelled to follow. They cite examples of Chemical and Biological weapons pact to buttress this optimism. There is thus hope that the treaty has compelled action on a subject that had been brushed under the carpet for years and this augurs well for the future of human rights and human security. India is hopeful that this document would continue to evolve through negotiations, so as to address major concerns of all stakeholders. It has accordingly kept its options open by only abstaining from the vote.  

The author is a Senior Fellow at CLAWS. Views expressed are personal