I. INTRODUCTION
On 2 April 2013, an overwhelming majority of the UN General Assembly, 154 States voted to accept a Resolution approving the text of an Arms Trade Treaty.Footnote 1 Only three States—Iran, North Korea, and Syria—opposed acceptance.Footnote 2 This apparent overwhelming support was tempered by the abstention of 23 States, including some of the most important actors on the global stage.Footnote 3 Nonetheless it was an impressive moment: the first time in world history that a truly global agreement restricting the transfer of conventional weapons has been realized. Unlike so-called pariah weapons such as chemical and biological weapons (CBW) or cluster munitions which have been subject to widely agreed international restrictions,Footnote 4 or atomic weapons, whose unparalleled potential for global destruction is universally acknowledged and whose possession is limited to the Permanent Members of the UN Security Council and a few outriders,Footnote 5 conventional weapons are possessed by every State. That possession is intimately connected to the inherent right of self-defence, long recognized in international law and enshrined in Article 51 of the UN Charter. Moreover, commerce in them is extensive, lucrative, and energetically encouraged by the governments of States in which they are manufactured. Thus the mere fact of a formal agreement, even if accompanied occasionally by extravagant rhetoric, is more than worthy of note. So too is the extremely rapid movement towards making it operational; within 18 months, more than the requisite 50 StatesFootnote 6 had formally ratified, and it came into force on 24 December 2014.
It is certainly possible that even a limited treaty can set in motion a ‘cascade effect’ which eventually produces national or international norms. Yet once the undoubted normative significance of the mere existence of the Arms Trade Treaty (ATT) is acknowledged, the hard questions arise: What are its main purposes? How did it take the shape it did, and what are its strengths and weaknesses? And most important, what practical effect is it likely to produce?
The present article does not present a comprehensive analysis of these questions. Rather, it concentrates on the Treaty's core: what is covered—described in Article 2 as its ‘scope’; and the obligations it imposes on State Parties which export weaponry. A range of issues, most notably the substantially weaker obligations imposed on importers; enforcement (or lack of it) including record-keeping and tracing; diversion; the controversy over transfers to non-State actors; and brokering, are not considered. The result inevitably is an incomplete discussion, but the fundamental issues can be treated in full depth.
A critical examination of the main Articles of the Treaty can only be undertaken in light of the reasons for its existence, ie, whether and how effectively it addresses those problems that led to its creation. The present analysis will start there, and then proceed to a close examination, textual but also contextual, of the core provisions. The question of likely impact can at this point only receive speculative answers, but the critique should identify problems and omissions that will require further attention in future.
II. CONCERNS
Seven substantial, diverse, and in some instances overlapping concerns lay behind the movement for international regulation of the arms trade. Not all of these have been addressed by the Treaty.
A. The Problem of SALW
Since the end of the Cold War, numerous wars in the Global South,Footnote 7 and especially in Sub-Saharan Africa, have caused millions of deaths and vast economic and social devastation. The primary means of destruction are the so-called Small Arms and Light Weapons (SALW), which Kofi Annan, when UN Secretary General, aptly called ‘the real weapons of mass destruction’.Footnote 8 The most widely used definition of SALWFootnote 9 includes most notably revolvers and self-loading pistols, rifles and assault rifles, sub-machine and light and heavy machine guns, various portable anti-tank and anti-aircraft guns, plus launchers for anti-tank and anti-aircraft missile systems, particularly so-called MANPADS (man-portable air defence systems).
The movement towards control of the traffic in SALW began in the UN in the 1990s, spurred initially by Secretary General Boutros Boutros-Ghali, who saw the need to extend post-Cold War disarmament efforts to what he termed ‘micro disarmament’.Footnote 10 He and Annan, his successor, were as Africans perhaps more sensitive than their predecessors to the disasters of intra-State violence and the central role of SALW in producing it; and they could not fail to be aware that the guns, bombs, MANPADS, and ammunition were all manufactured in and initially imported from Northern sources. Therefore restricting transfers became the focus of regulation.Footnote 11 Northern NGOs, many of them devoted to development, lobbied in support for years, having seen the effects of SALW at first hand. They highlighted the fact that the overwhelming majority of those who have died in conflict zones are civilians, and that of these the majority are women and children. Thus the aim of reducing civilian deaths led inescapably to restrictions on transfer of weapons, and entwined with that aim are concerns about development and violence against women.
B. Use for Internal Repression
Weapons manufactured in Northern democracies have been used repeatedly in violent suppression of dissent in the domestic political orders of recipient States. Making profit and/or achieving diplomatic goals by assisting governments engaged in domestic repression and human rights abuses hardly squares with the promotion of good governance and human rights loudly proclaimed by Northern States over the last two decades, and those States have been under pressure from their own media and civil society organizations to bring their deeds into line with their words. Although most have domestic legislation that purports to restrict arms sales which may be used for human rights violations, these laws are often ignored.Footnote 12 Whether their policies or conduct will change significantly now that they have adhered to a treaty which all have supported and some have strongly advocated (though it contains weaker standards than those they are already supposed to comply with), is purely an empirical question, and one of great importance.
C. Promoting Violent Conflict
The arms trade is often accused of contributing to death and misery by encouraging and facilitating warfare. This is an empirical claim, not a normative one. Underlying it are a host of questions: does receipt of arms encourage aggression that leads to war, or discourage it by achieving or restoring military balance? Does it encourage diplomatic combativeness, but not armed conflict? Does the effect depend on volume, timing, the specific political circumstances, or a combination of some or all of these? Does the effect vary significantly depending upon whether the recipient is a State or a non-State actor (NSA)? How important is the character of the NSA, which could be anything from a politically sophisticated and well-guided revolutionary movement, to a militia or para-military group led by a ‘warlord’? Several studies have addressed aspects of these questions, with results that have been quite inconclusive.Footnote 13 As the data they drew upon related to the Cold War era, the questions, which are of great practical importance, deserve more contemporary research.
Whatever scholarship may reveal, supplier States have uniformly shared the view that in circumstances where a fresh infusion of arms is likely to encourage aggression or armed conflict, none should be supplied. As this is unwelcome to protagonists, whether governments or NSAs, contemplating or involved in armed conflict, the problem of getting round restrictions becomes fundamental: hence the importance of eliminating ‘black market’ arms sales. Issues around preventing covert illegal shipments, the regulation of arms brokers and other intermediaries and, most important, preventing diversion of weapons from the ostensible purchaser to other parties, then arise inescapably. Any serious attempt at addressing them must involve a range of practical measures and development of institutional capacities of enforcement. Mere statements of prohibition or restrictive criteria for decision, unaccompanied by effective means of implementation, are simply worthless.
D. Diversion
Preventing diversion is an important aim for exporting States for more self-interested reasons as well. One important reason is to ensure that embargoes imposed by the UN and/or individual States or entities like NATO or the EU are not evaded by sales to ‘front’ purchasers, as notoriously happened with purported UK sales to Jordan in the late 1980s that were actually to Saddam Hussein's Iraq. The aborted prosecution of one supplier, Matrix Churchill, produced a major scandal and led to the Scott Inquiry.Footnote 14
Concern has also repeatedly been expressed that weapons inadequately safeguarded when in possession of their genuine purchasers could find their way into the hands of ‘terrorists’ or ‘transnational organized crime’ (TOC).Footnote 15 Whilst contentious political divisions among States has for decades prevented international agreement on a definition of terrorism,Footnote 16 the term may legitimately be applied to the militias who have committed repeated horrific violence against civilians, some of the worst of which have led to prosecutions before ad hoc Tribunals or the International Criminal Court. The application to TOC relates particularly to SALW, and hence heightens the importance of the treatment of ammunition, a controversy discussed below.Footnote 17
E. Corruption
The arms trade has been tainted by deep and widespread corruption, so much so that it has even been argued that for some States corruption is the purpose of arms purchases: those in positions of great power authorize acquisition of equipment not genuinely needed for defence in order to profit from bribes, commissions, contracts for related services, and other lucrative opportunities. This view has been very cogently supported,Footnote 18 but even though it may not apply in all circumstances, the prevalence of corruption is beyond argument.Footnote 19 The result is not only a great drain on public resources, but may well result in acquisition of inferior equipment, or of weapons that the purchaser is simply incapable of using.Footnote 20 It is less commonly realized that arms trade corruption may also be deeply damaging to the governance of exporting countries, as governments refuse to comply with normal forms of legislative accountability and even manage successfully to close off the judicial system to those who seek to cast light on criminal activity undertaken with official knowledge, or even by public officials directly.Footnote 21
F. Burdening Development
Although the connexion is by no means always present, concerns about corruption in purchasing States are often tightly linked to impoverishment of poor countries who purchase weapons well beyond their means.Footnote 22 Several African States in particular have spent billions of dollars which have deprived their populations of funds that could have been used for desperately needed investment in education, health, or infrastructure. The criteria set down by the EU which are supposed to guide Member States taking arms export decisions—known as the Common Position—describe this effect as ‘seriously hamper[ing] the sustainable development of the recipient country’.Footnote 23 Corruption in arms purchases as a factor in continuing impoverishment of poor nations has long been recognized as a major scandal. Yet attempts by Northern States, often former colonial rulers, to refuse to permit sales on this ground risk vituperative charges of ‘neo-colonialism’. Hence any attempt to include a sustainable development criterion in any international agreement regulating the arms trade invites fierce controversy, as the negotiations over the ATT demonstrated.Footnote 24
G. Facilitating Private Violence
Civilian gun violence is a major problem in many States, and the weapons used are almost always imported SALW. Several of the most severely affected States are in the Western Hemisphere, where the lure of the lucrative US drug market has led to murderous rivalry between heavily armed gangs of traffickers, who terrorize civilian populations and can at times overwhelm the local police and even military. No nation has been more severely affected than Mexico, which was one of the prime movers for an ATT; it was strongly supported for the same reason by CARICOM States such as Trinidad and Tobago. Ironically, the source of most of the weapons used is also the USA.
III. THE HISTORICAL BACKGROUND
The evolution of the Treaty, covering its political and diplomatic background over a period of 15 years, including the role of several Nobel laureates and civil society groups, has been well chronicled.Footnote 25 For present purposes it will be sufficient to offer a skeletal description of some key developments.
In December 2006, the UN General Assembly passed a Resolution in favour of an international arms trade treaty.Footnote 26 The USA was the sole State to vote against but—foreshadowing the outcome of the process in 2013—important States like Russia, China and India abstained. The Resolution directed the UN Secretary-General to establish a Committee of Government Experts to take the effort forward. This met in three sessions in 2008, and was chaired by Roberto Garcia Moritán, a lawyer and career diplomat from Argentina. He continued in this role through three Preparatory Committee sessions in 2009–2011. For the last, in July 2011 he produced a Paper which formed the basis of the negotiations involving all UN Member StatesFootnote 27 which took place in New York in July 2012.Footnote 28 These were undertaken on the basis that the result had to be agreed by consensus, ie unanimity. They went on for three weeks under Ambassador Moritán's leadership and it appeared that a compromise text had been agreed. However, on the last day the USA, supported by the strangest of bedfellowsFootnote 29 announced that further negotiations were necessary. This was regarded at the time by many proponents as almost an act of sabotage, although there has been general agreement that the text eventually produced represents a considerable improvement. The US démarche was also entirely predictable, given that the Presidential elections were scheduled for November; the Obama Administration—which had to reverse its predecessor's stance in 2009 to agree to participate at all in the negotiations—was vulnerable politically on the issue and did not need to highlight a controversy which could only cost it votes.Footnote 30
The second Negotiation Conference was convened in March 2013, this time under the Chairmanship of Peter Woolcott, the Australian Permanent Representative to the UN.Footnote 31 It also lasted three weeks, and produced a document which managed to gain widespread acquiescence, but could not achieve consensus. However, within a week of the closing of the Conference on 27 March, the Treaty had been approved by General Assembly Resolution, where consensus is not required. This is the document that has come into force.
Before undertaking an analysis of the specifics of the Treaty, some general observations are required in order to understand both how particular Articles took their final shape, and also the limitations of support for the Treaty. Although there were only three recorded opponents, the abstainers represent nearly half the world's population,Footnote 32 most of the Arab world including nearly all the oil-rich States,Footnote 33 and all of the Latin American States with left-wing governments.Footnote 34 Thus the claim that the Treaty expresses overwhelming international opinion is something of an illusion. Russia is the world's second largest arms exporter and China has rapidly emerged as a major one.Footnote 35 India is by far the world's leading importer, having displaced Saudi Arabia and the Gulf States which had topped that particular league table for years previously.Footnote 36 Thus key States on both sides of the trade in weapons remain unenthusiastic at best. There were also notable divisions between exporting and importing States—several of the latter being critical of the Treaty as reflecting excessively the views of the formerFootnote 37—but also significant differences in the importance various States and regional groups attached to the various contentious issues that emerged during the negotiations. Some States—the USA most publicly and explicitly—had ‘redlines’ which they would not allow to be crossed if they were to sign the Treaty.Footnote 38 Many others wanted the Treaty to go further in various ways, but were forced to accept more modest measures if the key States were to be kept on board.Footnote 39 No one, State or NGO, was fully satisfied with the compromises that emerged. Whether acceptance of half (or perhaps even a lesser portion) a loaf was the mark of good judgement or an abandonment of principle is something that can only be properly assessed when the Treaty has had a reasonable time to make its mark.
IV. THE SUBSTANCE OF THE TREATY
Before discussion of scope and exporters' obligations can be presented, an essential preliminary question must first be discussed.
A. What Is the Arms ‘Trade’?
The ATT does not regulate the arms ‘trade’ as such: it governs arms ‘transfers’. This is one of the few terms specifically defined within the text, and includes ‘export, import, transit, trans-shipment, and brokering’, all brought within the portmanteau category of ‘transfer’.Footnote 40 Obviously this covers much more than the sale of weapons from A to B, and there are some important questions surrounding its exact extent.
There are two explicit exclusions. One is that weapons moved internationally by a State Party which retains ownership of them are outside the scope of the Treaty.Footnote 41 This would exempt transport of weapons by a State to its armiesFootnote 42 stationed or actively engaged in military activities outside its borders; the same would be true of States whose forces were engaged in UN peacekeeping operations. More important was an issue that occasioned considerable concern as diplomatic discussions proceeded, namely whether a ‘transfer’ had to be of a commercial nature in order to be included. The bare language certainly does not command this interpretation, which could create a significant loophole since some countries, notably the USA but others as well, give weapons as gifts to allies, particularly if they are surplus to present requirements.Footnote 43 However, in its ‘Redlines’ document, the US State Department was quite clear that the scope of an ATT should be extremely comprehensive, including ‘international transfers, export, import, transit, transhipment or brokering of conventional arms, whether the transfers are State-to-State, State-to-private end-user, commercial sales, leases, or loans/gifts'.Footnote 44 This reading of ‘transfer’ accords with the widely shared objectives of the Treaty by supporting the broadest reasonable interpretation. In fact the US approach is widely shared, although China has rejected it.Footnote 45
B. Scope
What then of the ‘conventional arms’ element of the Arms Trade Treaty? Put another way, what weapons and equipment, or materiel, are subject to the range of regulations within it? Here the result is disappointing, as early in the evolution of the Treaty its scope was significantly narrowed.
The Chairman's Draft of 14 July 2011 was broad-ranging in this respect. It sought to include all ‘conventional arms’, which were defined as everything within the following categories:
a. Tanks
b. Military Vehicles
c. Artillery Systems
d. Military Aircraft (armed or unarmed)
e. Military Helicopters (armed or unarmed)
f. Naval Vessels (surface and submarine vessels armed or equipped for military use)
g. Missiles and Missile Systems (guided or unguided)
h. Small Arms
i. Light Weapons
j. Ammunition for use with weapons defined in subparagraphs (a)–(i)
k. Parts or Components specially and exclusively designed for any of the categories in subparagraphs (a)–(j)
l. Technology and Equipment specially and exclusively designed and used to develop, manufacture or maintain any of the categories in subparagraphs (a)–(k).
In its final form of April 2013 the list is both shorter and narrower:
This Treaty shall apply to all conventional arms within the following categories:Footnote 46
a. Battle tanks;
b. Armoured combat vehicles;
c. Large-calibre Artillery systems;
d. Combat aircraft;
e. Attack helicopters;
f. Warships;
g. Missiles and missile launchers; and
h. Small Arms and Light Weapons.
The truncation of this list occurred during the July 2012 session; what emerged then is identical to ATT Article 2.1. As we have seen, the inclusion of SALWFootnote 47 was of fundamental importance to many African and CARICOM States, and it is doubtful that they would have signed the Treaty had SALW not come within its scope.
The eight categories in the final version have a clear origin: they are the seven found in the UN Register of Conventional Arms (UNROCA), with the addition of SALW.Footnote 48 The Register was established in 1991 and, reflecting the concerns of that era, is limited to heavy weaponry.Footnote 49 It also reflects the state of technology of a generation ago, even though weapons development has since progressed rapidly. This provenance contributes significantly to the major shortcomings of the list. Three may be identified, in order of rising importance:
1. Size
The most important and controversial issue here concerns hand grenades and mines (of any kind, though especially landmines.) The Nairobi Protocol, signed by 11 East and Central African States in 2004,Footnote 50 contains a comprehensive definition of ‘small arms’ which includes a sub-category of ‘firearms’ covering both grenades and mines. This is the definition used by NGOs in their teaching and campaigning.Footnote 51 However the UN definition, drawn from the 1997 Experts' Report,Footnote 52 is narrower in a crucial respect. The latter breaks down the ‘weapons addressed’ therein into three categories: small arms, light weapons and ammunition. It is only in the category of ammunition that anti-tank and anti-personnel grenades, and landmines, appear.Footnote 53 It seems that an item unquestionably capable of causing death nonetheless had to be of a certain minimum size before the Experts would classify it as ‘small arms’ rather than ‘ammunition’. The question of classification is of extreme practical importance because, as will be seen, SALW and ammunition are treated differently in the ATT;Footnote 54 thus exports of grenades and landmines are subject to lesser controls. The key point for the present analysis is that both interpretations of ‘small’ arms are more than plausible, and it would not be a clear violation of either letter or spirit of the Treaty for a State Party to adopt the narrower one in its implementation. Nor, since the Treaty does not create an authoritative organ of interpretation, is there any practical way to resolve the dispute. A less important example of the size exclusion is that boats such as those used by Special Forces for deployment would not be large enough to count as warships (Category F).Footnote 55 Weapons experts could doubtless cite other examples of light, mobile equipment that remains outside Article 2.1
2. Purpose
In place of all ‘military’ vehicles, helicopters, and aircraft, as Chairman Moritán had proposed, the Treaty covers only ‘armoured’, ‘combat’, and ‘attack’ versions of this equipment. The most obvious result is to exclude anything used for training. Since helicopters bought as training equipment can without great difficulty be refitted to engage in combat, this is a significant loophole, since helicopter gunships have featured prominently in attacks on civilians in conflicts like the drive for independence in East Timor. Excluding vehicles that are not ‘armoured’ allows transfers of transport vehicles, readily used to move troops to a battle area or to centres of political opposition where issues of human rights abuses readily arise, to remain unregulated and undocumented. And although drones and other planes capable of releasing bombs would count as ‘combat’ aircraft—the weapons would be used to attack human or physical targets—their increasingly common use as unarmed vehicles for the surveillance of target populations and the gathering of intelligence of all kinds, would fall outside the Treaty. This is a particularly acute example of the most serious weakness of the purpose limitation: it completely excludes whole classes of equipment whose impact, particularly on internal dissent, advances the repression and violence caused by actual weaponry. This is seen most clearly in relation to surveillance equipment.
3. Omission of technology and equipment
The problem of the use by dictatorial regimes of various forms of sophisticated technology to track individuals and intercept communications came to the fore in relation to their use by governments like Tunisia, Egypt and Libya in relation to opposition movements during the ‘Arab Spring’. The UK Committees on Arms Export Controls (CAEC), the parliamentary body which oversees UK arms exports, issued successive annual Reports which criticized the granting of UK export licences for surveillance equipment to Arab regimes.Footnote 56 Its Chairman, Conservative MP (and former Defence Minister) Sir John Stanley subsequently went further, arguing in interview that the UK Government must review the range of equipment requiring export licences, which have not been required for new technology that was not ‘arms’ in the strict sense. He was particularly concerned about their use by repressive regimes.Footnote 57 Shortly thereafter, the Wassenaar Arrangement, a group of 41 nationsFootnote 58 founded in 1994 to control arms proliferation by establishing a list of recommended equipment that should require export approval by national authorities, held its annual meeting and added intrusion software and IP network surveillance systems to its list of regulated equipment.Footnote 59
The CAEC and Wassenaar could speak and act in this manner because, unlike the ATT, their remit is not limited to a specified category of ‘conventional arms’. Surveillance equipment, because it has both civilian and military uses, is classified as ‘dual-use goods’. This makes possible, with varying degrees of difficulty, the conversion of originally, or ostensibly, civilian equipment to military use. UK readers may recall the so-called ‘Arms to Iraq’ scandal of the 1990s, which grew out of exports of dual-use machine tools to the Saddam regime, which quite effectively adapted them for military purposes.Footnote 60 Yet dual-use goods and technology have always been outside the intended scope of all proposed global regulation: a self-imposed limitation that has curtailed at the outset its ability to protect people and advance human security.
The limitation of the ATT to specified categories of ‘conventional arms’ plainly fails to cover surveillance equipment. At present this is perhaps its most serious omission of scope, but looking towards the future, greater ones can be identified. Technology per se is outside the Treaty entirely. As has been seen, Chairman Moritán was at least partly aware of the problem, and included some technology in his list of matters to come within its scope. However, that proposal was quashed at a very early stage, and Category L vanished from all subsequent drafts. There was some support for its reinstatement in the March 2013 negotiations, notably from the CARICOM States, but it was not a high-profile issue, no other significant States or groups took it up, and the matter was dropped.
In the result all guidance systems for weapons unquestionably coming under the ATT, eg submarines and combat aircraft, are now excluded. And on the near horizon, if not indeed already with us, technology for cyberwarfare—in which the technology is itself the weapon—and—on a further horizon—autonomous weapons (AW), fall wholly outside it as well. Inevitably with any Treaty, or indeed any form of legal regulation, there is always the likelihood that technological change will make some of its categories outmoded. However, technological development moves particularly rapidly in the military field, and since amendments cannot be proposed until at the earliest six years after the Treaty comes into force,Footnote 61 there is the likelihood—it is more than possibility—that possession of internationally uncontrolled items may proliferate in this decade. The one practical restriction is that much of the cyber and AW technology is classified as highly secret by governments which possess them, so no ‘transfers’ will take place for reasons of strict national self-interest. But this point does not apply to surveillance equipment, and the need to go beyond the current definition of ‘conventional arms’ is inescapable if the Treaty's stated concerns about human rightsFootnote 62 are to be given practical effect.
4. The Ammunition Controversy
The matters canvassed in the preceding analysis were not however the focus of controversy over scope. Perhaps the single most contentious issue in the entire negotiations was whether ammunition would come within the definition of scope in Article 2.Footnote 63 Its appearance in the Chairman's July 2011 Paper was as close as it came to inclusion. Yet the overwhelming number of States participating in both Conferences were strongly, in many cases fervently, in favour. On the opening day of the March 2013 meeting, Mexico delivered a Joint Statement on behalf of 108 States which, in advocating strengthening the Treaty in four key aspects, identified the addition of ammunition as one of them. During the second day, which focussed on issues of scope, Ghana spoke for 69 States—including all the African States which had suffered most from low-technology but high-lethality violence—in a Joint Statement reiterating the necessity for its inclusion. A clear majority of participating States—the CARICOM States, most of Latin America and most members of the EU,Footnote 64 consistently took this position. However, they encountered unmoving opposition from Russia, China, India, and Malaysia, but most vocally from the USA, supported by one or two of its allies.Footnote 65 Its stance was the target of the greatest anger by proponents of a stronger Treaty but in public relations terms, criticism of the other opponents was deflected as they took shelter under the US umbrella. As so often happens in major international negotiations, the US position prevailed, though only in part. Given the decision very early in the negotiating process to proceed by consensus, some compromise was inevitable.
At first blush, exclusion of ammunition whilst including the weapons that fire it seems absurd. Guns do not kill; bullets do.Footnote 66 The United States' stance, though obviously adopted with one eye to domestic politics, was not however wholly irrational. The number of guns in civilian ownership in the United States is approximately equivalent to the total population: slightly greater than 300,000,000.Footnote 67 The result is that domestic manufacturers cannot supply an apparently insatiable demand for ammunition, so that in 2012 the USA imported approximately two and one quarter billion cartridges and shotgun shells.Footnote 68 If domestic sources had been sufficient, this would not be an issue for the ATT but as it is, the Treaty's requirements of record-keeping—and proposals for provisions on marking and tracingFootnote 69 that were not accepted for inclusion—would have been a significant burden on the government of the world's largest importer.Footnote 70 Moreover to comply conscientiously with keeping records of all ammunition imports would necessitate vastly expanding requirements of registration and reporting for thousands of importers and dealers throughout the USA—raising precisely the kind of domestic political storm that the Obama Administration, having moved some way from its predecessor's intense hostility to the whole enterprise, was determined to avoid. Hence its list of ‘Key Redlines’ stated bluntly ‘There will be no requirement for reporting on or marking and tracing of ammunition or explosives.’Footnote 71
A related issue is that diversion, always a significant problem in relation to arms transactions, is even harder to control with respect to ammunition than to SALW, the smallest category of weaponry included. Insofar as United States importers can, under state or federal law, resell items they have received, they are no longer the end user and therefore the resale becomes, under the general understanding of the term, a form of diversion.Footnote 72 The Treaty's provision on controlling diversionFootnote 73 would therefore mandate government tracking of the final destination of all imported ammunition—again, a measure guaranteed to cause enormous political furore.Footnote 74 Some sort of compromise was essential if the USA was not to walk away from the Treaty entirely,Footnote 75 and the result is somewhat better than might have been expected.
(a) Resolving the Controversy: the treatment of ammunitionFootnote 76
Ammunition has its dedicated provision, Article 3, which enjoins each State Party to regulate its export by means of a national control system and—vitally—to ‘apply the provisions of Article 6 and Article 7 prior to authorizing the export of such ammunition/munitions'. This means that the central elements of the Treaty, laying down rules and criteria for the authorization of the export of conventional arms, apply to ammunition to precisely the same extent. So does Article 5.5, part of the requirement of ‘General Implementation’, which mandates establishing ‘an effective and transparent national control system’ to encompass equally the transfer of conventional arms and of ammunition. The compromise—clearly designed to satisfy the USA—is that the Articles 8–15 concerning imports, brokering, diversion and record-keeping, apply only to ‘conventional arms’ but exclude ammunition. The majority of participating States were left disappointed, but the key issue is to judge the practical importance of these exclusions.
As will be seen, Articles 6 and 7 are core provisions of the Treaty, imposing absolute prohibitions on certain exports, and the obligation to make certain judgements in other circumstances where the equipment will be put to unacceptable uses. Ammunition is unquestionably encompassed within them. The exclusions apply most importantly to imports,Footnote 77 and their effect is tempered by the possibility of voluntary cooperation and the fact that the Treaty provisions are only a baseline. This is made clear in the Preamble: ‘Emphasizing that nothing in this Treaty prevents States from maintaining and adopting additional effective measures to further the object and purpose of this Treaty’Footnote 78—which allows exporters to apply their own, more rigorous, rules. Many do: the EU Common Position, for example, applies to equipment appearing on its Military List, which specifically includes ammunition along with arms.Footnote 79 Those States genuinely concerned about effective Treaty implementation may, for example, provide importers with information about license they have approved, and maintain and share records of all exports, including those of ammunition. Assistance of this kind would not threaten important interests, for ammunition is not a high-value item and its production is not of significant economic importance.
V. ARTICLE 2: A BRIEF EVALUATION
The treatment of ammunition certainly falls short of what the majority of States wanted. It introduces potential loopholes, and handicaps fully effective controls on the traffic. However, the most important substantive duties created by the Treaty do apply to it; and it may be that less has been sacrificed than has been feared. The refusal to include training and transport equipment such as helicopters that are readily used for military or repressive purposes is a serious defect. So too is the failure to include surveillance equipment and weapons technology within the scope of the Treaty. The former are increasingly a part of the arsenal of police and ‘security’ agencies of repressive States, used to track and find dissenters so as to disrupt their activities and immobilize their effectiveness. The latter, increasingly sophisticated and complex, provides the basis of weapons present and future that are likely to be used in ways and for purposes that the Treaty seeks to prevent.
VI. THE SUBSTANTIVE OBLIGATIONS IMPOSED ON STATES
The crux of the Treaty is found in the obligations it imposes on exporting States. These are subject to a sharp division: those that are peremptory, expressed as prohibitions, in Article 6, and those which require judgement or ‘assessment’, leaving great scope for political and/or administrative discretion, found in Article 7. These will be explored in sequence. It is worth reiterating that both apply as fully to ammunition and components, as to ‘conventional arms’.
A. Prohibitions
There are three of these in Article 6. The first forbids authorization of transfers that would violate measures adopted by the UN Security Council acting under Chapter VII, ‘in particular arms embargoes’ (Article 6.1.). The latter have of course been adopted with increasing frequency over the past two decades, usually though not always unanimously. The new provision would forbid transfers by any State even though it voted against or (if one of the P5) abstained in the vote. Whether the result will affect the likelihood of any of the P5 vetoing a proposed embargo is academic at present: it would require that Russia and China, in particular, sign the Treaty, which they have given no indication of doing, at least in the near future. Should that change, however, the issue will inevitably arise.
Secondly, Article 6.2 bars authorization of any transfer that would violate ‘its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms’. Beneath this rather anodyne phrasing lies an interpretive complexity: the violation must relate to international agreements, specifically entered into by a State. This would exclude customary international law, including peremptory norms. That lacuna is at least in part closed later in Article 6, in a manner discussed below.Footnote 80 It would also exclude, plainly, international instruments which a State has chosen not to sign or otherwise adhere to. The instrument most relevant to arms transfers is the Firearms Protocol, a supplement to the UN Convention against Transnational Organised Crime.Footnote 81 This is primarily concerned with preventing criminals from obtaining weapons illegally and, as its title suggests, its scope is limited to firearms. Moreover some of the major firearms manufacturing States—notably the USA, Russia, France, and Ukraine—have refused to sign at all. And of those which have, China, India, and the great majority of the EU States, including Germany and the UK, have never ratified it.Footnote 82 Thus one of the few apparently relevant global instruments, itself of quite limited scope, will not ground an obligation to prohibit transfers under the ATT for most key States. However, this paragraph clearly comprehends regional agreements, such as the Nairobi Protocol quoted earlier; similar agreements exist in other regions.Footnote 83 Moreover, it remains for each State to determine what it considers ‘relevant’, so that UN instruments relating to controls on SALWs which are not, strictly speaking, ‘agreements’Footnote 84 could be used to guide domestic law or policy. So too could human rights obligations or those under the Rome Statute.Footnote 85
Third and most controversially, Article 6.3 forbids transfers by a State Party
if it 1) has knowledge 2) at the time of the authorization that the arms or item 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 (emphasis and numbering added)
There are several issues within this, and notwithstanding the critique to be presented, it is unquestionably true that the present form of Article 6.3 is a distinct improvement over its equivalent (Article 3.3) in the 2012 version.Footnote 86
The least satisfactory element is that found in the italicized language: the requirement of contemporaneous knowledge that the equipment would be used for the specified purposes. The commentary to the ILC's Articles on State ResponsibilityFootnote 87 discusses the complexities of attribution and concludes—inevitably but not very helpfully—that whether attribution is ‘subjective’ or ‘objective’ must depend on the particular circumstances. In criminal law, the knowledge or scienter issue is always informed by the realization that a purely subjective test would permit ignorance, wilful or inadvertent, to be the escape route from liability.Footnote 88 The problem is often addressed by a formulation such as D ‘knows or ought to have known’ or ‘knows or has reasonable cause to believe’.Footnote 89 This introduces an element of objective or external judgement, but is not an excessively demanding standard. Given that the Treaty does not impose any penalties, let alone criminal sanctions, an objective standard, rather than one based on intent or requiring demonstration of actual knowledge, would have been more appropriate. In this context there is no question of liability for negligence: the goal is to put States under a duty to inquire diligently about what uses weapons made on their soil are likely to be put.
A formulation such as ‘knows or has reasonable cause to believe’ is not excessively rigorous and would have been preferable.Footnote 90 Virtually all States devote considerable resources to obtaining foreign intelligence, if only from open source material, and the larger and wealthier ones, which includes almost all significant exporters, have dedicated agencies for this purpose. It would have been more than reasonable to impose upon them some responsibility to be aware of violent conflict in States or areas to which approval of a sale of is requested, and to insist that they take some steps to satisfy themselves that the transfer would not contribute to grave evils. An additional serious shortcoming is that the danger has to be direct and immediate: ‘at the time of the authorization the arms or items would be used’. This literally means that so long as the recipient is not clearly about to commit some great atrocity, the prohibition can be avoided, even if the recipient's intention is clear and the capacity is being built up. This point seems to have got lost in the more intense debate at both Conference sessions about the degree of awareness to be required,Footnote 91 but it is a major hole in what should be the heart of the Treaty. The ban should have been expressed in terms of looking to the future, and to require judgement to the standard of insisting that such use be highly improbable.
Such judgement would be based on information available at the time of authorization. There is no mention of a Party's obligation when information indicating possible misuse is obtained thereafter. At present, it is common practice for export authorizations to be suspended or revoked in light of developments. Thus EU Ministers meet in response to various crises to decide whether they merit revocation of licences by Member States; and to take one national example, from January 2012 until mid-2014 the UK suspended 209 licences for export to 17 countries, and revoked 109 licences to three more, all in response to changed circumstances relating to internal repression.Footnote 92 In relation to the less severe restrictions in Article 7 governing ‘assessments’ (discussed below), this issue is specifically addressed. Where an exporter ‘becomes aware of new relevant information it is encouraged to reassess the authorization’, though it may consult with the importing State before taking the decision.Footnote 93 Strangely, in Article 6 cases where the most serious concerns exist—strong enough to justify an outright ban—the point is not addressed at all. There is no apparent reason of policy to explain the omission, which is clearly at odds with the objects and entire structure of the Treaty. This can most sensibly be regarded as a drafting oversight, perhaps based on the assumption that regular practice made it unnecessary; one can only hope it is not exploited.
The evils singled out in Article 6.3 for particular avoidance are reasonably well defined and understood. Genocide is addressed in the Convention of 1948.Footnote 94 ‘Crimes against humanity’, first given legal expression at the Nuremburg Trials, has been part of the jurisdiction of several ad hoc International Criminal Tribunals,Footnote 95 and is defined in great detail in the Rome Statute of the International Criminal Court.Footnote 96 Its inclusion ensures that severe brutality against a State's own citizens comes within the prohibited sphere. ‘Grave breaches’ of the 1949 Geneva Conventions are defined at several points within those Conventions.Footnote 97 Particularly valuable is the specific mention of attacks directed against protected civilians and civilian objects. Whilst Common Article 3 of the 1949 Conventions does offer some protections to civilians in cases of non-international armed conflicts, these are supplemented considerably by Additional Protocol II of 1977. Thus the Treaty absolutely prohibits all transfers, to governments or non-State actors, which have attacked civilians or civilian objects (eg schools, refugee camps) in civil wars or other internal conflicts. This is a major advance for international law. And the expanded definitions of what are considered protected civilians and civilian objects in international armed conflicts, found in Additional Protocol I, are now reinforced and enforced via the ATT, in that exporters are banned from transferring weapons to States which do not respect them. Yet since the contours and content of those definitions have proven extraordinarily controversial, States which reject the ICRC's interpretation of those who may legitimately be targeted (and therefore should not be regarded as ‘civilians’ for this purpose) will presumably also construe their Treaty obligations accordingly.Footnote 98
Finally, the ‘sweeper up’ category of other war crimes is a clear allusion to Article 8 of the ICC Statute, which contains an exhaustive definition of war crimes. However, a State implementing the ATT need only take account of war crimes defined in ‘international instruments to which it is a party’, which means that the very large number of important States which have either not signed or ratified the Rome Statute—a list which includes, China, Egypt, India, Israel, Pakistan, Russia, the USA and virtually every Arab State—need not do so. A fortiori this would apply to Article 8 bis, the newly added crime of aggression which has even fewer adherents.
B. Export Assessment under Article 7
The prohibitions are welcome, but much more frequent will be decisions where the actions engaged in by the prospective purchaser are less obviously repugnant. The Treaty commands a two-stage process of decision for approval of exports. The first is determination of whether any of the Article 6 prohibitions apply. If they do not, a more complex and rather malleable set of factors set out in Article 7 are to be applied. Unlike the judgements under Article 6, these are expressed in terms of balance or overall ‘assessment’.Footnote 99 This leaves wide latitude for decisions based on political, economic and other factors that are irrelevant, and may well be contrary, to the objects and purposes of the Treaty.
Even before these factors are considered, exporters are enjoined to apply them in ‘an objective and non-discriminatory manner’. This phrase appears no less than three times in the Treaty,Footnote 100 which emphasizes both its importance and its contentiousness. Many of the States which were severely critical of the Treaty were most scathing about its failure to curb the ability of exporters to apply its restrictions selectively—to favour their friends, allies or good customers by applying criteria sufficiently ‘open textured’ to allow biased decisions whilst ostensibly applying it in good faith. This aspect above all—aggravated by the absence of a definitional Article or the creation of an interpretative organ under the Treaty—was cited by States like India in their stern critique of what they termed ‘an exporter's Treaty’.Footnote 101
This is a fundamental issue, and one that may be impossible to resolve. An analogous instance is the working of the EU Common Position on arms exports, which goes considerably beyond the ATT—it contains a greater number of Criteria and requires a higher level of confidence that they have been satisfied before exports are supposed to be approved. Nonetheless the actual application has been criticized in a comprehensive empirical study prepared for the European Commission, which found that large, economically lucrative deals had been approved even as lesser-value sales were rejected under the Criteria, and also revealed significant variations in assessments of particular risks.Footnote 102 The United States system of export controls is even more open-ended in this respect, as it permits Presidential ‘waiver’ when a proposed sale would fall foul of the statutory standards. This has permitted repeated sales to Egypt, Israel, Saudi Arabia and other States which, in terms of those standards, should not be eligible.Footnote 103 Importing States are quite right to fear they might be denied access to certain equipment on a given ground, eg human rights, when transfers to other States with equally bad records are approved. From this viewpoint, it is noteworthy that the EU Common Position, drafted from the perspective of exporting States, fails to mention any principle of non-discrimination.
Without a central administrative enforcement authority or a tribunal to review decisions, elimination of discrimination—political, economic, ethnic or other grounds—is not a serious possibility. There was never any chance, in a Treaty already breaking new ground, that States would agree to the limitations of sovereignty required to establish institutions of that kind. Indeed the last of the US ‘Redlines’ was that ‘[t]here will be no mandate for an international body to enforce an ATT’,Footnote 104 and in this respect the USA was merely being more open and blunt in stating a widely shared view. Only publicity and widespread campaigning against particular sales can stop exporters ignoring the Treaty's standards; though these are weaker than already exist in Europe and the USA, invocation of the ATT will serve as another arrow in campaigners’ quiver. However—this, of course, is a more general point—in those exporting States currently lacking equivalent rules, demands for consistent application of ATT standards can serve as a rallying point.
1. The assessment
What exporters are supposed to do without discrimination is ‘assess the potential’ that the weaponry ‘would contribute to or undermine international peace and security’ (Article 7.1(a)), or ‘could be used to commit or facilitate’ any of the four enumerated things (Article 7.1(b)).Footnote 105 The language of ‘potential’ alerts one to the reality that the decision is one of prediction, of judgement about likely effect. It will be convenient to consider the sub-sections separately.
a) Article 7.1(a)
The maintenance of international peace and security (IPS) is the first of the Purposes listed in Article 1 of the Charter of the United Nations. It goes on to state that this is to be done by ‘tak[ing] collective measures for the prevention and removal of threats to peace, and for suppression of acts of aggression’. The manifest failure of the UN machinery to achieve IPS, or to develop the means and the stature to exert important influence in this direction independently of the P5 and above all of the USA, has ensured that States continue to look to their own arsenals and alliances for protection. The notion that a ‘balance of terror’ kept the peace between the USA and USSR during the Cold War stimulated the idea that if hostile States could be equally well armed, actual warfare might not break out. Thus arms sales have repeatedly been justified by the argument that they are necessary to enable one's ally to match the capabilities of its potential enemy, thus deterring aggression. Examples are too numerous to require exhaustive mention.Footnote 106 Empirically, as suggested earlier there is little evidence either to establish or refute the proposition that equality of armament prevents war. But in the mouths of arms sellers it is so obviously self-interested that it should instinctively be discounted. This point merits strong emphasis, because whether the transfer of arms ‘would contribute to or undermine peace and security (P&S)’ is the first criterion that Article 7 directs exporters to apply. The idea that supplying arms would contribute to P&S is so obviously a convenient get-out for any State seeking political influence or economic gain that its inclusion in the Treaty, without significant debate,Footnote 107 is simply bizarre. The only slight mitigation is that ‘would’ suggests something more definite, or with higher likelihood, than ‘could’ (the verb used in the remainder of Article 7.1), so a higher threshold has been set for any State wishing to invoke this justification. However, and even giving due recognition to the ‘inherent right of self-defence’ enjoyed by all States, along with the right to arm themselves for that purpose,Footnote 108 the width of this potential loophole makes this a dangerous provision which should have been resisted. Half of it should in any case be unnecessary: if an exporter believes a transfer would undermine P&S, approval would never be justified, if even lip service is to be given to the responsibilities of UN membership. Indeed there is a strong argument that this possible consequence should have been included among the prohibitions found in Article 6.
b) Article 7.1(b)
The four consequences to be assessed under Article 7.1(b) have been set out above. The two that stir the greatest controversy are the potential that the weapons ‘could be used’ to commit or facilitate a ‘serious violation’ of international humanitarian law (IHL) or of international human rights law (IHRL). The reference to IHRLFootnote 109 is particularly welcome in light of the use of imported weapons for repression of dissent by authoritarian governments. Taken seriously it would bar sales to virtually every Arab State. Inclusion of IHL is also a potential flashpoint, calling into serious question sales to Israel in light of its response to Hamas rockets in July 2014.Footnote 110 These highly contentious examples show both the radical implications of requiring exporters to assess these issues, and also the political difficulty, and perhaps unreality, of expecting rigorous application.
c) The ‘balancing’ process
Having considered these possible ‘risks’, the exporter should then consider whether there are ‘measures’ that could ‘mitigate’ them, ‘such as confidence-building measures’ or joint programmes agreed with the importing State.Footnote 111 This was not a controversial paragraph, and received little discussion in either Session. Example of risk mitigation measures that have been suggestedFootnote 112 include insisting that end-user certificates require that re-export is forbidden without approval of the exporting State's authorities; capacity-building measures could include demonstrable improvements in physical security and management of stockpiles of the imported weaponry. It seems sensible to allow exporters to take into account of genuine efforts by the importer to curb some of the abuses the Treaty is designed to address, though confidence-building measures may well take considerable time to produce demonstrable results. But what should not be counted as an acceptable measure of ‘confidence building’ is a generalized improvement in diplomatic relations. An example of the dangers is the case of Gaddafi's Libya, which after genuinely renouncing attempts to build up a nuclear weapons capability in 2004, was able to purchase large amounts of conventional weapons from a range of European States. Whilst Libya may have become less aggressive towards some of its neighbours, the regime continued to torture and supress internal political opposition, and it was only by ignoring the existing EU Criteria and invoking the value of better relations could Member States approve arms sales.Footnote 113
Having assessed the potential for evil effects and considered ‘available mitigating measures’, the fundamental decision must be taken: Article 7.3 commands that if the exporting State ‘determines that there is an overriding risk of any of [those] negative consequences, it shall not authorise the export’ (emphases added).Footnote 114 The essential language is ‘overriding risk’, and it was perhaps the most intensely debated phrase throughout the entire negotiations.
The crux of the debate was over the degree of probability required before a transfer should be prohibited. It was not, or at any right should not have been understood to be, about the gravity of result: that is addressed in Article 7.1, especially a ‘serious’ breach of IHL or IHRL. If the likelihood—‘could’ is the word used—is not sufficiently reduced by various possible mitigating measures, then the transfer should be forbidden. An ‘overriding risk’Footnote 115 that this will occur would mean that, even with mitigation, there is a very high likelihood that one of the evil effects will ensue. Most States considered this threshold to be too high. Over two days numerous StatesFootnote 116 argued for an alteration to ‘significant’ risk. They were opposed strenuously by the USA, which received very little vocal support.Footnote 117 Russia and China were conspicuously silent. In the end the Americans, who apparently dug in their heels, once again prevailed. This sends entirely the wrong message to States now embarking on establishing domestic standards for export controls. ‘Overriding risk’ makes it far too easy for a State to approve a transfer whilst claiming compliance with the Treaty because the risk of some evil, though undeniably present, is not of the great magnitude required.
VII. THE SPECIAL CASE
Having established requirements and conditions for forbidding transfers in Articles 6 and 7.1–7.3, the Treaty then adds a paragraph highlighting an issue of particular concern. This requires exporters, when making their assessment under the preceding paragraphs, to ‘take into account’ the ‘risk’—there is no qualifying adjective—of the weapons ‘being used to commit or facilitate serious acts of gender-based violence (GBV) or serious acts of violence against women and children’. This provision, Article 7.4, is very welcome, since whilst women and children are in all but the rarest instances non-combatants,Footnote 118 their inability to protect themselves has made them the overwhelming majority of forcibly displaced persons and refugees from conflict zones.Footnote 119 There was an extended debate about whether the phrase ‘violence against women and children’ or ‘GBV’ should be used. Fortunately both were included, which should remove any doubts, both that sexual violence is covered, and that it encompasses attacks on persons of either gender.
What is less satisfactory is that exporters are only required to ‘take account’ of the possibility of this kind of violence. There is no guidance as to the weight to be given to that prospect. It clearly means something stronger than the wording of the July 2012 text, which would only have required exporters to ‘consider taking feasible measures’ to avoid that possible use.Footnote 120 This upgrade should reinforce the importance of the consideration of serious violations of IHRL already required by Article 7.1.(a)—it would require prohibiting the export of weapons where there existed a reasonable possibility soldiers equipped with them might commit GBV. That at any rate is a defensible, if optimistic, reading of the effect of paragraph 4.
Numerous States attempted to include other considerations in paragraph 4. The July 2012 version also addressed ‘corrupt practices’ and ‘adversely impacting the development of the importing State’—references to the corruption and sustainable development issues discussed earlier. These too would have been subject only to the weaker duty to consider taking feasible measures. Yet even that proved too much for other States. Sustainable development in particular aroused intense opposition.Footnote 121 Although Costa Rica on behalf of 41 States delivered a joint statement calling for strong development criteria, that was forcefully opposed by several ‘big hitters’, most notably all four BRIC States. Opponents claimed that refusal of export authorization on grounds that the expenditure would involve a greater cost than the purchaser's economic condition and development needs could sustain, is a form of contemporary ‘neo-colonialism’.
This contention is not truly sustainable. For one thing, whilst it achieved strong support from EU Member States, the majority of States supporting the Costa Rican initiative were of the Global South: several ECOWAS members, several East Africa States, Bangladesh, and some smaller Latin American and Pacific Island States. And for those European States, the proposal embodied the very opposite of colonialism, neo- or otherwise, for acceptance would have involved no possible economic or political gains, and very possibly short-term losses of both kinds. The ‘interference’ in States’ sovereignty that opponents so severely attacked would have been felt only by authoritarian regimes determined to shore up their rule by force. However, the extensive opposition forced the proposal off the table; and the proposed inclusion of corruption, which had even less vocal support, quietly followed it.
VIII. CONCLUSION
The Arms Trade Treaty was the product of diplomatic negotiation, the first effort at agreeing legal restrictions on the transfer of conventional arms in the post-1945 era.Footnote 122 Its achievements and failings, as detailed in this article, are the result of the compromises inevitable in normal multilateral negotiations which require unanimous approval to achieve a result. It would certainly have been possible to have produced a much stronger Treaty which would have commanded a clear majority in the UN General Assembly. Such a document, however, would probably have lost the support of many of the more active proponents among European States and also the USA,Footnote 123 as well as triggering outright opposition from many of the abstainers, for the consensus principle exerts strong force in international law and relations, particularly among smaller and relatively weak States.Footnote 124 What emerged would have had much reduced moral force, and even less practical value.
The price paid for consensus is sacrifice of the best, or dilution of the desirable. In this instance there are six major defects, consisting either of inadequate provisions or of major gaps in the scope of the Treaty and the obligations it imposes:
1) Excessive narrowness of scope.Footnote 125 Surveillance equipment and military technology generally, remain entirely outside the Treaty, as do grenades and landmines. The regulation of trade in ammunition and components remains incomplete; the actual size of that loophole remains to be seen.
2) The circumstances required before an outright ban is imposed are too narrow. In particular, a transfer that has reasonable potential for undermining international peace and security, or of being used to commit or facilitate serious human rights violations, should have been added to the three that are currently found in Article 6.
The assessment process in those cases not covered by the outright ban—and these will be the great majority—is weak in several respects.Footnote 126 The three main defects are
3) the excessively high threshold for the ‘risk’ that must be avoided;
4) the ‘knowledge’ that is required before a transfer should be disapproved, and
5) the absence among the factors that must be taken into account of reasonable suspicion that the sale involved corruption, or that it would significantly distort or hamper sustainable development of the recipient State's economy.
6) Finally, the Treaty gives excessive latitude to exporters to allow them to ‘pick and choose’ among potential recipients on grounds of economic self-interest or double standards based on political advantage. Purely as a technical legal matter this is very difficult to correct, for it is hard to reformulate the factors set out in Article 7.1 to ensure consistency. In terms of realpolitik the problem is even greater: creation of an international enforcement body with powers of authoritative interpretation was and is simply unacceptable to key States, and perhaps most States, as an incursion on their sovereignty.Footnote 127 And in addition to principle, so long as powerful States, the USA above all, see arms sales and gifts as a tool of foreign policy, this block will remain. This may be the most intractable problem of all.
One can only hope that the amendment process—which permits alteration of the Treaty if, after attempts at achieving consensus ‘have been exhausted’, three-quarters of the States present and voting at a Conference of State Parties agreeFootnote 128 will address at least some of these defects effectively when it becomes operational six years after the Treaty comes into force. This remains a purely political matter, and State Parties who do not formally accept any particular amendment would not be bound by it.Footnote 129
The ATT imposes binding obligations in international law upon those who ratify it, and lesser ones on those who merely sign itFootnote 130. Yet international law is not the level at which an effective Treaty will have its greatest impact. The baton has now been passed from international lawyers and diplomats to administrative lawyers and public officials. What matters most is how its provisions are translated into domestic policy and administrative law and practice. That depends in part on a range of institutional and technical matters common to all implementation of international agreements, such as the general quality of the national civil service, including the legal support and advice it can draw upon. However, factors particular to ATT implementation will enhance the difficulties. These concern the calibre and training of the customs authorities and the police, especially with respect to techniques of detection of contraband, their understanding of some of the aspects unique to arms sales such as end-user certificates—and above all, their immunity from corruption. International cooperation measures, including training and other aspects of so-called capacity building,Footnote 131 will certainly be of value. These are specifically encouraged by the Treaty, with anti-corruption measures singled out for special attention.Footnote 132 Yet it would require an inordinate degree of optimism to believe that corruption at this level will end anytime soon, especially because low-level enforcement officials in countries of the South are generally very poorly paid, and those profiting from illegal weapons shipments can offer comparatively vast sums.
Having leapt the first barrier and agreed a set of norms, the next and in some respects higher hurdle is that of national implementation. This will require international assistance in the form of expertise and finance for training and monitoring, which can only be provided by the wealthier, mostly exporting, States. The really hard work comes now, and must take place within the public administrations of poor States with limited governmental capacity; this is of much lower visibility but without it the Treaty would remain largely a paper exercise.
