Categories: Arms trade - general, Arms Trade Treaty, export licensing

Addressing some misconceptions about the Arms Trade Treaty

The Arms Trade Treaty came into force on 24 December 2014.  At the time of writing the Treaty has been signed by 131 states and ratified by 61.  I want to try and clear up some misconceptions about the Treaty that have been aired in the commentaries surrounding its the entry into force.

Will the Arms Trade Treaty prohibit the sale of arms which might be used to violate human rights?

The short answer is no.

The Arms Trade Treaty sets out criteria for when arms exports should be prohibited (Article 6) and the criteria which should be used when deciding whether other arms exports should be permitted (Article 7).

Some commentaries have claimed the Treaty

establishes criteria for countries to apply in decisions authorizing the cross-border transfers of arms, including risks that weapons would be used to commit acts of terrorism, violations of human rights and international humanitarian law, and other offences.

Or that proposed arms sales

must be assessed against strict criteria, including whether the arms might be used for human rights violations or war crimes. If there is a substantial risk the transfer will breach this criteria, then it cannot be authorized.

This, unfortunately, is misleading.

The Arms Trade Treaty does prohibit (Article 6) arms sales if at the time of authorization it is known the arms would be used for genocide, crimes against humanity, grave breaches of the Geneva Convention, attacks directed against civilian objects or civilians or other war crimes.  Note the words in italics are quite important because of course any recipient state intending to commit the above would in all likelihood not make its intentions clear before requesting the necessary equipment.  The word “would” implies certainty, and in most cases a supplier state would not be certain about the use of any equipment before transfer.

In Article 7, the Arms Trade Treaty requires that exporting states should assess whether proposed arms exports could be used to commit or facilitate serious violations of international humanitarian or human rights law.  Having done so, exports should not be authorised if there is an overriding risk of such an outcome.  Again the words in italics are quite important.  What is a serious violation of human rights law (as opposed to a less serious or trivial one)?  And what is an overriding risk (is that more than the “substantial risk” mentioned in the commentary)?  These are concepts naturally open to wide interpretation.  But, if there is a chance a proposed arms export might be used to commit some human rights violations, then that does not seem in itself to meet the criteria for prohibition set out in the Treaty.

Articles 6 and 7 are quite narrowly drawn but also open (in particular Article 7) to a range of interpretations.  But what this does mean is that any suggestion the Arms Trade Treaty will prohibit arms exports that might be used for human rights violations is misconceived.  Now, it might be that the drafting of the commentaries is not intended to suggest this.  But, because the wording here is so critical in correctly interpreting the Treaty, it is important discussions of the human rights provisions in the Treaty are not ambiguous or misleading.

Will the Arms Trade Treaty mean serious questions will be asked about arms exports?

The short answer is no.

According to one commentary

serious questions will be asked every time anyone – whether a government or arms dealer – plans to transfer any weapons on a long list that includes small arms, light weapons, battle tanks, attack helicopters and ammunition.

Even if one assumes that all ratifying states will actually do as they should this statement is not actually correct, and has no chance of being correct for years.  The serious questions will (currently) be asked in 61 states which currently account for 24.9% of global arms exports (SIPRI’s Arms Transfer Database for 2013 (latest data)).  That percentage could go up to 89% (and thus make the statement in the commentary near true) if only three states – the US, Russia and China – ratify the Treaty.  So far Russia and China have not signed it.  One commentary suggests they might, so that they have a voice at the Conference of the State Parties (I am in no position to say whether this speculation is well founded).  However, another commentary suggests that the US is highly unlikely to ratify the Treaty in the near future.  Whomever you believe, for a good while yet, the Arms Trade Treaty will only apply to about a quarter of the global arms trade.  So, it doesn’t seem to have much chance of making an impact soon.  Which leads me to my last question…

Will the Arms Trade Treaty make a difference on the ground?

The short answer is there is no way of knowing.

According to one commentary we need

time and commitment for the treaty to be implemented and for us to start to see a difference on the ground.

I have explained before that one of the big problems with the Arms Trade Treaty is that we will not know whether or not it has actually been a success.    Unfortunately, still no one has (to my knowledge – and if you do know differently please make a comment below!) articulated exactly how we will be able to assess robustly whether or not the Treaty has had an impact.  Looking at general arms trade trends will not help.  The data below, from the SIPRI Arms Transfers Database, shows that the value of the international arms trade fluctuated quite widely over the long-term, before the Treaty entered into force.

(Figures are SIPRI Trend Indicator Values (TIVs) expressed in US$ billion. at constant (1990) prices.  Further information about this methodology of valuing arms deals is here)

Slide1

So, plainly it would be wrong to attribute any future decline of the arms trade to the Treaty, as there may well be other factors that are the reason for any decline.  But it is incumbent on those who have campaigned for the Treaty, or those implementing it, to develop a robust evaluation methodology for the Treaty.  Otherwise, why should anyone believe their claims about impact?

2 comments to Addressing some misconceptions about the Arms Trade Treaty

  • As Twitter is a bit limiting for debate here’s a longer comment.

    Re. ‘if at the time of authorization’ you are correct that a state intending to commit those crimes (but not doing so at the time of authorization) could obtain weapons and later use them in war crimes after receiving them. But in practice that would be very unusual. States that commit those types of crimes usually have a prior track record which should raise issues in Art 6 & 7. To certainly possible

    I agree that ‘Would’ is an important issue. How important remains to be seen (will be important to look at published legal opinion by govts).

    As mentioned on Twitter, ‘serious’ is used by the ICC statute so can be defined. But as many have pointed out ‘overriding’ is a weakness as it hasn’t been used before so its meaning is unclear.

    I disagree that ‘serious questions’ can only be asked of states that have ratified. Signatories have an obligation not to ” defeat the object and purpose” of any treaty, and there are 130 of them for the ATT (including the USA). In addition the treaty can be treated as a norm for all states. That was the advantage of having it negotiated at the UN by all member states (with only three voting against). So anyone can ask ‘serous questions’ about a government even if it hasn’t ratified. That won’t have legal force, but its another lever for pressure by civil society.

    I doubt very much that the US will ratify the ATT as long as the Republicans hold more than a third of the seats in the Senate (and the NRA etc have such a powerful electoral lobby). Russia is very unlikely. China distant as well. Clearly a weakness.

    But a) even a treaty without US, Russia and China is better than nothing, and b) the ATT may still influence their behavior if it is seen as the benchmark for responsible govt behaviour. USA looks to be trying to implement parts in spite of no ratification. That’ll probably continue until a Republican wins the presidency.

    So yes, there are clear weaknesses in the treaty, and these have been written about at length by NGOs and others campaigning for it. But I don’t think that its a weak as you argue.

  • Mr. Gilby,

    We sit, I think, on opposite sides of some of the broader questions, but it is refreshing to read a skeptical piece about the ATT that reflects actual knowledge of the treaty.

    I would just point out that your third point, about impact on the ground, is even more complex than you allow. Many treaty advocates argue that the ATT is an “arms control treaty” — but it is not. (Indeed, I have argued that industry in the West generally likes it because it believes the treaty will make business safer.) Therefore, even if in future the volume of the arms trade declined, it’s not just that there could be other factors behind that decline — it’s that the treaty never clearly set out to cause a decline in the first place.

    Note too that the treaty advocates usually attribute irresponsible arms trading to smugglers, etc. — though of course it is all too often governments that are at fault. Thus, to the (I believe non-existent) extent to which the treaty clamps down on smuggling, it will do nothing at all to affect reported arms sales by governments, which are the basis for the SIPRI figures. Indeed, if smuggling goes down and sales by gov’t go up as a result of the treaty, one could quite reasonably take an INCREASE in arms sales as evidence of treaty effectiveness!

    In short, I think you’re right. There is no way to evaluate the impact of the treaty. It has this in common with many other human rights treaties (and I have argued that in spite of its name, the ATT is basically a human rights treaty): see Oona Hathaway’s excellent law review paper on this subject for a serious study of the failure (and perverse effects) of such treaties.

    Best, Dr. Bromund

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