Global Policy Forum

By Sarah Parker

At the meeting of the First Committee of the General Assembly on October 31, 2008, an overwhelming majority of states voted in favor of establishing an open-ended working group to consider the development of an Arms Trade Treaty (ATT). The treaty would establish common, legally binding standards governing states' decisions to sell arms.

This constitutes a remarkable achievement given the importance of arms trading to states' defense and security interests and given the ability of international arms trade to avoid international regulation thus far. However, getting the idea of an ATT on the international agenda is only half the battle, and there are some weaknesses in the current process that threaten the likelihood that an ATT will be agreed or that, if agreed, it will be effective.

The international trade in weapons remains largely unregulated at the international level, mainly because states are fiercely protective of the notion that the right to self-defense, enshrined in the UN Charter, is closely linked with a right to buy and sell arms. At present, states have broad discretion to sell arms on the international market, and those constraints that do exist, in the form of arms embargoes and regional commitments such as the EU Code of Conduct on Arms Transfers, have not always proved to be effective in preventing irresponsible transfers.

In recent years, however, the impetus for states to agree on international measures to regulate the arms trade has been growing. On the one hand, media reports and civil society watchdogs have raised awareness of the damaging effects of irresponsible arms sales to countries in civil conflict or states with questionable human rights records. On the other hand, as a consequence of globalization, the production of weapons increasingly involves more than one country, with different components being produced in different states, especially where high-tech weapons are involved. Also, the number of countries producing weapons under license has increased. Such developments make it harder to control the trade and make it easier for unscrupulous brokers and governments to buy weapons.

The aim of an ATT would be to curb irresponsible transfers of arms by establishing a set of common standards that all states would apply when deciding whether or not to sell arms. The hope is that an ATT would increase the checks and balances in place, close some of the loopholes that exist as a consequence of states applying different criteria under their distinct national systems, and enhance states' accountability for irresponsible arms sales. However, there are several issues that mar its chances of success.

First, a number of major players in the arms industry – both exporters and importers – are yet to be convinced that an ATT is feasible or desirable, including China, Egypt, India, Iran, Israel, Pakistan, Russia, Venezuela and the US. Since one of the main objectives of an ATT is that it be universally binding on all states, it is not clear how deliberations will - or even can - proceed without the support and participation of these states.

Second, the emphasis has been on why an ATT is needed and on getting it on the agenda by using bold but vague promises that it will put an end to irresponsible trading without really fleshing out how. Assertions that common, legally binding standards will prevent irresponsible transfers overlook the fact that a) legally binding guidelines only matter if there is an effective enforcement mechanism allowing action to be taken against states that violate the treaty; and b) even if common international standards exist, in practice states will apply them at the national level and make subjective assessments of the risks involved.

For example, one state's interpretation of what constitutes a risk of arms being diverted to terrorists might be very different to another state's understanding of the same circumstances. For example, in 2005, the Austrian government approved the sale of long-range sniper rifles to Iran for the police to use against drug smugglers, despite concern in the US and the UK that the rifles would find their way into Iraq and be used against coalition forces. In other words, here is a situation where two countries – Austria and the UK – both committed to the EU Code of Conduct on Arms Transfers, made very different assessments of the risk that arms transferred might be diverted.

Political will is such that states are unlikely to agree to a treaty that provides for an independent, objective assessment of their application of the common standards or that incorporates a strong enforcement mechanism that contemplates fines or even sanctions for violations. Why would they agree to such restrictive measures when currently they are basically free to sell arms as they choose, and where limitations such as arms embargoes do exist, states rarely pay for their indiscretions and misdemeanors?

It is likely that the most that may be achieved is a set of common standards – without an independent mechanism for assessing their application. Indeed many states think an ATT should and will simply ‘codify' existing international obligations in the context of arms transfers. If this is all an ATT will do - reflect existing international obligations that are already binding on states – is it necessary to spend years negotiating a treaty? Is it not the role of the International Law Commission, at least as a first step, to codify international law and make recommendations in this regard? Mere codification is presumably not the main objective of an ATT, and this needs to be made clear in deliberations of the open-ended working group.

A third weakness is the fact that so far much of the discourse on an ATT has taken place in disarmament fora among disarmament diplomats. The central issue - and indeed the central word of the title: 'trade' - has been carefully avoided. This is not entirely surprising since the ATT initiative was started by a group of Nobel Peace laureates who were concerned with the humanitarian consequences of irresponsible arms transfers, which foster human rights abuses and prolong conflict. Any talk of a regulatory system that might facilitate arms trading seems instinctively contradictory to the aim of reducing irresponsible trading and preventing human rights violations. Arguably, however, some of the checks and balances sought by an ATT coupled with greater transparency might be better achieved through trade negotiations.

The moral imperative for curbing the irresponsible arms trade is undeniably strong, and this has driven the ATT process successfully thus far. ATT proponents – both states and civil society – have succeeded in mobilizing public opinion on the issue and putting it firmly on the political agenda. It is clear why we need an ATT, but what remains to be seen is whether deliberations on an ATT can navigate the complex and sensitive economic, security and sovereignty implications raised and adopt an instrument that will actually affect state behavior.