Why the Arms Trade Treaty is a failure

by barnabyp

The text of the treaty is available here, it may be helpful for keen readers to have a look through. Please do post comments or message me on twitter (@pace_nik) if I’ve missed anything or you would like to discuss anything.

This week in New York the UN General Assembly passed the Arms Trade Treaty. NGOs and countries hailed the treaty as a great step forward in the control of the “illegal” arms trade. But will the ATT actually do any good, or if it might in fact even do harm.

It’s a strange world when I am against more regulation of the arms trade but there are major concerns that a weak treaty, will lead to the justification of the status quo and entrenchment of the interests of arms exporters.

Firstly though what is good in the treaty? The completion of the treaty itself comes after over a decade of campaigning by groups such as Amnesty and Oxfam. To have mobilised a support base of citizens and states to even consider an international treaty on arms exports is impressive. The treaty does cover the basic idea that the international trade in arms should at least be controlled and that considerations of human rights, humanitarian law, organized crime and diversion are relevant.

A treaty was always likely to be one of the few ways of effectively limiting the arms trade and eliminating gaping holes in arms export control worldwide. Therefore a standardised system is the only kind that could eliminate loopholes and prevent playing one country off against another, moving arms transfers through less regulated regions or lobbying governments or creating a race to the bottom on export laws.

However a weak treaty does none of these things well, instead legalising and legitimating the awful status quo will solve nothing and could set real action back by decades.

The most important part of the ATT are the risks it assesses for prohibiting arms sales and how these risks have to be assessed to make a decision of whether or not to allow the export of arms. The ATT’s criteria that should be considered in exporting are as follows. Firstly whether they would contribute to or undermine peace and security; or could be used to commit or facilitate a serious violation of international humanitarian law, human rights law, terrorism or transnational organised crime. The risk of a contributing to or facilitating serious acts of gender based violence or violence against women or children is also included.

The standard against which these issues have to be judged to determine whether the export should not be authorized is if there is an “overriding risk” of any of the negative consequences mentioned.

Each country is left to make their own subjective judgement of where an “overriding risk” exists. Also it is left to the imagination what other factors the risk is overriding. There is no prohibition on countries considering their political, military or economic factors that might be in favour of allowing a risky arms export. Nor is the term “serious” defined anywhere. Is there such a thing as a non-serious violation of humanitarian or human rights law?

Even in cases of serious violations space is allowed for countries to argue that the risk is sufficiently mitigated to allow the exports anyway.

Whilst countries are inviting to cooperate in their assessment there is no mechanism to enforce any minimum standard and each country will almost certainly continue their current behaviour, justifying it in exactly the same way they used to, except saying that it is compliant with the ATT.

There is of course a positive bias inherent in this system, it relies on the states both knowing and appreciating the risks involved in the arms transfer in order to build a case to stop a transfer. A safer system might be to prohibit any transfer unless its safety and compliance can be proven.

There is also no mention of any end use monitoring system, where exporting states are responsible for keeping checks on where their exports are finally sent and how they are used. This would help ensure that the arms are not re-exported to another more risky country later without the original exporter knowing.

The criteria are also nearly stripped to the bone, only including humanitarian law, human rights, peace and security, and gender-based violence. No mention is made of internal repression, corruption or socio-economic development to mention a few. The arms trade kills huge numbers through these routes yet they are not even mentioned.

Key failings in the treaty also include the creation of an exemption for defence cooperation agreements, essentially allowing any arms deal to avoid the ATT if it is undertaken between states. Record keeping is not clearly set down to create a universal standard, instead the data to be kept is only suggested not enforced and there is no transparency measure in place to force states to reveal their data or their decisions on arms exports internationally or to their own citizens.

A real example of why the treaty will not work though is clearly provided by current situations. One of the major rallying calls used in campaigning for the ATT is that Russian arms export to Syria would be prevented. However Russia (if they ratify the treaty, they stood aside from the vote) would authorize the exports on the same grounds they do now. Similarly an effective ATT should prohibit UK arms exports to countries like Saudi Arabia, where an absolute authoritarian government continues to repress its own population and has likely used UK equipment for human rights violations and war crimes in Bahrain and Yemen in recent years. However there is no sign that the UK government would change its decision making following the ATT. They would argue that there is not a clear enough risk to stop exports, that economic and political considerations are more important and that in any case major arms deals to the country take place in state to state deals that are exempt. Indeed the Head of the UK Foreign Office’s Arms Export Policy Department has revealed that the Department has reassured countries in the Middle East that a treaty “would in effect implement criteria that are very similar to those we currently implement” and “would not add anything on top of that.” (Committee on Arms Export Controls, 19.12.12, Q136)

The real attitude of UK officials was also shown as when the ATT was being passed in New York, UK Ministers were in Libya – aboard a warship – promoting arms sales.

The treaty was likely always doomed to failure. There is not yet a groundswell of political opinion opposed to arms exports in the major exporting countries who have the most political clout in the first place. The consensus based process demanded by the United States meant that the treaty was also likely to be set at the lowest possible standard. The US did finally support the treaty, after the US presidential election was finished and the NRA’s conspiracy theorists were distracted by the prospect of US domestic gun controls. Indeed the US media hardly covered the ATT at all (only the New York Times and Fox News had any real coverage and the latter was almost entirely based on NRA talking points).

The major arms exporters were not about to allow any real implementation of standards higher than those they already have, the UK and US made that particular position very clear while other countries such as Russia may refuse to follow the ATT at all.

The final treaty was not passed through the consensus method after Iran, North Korea and Syria blocked the treaty, but instead through a vote at the General Assembly. The damage to the treaty had already been done, with such a weak draft being presented.

I have discussed the likely problems in the ATT before in public with colleagues I respect from Amnesty, Oxfam and IANSA as well as the UK’s former ambassador on the treaty John Duncan and I have a lot of time for the noble efforts made to try to achieve an effective treaty. The strongest argument I heard was that a decent treaty, that is reasonably strong would not work immediately but could be used to build pressure internationally to force real results in decades to come.

The passing of the treaty was met with a great deal of self-congratulation, but the support of organisations like Amnesty and Oxfam for a treaty that will rubber stamp the status quo of the appalling current system will likely disappoint or delude the activists that supporting the treaty. Some organisations such as Campaign Against Arms Trade in the UK have declined to support the treaty, their reputation may be maintained but activists and politicians are sadly more likely to ignore their arguments on the incorrect grounds that the ATT has solved the serious problems of the arms trade.

The pre-amble to the treaty recognises the “legitimate political, security, economic and commercial interests … in the international trade in conventional arms.” I would argue that in fact the UN’s predecessor, the League of Nations’ Covenant was closer to the truth in 1920, nearly a hundred years ago when it said “the manufacture by private enterprise of munitions and implements of war is open to grave objections.”

The victims of the arms trade are ignored so that war profiteering, power politics and corruption are allowed to thrive.

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